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The Courts Censorship Your Rights Online

After Online Defamation Suit, Dismissal of Malicious Prosecution Claim Upheld 267

Posted by timothy
from the that's-a-shame dept.
Christoph writes "I'm the Slashdot user who was sued for defamation (and six other claims) by a corporation over negative statements on my website. I prevailed (pro-se) in 2008. The court found the other side forged evidence and lied. In 2009, I sued the other party's lawyers for malicious prosecution/abuse of process (the corporation itself is dissolved/broke). One defendant had stated in writing their client was lying, but the trial court dismissed my claim for lack of evidence. I appealed, and this Tuesday the Minnesota Court of Appeals upheld the dismissal, completely ignoring the defendant's written admission (and other evidence). They further found it was not an abuse of process to sue to 'stop the publication of negative information and opinion.'"
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After Online Defamation Suit, Dismissal of Malicious Prosecution Claim Upheld

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  • Okay. (Score:2, Funny)

    by jdpars (1480913)
    That sucks bro. And?
    • Re:Okay. (Score:5, Insightful)

      by Monkeedude1212 (1560403) on Friday November 12, 2010 @07:02PM (#34212188) Journal

      And it has far reaching implications.

      They further found it was not an abuse of process to sue to 'stop the publication of negative information and opinion.'"

      That line alone shows that they basically see suing people as a way to stop free speech - and that it should be allowed, even if the law isn't technically on their side. Basically, abusing the system to get people to stop saying things you don't like is considered legal.

      Can you imagine how many people have been in a situation like Chris, but haven't had the money to go into a legal battle with them?

      It sucks indeed.

      • Re: (Score:3, Insightful)

        by jdpars (1480913)
        People with lawyers use the system to hurt those who have no lawyers. News at 11.
        • Re:Okay. (Score:4, Insightful)

          by h4rr4r (612664) on Friday November 12, 2010 @07:19PM (#34212312)

          Most folks would consider an admission from the court that the court is a venue for the rich to abuse the poor news. We already know it to be true, but for a judge to admit it sure seems like news.

          They further found it was not an abuse of process to sue to 'stop the publication of negative information and opinion.'"

          That looks pretty clear to me.

          • Re:Okay. (Score:4, Insightful)

            by jdpars (1480913) on Friday November 12, 2010 @07:25PM (#34212360)
            But the court didn't admit that the rich were abusing the poor. The court decided that the events that occurred did not constitute negative information and opinion in the legal sense. It did not decide, however, that the plaintiffs were wrong for filing. The end. No significant precedent set.
      • by brachiator (867046) on Friday November 12, 2010 @07:11PM (#34212256)
        Looks like the OP settled with the non-lawyers early on the MP claims. What result there?

        As for the lawyers, the sole piece of evidence the OP seems to have presented that the lawyers knew their clients were lying is a late-October 2007 note. This note was written well after the trial commenced. It doesn't indicate that the lawyers knew or had reason to know from jump-street that the clients were lying. It indicates only (if anything) that perhaps they were not aggressive enough in doing fact investigation or in terminating the litigation already underway.

        Am I missing something? If not, the courts' decisions appear to be decent.
        • by ScrewMaster (602015) * on Friday November 12, 2010 @07:13PM (#34212282)

          Am I missing something?

          Yes. This is Slashdot, and we don't much like judges who reach decisions that our cursory inspection of the article summary find wanting.

          • by bonch (38532)

            Especially when that article summary is written by someone with a vested interest in the case, coloring their whole account of events.

        • by Christoph (17845) <chris@cgstock.com> on Friday November 12, 2010 @09:36PM (#34213086) Homepage Journal

          The other party claimed I did not create the photo I had a copyright registration for, and his attorneys claimed the real owner was a man the client met in a sauna and paid $850 in cash. This mystery seller had no address, no phone number, and was completely untraceable. When I subpoenaed the phone company for any unlisted phone number for this man, "Micheal Zubitskiy", the other side's lawyers tried to quash the subpoena. This is called "willful ignorance" under the law. The federal judge in the case ruled there was "no credible evidence to support the belief that Zubitskiy existed".

          If you bring a suit with no evidence, no personal knowledge of who created the photo, no basis to deny the other party's legal title of ownership, you lack "probable cause". If you didn't know if at first, they had 2.5 years to figure it out. Even after the notary lost his commission for notarizing the fraudulent sales agreement with Zubitskiy, they did not drop their claim he was a real person.

          • Re: (Score:3, Informative)

            by brachiator (867046)
            Christoph, well done overall and I'm certainly on your side with respect to the copyright issue, but your position on the lawyers doesn't hold up as well.

            Attempting to quash a subpoena is almost standard procedure. Under precisely what law is that "willful ignorance"?

