If you are not a follower of the legal blogosphere, you may not know who Joseph Rakofsky is, and what the whole brouhaha surrounding him is about. The story begins with Mr. Rakofsky’s representation of a defendant in a murder trial in Washington D.C., and the circumstances that surrounded the trial judge’s decision to grant a mistrial on it the court’s own initiative, due to the trial judge’s belief that Mr. Rakofsky was providing ineffective representation to the defendant. Okay, so far, so good, so what? Mistrials happen in criminal trials. Granted, it is rare that a trial judge does so without it being requested by one of the litigants and for the reason of ineffective assistance of defense counsel. Again, big fuckin’ deal. A trial judge decided to do something that is akin to the phrase “once in a blue moon.” Why are people talking about this story unless they are a part of the D.C. legal community?
Well, the story of Mr. Rakofsky hit the local media, such as the Washington Post. You can read about it here. Then, it hit legal publications such as the ABA Journal. Then, the legal blogosphere started to write about it. You can find a good collection of said writings here on Mark Bennett’s site. Okay, so, an attorney mucks up a murder case so bad that a trial judge declares a mistrial and other lawyers like to write about it. Yawn. Whoopee. Why is this story important? Do not lawyers that are bloggers generally write about cases, clients, court decisions, and other assorted legal decisions in the first place?
This case is different in that Mr. Rakosfy has taken upon himself to sue the people that have written bad things about him. It has been affectionately called, Rakofsky v. the Internet. Since then, there has been a buzz in the legal blogosphere about it or there has been a buzz about this suit by a good number of the named defendants in the suit. One of the named defendants, Brian Tannebaum has been on twitter berating about the general silence of the legal blogosphere to Mr. Rakofsky’s lawsuit. (Disclosure – I am a follower of Brian’s on Twitter, and I consider him a friend.) He believes that lawyers that have failed to blog about Mr. Rakosfy are afraid of him, and of his silly lawsuit. So, why has not this one story about a defense attorney set the legal blogosphere afire?
Brian was on to something. It is not fear of Mr. Rakofsky’s lawsuit. It is fear that they will lose business. Someone both Brian and I follow on twitter is Gary Vaynerchuk. He recently put up a video stating that if you are going to be in the game / business of social media, then you are going to have to take the heat of people that will disagree with you. Most lawyers that are bloggers are trying to do one thing and one thing only, promoting their business and their bottom line, and they do not want to do anything that will take away from that.
Now, instead of pointing the finger at others, it is time for me to answer my own question. Why have not I commented on this debacle? First, I am busy. Second, I like to blog about things other than the law. Third, others have written a good deal about it and I do not think that I can add anything to it. Yet, I know those are bullshit reasons or lame excuses.
So, what would I like to say to Mr. Rakofsky about this mess? Get over yourself. Grow a thick skin. As a public defender for over ten years now, I have had my competence challenged repeatedly both rightly and wrongly. If I sued every person that said something bad about me over the years, I would still be in litigation, and there would be no end in sight. As I tell my clients, their case is not about me, and whether I can impress a jury, but about me protecting them from the State. Mr. Rakosfy, your role as an advocate is not about personal glory, but about service to your client.
Moreover, at some point, Mr. Rakofsky, this case will have to go trial because I can guess that a good number of the people that you are suing, such as Brian Tannebaum and Mark Bennett, are going to call your bluff, and demand that you prove your case to a jury. Then, all of the sordid details about this case will come out to light. What will you do Mr. Rakofsky if the jury agrees with the defendants in your suit? Are you going to sue them? In addition, if you do prevail, there are still going to be people that will doubt you and think that you are an incompetent boob. What are you going to do then? Sue every person into agreeing that you are a great attorney?