Home invasions come home to roost

April 20, 2015

Conservatives (not all of them) loved it when we got tough on “crime.” No knock warrants, militarized police, doors bashed down, homes invaded, it all worked to keep a little Reagan-inspired law and order.

Now a conservative activist finds herself on the ass end of this normalized police abuse. Welcome to the party.

You see, Republicans? This is why you should be pissed off when you see the cops kicking down doors to arrest poor people on suspicion of having a bag of weed in their house. This is why when you see them dragging black people out of their homes and depriving them of their rights under the Fourth, Fifth, and Sixth Amendments, you should be able to picture yourselves in their one-flip-flop while they are face down on their own lawn in handcuffs.

Welcome to the party. Please stick around, since we are going to need numbers.

Another Good Reason to have Law Profs Who have Done the Job

April 20, 2015

Legal academia largely rejects the notion that professors should have practice experience. Yeah, its the only profession in the world where you teach people to do something, and it is a disadvantage to have actually done the job you’re training people to do.

Sorta like if you had a motorcycle mechanic’s school, but you only wanted instructors who could tell you about the origin of the socket wrench, but who had not ever actually performed an oil change.

The WSJ profiles Charlotte Law Professor, Brian Clarke . Specifically, how he opens up to his students about his own depression issues, and how the stress of practicing law pushed him to near-suicide.

Students need to hear that kind of thing. They wouldn’t have heard it from 90% of their professors. Well, 99% when you control for practitioners who suffered from depression issues. Still, that’s the kind of life experience and work experience that could make a real difference.

Who wants to kill Nevada’s Anti-SLAPP statute?

April 19, 2015

Well, it looks like we know who pushed to kill Nevada’s Anti-SLAPP statute. Watch here, as Mitch Langberg is introduced and bullshits the legislature like the sleazy piece of crap that he is.

Video here.

And why?

Because he got the shit kicked out of him while representing Steve Wynn in California. Here’s the loss.

Florida might have a real Anti-SLAPP Law? Maybe. But, don’t get excited.

April 19, 2015

It looks like a bill is working its way through the Florida legislature that could turn it’s terrible Anti-SLAPP law into one that is of the “not so bad” variety.

Florida House bill 1041 and its Senate companion, Senate bill 1312, take Florida Statute

Currently, Fla. Stat. § 768.295 is super anemic. It only applies to governmental entities. Florida has another Anti-SLAPP act that only applies to homeowners’ associations (but not condo associations). See Fla. Stat. § 720.204(4). As far as I know, § 768.295 has never been used. On the other hand, § 720.204(4) has been used exactly one time. (See Veranda Partners v. Giles) — and that didn’t get appealed, so it is a trial level court order in Orange County, Fla.

In other words, there is a reason that Florida is the most SLAPP-happy state in America.

Therefore, this is a pretty positive development in Florida.

Unfortunately, I am less optimistic than you might think. You see, Florida has a fantastic frivolous claims law now. Fla. Stat. § 57.105 is, textually, a powerful tool to use against frivolous claims, motions, and positions in litigation.

In 1999, the Florida Legislature strengthened § 57.105. That revision gave fees and costs to parties that prevail on a sanctions motion. The purpose was to “reduce frivolous litigation and thereby to decrease the cost imposed on the civil justice system by broadening the remedies that were previously available.” Wendy’s of N.E. Florida, Inc., v. Vandergriff, 865 So.2d 520 (Fla. 1st DCA 2003). Before the 1999 revision, a moving party had to show a complete absence of any justiciable issue of fact or law. That is a standard that really could never be overcome. But, the legislature’s update provided relief if there were “claims or defenses that are unsupported” or frivolous. Id.

In 2002, the legislature added in a safe harbor, which gave parties a chance to withdraw their unsupportable claims or defenses. See Bionetics Corp. v. Kenniasty, 69 So.3d 943, 949 (Fla. 2011), citing Maxwell Bldg. Corp. v. Euro Concepts, LLC, 874 So.2d 709, 711 (Fla. 4th DCA 2004).

So, you see, Florida already has an Anti-SLAPP act of sorts. It doesn’t end the litigation early on, but it would if § 57.105 really existed. But, ask any Florida litigator how many times she has seen conduct that absolutely screams out for sanctions under § 57.105, and then ask her how many times she has seen them imposed. Lets just say that in Florida, they should be as common as squashed armadillos on Florida highways. Instead, you’re probably more likely to step in Florida panther shit than you are to see § 57.105 sanctions (there are 20-30 panthers left in the wild). And, if the party that stands to lose is represented by someone who donated to the judge’s election campaign, you might as well be talking about stepping in unicorn shit, dropped from a leprechaun blimp flying over a magic candy rainbow.