            Your response mixes together what the other party knew and did and what his lawyers knew and did. It also mixes together the court's findings-of-fact with what the lawyers knew, should have known, were told, and were required to do. More
            • by Christoph (17845)

              The other party tried to quash a subpoena to the phone company. The judge asked at the hearing, "What is your standing? You don't represent the phone company." Their answer: "Well, we have no standing."

              The phone company did not object to the subpoena, so they tried to interpose an objection on behalf of the phone company. That is not standard at all, and they lost.

              It's willful ignorance because I showed early on that "Michael Zubitskiy" did not exist, and they never so much as opened the phone book to see i

      • Context... (Score:5, Interesting)

        by Alaren (682568) on Friday November 12, 2010 @07:25PM (#34212358)

        That line alone shows that they basically see suing people as a way to stop free speech - and that it should be allowed, even if the law isn't technically on their side. Basically, abusing the system to get people to stop saying things you don't like is considered legal.

        Read that again. The court didn't say you could prevail. Only that suing--that is, filing suit--to stop the spread of negative information is not per se an abuse of process. Were it otherwise, you couldn't sue someone for libel or slander. Notice that this is a different thing than prevailing at trial.

        Can you imagine how many people have been in a situation like Chris, but haven't had the money to go into a legal battle with them?

        This is by far the more troubling consideration. The expense of legal process makes every one of us a potential corporate serf, and it would be nice if we could find an effective way to prevent people with money from wielding the legal system like a club. But if we called that "abuse of process," then it would be impossible for the rich to seek justice against the poor--which makes no more sense and arguably less. It would be nice if we could just say, "well, obviously this corporation could not possible have believed it would prevail on the merits, and was just throwing money at the problem, so that's clearly abuse of process," but the standard of proof for intent is yet another obstacle that brings with it a host of other problems.

        • Prevailing is not relevant, it happens AFTER the abuse. Asing the law and mobilizing judges, jury, etcetera for any other purpose than obtaining justice means the damage is already done. And What about bankrupting the opponent even before prevailing? And what about real crimes that will go unpunished because judges and corporations are suing 14 years old?

        • Re: (Score:3, Insightful)

          by Rich0 (548339)

          Yup. The problem is that the legal system has gotten way out of hand.

          In theory the way it is supposed to work is that two parties with a disagreement go to court, and the court decides who is in the wrong. Maybe the person in the wrong gets punished by the court via damages of some kind depending on the nature of the dispute.

          The problem is that today simply going to court is effectively punishment, and the actual damages are just outrageous quite often. Courts do not value the time of participants, and a

        • Re:Context... (Score:5, Interesting)

          by hairyfeet (841228) <.bassbeast1968. .at. .gmail.com.> on Friday November 12, 2010 @08:35PM (#34212810) Journal

          Actually thinking about it there might be a way to fix this broken system. simply have BOTH SIDES forced to use public defender style lawyers, and if the corp wants better then they have to pay into a fund that half the money goes to opposing council thus insuring that neither side can just use "hired thugs" to overpower the other. After all the courts have ruled money is speech, so it should be only fair that in a court of law BOTH sides get free speech, yes? Because as it is now the law is a bad joke. The rich can do anything to anyone and short of taking the law into their own hands the poor have NO redress, simply because the rich can afford to drag a case on for decades.

          I have seen this in action when a local ISP was screwed out of their backbone access by a big corp who basically said "Don't like it? Just try to sue us" and they were told by their lawyer "Oh no doubt you'll win, but it'll take a decade and cost a million and a half just in lawyers fees". Needless to say they just gave up their ISP and walked away. And THAT is the power the law has given the multicorps with this broken system today. You don't like competition? Well then just bury any startups in so much legal bullshit they can't even breath and will be forced to spend all their money on the courts.

          • by Reziac (43301) *

            Sounds like a fair idea to me... Same principle might radically alter criminal cases too, since as it is now, the gov't (prosecution) has effectively unlimited funds, while the defendent doesn't (and is unlikely to get equal value from a public defender, either). Would likely put an end to the trick of using the plea-bargain system to get a conviction against shaky evidence.

        • Re:Context... (Score:4, Informative)

          by Dhalka226 (559740) on Friday November 12, 2010 @09:52PM (#34213176)

          It would be nice if we could just say, "well, obviously this corporation could not possible have believed it would prevail on the merits, and was just throwing money at the problem, so that's clearly abuse of process," but the standard of proof for intent is yet another obstacle that brings with it a host of other problems.

          We can say that, and indeed had he done so he probably would have prevailed at trial. The problem is that the people he should have sued--the corporation, ie, the people who actually lied--were bankrupt and he didn't feel it worth the time to sue them. He's probably right. But rather than go "this sucks but there's nothing I can do," he instead decided to look around for somebody who did have some money he could sue for and he went after their lawyers.

