A Very Bad Idea

The first rule of holes is to stop digging.


I am always shocked at how often lawyers and their clients fail to appreciate that certain attempts to try to cover up an embarrassment will result in even more attention to the embarrassment.  These people generally have no understanding of how the Internet works - which in this day and age is scary.


The Internet has many examples of this foolishness.  (e.g. KlearGear, Suburban Express, and the Union Street Guest House)  The result is always the same and it is never pretty for the entity that tried to censor the Internet.


The latest example took things one step further.  Sundance Vacations is alleged to not have just made threats, but to have forged a court order.  What could go wrong with that?  Their story is told here:


I have no first hand knowledge of this matter.  You are free to decide who you believe.  But if this is true, my prediction is that Sundance Vacations will have some serious regrets.  


Any attorney that is advising a client on negative reviews posted on the Internet needs to have a serious conversation with their client about the natural and probable backlash that will come with an inappropriate response.  Unfortunately, many attorneys fail to do this and their clients wind up paying the ultimate price.  A good attorney has the confidence to tell their client not just what they could do, but also what they should not do.


Protecting Your Rights Under a Temporary Order

In Vermont, it is common for the Family Court to issue temporary orders in a divorce case.  These orders are issued early in the process to establish ground rules for the parties while the process plays itself out.  Most often, temporary orders are used for issues involving parental rights, child support, and spousal support.


When crafting a final order in a divorce case, it's imperative that temporary orders are not forgotten.  The Vermont Supreme Court drove home this point in a recent decision.  In Joseph v. Joseph, the court ruled that a final decree extinguishes the right to enforce an arrearage arising under a temporary order that has not been included in the final order or otherwise reduced to judgment.  


In layman's terms, here is what they said: If you are owed money under a temporary order, you better be sure to have that addressed in your final order.  If you fail to do so, and don't otherwise have a judgment for what you are still owed, you lose your ability to collect on the arrearage.  It is important, therefore, to make sure your attorney knows if there are any arrearages under a temporary order before a final order is put in place.  


Things to be on the lookout for when hiring an attorney.

I've never understood why attorneys who engage in very un-attorney like behavior broadcast their indiscretions by filing a public lawsuit.  


To illustrate this point, take a look at this recent headline from a Texas newspaper: 

Houston attorney sues psychic, claiming breach of contract over 'love ritual'


Adding to the amusement, the defendant is the Psychic Love Spell Center.


I've always believed that one difference between a good attorney and a poor attorney is that a good attorney knows when to advise a client not to file a lawsuit.  This article only serves to confirm my belief. 


Thank You WordPress

I deal with bullies a lot in my line of work.  I respect a good argument, but I hate when somebody makes a legal threat despite lacking any basis for their threat.  These people usually assume that the subject of the threat willl not seek an attorney's advice.  Sometimes the subjects are smart enough to obtain advice.  Sometimes I am the attorney` they meet with.  When that happens, I've written some of my favorite letters in response.  I enjoy the feeling of putting a bully in their place.


WordPress also likes to take on bullies.  The Digital Millennium Copyright Act – or DMCA - is intended to protect copyrighted work.  There is a mechanism under the DMCA that allows the holder of a copyright to issue a takedown notice requiring a web hosting service to remove infringing content.  This mechanism is well itended.  Unfortunately, it is often abused.  A growing number of bullies have issued DMCA takedown notices to remove content they don't like rather than content that violates of copyright protections.  Simply put, these notices are fradulently issued to suppress free speech - and not to protect a copyrighted work.  For that reason they should be sanctionable.


I believe censorship is bad.  So does WordPress.  Mosting hosting providers simply reinstate the content if the author is able to demonstrate that the content does not violate copyright protections.  WordPress is taking it one step further.  They have filed a lawsuits against persons that have issued bogus takedown notices to WordPress.  The basis for these lawsuits is the provision in the DMCA that allows private causes of actions when a material misrepresentation is made in a takedown notice.  


There are challenges to these lawsuits.  Generally speaking, courts have very narrowly applied the "material misrepresentation" clause.  Courts often restrict recovery to those cases in which a false statements is made concerning copyright ownership.  They do not allow recovery when statements are made about the alleged infringing material are shown to be false.  WordPress will have their work cut out for them.  I wish them all the luck in the world.  Even if they fail, I hope that this will result in a change to the law.  It is sorely needed.  The law should not allow abuse of the DMCA so long as you have a valid copyright.  If you falsely state that content violates your copyright, you should be accountable for your abuse of the DMCA.


Know When to Keep it Simple

For lawyers, making a legal argument often feels like second nature.  We look for the issues and find the relevant law regarding those issues.  We do it all of the time.


Every now and then lawyers miss an important first step.  It is important to parse the issue itself, rather than jumping into the research.  Doing this will occasionally allow an attorney to see that the matter is not nearly as complex as they had originally been led to believe.  


Permit an example.  A friend of mine argued a case before the Supreme Court in another state.  There were some high-profile attorneys involved in the case who charged a lot more per hour than my friend.  The issue at stake was whether a business could erect a sign on their property.  The highly paid lawyers argued ad naseum about the nuances of land use law and its application to the sign permit.  My friend was given just a couple of minutes to address the court at the very end of the hearing.  He stood up and told the court that the "sign" was not actually a "sign" at all.  It did not meet the definition of a "sign" in the relevant code.  


The court agreed.  They ruled that the object was not a "sign" and there was, therefore, no impedement to putting up the object.  All of the highly paid lawyers had missed this crucial point.  


I've had cases of my own that have involved the very same concept.  To respect the privacy of my clients, I won't give the details - since it is nearly impossible to do so in a non-identifying way.  


Lawyers like complication.  We love to be challenged.  But we need to keep in mind that there is a time and a place for everything.  Simplicity often trumps complexity.