killthelawyers 's Techdirt Comments

Latest Comments (47)

• On the post: Court Says Police Chief's Social Media Policy Violated The First Amendment

  

  killthelawyers ( profile ), 19 Dec, 2016 @ 02:06pm

  Re: Re: Purely coincidental timing I'm sure

  I know snark is easier than reading, so let me just pull the relevant section for you:
  
  "Plaintiffs argue that the retaliation took the form of investigating their conduct on the force. . . . There were independent bases for each investigation. Livermn was investigated twice. In notifying the City of is First Amendment claims, Liverman requested a wide range of personnel records. While searching for responsive documents, the Department discovered that Liverman had sent sexually explicit emails to a female officer. The Department launched an investigation for sexual harassment, during which Liverman admitted to engaging in sexual misconduct on Department property and while on duty. . . .
  
  Richards was also investigated twice. Both inquiries were opened as a result of complaints initiated not by Chief Dixon but by his fellow officers. . . . The Department concluded the [first] investigation within one week, after Richards demonstrated his innocence. . . . [T]he Department determined that the [second complaint's] allegations were unfounded.
  
  Apart from generalized assertions regarding the existence of the investigations, plaintiffs fail to offer any evidence that the investigations were retaliatory. Far from groundless "fishing expeditions," each arose from discrete allegations of misconduct. Without more, we see no reason to question the legitimacy of the Department's investigations. After all, simply filing a Pickering claim does not confer indefinite immunity on employees or insulate them from subsequent investigation and discipline from unrelated misconduct. Granting relief on plaintiffs' retaliation claims would handcuff the Department by forcing inaction even where there is police behavior that warrants close review. Speech is one thing; misconduct something else. There are countless unobjectionable reasons why a police department might want to investigate an officer's performance, including absence from work, tardiness, insubordination, illegal activity, and basic failure to carry out one's duties in a competent and impartial fashion. The garden-variety investigations into Liverman's and Richard's conduct were no different, and we therefore reject their claims of retaliation."
  
  The Court's argument is both factually-based and legally sound. First, merely claiming the timing is suspicious is not enough to survive on summary judgment. At that point you need more. If you cannot turn up substantive facts to support your argument, the trial court should not allow you to make it to trial. Second, the policy reasons articulated make sense and are good policy. To do otherwise would allow officers blanket immunity while they are reporting misconduct, which is also not a desirable outcome. Therefore, there has to be some ability to reign in bad conduct, which basically leaves the only option - allow regular investigations of misconduct to continue and allow grounds for suit for pretextual investigations.
  
  You will always be entitled to your opinions, but may I ask that you spend more time reading judicial decisions, especially when they are included in the article, rather than just reading about them?

• On the post: Media Organizations (Correctly) Worry That Rolling Stone Verdict Will Make Saying Sorry Actionable

  

  killthelawyers ( profile ), 09 Dec, 2016 @ 12:09pm

  Re: All the wrong incentives

  I haven't formed an opinion on this case because I'm not familiar enough with it, but I'll argue that this creates good incentives, too. As a good incentive, this incentivizes not doubling down. Rather than issuing a non-apology apology with only minor changes at the top of the story, thus spreading a badly flawed story further, it incentivizes either correcting story in-line or removing the story entirely, with only an apology in its place. Said another way, it incentivizes the truth over journalistic integrity. Whether this is a good development or not, I have no clue. Probably not, if I'm spitballing. However, it's not entirely a bad thing, either.

• On the post: UK Police Circumventing Cellphone Encryption By 'Mugging' Suspects While Their Phones Are Unlocked

  

  killthelawyers ( profile ), 05 Dec, 2016 @ 02:02pm

  At least in the United States, I think people arguing that physically taking a temporarily unprotected device = mugging misunderstand what rights they have and don't have. You have a right to be free of unreasonable searches not supported by probable cause. In many, if not most circumstances, that will also require a search warrant. Once a search warrant is obtained, you lose the right to withhold physical access. The point of encryption is that it often implicates another right: the right against self-incrimination. Yes, you know the passcode and, arguably, compelling you to give it up is a requirement that you incriminate yourself. Whether that is true or not is an argument well worth having, but that is not the issue here. The issue here is whether steps you have taken to assure that you will have the ability to invoke that right have to be scrupulously honored, even when you have voluntarily, albeit unwittingly, surrendered them. Unfortunately, I do not think this is a battle that the "mugging" advocates are going to win. You're really arguing about whether search warrants should be allowed and, if so, should even relatively minor levels of force be allowed in their execution. That's not a strong position to start from and it's worse when you consider the level of force routinely authorized for the execution of search warrants.