          Now you have an entirely different ballgame. Not because of some "judges protect lawyers" conspiracy, but because you're now suing a tangential party. Lawyers are their clients' advocates and they operate on an assumption of good faith. Proving the client lied is not enough; now he has to prove the lawyers knew, when they knew, and that they then acted in bad faith to the courts by continuing the case either without informing the respondent or by continuing a case that no longer had merit with the lies exposed -- all of which are tricky.

          He knows he sued the wrong people, he says as much in the summary when he mentions the corporation went bankrupt. He just seems to believe that their wrongdoing was also their lawyers' and is acting like a petulant child when two separate courts disagreed with him. What happened to him sucks. The fact that somebody can get away with it because he did it from behind the veil of a corporation sucks, and is, in my mind, the real issue to be gleaned from this situation and addressed. The ruling I'm fine with.

      • He has to prove that the lawyers had ill intent for him. Defending their client, even while knowing he is lying, isn't against the rules, it just opens them up to the liability. But if they were pushing the issue because it allowed them to hurt the OP, then yeah, the should be held accountable.

        It's a gray area. And as such, I would expect most judges (being judicially conservative) would error on the side of the defendant.

        That, and by siding with the lower court's dismissal, it saves them the hassle of a tr

        • Re: (Score:3, Interesting)

          by offsides (1297547)

          He has to prove that the lawyers had ill intent for him. Defending their client, even while knowing he is lying, isn't against the rules, it just opens them up to the liability. But if they were pushing the issue because it allowed them to hurt the OP, then yeah, the should be held accountable.

          Um, the trick is that the lawyers in question weren't defending anyone - they were representing the plaintiff in an attempt to win money/concessions from the defendant. And while a defense attorney is supposed to defend their client to the best of their ability, even they aren't allowed to outright lie to the court about something they know to be false.

          That being said, I'm not sure if the OP would have prevailed at trial, but cases are supposed to be dismissed either because of facts that are not in disput

      • Exactly, together with the undeniable fact that suing and being sued costs big money, it spells out that the law is the instrument of control of those who can afford to wield it.

        All animals are equal, but some animals are more equal than others.

        People opposed to the system are usually labeled subversive, but they are instead opposing, ignoring, or getting in the way. The real subversion is what's described in this discussion.

      • by PPH (736903)

        Not so much the suit to stop the speech, but the counter suit for malicious prosecution could be a problem. Remember, lawsuits (whether founded on fact or manufactured evidence) are the bread and butter of the legal business. Making an issue out of malicious prosecution could put a damper on civil suits, cutting into a profitable line of business.

        The courts, after all, are made up of attorneys and have friends still in that business. They have kids to feed. Please! Think of the children!

      • Re: (Score:3, Insightful)

        And it has far reaching implications.

        It's the Minnesota Court of Appeals, not the US Supreme Court. This decision is about as far reaching as the judgements of the Ennis District Court.

  • Corruption (Score:5, Informative)

    by rsborg (111459) on Friday November 12, 2010 @06:56PM (#34212154) Homepage

    Plain and simple.

    We make fun of China and other places, but it seems that our judiciary is now pretty much bought in many places.

    Check out this article [nakedcapitalism.com] on how many businesses see corruption as a barrier to entry to markets.

    • Re:Corruption (Score:5, Insightful)

      by ScrewMaster (602015) * on Friday November 12, 2010 @07:07PM (#34212226)

      Plain and simple.

      We make fun of China and other places, but it seems that our judiciary is now pretty much bought in many places.

      Check out this article [nakedcapitalism.com] on how many businesses see corruption as a barrier to entry to markets.

      In this case it may simply have been incompetence. Seriously. We expect to be able to hold the judiciary to a higher standard, but sometimes it just doesn't work out that way. There's also the fact that he wasn't paying an expensive attorney.

      But ... yeah, when you get right down to it, he was suing lawyers. That's not so easy to do, especially if they have friends (or friends of friends) on the bench. This decision does seem pretty raw, I mean, the other side admitted wrongdoing. Something smells here.

    • by frisket (149522)
      The USA has the best judges money can buy. And a large number of very ignorant or stupid ones as well.
    • To be fair, he won case itself.Suing the other side's lawyers for malicious prosecution. The courts are, rightly, going to demand more evidence than one note from one lawyer in the firm to make that finding - for one thing, it was easy to sue the other side's lawyers it would be more difficult and expensive for a lot of people to go to court.

