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Friday, October 3, 2014

Why I'm Glad I'm Not Practicing Law Anymore

Was it only last Friday that Ellora's Cave filed suit against Dear Author? *shakes head* This mess makes me singularly glad that I no longer practice law.

On Monday, I posted links to the pertinent sites involved along with other bloggers commenting about the situation. As I said before, I would have handled the pleadings differently than the EC attorney. It's not in the plaintiff's best interest to put a copy of the alleged libelous statements directly into a pleading, especially since:

(1) It's been mentioned in other avenues and outlets that the plaintiff corporation is having financial difficulties. Whether the difficulties are factual or not, such information in the public record can lead to new or additional financial damage to the corporation.

(2) The screen shot of the corporate principle flipping off her critics on Facebook doesn't shine a particularly gracious light on the principle or the corporation. When you request a jury trial, you know your opponent will try to enter that screenshot into evidence, and she'll succeed because you opened the door. Ohio is a rather conservative state, and you're taking an awful chance that screenshot won't backfire.

Yesterday morning, both sides presented a Joint Motion for Continuance of Temporary Restraining Order. What does this mean?

Both sides agreed that their best interests are served by taking more time to collect and present evidence on EC's request for an injunction. They named as October 27, 2014. What's most interesting to me is Section 3 of the Joint Motion:
3.   In the interim, all parties agree that neither they, nor anyone under their direct control, shall post on the Internet any comments specifically and directly related to the factual allegations that form the basis of Ellora Cave’s defamation complaint; further, they agree not to comment online, directly or indirectly, on the allegations that form the basis of the defamation complaint. Nothing herein shall prohibit Plaintiffs from responding to defamatory posts or re-posts made by third parties related to the issues raised in this litigation. 
So what does Tina Engler, the principle of EC, do? She commented over at The Passive Voice.

What exactly was the point of the gag request if you negate it almost entirely in the last sentence of the section? This is not helping your client. You can't stop third parties from discussing the case. By filing it, it's matter of public knowledge, therefore it's hard to stop public discourse on the matter. But by not keeping your client silent, and I'm referring to both sides of this case here, you're potentially giving your opponent ammunition to shoot your case with on the 27th.

In fact, I commented of TPV that I was glad I wasn't Tina's attorney. Occasionally, an attorney will get a client who literally can't keep their mouth shut. I had my fair share when I still practiced law. As I told more than one client, sometimes all I can do is keep the damage to the client to a minimum. That didn't stop some clients from making their problems worse despite my instructions not to talk about their case.

On the other hand, either Jane Litte, the proprietress of Dear Author, understands her silence is necessary as an attorney herself, or she's listening to her counsel. Either way, Jane's been quiet on the matter since she requested witnesses on her blog on September 30th. Such a request is allowed under Section 4 of the Joint Motion.

In conclusion, attorneys CANNOT save you from your own bad decisions. If you've spent a ton of money to hire an attorney, listen to her. If you really, truly believe an attorney is giving you poor advice, you have every right to fire her and hire someone else. But don't blame your attorney when you do something against her advice that hurts you.

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