Advocate's Studio - Latest Comments

Re: Lesson Learned: Part II

Martha S — Fri, 27 Jan 2012 09:42:55 -0000

Mark - the problem is I don't have first hand knowledge of the situation so I don't know what.is correct and what isn't. This is an endemic problem for bloggers who are not investigators or first hand witnesses. And when what we are blogging about is someone's professional reputation, extra circumspection is in order.

Re: Lesson Learned: Part II

Mark — Thu, 26 Jan 2012 19:14:14 -0000

I'm not an attorney, but I find this case fascinating. When you say "I took the word of the Washington Post. That is poor reporting on my part." what does this mean? Are there material facts that have not been disclosed? Did the Post get something incorrect? As truth is an absolute defense against libel or defamation, I'm wondering what facts the Post got incorrect about the judge's dismissal that defamed Mr. Rakofsky.

Re: RFP Attorney: An Online Attorney Marketplace

Martha S — Mon, 23 Jan 2012 18:54:57 -0000

Thanks Chris - looking forward to your input.

Re: RFP Attorney: An Online Attorney Marketplace

constructionlaw — Mon, 23 Jan 2012 14:59:08 -0000

I'm already on RFP attorney, I was contacted by one of the principals. I'll let you know how it pans out.

Re: Google Got a Bit “Space-Age” With Elusive QR Code Log-in

USB 3G — Wed, 18 Jan 2012 02:01:39 -0000

Well, good news for me,
thanks!

Re: About The Advocate

Martha S — Tue, 17 Jan 2012 19:47:48 -0000

I haven't used it but would love the opportunity.

Re: Lesson Learned: Part II

Martha S — Fri, 13 Jan 2012 00:07:52 -0000

I am sorry you feel that way, but that is your right to do so. I think it is equally disgusting and pathetic not to state one's opinion. My blog, my opinion. I am not sure how my posting this is rewarding anyone. If, as I agree, I could have easily defended this on the merits, then why do you supposed I would post this here so that I could be ridiculed by you? Because I believe that much of the commentary on this has been mishandled from the moment suit was filed and it is my right to say so.

Re: Lesson Learned: Part II

Martha S — Fri, 13 Jan 2012 00:03:39 -0000

I fail to see how writing these posts is fleeing. Are you suggesting that if I have an opinion about something that goes against the grain of the vocal majority, I should shut up about it? I don't disagree with the criticism of Rakofsky's approach. I completely agree with all of the constitutional arguments, public policy arguments, ethical arguments. I criticize the ridicule and childish taunting. I guess I have a naive belief that lawyers should be better than that. For example, here is one way to discuss what occurred:

Joseph Rakofsky has filed suit in New York courts alleging that he was defamed by bloggers who commented on his performance in his first felony murder trial. This lawsuit could be considered a chilling of the free speech rights of bloggers everywhere and should prompt the New York legislature to consider stronger Anti-SLAPP laws.

Here is another way to discuss it:

Joseph Rakofsky, the incredible buffoon, is so pathetic he should be taken outside and spanked for hauling us into court.

I am all for the former. I am seriously troubled by the latter. Which speech are you trying to protect?

Re: Lesson Learned: Part II

Martha S — Thu, 12 Jan 2012 23:56:08 -0000

I still fail to understand how his agreement to dismiss has anything to do with the validity of my opinion. This has been my stated position from the start to those I talked to about it, whether you believe me or not. Way back when I first learned of the suit and I realized I hadn't verified anything about the Post article before writing, I took the initial post down - there was no discussion of any settlement as a quid pro quo to do so. You apparently believe still that I wrote this solely to settle. I haven't, although I don't hope to persuade you. I agree that the profession does need to be held accountable. I think you and I have a very different definition of how to do it - I think it should be handled within the litigation and before the applicable ethics board and you seem fine with the handling of it in the court of popular opinion. I think the profession should also look at its own bad behavior in responding to the slight of having to defend against a frivolous suit. And, I don't think I have failed at all - I stated my point. That was what I set out to do.