      The defendant in the case he won has been dissolved, so he went after the lawyers to try and get something from them instead. It might have been better to go after the

  • Well done! (Score:5, Informative)

    by droopus (33472) * on Friday November 12, 2010 @07:00PM (#34212180)

    Smart move to proceed pro se. I just finished a few years in the feds, paid my attorneys middle six figures total, and they did nothing. Only when I started writing my own civil motions on collateral attack (specifically 28 USC 2255 [cornell.edu]) did I get any traction at all. If I had to do it all over, I'd proceed pro se.

    Little tidbit: you are indeed entitled to counsel if you are arrested, while you are in criminal proceedings. But if you lose an appeal, and have to proceed with collateral attack, that is civil and you are NOT entitled to counsel. Many people sit in prison because they have only civil remedies left.

    • Re:Well done! (Score:5, Interesting)

      by Shakrai (717556) * on Friday November 12, 2010 @07:13PM (#34212274) Journal

      What the hell were you charged with that your legal bills totaled up to six figures? I got charged with a felony in two different jurisdictions and had to deal with two different cases and my legal bills only came to around $8,000. Granted, we beat it BEFORE trial (thank god for the Grand Jury....) but it would not have accumulated to >$100,000 even if it had gone that far.

      BTW, my lawyer saved my ass. I would not have walked away from my situation without a criminal record if I had tried to do it on my own. Don't trash the whole profession just because you hired a lousy legal team.

      • Re: (Score:2, Interesting)

        by Anonymous Coward

        Holy crap only $8000? I have spent literally hundreds of thousands of dollars over the past 7 years or so on 3 lawsuits and a handfull of other matters. The last civil case, which almost made it to trial cost me about $100,000 of legal fees.

        Hell, I have a zoning issue that has cost me over $4,000 so far and we are very, very early along that one.

        $250 - $350 an hour adds up mighty fast. It's like a hooker only the only person getting fucked is you.

        How appropriate... the captcha is "lonely".

        • Re: (Score:2, Informative)

          by Shakrai (717556) *

          Civil lawsuits can be dragged on longer than criminal ones. I invoked my right to a speedy trial and all that jazz -- there were a handful of court appearances and the Grand Jury testimony. That was it. No discovery, no depositions, no battle of motions. All of those can run up the legal bill pretty fast in a civil trial but aren't as relevant in a criminal trial.

      • Re:Well done! (Score:5, Interesting)

        by droopus (33472) * on Friday November 12, 2010 @07:34PM (#34212418)

        $8,000? Damn, that's great. Hey I agree, there are good lawyers, I just was unlucky enough to not know any. I didn't hire a team at all. I had FIVE individual lawyers, one when I was arrested, who I fired when he failed to challenge the search (which was laughable), then another when the feds came for me, and the state dropped the charges. Him I fired after he blew a bail hearing HARD. Fucking moron, he pulled out some forensic psychiatrist who started challenging the case merits in a bail hearing. Asshole got me held without bail in Feds. The AUSA had a field day...he was actually laughing.

        I studied fed law for the four years I did in the feds and if I had known then what I know now, I never would have spent a night in jail. And I don't think my attorneys were stupid, just amoral. Hey, if you can get a guy off for a bad search after a day, you won't earn much. Better to have to "fight" and charge $75k.

        Here's the worst part: I spent almost $300,000, and still plead out. From the Alan Ellis [alanellis.com] site:

        "Nearly 94% of all federal criminal defendants will plead guilty. Of the remaining 6% who go to trial, as many as 75% will be convicted; thus 97% of all federal criminal defendants will be sentenced. 80% of defendants will receive jail or prison time." If the feds want you, you're theirs.

        • Re: (Score:3, Insightful)

          by superdave80 (1226592)

          If the feds want you, you're theirs.

          Or, they only go after people against whom they have a lot of evidence?

          • Re:Well done! (Score:4, Interesting)

            by Sycraft-fu (314770) on Friday November 12, 2010 @11:22PM (#34213540)

            Anecdotally, that would seem to be the case. A co-worker sat on a federal grand jury for a year. The feds bring EVERYTHING before the grand jury, even routine shit like immigration cases. A GJ hearing is only required for "capital or otherwise infamous crimes" per the Constitution so they don't have to, it is just how they work. He said they were always extremely well prepared, and the GJ handed out the indictments in every case. In almost every case he said he felt there was sufficient evidence had he been in trial he would have voted to convict (GJ has much lower standards of evidence needed). He said there were only one or two cases where he had any doubt about the person's guilt, and there was still enough evidence to return the indictment.

            Now of course that doesn't mean all federal offices everywhere are the same, this is just anecdotal, but it is fairly compelling. It seemed they only brought things to trial when they were damn sure.

