Archive for the ‘Rakofsky v. The Internet’ Category

Of Parsimony and Ockham’s Razor

January 31, 2012

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“I offer no apology; I am the victim here, not a miscreant.”~ Joseph Rakofsky

Occam’s razor, also known as Ockham’s razor, or in Latin referred to as lex parsimoniae (the law of parsimony, economy or succinctness), is the principle that among competing hypotheses, the one that makes the fewest new assumptions usually offers the correct one, and that the simplest explanation will be the most plausible until evidence is presented to prove it false.

My co-defendant and local counsel in the Rakofsky v. The Internet lawsuit, Eric Turkewitz has  posted a new update #4 which includes a new court filing by the plaintiff, Joseph Rakofsky:

Update #4, 1/31/12 – Rakofsky’s Reply to other defense opposition to the motion in the Appellate Division to lift the stay for him only. No response to our papers (which were served 1/26/12, one day before they were due to be served): RakofskyReply. The opposing papers to which he refers are here: Teschner  (Yampolsky) Opp and Weissman (Reuters) Opp

Some may describe Rakofsky’s Reply Affidavit and legal writing in uncharitable terms:

bewildering

Delphic

cryptic

enigmatic

fathomless

impenetrable

incognizable

inconceivable

inscrutable

mystifying

perplexing

puzzling

sibylline

unfathomable

ungraspable

unimaginable

unintelligible

unknowable

Not I. I merely report the facts in evidence. Yet, the correct adjective escapes me…Ah, yes, “incomprehensible”, or as in Rakofsky’s own words:

The subtleties of Rakofsky’s formidable legal argument and rhetorical flourishes are exemplified in the following precatory phrasing:

As Ken @ Popehat remarked on Twitter:

par·si·mo·ni·ous (pär s -m n – s). adj. Excessively sparing or frugal. par si·mo ni·ous·ly adv. par si·mo ni·ous·ness n.

Whatever one may think of Mr. Rakofsky or his lawsuit, one cannot call him parsimonious in his prose.

As Edmund Burke once said:

Mere parsimony is not economy. Expense, and great expense, may be an essential part in true economy.

Or, in the immortal words of Titus Livius:

There is nothing worse than being ashamed of parsimony or poverty.

The day of judicial reckoning fast approaches….

Previous Related Posts:

Zen and the Art of Blawging Maintenance

November 7, 2011
Everything Zen

Norm Pattis wrote a post a few months ago entitled: Updated: Rakofsky: Is Internet Mobbing A Tort? charitably offering up to the Plaintiff in the Rakofsky v. Internet litigation the makings of a new nominate tort: (more…)

The Rakofsky Effect: It Actually Works!

October 26, 2011

1. My post coining the phrase based upon my reply to Nathan Burney on Twitter:

2.   Someone else then submits the phrase to The Urban Dictionary:


3.  Rakfosky then confirms the hypothesis and proves the theory by filing a new Notice of Motion and supporting Affidavit .As Eric Turkewitz, (co-defendant and local counsel assisting pro hac vice counsel Marc Randazza, representing 20 of the Rakfosky defendants) notes:

[Rakofsky] has now filed a motion to amend the complaint a second time, with a 300-page whopper including 1,248 paragraphs. He has 78 causes of action and demands, and, if my calculations are correct, he demands $145,000,000 in damages.

Part 1 of the proposed Second Amended Complaint is here and Part 2 is here.

4. Finally, it appears I am no longer the lone Canadian in this internet version of Franz Kafka’s The Trial. Welcome Canadian Lawyer Magazine and Reuters Canada as co-defendants! (see page 167 of the proposed Second Amended Complaint).

See also, Ken’s post at Popehat.com: The Tort of Internet Mobbing Is Perfect For Suing The Internet.

Testicular Fortitude and Free Speech

August 5, 2011

Among various iterations, The Urban Dictionary defines “Testicular fortitude” as:

“A more academic English translation of the Spanish word “cojones”, that originally stood for testicles, two spheric glands part of the reproductive system of males, also commonly known as balls.To have testicular fortitude is to show strength, courage and sagacity in challenging situations. The story of how strength and courage is related to two nuts encased in shriveled skin hanging from between a man’s legs is a fascinating story that i don’t have the time to go into right now.