Re: Lesson Learned: Part II

Martha S — Thu, 12 Jan 2012 23:47:05 -0000

I am not even sure I understood what you just said. Perhaps that is my problem. I don't speak the same language. I love the label though: Advocatus Diaboli. Sounds like a heavy metal band name. Fortunately, I am less worried about what internet pundits think about my credibility than I do about stating what I believe. The discourse I am referring to in Lesson Learned II is not the enlightened discourse of a free speech discussion. I have absolutely no problem with that. The discourse I am challenging is the name calling and ad hominem discourse that I have seen that has nothing to do with the merits of the litigation or protecting free speech (and there has been some of that, some very well written discourse). Which type of discourse have you engaged in? The discourse I challenge is the discourse that is about destroying another person. Do multiple wrongs make a right? One murder defendant and one young attorney? Or anyone that appears even remotely sympathetic? Defend the suit, bring your frivolous litigation motions and have your day. Freedom of speech preserved. What positive point is proven by the slash and burn strategy outside the scope of the litigation - is it just to bully someone into silence? Is that how free speech works? You can craft your legal argument as to why I am evil, incompetent, cowardly or whatever name you sling (sticks and stones and all), but I am not sure what positive value there is to it. Just more ugly talk. And I think I have a sense of the price of free speech. I can think of no other litigation that I have witnessed that has drawn a response like I have seen in this one. Welcome to the Internet Age.
I knew what I was heading into when I wrote this post. It would have been far more cowardly and easier to let my insurer file the Motion to Dismiss. Your judgment is fine with me though - it is your opinion. And a few vocal others. But it isn't the only opinion out there.
And let me ask this: if I really was writing this only to get out of a lawsuit and avoid "damage", why would I ever approve these comments and reply?

Re: Lesson Learned: Part II

Martha S — Thu, 12 Jan 2012 23:21:30 -0000

Josh - I feel more muzzled by the responses to this post than I did by Rakofsky's lawsuit. I wrote a post about an attorney and a case I had no personal knowledge of. I took the word of the Washington Post. That is poor reporting on my part. Mea culpa. However, I see no value in calling this lawyer every name in the book and throwing the same book at anyone else who even appears sympathetic. I don't applaud his lawsuit. I also don't applaud the response of the defendants. Long before settlement was contemplated, I communicated the very same position to others that I wrote in this post. Why is this chastising of my choice any less a form of muzzling?

Re: Lesson Learned: Part II

Scott Jacobs — Thu, 12 Jan 2012 23:14:29 -0000

"I could have paid a sizable settlement like the University or I could
have submitted the matter to my insurer to handle and defend and
probably never hear about it again."

Or you could have had the pro bono council of two of the best practicing 1st amendment lawyers on the block.

Especially since Mr Joseph Rakofsky couldn't actually sue you, since New York's laws don't effing allow him to.

And people are actually calling negative public reaction a "chilling of speech"?

WTF are we, the government? People are free to speak as they wish, and we - as the internet is wont to do - are free to judge them. If they are so fearful of being harshly judged, perhaps they should just cease to speak at all, since the only way to avoid negative judgement is to never do anything at all.

You're a frickin' lawyer. You knew you were safe from judgement in this case (or should have known, were you possessed of a modicum of competence). That you decided to flee in the face of... what, harsh words? From Mr Rakofsky does not, in fact, speak well of you, either as a litigator or as someone who's opinion any should consider worthwhile.

Re: Lesson Learned: Part II

Jordan — Thu, 12 Jan 2012 22:11:57 -0000

Who do you think handled it inappropriately?

Last time I checked, trying a felony murder case as your first trial isn't a good idea. Suing any newspaper or lawyer who blogged about your blunder, regardless whether they are out of state, is also not a good idea. Fighting a pro hac motion without a legal basis is a bad idea. Filing endless motions and pleadings asking for relief against non-parties and other ridiculous stuff in a suit where your competence is at issue, (which a court ultimately rejected as "incomprehensible") is a bad idea. Continuing to practice law while suspended from practice is not a good idea.

Rakofsky has exercised a cornucopia of bad judgment, from the Deaner matter up to his decision to file the latest batch of ridiculous motions -- and you're willing to be complicit about it. Amazingly, cowards like yourself say we shouldn't criticize him on the internet for his endless bad judgment. In fact, you are saying that if he exercises enough bad judgment, we should just leave him alone. You even went rewarded him with a settlement and an apology for his bad judgment. Not because he was right, but because you were scared of fighting. Why bother to put on the gloves when you can just run away?

That is astonishing to me. Disgusting. Pathetic. As a lawyer, you are in a position to tell clients that they shouldn't roll over because you'll defend them. However, you can't even defend yourself against a recent graduate who filed a frivolous suit. You acknowledge that he didn't even have jurisdiction over you. Instead, you rewarded his perennial bad judgment because you're afraid of the fight.