            Part of the reason is that there just isn't a lot that ends up being a federal crime. They don't deal with a lot of the little shit, the "he said, she said" stuff you see in county courts. Most of their non-immigration cases tend to be much bigger, more involved, cases and thus have mountains of evidence. The immigration ones, well those are always clear cut: "Is the person a citizen? If not are they a resident alien? If not do they have legal permission to be in the country? If not then they are breaking the law and can be deported."

            While I agree we want to carefully watch for abuses of the system and people being railroaded or forced to plead to things they didn't do, I don't see a high conviction/plea rate as a bad thing on the face of it. To me it could well indicate that they do their job, that innocent people, or even people who might be guilty but you aren't sure, are not charged. They only tend to bring charges when they are very sure. That is how it should work. People shouldn't be charged with a crime unless the prosecutor is sure they are guilty.

  • by goodmanj (234846) on Friday November 12, 2010 @07:03PM (#34212198)

    The problem is, you tried to sue a laywer. The funny thing about judges: they used to be lawyers. You remember that old joke claiming that sharks don't eat lawyers out of "professional courtesy"? Same goes for judges. You can sue a doctor, a corporation, or your ex-wife, fine, but if you sue a laywer the entire legal profession closes ranks and roots for the home team.

    • by ScrewMaster (602015) * on Friday November 12, 2010 @07:10PM (#34212250)

      The problem is, you tried to sue a laywer. The funny thing about judges: they used to be lawyers. You remember that old joke claiming that sharks don't eat lawyers out of "professional courtesy"? Same goes for judges. You can sue a doctor, a corporation, or your ex-wife, fine, but if you sue a laywer the entire legal profession closes ranks and roots for the home team.

      Yes. The Thin Armani Line.

    • Re: (Score:2, Insightful)

      by DCFusor (1763438)
      Rats, you beat me to it. That's about how it works in reality. Or, you can get "busted" with such lousy evidence that by the time you and your lawyer get to court -- it's been decided to "null pros" it -- just like it never happened. Can you then recover your legal expenses? No. Do you get anything for living in fear that you're going to jail (and your family starve) for a felony for months while they hem and haw and put things off, meanwhile demanding you show up multiple times to find out you're "con
    • The problem is, you tried to sue a lawyer.

      I think lawyers suing other lawyers is a great idea. Their cases could burn up 100% of the court capacity. Then they would be so busy suing themselves, that they would leave the rest of us alone in peace.

    • by Grond (15515) on Friday November 12, 2010 @08:05PM (#34212592) Homepage

      but if you sue a laywer the entire legal profession closes ranks and roots for the home team.

      Patently untrue. Case in point: legal malpractice suits, which are common and involve a lot of money: $4 billion per year back in 1995 [heinonline.org]. I assure you it's more today.

      To the extent this guy got screwed it was because he tried to handle his case pro se. Just one little example of his mistakes: "The fact that I prevailed on all seven counts while representing myself in court pro-se further suggests they lacked probable cause." Whether someone is representing themselves or are represented by counsel is generally immaterial in Minnesota, as in most jurisdictions. "Pro se litigants are generally held to the same standards as attorneys." Heinsch v. Lot 27, Block 1 For's Beach, 399 N.W.2d 107, 109 (Minn. App. 1987).

      Anyway, this is kind of a silly post for Slashdot. The plaintiff's appeals are not exhausted. He can make a motion for a rehearing, a rehearing en banc, and appeal to the Minnesota Supreme Court.

      • Re: (Score:3, Informative)

        by Christoph (17845)

        When I had lawyers represent me, I lost 50% of the time. When I represented myself, I've won about 7 out of 8 cases. Plus, I save $100,000 or so in legal fees. At times, the attorneys and judges were less familiar with the law than me, since I'm devoting myself to one area of law, and one case, while they have many.

        And I did have several lawyers advise me. I just didn't have them write my briefs or make oral argument (represent me on the record).

        • Re: (Score:3, Informative)

          by Grond (15515)

          When I had lawyers represent me, I lost 50% of the time. When I represented myself, I've won about 7 out of 8 cases.

          You realize that proves nothing, right? Those were presumably different cases, so you're comparing apples and oranges. It could well be that the cases you took pro se would've been won with a lawyer and that the 50% of cases you lost with a lawyer would've been lost pro se. It could also be you had crappy lawyers.

          At times, the attorneys and judges were less familiar with the law than me, si

          • by Christoph (17845)

            I understand and partially agree with your reply, except that part about it being a silly post. But you are entitled to your opinion, and I completely respect your right to express it.

  • by gurps_npc (621217) on Friday November 12, 2010 @07:03PM (#34212202) Homepage
    Judges don't want the loser of every case suing for it.
    • Re: (Score:3, Interesting)

      Judges don't want the loser of every case suing for it.

      Ain't that the truth.