The Florida legislature can do whatever it wants to try and deter frivolous defamation claims. The rubber hits the road in Florida’s courthouses, and its elected judiciary is not very likely to deviate from how it has done things since before the days of air conditioning.

Therefore, unless Florida has an Anti-SLAPP law that provides for an interlocutory appeal with de novo review, it may as well not have one at all. The text of the current versions of the bill suggests the possibility that it could have such review, but it is not at all clear.

That all said, lets not take anything away from Senators David Simmons and Don Gaetz (both Republicans) or Democratic Representative Jared Moskowitz. The bill might not be perfect, and it might be doomed to irrelevance in most courthouses across the state. But, it is at least a step in the right direction from the last state in the union that I ever expected to do the right thing.

Jose Arcaya is “absolute scum.”

April 19, 2015

I don’t know Jose Arcaya. I only know about him. I know that he is apparently a psychotherapist and a lawyer. I know that someone wrote a bad Yelp! review about him.

I hired Arcaya to help with a case. I asked him at the outset if he had handled these matters before and he said yes. The ensuing performance suggests otherwise.

When I mentioned his truly pitiful performance he implied that it was my fault. When i reminded him that he was the lawyer and hired to do a professional job he made fun of my medical issues. Absolute scum. (source)

Does this Yelp! review make me think less of Mr. Arcaya? No. In fact, the review itself does not suggest much in the way of credibility. It sounds like a bit of a little snit. If I needed Mr. Arcaya’s services, this review would not have dissuaded me from using them. After all, he has a Ph.D. and a law degree. I find that impressive. He has some good reviews too. He speaks English, French, and Spanish. Again, impressive.

But, I’m still convinced that he is “absolute scum.”


You see, he didn’t respond to that review well. I sorta can’t blame him for being upset. The review has all the hallmarks of a personal vendetta. I don’t think that “absolute scum” was a fair opinion of the guy based on what the review had to say.

No, Mr. “Z.B.” who wrote the post, hiding behind a pseudonym, seems like an asshole — at least from the first impression that I see on the Yelp! review.

So what makes Arcaya “absolute scum?” What happens next in the story:

Arcaya sued Z.B. for defamation, representing himself pro se. The complaint seeks $80,000 and the removal of the Yelp! review. The thing is, part of what he calls “defamatory” is that Z.B. called him “absolute scum.”

Sigh… that big balloon of respect I had for Mr. Arcaya? It is deflating.

The law is not a simple matter of (Mean Statement) + (Angry Plaintiff) = Defamation. Of course, that’s how it works in the beginning, in states without Anti-SLAPP laws. (Mean Statement) + (Angry Plaintiff) = Defamation suit, that costs a lot to defend.

But, can he ever recover damages or injunctive relief for being called “absolute scum”? No. See Greenbelt Coop. Pub. Ass’n. v. Bresler, 398 U.S. 6 (1970) (when it is apparent, in the context of a statement, that its meaning is figurative and hyperbolic, the falsity of the literal meaning does not equal a knowing falsehood or reckless disregard for the truth, thus a public figure can not prove actual malice as a matter of law).

In Dworkin v. L.F.P, Inc., 839 P.2d 903 (Wyo. 1992), Hustler Magazine called Andrea Dworkin inter alia a “shit-squeezing sphincter” and “a cry-baby who can dish out criticism but clearly can’t take it,” Id. at 915.

Under prevailing constitutional First Amendment safeguards, that language cannot, as a matter of law, form the basis for a defamation claim…We agree with that said by the Ninth Circuit Court of Appeals: “Ludicrous statements are much less insidious and debilitating than falsities that bear the ring of truth. We have little doubt that the outrageous and the outlandish will be recognized for what they are.” Dworkin v. Hustler, 867 F.2d at 1194. Vulgar speech reflects more on the character of the user of such language than on the object of such language. Curtis Publishing Co. v. Birdsong, 360 F.2d 344, 348 (5th Cir. 1966). Id. at 915-916.

The law is clear that defamation law is not there to protect anyone from annoying speech, embarrassing speech, vigorous epithets, or mere vitriolic spewings.