Rakofsky is the type of person you hope to see flushed out of the profession, not rewarded by a bunch of cowering weenies who are scared of their own shadow.

"Advocate's" studio? You're no advocate. Advocating requires putting on the gloves -- something you have proven unwilling to do.

Re: Lesson Learned: Part II

Antonin Pribetic — Thu, 12 Jan 2012 21:38:33 -0000

1. You were a co-defendant among the 74 original defendants.

2. At some point, Rakofsky contacted you (or vice versa) and you were persuaded to settle the case by publishing a post sympathetic to Rakofsky's legal and/or moral position.

3. After some skillful prodding from George Wallace, you finally conceded that you had settled the case with Rakofsky.

4. You now appear to take the position that by blogging about the case, post-settlement, you are merely opening a dialogue about the propriety of others criticizing Rakofsky or anyone else that may disagree with the opinion that this lawsuit is frivolous, vexatious and an abuse of process. "Leave the arguments for the court of justice, not the court of public opinion" whether in the Blawgosphere or on Twitter, or something to like effect.

5. You promote yourself as an "advocate".

Pray tell: For whom are you advocating?

Clearly, you have no sense of collegiality or professional allegiance, since you gave nary a thought about the ramifications of offering an apology that expressly admits wrongdoing on your part, and by your express implication, the rest of the defendants.

You were at liberty to settle the case.

It was your right to do so.

However, the moment that you decided that it was your moral prerogative to impute improper motives or conduct on the part of those defendants (of which I am one) that intend to uphold freedom of speech for all lawyers, you regrettably lost any shred of credibility you may have once possessed.

In your post, you write:

"Freedom of speech, sure, but the ill will across the Internet seems
excessive, and the fact that sympathetic attorneys and settling
defendants are falling under the knife is even more disturbing. Why is
this happening?"

Freedom of speech comes at a heavy price. No amount of rationalization or cognitive dissonance will shield you from the scrutiny of your erstwhile peers. No amount of dissembling or historical revisionism will obscure your attempts to be the Advocatus Diaboli. Your beatification is denied.

Re: Lesson Learned: Part II

Josh King — Thu, 12 Jan 2012 21:09:39 -0000

I've seen the commentary. In fact, I wrote some of it (http://avvoblog.com/2011/05/13... ;
http://avvoblog.com/2011/05/27... ) and I am a defendant. In your post, you ask why anyone should complain if called into court. Trust me, you should complain - loud and long - if someone tries to muzzle you by filing suit. And as for the ancillary players? Chalk it up to the distaste many members of the bar feel at sympathy for abuse of process and lack of respect for First Amendment rights.

Re: Lesson Learned: Part II

David Sugerman — Thu, 12 Jan 2012 21:08:19 -0000

Count me in the astounded and disappointed group. You have acquitted yourself poorly here because there was an undisclosed quid pro quo to your post. Worse, you have done violence to the civil justice system. The civil justice system gets tarred by the Rakofskys and magic pants judges who abuse it. Those who hold open the door or, worse, secretly abet them become part of the problem. This is not about playing nice, civility, manners, or other similar niceties. The question is whether we who know better will hold the profession accountable. You have failed miserably.

Re: Lesson Learned: Part II

Martha S — Thu, 12 Jan 2012 20:40:15 -0000

You miss my point. I have no problem with discussion about frivolous lawsuits. I am not sure whether you have seen all of the commentary on this particular lawsuit. It goes beyond merely discussing a frivolous lawsuit. I myself am now being called an incompetent and a coward for speaking my mind, which seems to strain the bounds of discussing a frivolous lawsuit. So be it. Call me thin-skinned. What I am talking about in Lesson Learned II is trashing a person in the media with insults. And not just the person who brought the frivolous lawsuit, anyone who might remotely appear sympathetic either through active words or passive settlement. To what end? Why attack ancillary people? It looks more like a strategy of destruction rather than a strategy of proving the truth.

Re: Lesson Learned: Part II

Josh King — Thu, 12 Jan 2012 20:34:06 -0000

As a serial defendant in cases trying to silence me and my
company, I can’t relate to your concept that frivolous
lawsuits shouldn’t be commented on. And
I can’t fathom how any attorney could sympathize with Rakofsky. Rakofsky didn’t “avail himself” of legal
process – he abused it, and continues to abuse it. And when thin-skinned lawyers abuse legal
process – a process broken, by the way, in its inability to swiftly dispose of
and sanction garbage litigation like this – they deserve every measure of scorn
that can possibly be heaped upon them.