      In California there is a provision of the Civil Code of Procedure, Section 473(b) which permits a mandatory vacation of default of dismissal which results from attorney fault. If the attorney really screws up, the Court must grant this. The decisions of this is so that it reduces litigation that results from attorney malpractice.

    • For similar reasons, courts interpret abuse of process narrowly, to what I'd consider using the court to threaten or abuse. Laying a charge or commencing a suit without proper evidence isn't enough: defrauding the court into issuing an unjustified order arguably would be in Canada.

      If it were political speech, various states and provinces set a lower bar, and will dismiss "SLAPP" suits with costs against.

      Repeated attempts to use legal processing to threaten, harass or abuse tend to get responded to, and

    • And people possibly and Justice for sure want lawyers who may have cheated to be put in the place of the accused, because they don't respect the system that feeds'em.

    • by Christoph (17845)

      Agreed, ain't that the truth. At the same time, there is such a thing as a bogus case. What is the "check" on lawyers who take such cases, victimizing innocent defendants? The ONLY real check is a subsequent lawsuit for malicious prosecution. If there was no fear of such lawsuits, a lawyer can take very comer, swear he has a case, and bring a lawsuit for "looking at me wrong at church".

      How about rapists sue their victims for speaking up? If the rapist has $60,000, should lawyers be able to take the case wit

  • Further evidence (Score:4, Insightful)

    by Anonymous Coward on Friday November 12, 2010 @07:04PM (#34212204)

    That Jefferson was right.

    I hope we shall crush in its birth the aristocracy of our monied corporations which dare already to challenge our government to a trial by strength, and bid defiance to the laws of our country.

  • by John Hasler (414242) on Friday November 12, 2010 @07:06PM (#34212210) Homepage

    ...when hearing appeals in civil cases. They consider only errors of law.

    • Re: (Score:3, Informative)

      by droopus (33472) *

      Absolutely true, but that IMO allows extreme use of precedential law. I was arrested for something that did not involve the US in any way, nor any citizen or federal commerce. When I finally (three years later) was heard by my judge on my 2255 [cornell.edu] she did two things:

      1) Cited Gonzalez v Raich [cornell.edu] a 2005 medical marijuana case decided by the SCOTUS. In it they say: "In assessing the scope of Congress’ Commerce Clause authority, the Court need not determine whether respondents’ activities, taken in the

    • by Grond (15515) on Friday November 12, 2010 @08:14PM (#34212660) Homepage

      This is not accurate at all. Appellate courts often review findings of fact, although they are reluctant to disturb factual findings, especially findings by a jury. To reflect this, there are different standards of review for matters of law and matters of fact. The usual standard for review of factual findings in Minnesota is the "clearly erroneous" standard. "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Minn. R. Civ. P. 52.01. But make no mistake: appellate courts can and do review evidence.

      This kind of fundamental error, which was made by the poster and the 3 people who modded up the post, is why representing yourself is such a bad idea.

      • by Mashiki (184564)

        Bingo. Fact and law are what make courts go round, if you fudge it you have no one else but yourself to blame.

    • Re: (Score:3, Informative)

      by Christoph (17845)

      In Minnesota, they consider the application of law to facts. If a case is dismissed on summary judgment for lack of a genuine dispute, they consider whether the facts on the record amount to a material dispute or not.

      One potential error of law they did not speak to: one of the claims against me was dismissed as "purely speculative".
      Is that ruling by the first court sufficient, under the law, for me to go to trial on a claim it lacked probable cause? If not, then probable cause includes "pure speculation".

  • by Spazmania (174582) on Friday November 12, 2010 @07:15PM (#34212284) Homepage

    Lawyers aren't just allowed to believe their client, they're one or two hairs short of being required to. To be guilty of malicious prosecution, they'd have to have conspired with your particular nemesis to fabricate the case knowing full well there was no case. Except for factual claim #28 against Vladimir Kazaryan, none of your alleged facts, if found to be true, would support a finding of malicious prosecution. And you lose that one because count 5 (aiding and abetting malicious prosecution) only works if you can first prove that there was a malicious prosecution.

    I hate to tell you this but the judge got it right: "Appellants complaint did not set forth claims of abuse of process and vicarious liability for which relief could be granted."

    You should have tried something like, "[lawyer] could not have reasonably believed in the existence of Zubitskiy after [date] but failed to promptly terminate the case." The lawyer is both entitled and expected to believe his client, at least until the client's claim becomes utterly non-credible.

    Sucks to be falsely sued. I know from first-hand experience. But you can't bust the lawyer for doing his job representing the client.