Posner wrote that rhetorical hyperbole “is a well recognized category of, as it were, privileged defamation.” Dilworth v. Dudley, 75 F.3d 307, 309 (7th Cir. 1996); See also Lifton v. Bd. of Educ. of the City of Chicago, 416 F.3d 571, 579 (7th Cir. 2005) (Illinois law requires that an allegedly defamatory statement must contain an objectively verifiable factual assertion); Pease v. Int’l Union of Operating Engineers Local 150, et al., 208 Ill.App.3d 863, 153 Ill.Dec. 656, 567 N.E.2d 614, 619 (1991) (“Words that are mere name calling or found to be rhetorical hyperbole or employed only in a loose, figurative sense have been deemed nonactionable.”).

The statement that Arcaya is “absolute scum” is a classic example of rhetorical hyperbole.

Enter Scott Greenfield. Apparently, Greenfield offered to get in between Z.B. and Mr. Arcaya. He does that a lot — tries to talk sense into people. It’s a fucking mitzvah to do so.

So what does Arcaya do after Greenfield tries to save him? He goes into “absolute scum” mode.

He subpoenas Greenfield (source) His document supporting that subpoena is batshit, to say the least.

And then, he files a bar complaint that looks like it was written by a pro-se prisoner while cowering in the shower. (source)

So, based on those disclosed facts and supporting documentation, I hereby declare Jose Arcaya to be “absolute scum.” If you need a lawyer or a psychotherapist, I would run from this guy. Far. Fast. Run. And, that balloon of respect I had for him? If there’s any gas left in it at all, it’s nothing more than stinky malt liquor farts.

Nevada Anti-SLAPP Law under attack

April 19, 2015

After reading this, if you are against SB 444, come back and click here: Choose SB 444, and voice your displeasure to this anti-freedom and anti-business bill.

Anti-SLAPP statutes are there so that free expression doesn’t come along with a side helping of bankruptcy, if your speech offends the wrong person.

They don’t protect you from liability for real defamation, but they do protect you from being dragged through three years of litigation over a claim that never should have been brought in the first place.

You see, that’s how the bastards win. If they don’t like your political speech, or even your mild consumer review, they file a lawsuit against you. You try and file a motion to dismiss, but as long as they lay out the elements of the claim in the complaint, that doesn’t usually work. Next, discovery. Motions. Hearings.

Thousands of dollars later, you “win.” But, you’re now wondering “if this is what winning feels like…”

And that’s the point. A SLAPP suit is one that a Plaintiff files against someone, knowing they won’t win, but they don’t care. The point of it is to punish you with attorneys’ fees, and to scare anyone else who might speak in a way that you don’t like.

Much of the blame falls on unethical attorneys. If we didn’t have those, these cases would never happen. But, we do have them. We have lots of them. They care more for making a buck than upholding the Constitution.

I get at least one call a week from someone who wants me to file a defamation claim. I turn almost all of them away, because most of them are either frivolous, or just don’t have a good chance of winning, or they will backfire on the Plaintiff.

At least once a month, one of them says something to the effect of “I don’t care if I win, I just want to bury this guy.” They dangle very large checks in front of me.

My answer is “I don’t use my law license that way. Might I suggest you retain a more ethically flexible lawyer.”

When the potential plaintiff in that situation is looking at filing in a state with an Anti-SLAPP act, they usually don’t bother at all after I explain the ramifications of an Anti-SLAPP motion. I explain to them that if they have a good defamation case, they have nothing to fear. When the case is anemically weak, and brought for the most part to punish someone for expressing themselves, they’re going to need to avoid California, Oregon, Washington, Nevada, Texas, and DC courts. In fact, even filing a claim like that against a citizen of one of those states in another jurisdiction can wind up stinging the plaintiff.

When I explain that, I usually get an expression of gratitude — even when the potential plaintiff is of the “just use all my money to hurt this guy” variety. I help them dodge a bullet. (But, if our anti-SLAPP law goes away, I’m gonna make BANK!)

You see, Anti-SLAPP statutes are a good form of tort reform. They kill off frivolous claims that would otherwise chill free speech. They are a pretty amazing species of law, because they are pro-consumer *and* pro-business.

Pro consumer is easy to see. Pro business? Yes, really.

Before Nevada had a real Anti-SLAPP law, my advice to any media company was “move your business to Washington, it has the best Anti-SLAPP law in the country.”

