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watch what you say about lawyers

“A Texas law firm has sued a former client over a negative Yelp review, posted after the firm sued the client for attorney fees.” Joseph Browning of Austin had comprehensively denounced the firm as “disorganized, deceptive, manipulative and largely disrespected,” “selfish and incapable of showing empathy towards their clients,” and one that “will take everything you’ve got,” in a review that the law firm described as defamatory and “blatantly false.” [ABA Journal]:

The new suit, [attorney Kirk] Fulk said, “is not about the money. I would be shocked and amazed if [the firm’s name partners] even got their filing fees back from Mr. Browning. It’s purely a matter of principle and personality. They don’t want their names slandered.”

Free speech roundup

by Walter Olson on January 30, 2014

  • “Bloggers = Media for First Amendment Libel Law Purposes” [Obsidian Finance Corp. v. Cox; Volokh]
  • Co-workers’ taking of Lord’s name in vain is element in discrimination claim of religious harassment [Oregon; Ruder Ware]
  • “Michigan Court of Appeals Again Protects Anonymous Criticism” [Paul Alan Levy] Virginia by contrast adopts standard less protective of speech [same] Is D.C. lawyer attempting to unmask Wikipedia editor in defamation suit a “public figure?” [NLJ]
  • Judge Posner blasts class-action firm for supposed misconduct, law firm offers evidence to rebut that and proceeds to sue law firm McGuire Woods for allegedly misrepresenting facts of case at its prominent Class Action Countermeasures blog [Alison Frankel, Reuters]
  • “Lawyer says he will drop suit alleging website unfairly cast him as a ‘tree mutilator’” [ABA Journal (compares townspeople who criticized tree removal to "bullies,") Greenfield, Columbia (Mo.) Tribune]
  • “The victims are ‘too Christian’ to excite the Left, and ‘too foreign’ to excite the Right.” [Michael Brendan Dougherty, The Week, on Mideast persecution] “God may not have felt threatened, but his supporters did” [Nick Cohen on UK's Maajid Nawaz t-shirt controversy via @secularright, Ken at Popehat] Prison for “blasphemous” Facebook posting, in Greece, not Pakistan or Sudan [Guardian]
  • Defendants in Michael Mann’s lawsuit against critics seem to be getting standard “don’t write about getting sued” instructions from their lawyers, but that’s not easy advice to give Mark Steyn [SteynOnline, Jonathan Adler (Mann wins a round opening way to discovery]

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“A federal appeals court has shot down a Massachusetts consumer protection case against two doctors, a medical journal and its publisher over an allegedly flawed article cited by defendants in birth-injury medical malpractice cases. That means plaintiffs’ attorneys will have to challenge the article’s validity in each case in which the defense wishes to cite it.” The First Circuit did not reach the issue of constitutional free speech, but upheld a lower court’s ruling that the plaintiff had not shown adequately that expert testimony reliance on the allegedly faulty article had resulted in the loss of the litigation in question. [Sheri Qualters, NLJ] Earlier on A.G. v. Elsevier here.

A plaintiff’s lawyer is suing a medical journal and two doctors for publishing a case report that makes it harder to win some birth-injury lawsuits.

Here are the details, as reported by Sheri Qualters of the National Law Journal. Some newborns are found to be suffering from brachial plexus injury, a type of harm to a child’s shoulder, arm, or hand that in a minority of cases results in permanent disability (so-called Erb’s palsy or a number of related conditions). A large volume of birth-injury litigation goes on as a result, in part because courts have tended to accept the idea that the only medically recognized cause of those conditions in newborns is excessive or traumatic use of physical force by clinicians (“traction”). In 2008, however, the American Journal of Obstetrics & Gynecology published a case report of a delivery in which an infant was found to be suffering such injury although the physician by her own account had not applied any excessive traction during the birth. If instead natural forces of labor could cause the dislocation resulting in the condition, many lawsuits might rest on shakier ground. Since then, defense lawyers have cited the report — by Henry Lerner of Harvard Medical School and Eva Salamon of the Bond Clinic in Winter Park, Fla. — in litigation.

A Boston lawyer who claims to have debunked the Lerner-Salamon case study has proceeded to sue its two authors, Elsevier — which publishes AJOG and many other medical and scientific journals — and Dr. Salamon’s clinic for publishing and refusing to retract it. The damages are said to be $3 million each to two families of infant plaintiffs whose lawsuits did not succeed allegedly because of the case report. The lawsuit invokes a Massachusetts consumer protection law which allows treble damages, and also asks for a court order forbidding the report to be entered as evidence in future litigation. A trial court dismissed the case, in part on the grounds that the plaintiffs had not shown that the article was a material cause of the families’ failure to prevail in the suits. Now the case is on appeal to the First Circuit, where defense lawyers are arguing, inter alia, that if there are weaknesses in the article the remedy for plaintiffs is to introduce evidence to that effect to counter it in trials. “As for its own role, Elsevier argued that applying a state consumer protection law to its published material would violate its free-speech right under the First Amendment.”

First Amendment? Let’s not go to extremes. If we start applying the First Amendment, how are lawyers supposed to silence publications that inconvenience them?

Our “watch what you say about lawyers” tag — which perhaps we should rename as “watch what you say about lawyers or their cases” — is here (cross-posted at Cato at Liberty; & welcome readers from Jesse Walker, Reason, Prof. Bainbridge).