    • If the lawyers admitted that they knew that their client was lying and continued the case after that point how can you not have a finding that they aided and abetted in the fraud?
      • by Spazmania (174582) on Friday November 12, 2010 @08:16PM (#34212682) Homepage

        First, you misunderstand. The case wasn't dismissed because of evidence, it was dismissed because if all of the factual claims were proven to be 100% true they wouldn't add up to malicious prosecution.

        Second, check the timeline. The note was written 10/27/2007 by the head of the law firm, not the particular lawyer. Nearly all the claims had been dismissed months earlier and the rest of the case ended the following week. Even if you were to conclude that the lawyer could not have reasonably believed the client following the note, the case was over! There was no more prosecution!

        The OP probably has a decent tort against this Kazaryan fellow, since he was (allegedly) found to have participated in manufacturing the case. Libel or something, I don't know exactly the right tort. But the OP went after the folks with deep pockets instead.

        I can't say I blame him for wanting to be paid but you don't get to go after the lawyers for doing their jobs.

        • by Christoph (17845)

          The client testified years earlier at deposition he had no evidence to back up his story. That is something his lawyers should have believed. The client also said he was not challenging my copyright. The lawyers decided to challenge my copyright on his behalf despite his truthful statements he had absolutely no evidence to do so.

          I personally "believe" everyone in the world stole my car last night. A lawyer cannot take that case based on "believing me". There must be probable cause -- evidence. There was nev

    • by Christoph (17845)

      Not true. Even if you believe your client, you must have evidence. The client in this case admitted, under oath, he had no personal knowledge and no evidence (to back up his contention that "Zubitskiy" created the photo). But the lawyers did NOT believe his statement he had no evidence, like you say they should believe their client, and stop the litigation.

      The claim of unjust enrichment against me was not based on ANY testimony from the client, and was dismissed as "purely speculative". Is pure speculation

  • Tough Call (Score:5, Interesting)

    by Alaren (682568) on Friday November 12, 2010 @07:15PM (#34212286)

    Right, so... I'm a lawyer. Without knowing more about the case it would be hard to say "they got it right" or "they got it wrong," but (while I often mistrust my profession that much more for seeing it from the inside) it's important for people to understand the tensions at play here.

    American lawyers are often put in a bind by professional responsibility. On the one hand, we have a duty to the court--of candor, honesty, and to assist in reaching justice without placing endue burden on the judicial system. On the other, we have duties to our clients--from confidentiality and competence to doing as the client asks.

    Fulfilling both duties simultaneously can be very difficult. We have some leeway; for example, trial strategy is often something a lawyer can override a client's wishes on. But if you agree to represent someone, you have to zealously represent their cause. And if we are too quick to hold lawyers personally responsible for client overreaching, then lawyers become reluctant to advocate zealously for a cause. Sometimes it's easy to look back and say, "that lawyer should have known better than to bring this to court," but more often it is difficult and courts have strong reasons to give lawyers the benefit of the doubt--some good, some bad.

    In the end, lawyers are held responsible for their--and even their clients'--actions all the time. We get fined, suspended, disbarred, held liable, and otherwise disciplined on a regular basis. Does it happen often enough? Sometimes I doubt that. But chalking decisions like this up to "professional courtesy" or a broken legal system is overhasty.

    • Re:Tough Call (Score:5, Interesting)

      by Grond (15515) on Friday November 12, 2010 @08:19PM (#34212694) Homepage

      I'm an attorney, and I agree. If attorneys could rely on "professional courtesy" they wouldn't each pay thousands of dollars per year in malpractice premiums. There's no lack of legal malpractice suits, but I would say that attorney discipline, including disbarment, doesn't happen often enough. Just look at how long it took Jack Thompson to get disbarred.

    • Re: (Score:3, Insightful)

      by Roger W Moore (538166)

      But chalking decisions like this up to "professional courtesy" or a broken legal system is overhasty.

      That might be the case but it is hard to have confidence in a system where the lawyers police themselves. Would you be happy going to a doctor if you knew that, no matter how badly he might mess up a treatment, you would only be successful in suing him if a panel of other doctors agreed he had mistreated you? If it is fine for lawyers to police themselves then how about all the other professions as well?

      • Re: (Score:3, Insightful)

        by gcatullus (810326)

        You know what - I would because it would cut down on the crazy medical malpractices awards and maybe, just maybe, make healthcare affordable.

    • Re:Tough Call (Score:5, Informative)

      by dcollins (135727) on Friday November 12, 2010 @08:56PM (#34212886) Homepage

      "In the end, lawyers are held responsible for their--and even their clients'--actions all the time. We get fined, suspended, disbarred, held liable, and otherwise disciplined on a regular basis. Does it happen often enough? Sometimes I doubt that."