You can’t win with reserve and lassitude
And you can’t face the unforgiving multitude
Without the manly trait of testicular fortitude”

Strength. Courage. Sagacity. Principled words or words about principles.

Some will be amused (and likely others disgusted) by a recent story circulating the blawgosphere about freedom of speech and the aforementioned male genitalia. (more…)

Fox v. Vice: SCOTUS rules plaintiff must pay fees for frivolous claims only

June 6, 2011

I’ve written about the Anglo-Canadian “Loser Pays” Rule for costs indemnification here and here.

The American Rule is considered by Maureen Cosgrove at Jurist-Paper Chase who reports on “Supreme Court rules party must pay fees for frivolous claims alone”  discussing today’s decision in Fox v. Vice  , 563 U. S. ____ (2011) (U.S.S.C.).

Fox claimed that he was the victim of dirty tricks during his successful campaign to become the police chief of Vinton, La., and filed a state-court suit against Vice, the incumbent chief, and the town.  Fox’s suit asserted both state-law claims, including defamation, and federal civil rights claims under 42 U. S. C.§1983, including interference with Fox’s right to seek public office. Vice removed the case to federal court based on the §1983 claims. Following discovery, Vice moved for summary judgment on the federal claims, which Fox conceded were invalid.

The District Court dismissed the frivolous claims with prejudice and remanded the remaining claims to state court, noting that Vice’s attorneys’ work could be useful in the state-court proceedings. Vice then asked the federal court for attorney’s fees under §1988, submitting attorney billing records (dockets) estimating time spent on the entire suit, without distinguishing time spent between the dismissed federal claims and the remnant state claims. The court granted the motion on the ground that Fox’s federal claims were frivolous, awarding Fox all of his attorneys’ fees in the suit. Although the state-law allegations had not been found frivolous, the court did not require Vice to parse out the work the attorneys had done on both sets of claims and declined to reduce the fee award to account for the remaining state-law claims, noting that both sides had focused on the deemed frivolous §1983 claims.

The Fifth Circuit affirmed, rejecting Fox’s argument that each individual claim in a suit must be held to be frivolous for the defendant to recover any fees, and agreeing with the District Court that the litigation had focused on the frivolous federal claims.

Writing for the unanimous Court, Kagan, J.  notes,

Our legal system generally requires each party to bearhis own litigation expenses, including attorney’s fees, re-gardless whether he wins or loses. Indeed, this principle is so firmly entrenched that it is known as the “American Rule.” See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 247 (1975). But Congress hasauthorized courts to deviate from this background rule incertain types of cases by shifting fees from one party toanother. See Burlington v. Dague, 505 U. S. 557, 562 (1992) (listing federal fee-shifting provisions). (at 5)

Justice Kagan adds,

” But the presence of these unsuccessful claims does not immunize a defendant against paying for the attorney’s fees that the plaintiff reasonably incurred in remedying a breach of his civil rights.

Analogous principles indicate that a defendant may deserve fees even if not all the plaintiff’s claims were frivolous. In this context, §1988 serves to relieve a defendant of expenses attributable to frivolous charges. The plaintiff acted wrongly in leveling such allegations, and the court may shift to him the reasonable costs that thoseclaims imposed on his adversary. See Christiansburg, 434 U. S., at 420–421. That remains true when the plaintiff’s suit also includes non-frivolous claims. The defendant, of course, is not entitled to any fees arising from these non-frivolous charges. See ibid. But the presence of reasonable allegations in a suit does not immunize the plaintiff against paying for the fees that his frivolous claims imposed. (at 7)

The District Court and Fifth Circuit decisions were reversed and remanded to the District court to apply the “but for” rule for fee-shifting.

Speaking of frivolous lawsuits, (albeit only involving state-law defamation, intentional infliction of emotional harm and intentional interference with contractual relations claims), Eric Turkewitz in his Affidavit  in the Rakofsky v. The Internet litigation has deposed that:


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