• On the post: Appeals Court Reminds Everyone: Patent Infringement Is Good For Competition

  

  killthelawyers ( profile ), 05 Dec, 2016 @ 01:44pm

  Patent infringement *could* be a part of an antitrust case, such as a situation where a large company infringes on a smaller competitors patents to freeze the competitor out of the market with lower prices and superior marketing. Of course, the patent infringement in that example is not the primary anti-competitive act, which I think is your point, but it nonetheless is possible.

• On the post: Oh, Look, Two Breweries Work Out A Trademark Issue Without Lawyers, Threats, Or Asshole-ery

  

  killthelawyers ( profile ), 04 Nov, 2016 @ 06:19am

  Re: My experience with lawyers...

  Well, my anecdote of being a lawyer is this: generally, if you are coming to a lawyer with an issue, it's not something that was just going to magically go away. While I have some seen some monumental pissing contests, I've also seen quite a few issues resolved long before a lawsuit was filed and many others resolved shortly after one was filed.
  
  Litigation is rarely dependent on milking a few cases for every dollar, it's based on getting enough cases to be busy every moment of the day. In the latter model, putting out fires as efficiently as possible is good not bad. It makes the client happy, which leads to more cases, even in small things like this because its usually an insurance carrier, not the actual company, paying the bills. It also lets us maintain our sanity because, really, we don't like staring at the same case forever.

• On the post: With Interest In Profile Defenders' Questionable Lawsuits Rising, The Lawsuits Start Falling

  

  killthelawyers ( profile ), 26 Oct, 2016 @ 10:19am

  Re: Re: Re: Re: "Well, we had to drop that case. Time to focus on the other 27 currently in the works..."

  Well, I suppose as an "anointed one," I have to respond to this. The reason why the courts put so much trust in lawyers is because we are a profession built on trust. To enter the profession you must prove your basic competence and that you do not have any significant ethical or legal issues which should prevent you from practicing. Once you enter the profession, you are expected to have a certain degree of candor with the court. When people do things like this, neither the courts nor the bar will ignore it. The reason they succeeded is because its such a brazen breach of ethical duties that it's almost unfathomable that a lawyer would try it. The system is set up to depend on the adversarial nature of proceedings as a first check against this type of behavior, with a second check being the ethical screening of attorneys. When you violate both, there is a gap that will be difficult to root out, which is why the courts are going to hammer absolutely everyone caught doing this. It is not a perfect solution, but it's certainly not "no consequences" and, in many cases, will be more draconian than what the average person will face.
  
  The point is well taken that it's horrifying to think about that someone can do this 20+ times without suffering consequences and this could certainly lead to changes in how the court requires proof of service to be delivered.

• On the post: With Interest In Profile Defenders' Questionable Lawsuits Rising, The Lawsuits Start Falling

  

  killthelawyers ( profile ), 26 Oct, 2016 @ 07:29am

  Re: Re: "Well, we had to drop that case. Time to focus on the other 27 currently in the works..."

  The Prenda attorneys have been disbarred and will likely be bankrupted after the attorney fees and fines by the court are finalized. You can be pessimistic, but the courts do not look kindly upon people who commit fraud with the aid of the system.
  
  If there are attorneys involved in these cases, they will be disbarred. Full stop. If there are not, they will likely be referred for criminal unauthorized practice of law and false swearing charges. The most impressive thing about this scheme is just how brazen and stupid it is. Once you're caught, your name will lead back to every other case you've filed. Doing this once is tempting fate. Doing this 20+ times means there is only a matter of time before you're caught.