Mark Bult Design: San Francisco, CA, Established 1988

Web design and development for small and large business, e-commerce, b2b, b2c, SAAS, and community websites. User experience design and usability testing.

Wednesday, August 05, 2009

Hire a better lawyer than the other guy

I heard about this case a week or so ago, where a woman is being sued by the rental company that manages the apartment she used to live in, because she tweeted that there was mold in the place and they didn’t seem to be doing anything about it.

In a perfect world, she would clearly win on first amendment grounds, but this is a defamation suit, where “proof” depends more on who has the better lawyer than who’s telling the truth. If she can “prove” better than the realty company that she had a moldy apartment when she made the statement, she wins. If she can’t, she loses. If her lawyer can paint her as more trustworthy than the shyster realty guy quoted in the papers, she wins. If their lawyers paint her as a flaky tenant who was late with her rent half the time, she loses.

So the first lesson for people who blog, use Twitter, etc., is the one stated at the end of the article: Don’t tweet anything you wouldn’t say to someone’s face, and don’t lie. But the unstated — and arguably more important — lesson really is: Anyone can sue you, regardless of how frivolous their suit or how it impinges your right as an American to speak your mind, regardless of how factually wrong you might be when you do it. So hire a better lawyer than the fucker who sues you.

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Blogger Brian said...

Anyone can sue you, it's true, but whether they can win is another matter. Lawyers can be a somewhat-effective barrier to nuisance suits, telling their client that there's no way to win.

Judges can force frivolous litigants to pay costs of the other side, and sanction lawyers who present frivolous claims. This should probably happen more often than it does.

Finally, California and a few other states have laws called anti-SLAPP that help shut down suits brought against people who are criticizing a project being considered for governmental approval.

So there are some protections, if far from perfect.

8/06/2009 09:14:00 AM

Blogger espd said...

Ah yes, the nefarious SLAPP suit (Strategic Lawsuit Against Public Participation). A very effective, but unfortunate, strategy all-too-often used by companies and industries to quell usually legitimate (in the eyes of this beholder, anyway) public outcry.

I’m familiar with SLAPP suits due to their use by logging companies, most notably Maxxam/Pacific Lumber Co., which could always dip into its deep pockets to file frivolous suits against less-than-rich regional environmental groups and individual activists trying to bring the rogue company to justice.

I am sure you, my lawyerly friend, are much more familiar with SLAPPs than I am.

I had no idea California or any other states had enacted any sort of anti-SLAPP laws. That’s good to hear, although I’d be curious to know how effective that’s been.

8/06/2009 01:31:00 PM

Blogger Michael said...

Just be careful about tweeting "Decided not to hire Robin McCay, Attorney at Law, because he's not as good as my landlord's lawyer."

You just may find out how good Mr. McCay really is. :)

8/06/2009 11:23:00 PM

Blogger espd said...

Um, nice to see a new name commenting around here, Michael, but who the hell is Robin McCay? He may be a good lawyer, but Google doesn’t seem to know who he is.

For that matter, who is Michael? ; )

8/07/2009 03:21:00 AM

Blogger Brian said...

Anti-SLAPPs are designed to quickly determine whether it's a frivolous suit, and if it then the party that files generally has to pay attorney fees of the defendant.

We used this once at my organization to shut down a threat from a developer even before they filed.

Good ol wiki:

"The U.S. state of California enacted Code of Civil Procedure § 425.16 in 1992, a statute intended to prevent the misuse of litigation in SLAPP suits. It provides for a special motion which a defendant can file at the outset of a lawsuit to strike a complaint where the complaint arises from conduct that falls within the rights of petition or free speech. The statute expressly applies to any writing or speech made in connection with an issue under consideration or review by a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, but there is no requirement that the writing or speech be promulgated directly to the official body. It also applies to speech in a public forum about an issue of public interest and to any other petition or speech conduct about an issue of public interest.
To win an anti-SLAPP motion, the defendant must first show that the lawsuit is based on constitutionally protected activity. Then, the burden shifts to the plaintiff, to affirmatively present evidence to show that they have a reasonable probability of prevailing on the action. The filing of an anti-SLAPP motion stays all discovery. This feature acts to greatly reduce the cost of litigation to the anti-SLAPP defendant, and can make beating the motion extremely difficult for the plaintiff, because they effectively must prove their case without the benefit of discovery.
If the special motion is denied, the order denying the motion is immediately appealable. Defendants prevailing on an anti-SLAPP motion (including any subsequent appeal) are entitled to a mandatory award of reasonable attorney’s fees. After an anti-SLAPP motion has been filed, a plaintiff cannot escape this mandatory fee award by amending their complaint. More than 200 published court opinions have interpreted and applied California's anti-SLAPP law."

8/16/2009 12:36:00 PM


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