When Nevada passed its best-in-the-nation Anti-SLAPP law in 2013, that made Nevada really attractive to tech companies and media companies. I changed my tune immediately, and I managed to convince a handful of them to move to Nevada. Why? If you want to run a consumer review site, or a social networking site, or even just a blog, you know very well that at some point, you’re going to get threatened with a defamation suit. And, ultimately, if you’re in a state where there is no Anti-SLAPP protection, you’re going to get sued.

Would you rather run your company in a state where you know that you can get slammed with a SLAPP suit by someone with more money than you, and an attorney of questionable ethics? Of course not. You want to be in a state that protects you.

Nevada largely adopted Washington’s Anti-SLAPP law, with a few local tweaks. It was great, but it didn’t chill reasonable defamation claims. In fact, the first defamation case I was involved in after it passed was on behalf of a plaintiff. The law left plenty of room to seek redress for real defamation claims, but it turned the heat up on those who would abuse the judicial system.

But someone didn’t like that.

Therefore, last week, in a pretty sneaky legislative maneuver, the Nevada Senate Judiciary Committee slid through Senate Bill 444. The bill is a paragon of sleaze. It starts off with preamble statements that make it seem like it is there to protect freedom of expression, but once you read it, you realize that whoever drafted this must have done so with the clear intent of destroying the Anti-SLAPP law.

    It creates a Rube Goldberg mechanism for bringing an Anti-SLAPP motion — which will clearly increase the cost of litigation.

    It narrows the definition of “issue of public concern” – so consumer reviews, social commentary, and other forms of important public speech are now outside of its protection.

    It weakens the attorneys’ fees provisions of the existing law.

    It lowers the burden for unethical plaintiffs to keep their SLAPP suits alive.

    It repeals important provisions that seek to deter plaintiffs from filing anti-SLAPP suits in the first place.

    It is tailor-made to ensure that public figures do not have to be worried about New York Times v. Sullivan at the SLAPP stage, anyhow.

    It virtually ensures that you can’t ever bring an Anti-SLAPP motion in federal court.

One public figure lost an Anti-SLAPP motion, and he sent his lobbyist to buy a repeal of Nevada’s law. You see, he owns a casino. He doesn’t want criticism. And, he doesn’t care if Nevada has a diversified economy — in fact, he benefits if Nevada doesn’t have a diversified economy. (And “he” isn’t Sheldon Adelson, for those who have been speculating on that).

If you live in Nevada, you should be outraged. And, you should damn well show up to the Assembly Judicary Committee meeting on Friday, April 24 at 8:00 AM. (AGENDA HERE) If you can make it to Carson City, to look the Assembly members in the eye, that would be best.

If you can’t make it to Carson City, then you can come to the tele-conference at the Room 4406 of the Grant Sawyer building – 555 E Washington Ave, Las Vegas. Be there early, because I would expect this bill to come up first. Also, don’t be surprised if there is a “surprise” change of room. Come with prepared statements to read into the record.

If you can’t make it to either session, then you need to call, send emails, and send letters to the Assembly Judiciary Committee Members. These are, by and large, good people who care. They won’t vote for this bill if they know what it really is about. I think the Senate Committee got duped, because they didn’t know what was in the bill that they rubber stamped.

What if you’re not even in Nevada? You still should care, and do what you can. Why? Do you think that this kind of thing will stop in Nevada? I’ve been involved in debates over whether California’s Anti-SLAPP act ought to be repealed too. If they can get away with it here, your home state’s statute could be next. Or, if you live in a state without an Anti-SLAPP act, do you think that the tide turning out in the desert will help you or hurt you get one in your home state?

And, if you live in Nevada, you should start writing campaign contribution checks. Elections here are not that expensive, and I would encourage you to write a check to the opponent of any Assembly member who votes for this bill. I wouldn’t blame the Senators. When you look at the pathetic level of debate here, you can see that there was very little in the way of debate. Give them the benefit of the doubt. But now, the Assembly Judiciary Committee will be informed. If they still decide to put a knife in the gut of free speech and business development in Nevada, they don’t belong in Carson City.

I release all copyright in this post, and you may feel free to appropriate it to whatever extent you like – whether you give me credit or not. Plagiarize away, if you like.

Other coverage:

Popehat: Why Are Nevada State Senators Trying To Eviscerate The State’s Anti-SLAPP Statute?

TechDirt: Nevada May Be About To Lose Its Great Anti-SLAPP Law

Third Amendment Claim Rejected in D. Nevada

March 25, 2015

A long time back, I wrote about a Third Amendment claim in Nevada. (source)

A few weeks ago, Judge Gordon rejected the plaintiff’s Third Amendment claim. (source)


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