Law students always want to land a part-time job clerking in a law firm or even for a solo lawyer. This gives one a chance to see the law at work in the real world and not just in the casebooks and the professor’s lectures. In my third year of law school I considered myself very lucky to have landed such a spot with a small two-lawyer firm. That is, until I got seriously deep into some of the cases my lawyer was handling. His practice was primarily personal injury. I was, of course, glad to have a part in helping tort victims get just compensation from their tortfeasors. But some of the cases seemed rather dubious. Then one case I was researching jumped out like a frog leaping at a bug. The claimant had suffered severe injuries in a fall. The file contained documents, however, that clearly showed the alleged accident never happened. It wasn’t just a dubious claim, it was a non-existant claim.
I immediately brought this to the attention of the my lawyer employer. But he was already aware of what I had found. He said not to worry about it, we wouldn’t be going to trial. The insurance company had made a small settlement offer and we were going to take it. Case closed. No time invested (except mine) and a small profit. Money for nothing. The way the world works, according to him. I left that day and never went back.
I soon found a group of honest lawyers to clerk for.
Throughout my legal career I saw many such instances [not in any firm in which I was employed] where I either knew or suspected that there was no legitimate claim but one had been made for the purpose of shaking down a defendant or its insurance company. I was even once made a defendant is such a lawsuit [not in my capacity as a lawyer but in connection with the sale of personal residence] My law school clerking position had done what it was intended to do; it prepared me for the reality of how the real world works — sometimes.
Righthaven LLC has been called “a bottom feeding legal outfit” for its practice of trolling for alleged copyright violations and then suing in Federal Court. Its aim is not to actually prosecute a case to trial but to force a settlement upon a defendant who may have a valid defense to the claim but can ill afford the expense of litigation if the settlement offered is less than the likely cost to fully litigate and present its defense. Righthaven has made arrangements with two newspapers, the Las Vegas Review-Journal and the Denver Post, to sue websites, advocacy and public interest groups for copyright violations. The strategy specifically targets small “mom and pop” type bloggers who make no money off their sites and blog on issues of the day. These bloggers often refer to newspaper stories to frame the issue they want to discuss. If they post any of the content of the newspaper story Righthaven may sue them for copyright infringement. There is something called the “fair use” doctrine that probably protects these defendants, especially where only a small fragment of the story is posted on the blog, the source is linked, and where the purpose of the copying is for commentary and not for profit. Nevertheless Righthaven has sued thousands of these websites and forced 5-figure settlements without ever having to prove anything in court. Until now. A few Federal Judges are catching on and are refusing to allow their courtrooms to be used by Righthaven as an instrument to exact possibly unjust settlements from defendants likely to prevail in the end but settle to avoid the even higher costs of litigation.
One such Judge is John Kane in the Federal Court for the District of Colorado. Judge Kane recently denied Righthaven’s motion for an extension of time to answer the defendant’s motion to dismiss the suit, citing that meaningful settlement negotiations were ongoing and that the case might be resolved if given an additional three weeks to file an answer. The defendant apparently did not agree that meaningful settlement negotiations were ongoing and objected to the motion to extend time. Judge Kane took notice and denied Righthaven’s motion. The Judge said this at the end of his ruling:
Although Plaintiff’s business model relies in large part upon reaching settlement agreements with a minimal investment of time and effort, the purpose of the courts is to provide a forum for the orderly, just, and timely resolution of controversies and disputes. Plaintiff’s wishes to the contrary, the courts are not merely tools for encouraging and exacting settlements from Defendants cowed by the potential costs of litigation and liability.
Hooray for the learned Judge! Would there were more like him. Settlement as a less expensive way to resolve a dispute than litigating is still an honorable thing, and will continue. But settlement to avoid blackmail where there is no significant dispute and where a valid defense exists, is despicable. The latter is a natural outgrowth of the high cost of litigation, and human greed. It’s a positive development that some judges are on to this practice, and making it known that they will not lend their assistance to a shakedown.