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Practice Tips, Courtesy of Rakofsky v. The Internet

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(updated, 7 am 6/7/11 to change a few points)

As I mentioned a few weeks back, I’m one of the 81 defendants who’s
been sued by Joseph Rakofsky. The post that won me an admission ticket to the front lines of this lawsuit tracked a theme common to 45 other posts I’ve written: what not to do as a solo.

Since teaching other solos about conduct to avoid is what brought me into this lawsuit, it seems fitting then that I also use the lawsuit itself as a source of lessons for solos. The first motion filed by my attorneys contains a treasure trove of do’s and don’ts for court filings. Here are just a couple of quick examples:

DON’T oppose a motion seeking pro hac vice admission for a lawyer with a national reputation on the subject matter of the lawsuit when you’ve availed yourself of pro hac vice admission on multiple occasions (referencing Rakofsky’s intention to oppose pro hac vice admission of Marc Randazza as counsel; Motion at 2).  And DON’T think that a judge will miss the irony.

DO use neutral, objective language and solid evidence when raising hotly-charged and potentially sensitive claims regarding ethical misconduct. (relates to portions of the complaint describing Rakofsky’s websites depicting offices in Connecticut, New York and Washington D.C. though Rakofsky is only licensed in New Jersey; Motion at 3-4).   Many lawyers raise frivolous charges of ethics misconduct in pleadings as a way to intimidate or gain leverage – indeed, I’ve been the subject of unfounded accusations once or twice myself.  Thus, many judges have grown immune to these types of claims.  This action differs in that there’s a electronic trail of unethical conduct (unauthorized practice of law, deceptive advertising) created by the lawyer who has been the subject of the commentary.   So rather than offer extensive commentary, it’s most important to get these facts in front of the judge quickly and cleanly and let them speak for themselves.  Consider the analogy of cooking – when you’re using fresh ingredients, you don’t need much seasoning and when you’ve got damning facts, embellishment isn’t required.

DON’T, DON’T & DON’T ever suggest that a judge – any judge – was part of a conspiracy or “slandered” an attorney in the courtroom. Let’s just say that those kinds of allegations aren’t going to get your complaint anywhere – except on to the trash heap with the filings by pro se prisoners and the mentally delusional. On the other hand, if your opponent happens to make these allegations, by all means DO make note of them. (Motion at 5, referencing Rakofsky’s complaint);

DON’T ever make a representation to a court, either directly or by omission, that contradicts a recorded statement.  Here, Rakofsky’s complaint suggested that the judge ordered a mistrial at Rakofsky’s request due to conflicts between him and his client.  Let’s just say, however, that the trial transcript, does not support Rakofsky’s version.

That’s just a quick list for now – if you have any others you’d like to add, feel free to comment below.

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