      For criminal prosecutors, as I understand it, not remotely often enough. Need some more of that:

      "Significantly, of the 4,741 public disciplinary actions reported in the California State Bar Journal from January 1997 to September 2009, only ten involved prosecutors, and only six of these were for conduct in the handling of a criminal case. That means that the State Bar publicly disciplined only one percent of the prosecutors in the 600 cases in which the courts found prosecutorial misconduct and NCIP researchers identified the prosecutor."

      http://thecrimereport.org/2010/10/04/justice-on-trial/ [thecrimereport.org]

  • The question is what they knew and when.

    Did they knowingly make the false representations to the Court?

    It is hard for a malicious prosecution type of action unless you can show when they knew it, when they used to false
    information. They can always fall back on, well we believed the lying client.

    • by Christoph (17845)

      There is an exception if the client's story is an obvious falsehood. And that's a fact question for a jury. If I tell you I didn't steal this photo from your website, I bought if for $850 in cash from a Russian-speaking stranger I met only once in a sauna...and by the way, there is no trace he ever existed on the face of this earth...could a reasonable jury find that is an "obvious falsehood"?

      If a reasonable jury could agree that's an obvious falsehood, I am allowed to proceed to trial (under the law). Ever

  • We need laws against SLAPP(strategic lawsuit against public participation). The courts are not for silencing your critics.

    • by Greyfox (87712)
      I'm pretty sure Minnesota has some. Perhaps he should have filed his countersuit using those. He should fire his lawyer if he didn't suggest that. Oh... wait...
      • by Christoph (17845)

        I brought an anit-SLAPP motion. I did so as a motion to dismiss in 2007. Unfortunately, Minnesota's anti-SLAPP statute only applies to speech aimed at favorable government action. I argued my website sought, in part, others to join me in a complaint with the Minnesota Department of Commerce. Judge Montgomery ruled from the bench the anti-SLAPP statute didn't apply. Paying a lawyer $5,000 to do that for me would not have changed anything.

  • by QuantumG (50515) * <qg@biodome.org> on Friday November 12, 2010 @07:30PM (#34212394) Homepage Journal

    Who gives a shit. Chris runs a stock photos website. His business model is entirely money for jam and if ya can't get it, sue. Did you read the part of the judgment where it outlines the monetary demands and legal threats Chris made? This is classic stand-over copyright tactics and all these slashtards are applauding it because Chris has presented himself as being the little guy who took on the big corporation and won.

    My opinion stands.. you're a copyright troll. If it wasn't for copyright law, no-one would ever give you a dime. That's the definition of non-fair trade to me.

    • by dangitman (862676)

      My opinion stands.. you're a copyright troll. If it wasn't for copyright law, no-one would ever give you a dime. That's the definition of non-fair trade to me.

      So, it's perfectly OK for someone to take his work, claim it as their own (plagiarism), lie about it, and then sue him when he tries to do something about it? And then you call him (the victim) a troll? You claim that he is the one guilty of unfair actions? WTF?

    • by Christoph (17845) <chris@cgstock.com> on Friday November 12, 2010 @10:55PM (#34213456) Homepage Journal

      I allow free non-commercial use of my photos. I recently authorized a non-profit in Europe to use photos I took at factories in China [suedwind-agentur.at] to raise awareness of harsh factory conditions. They were difficult photos to shoot, and I authorized use free of charge. I have provided images to non-profits at no charge every time I'm asked.

      I object only to commercial, for-profit, advertising use of my photos without paying me the standard market rate. It might be like going after pirates who sell DVDs of a movie for profit, but granting permission for all other, non-commercial use.

      Somehow I don't think that will affect your position, but I think it's relevant to the issue you raised.

  • Thank you for summarizing things, but not injecting your opinion or cute sarcastic remarks about the companies involved. Slashdot needs more neutral summaries like this.
  • You were awarded $19,462 [citmedialaw.org] Did that cover the costs of this litigation? Yes, I know you were pro se, but I'll also bet you could have been taking a lot of photos during the time you were researching and writing briefs...
    • by Christoph (17845)

      I spent about $7,000 in legal fees for advice on procedure, and estimate my lost income at $35,000. So no, I lost about $20,000. I could have avoided that by simply taking down the web page I was sued over. I have lost that money because I take the first amendment seriously.

  • Perhaps those malicious pests at Allen and Overy will stop hassling me about my article [paullee.com], Long live the Streisand effect.
  • and now (Score:4, Insightful)

    by Tom (822) on Friday November 12, 2010 @11:42PM (#34213652) Homepage Journal

    and now you come to /. and whine because?

    No, seriously, I looked for the point, purpose, goal, meaning, whatever-you-want-to-call-it of this article, and I can't find one. You intend to do what by posting this? Wouldn't this blurb be much better as a Facebook wall posting?

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