Re: Lesson Learned: Part II

Martha S — Thu, 12 Jan 2012 19:53:38 -0000

There is some confusion as I do not see the relevance of the question when I have already explained that this is how I feel and would never post this if I didn't. However, since it seems important to those who are focused on the point, I told my thoughts to Mr Rakofsky when I spoke to him about the suit several months ago. He asked me if I would be willing to post what I thought on my blog and I told him I would. He then agreed to dismiss me. I had the option to fight it in court and chose not to. Which is of course my choice. If readers choose to assume that his agreement to dismiss me means there is no value to my perspective, that of course is your choice. I could have paid a sizable settlement like the University or I could have submitted the matter to my insurer to handle and defend and probably never hear about it again. I chose to take him up on the offer because I believe in what I said. And others who have read these posts have messaged me in agreement, but have concerns about expressing their opinion publicly and facing the Court of Twitter, etc. I call that a chilling of speech. Obviously, I am not so concerned about the fallout of speaking my mind but then I write this blog for my personal enjoyment and not for economic reasons. And if you are aware of the filings - I was not as I haven't been served with anything - then I question your motives for pressing the point. Is Court in session? ;) lambaste me for taking a position contrary to Mr. Rakofsky's most vocal opponents but I really can't address you and your questions if you won't even credit me with speaking my true mind. Should I charge you with taking your position because you are afraid of being slammed by someone else? Seems insulting to do so. If you believe you have
proved a point, then lets leave it at that. If someone here can honestly
and fairly address my criticism of how this has been handled since suit was
filed I would really love to talk about that. Let the firestorm continue
... :)

Re: Lesson Learned: Part II

George Wallace — Thu, 12 Jan 2012 18:34:04 -0000

Is there perhaps some confusion?
The attention that your Rakofsky-related posts have received today was triggered by Joseph Rakofsky's own representation, to the court in his recently rejected application for an order to show cause, that you are among those defendants with whom he has settled. He was requesting entry of an order dismissing his case against you, and others, on that basis. At least one of those settling defendants has posted a retraction/apology, at least implicitly as a term of the settlement.

So, by way of clarification, have you or have you not entered into a settlement agreement with Joseph Rakofsky?

If you have settled, then you are "still a defendant" only in the sense that the order removing you has not yet been entered by the court. More to the point: if you have settled, then it seems reasonable to ask, as Mike has done, whether this post was inspired by, or required by, that settlement. Maybe it is, maybe it isn't, but inquiring minds are understandably curious to know.

Re: Lesson Learned: Part II

Martha S — Thu, 12 Jan 2012 18:19:34 -0000

I disagree with how this has been handled from the start and I have accepted my part and expressed my opinion. I accept yours but I don't agree with it. As you disagree with mine. This is the type of discourse that the web should be used for - not as a platform to inflict extra harm.

Re: Lesson Learned: Part II

Jordan — Thu, 12 Jan 2012 18:09:39 -0000

You had an opportunity to let the court decide the merits of this case. However, you wussed out and settled, even though you acknowledge that the suit is a joke. Worse, then you go on to apologize to Rakfosky, and criticize others who aren't afraid of fighting this suit head to head.

What are you asking people to do? Be really nice to Rakofsky? To be quiet while he makes a mockery of the court system? I'm sorry, but that is pathetic. How can you purport to defend others if you're not even willing to defend yourself? When you're right? Against a recent graduate who has no idea how to prosecute a lawsuit?

Re: Lesson Learned: Part II

Martha S — Thu, 12 Jan 2012 17:52:41 -0000

I am sorry you feel that way, Brian. Criminal defense hack or not. ;) All kidding aside, I do respect you as a lawyer. Wish that my expressing my opinion about the environment around this suit necessary requires you to question my abilities as a lawyer rather than to stick to the topic - whether there should be any circumspection outside of the courtroom on this matter given that the court is more than capable of handling this. I certainly don't question your abilities as a lawyer for opting to bring the fight to the personal outside of court, a choice I wouldn't make.

Re: Lesson Learned: Part II

Martha S — Thu, 12 Jan 2012 17:49:30 -0000

As far as I know, Mike, I am still a defendant in this lawsuit.

Re: Lesson Learned: Part II

Martha S — Thu, 12 Jan 2012 17:48:55 -0000

Fair enough, Ken. I am not asking for sympathy or support. And I respect other's choices too. For me, bringing it to a personal level with Mr. Rakofsky in the blogosphere seems a bad strategy. I know others disagree with me on this.