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Watch what you say about lawyers” is an old theme around here, but in light of developments at Wake Forest it might need to be extended to law students as well. [Above the Law, more]

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Someone who’s sued a past employer might be eager to keep that fact off the search-engine record, but the First Amendment protects the right to disseminate information of that sort. [Volokh]

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“Stung by a dismal mark last year, the KEL law firm has filed a federal lawsuit against the Better Business Bureau of Central Florida that challenges its rating system, accuses it of false advertising and seeks unspecified damages for alleged business defamation.” The firm of Kaufman, Englett and Lynd contends the BBB’s evaluations are misleading, biased, erroneous and otherwise flawed. [Orlando Sentinel]

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Watch what you say about lawyers — and now it seems about law schools as well, specifically Michigan’s Thomas M. Cooley Law School. [TaxProf, Above the Law]

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A Suffolk County, N.Y. judge ruled that online gripes about a divorce lawyer were pure opinion. [ABA Journal]

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“Three lawyers say they were just engaging in legitimate speech about the 1-800-Ask-Gary [lawyer-referral] hot line. Not amused, the people behind Ask Gary sued.” [Tampa Tribune] Separately, the hotline’s founder, Sarasota chiropractor Gary Kompothecras, has drawn press attention for the active role he’s taken in the autism-vaccine wars. [Miami New Times and followups here and here]

A Florida complainant might wind up digging himself a deeper hole, reputation-wise. [Above the Law]

Michael Steadman posted a negative review on eBay over a $44 clock that he didn’t think worked as advertised. He’s already spent $7,000 defending himself against the defamation suit filed by the seller, who is a Miami Beach lawyer. [Orlando Sentinel, Obscure Store]

As the East Texas jury was set to begin deliberations. Per Joe Mullin’s must-read coverage at IP Law and Business, Rick Frenkel’s lawyer-critical blog is now entirely closed down even to private readers except as an archive for the use of lawyers in the related litigation. More: Mullin, Sept. 18 (Frenkel “wouldn’t have the financial resources to defend himself” had his employer Cisco not covered his legal costs), Sept. 21 (“You don’t wrestle with a snake, you cut its head off,” said plaintiff T. John (“Johnny”) Ward, Jr. “We shut the blog down, is what we did.”)

Watch what you say about lawyers dept.: a jury will consider the claim of East Texas intellectual property litigator Eric Albritton that he was defamed by Richard Frenkel at his lawyer-critical Patent Troll Tracker blog. The suit also names Frenkel’s employer, Cisco. The blog has “gone private” and is now for invited readers only. [Brenda Sapino Jeffreys, Texas Lawyer] More: AmLaw Daily. Sept. 18: Joe Mullin, IP Law and Business (reporting blog now entirely defunct except as archive for use in defending case).

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Ad agency head Scott Brandon sued Donald Wizeman “claiming that Wizeman was the author of Myrtle Beach Insider and that Wizeman had defamed him by publishing a June 2007 post calling him a ‘failed lawyer’ and criticizing one of his ad agency’s campaigns. Wizeman denied that he was the author of Myrtle Beach Insider, but admitted agreeing with its content.” Note, however, some oddities that make the case far from typical: Wizeman did not hire a lawyer at first and claims to have been unaware of some key proceedings that were decided against him, and the judge awarded summary judgment to the plaintiff, which is extremely unusual in defamation cases. [Sam Bayard, Citizen Media Law; Mike Cherney, Myrtle Beach Sun-News]

P.S. Some commenters are reading the case as one of “defendant doesn’t show up to contest complaint, gets hit with default judgment”; I wasn’t sure from the story (and am still not sure) that the sequence of events was that cut and dried. Obviously, it doesn’t count as especially odd if an absent litigant gets hit with a big judgment.

Update Aug. 2009: Case settled [Citizen Media Law]

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In a case that sent alarms around the internet, the giant law firm had sued a startup website for supposedly impermissible linking; a judge let the suit go forward, and BlockShopper said it couldn’t afford to defend the case through trial [Alison Grant/Cleveland Plain Dealer, Ambrogi, Wendy Davis/Slate, ABA Journal, settlement agreement (PDF); earlier here, here, here, etc.]

More: Paul Alan Levy/CL&P, Ron Coleman, Sam Bayard/Citizen Media Law.

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A court has declined to dismiss the trademark action by the giant law firm upset at a local real estate publication that had gossiped about condominium purchases by two of the law firm’s associates. (Levy/CL&P, Bayard/Citizen Media Law, Ron Coleman, Eric Goldman). Earlier coverage here and here.

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Eric Goldman (Oct. 7) discusses an Ohio case filed by John Ferron, “one of several ‘repeat’ plaintiffs around the country suing over unsolicited email (perhaps not coincidentally, he’s also an attorney)”. Goldman gives some particulars of the suit and then rather abruptly ends the post (or its current version) with the statement “[This post has been amended in response to emails from John Ferron alleging that my prior post was defamatory.]”

I suppose it is displaying too much curiosity to wonder what the amended material was. Perhaps its nature can be inferred from this Oct. 13 post on TechDirt on the Goldman post, or perhaps it’s something entirely different. At any rate, bloggers might wish to be careful in future in writing about “anti-spam litigation entrepreneurs” — a phrase that appears in quotation marks in TechDirt’s summary of Goldman’s original post, but now cannot be found in his amended post.

More on repeat spam litigation here, here, and here.