The Rakofsky Standard

I missed the initial Rakofsky story in the Washington Post because I was unplugged on vacation. Short version, via Twitter friends and the internet, is that a young attorney in New York represented a man accused of murder in a Washington D.C. criminal case. There were a few issues with the representation from the get-go. Mr. Rakofsky had apparently never tried a case before. And he was not admitted to practice in Washington D.C.

Things did not improve during trial. Mr. Rakofsky apparently did not understand the technical requirements for admission of scientific evidence. As a result, he could not get into evidence important information about the accused’s use of drugs. The case ended in a mistrial. Mr. Rakofsky mistakenly believed that was a good thing. It was not, as his client faced re-trial on the same very serious charges.

Going from trying no cases to handling a murder case is a bit like deciding after medical school that you are now qualified to perform coronary bypass surgery. As with performing surgery, trial of cases is a skill best learned slowly with tutelage. You start after training with small and easy matters–traffic court, for example, or misdemeanors, or small-scale property damage claims–and then you build up over time.

As licensed professionals, attorneys have certain responsibilities. Here is a simple rule: Attorneys may only accept employment on matters on which they are competent.

Mr. Rakofsky did not understand the standards for admission of scientific evidence–here toxicology. By his own account, he offered key toxicology evidence, which the trial judge rejected. Mr. Rakofsky apparently did not completely understand the rules of scientific evidence. To be fair, they are technical and sometimes hard to understand. But that’s why young attorneys need to handle small and simple cases before they can try complicated high-stakes matters.

Various law bloggers correctly picked up on Mr. Rakofsky’s shortcomings and, more important, what the story says about internet marketing of legal services. A nice collection of of blog posts can be found here at The Trial Warrior Blog.

A wiser young lawyer would have treated this whole sordid affair as a time to re-think. Sadly, Mr. Rakofsky has not yet come upon wisdom. Instead, an attorney acting on his behalf sued The Washington Post and various law bloggers, including bloggers Antonin Pribetic (The Trial Warrior Blog), Scott Greenfield (Simple Justice), Jamison Koehler (Koehler Law Blog), Mark W. Bennett (Defending People), Brian L. Tannebaum (My Law License), Carolyn Elefant (My Shingle), Eric L. Mayer, Above the Law, the American Bar Association, ABA Journal. Sorry to all omitted from the list. The complaint, in what has been labeled Rakofsky vs. The Internet*, is a triumph of ridiculously poor lawyering.
I have not counted, but I am told there are 74 defendants.

The complaint admits to some of the goofiness. It sets out the toxicology problem I noted above. It alleges irrelevant allegations. It implicitly posits a standard of practice that I think is fairly labeled as The Rakofsky standard.

There is a glaring problem from the outset. Scott Greenfield, Mark Bennett and Antonin Pribetic point out that young Rakofsky and his Rakofsky standard plaintiff’s counsel do not understand New York jurisdiction. They have sued out-of-state defendants and even the Canadian Trial Warrior in New York on a defamation claim. A problem:  New York long arm jurisdiction does not apply to defamation claims.That likely spells quick ending for all but the New York defendants.

The case has generated a lot of well-deserved ridicule on Twitter and from law blogs. As a casual observer, I can only laugh at the young man and his current counsel. They have taken a bad experience and compounded it by a factor of 10 by filing this case. While the Rakofsky standard is generous, I am betting that their future work on this case may violate it.

For my Twitter friends and the Rakofsky 74, I have volunteered to serve on the defense team. True, I have never handled the defense of a defamation claim in my 25 years of experience. As well, I am not admitted to practice in New York. But under the Rakofsky standard, I am totally competent to try their case.


*Scott A. Greenfield a New York criminal defense lawyer who writes the pretty damned amazing Simple Justice law blog claims credit for having coined the phrase.

The other blogs listed above contain some of the best damned law writing out there. Even though I do not practice in Canada, I regularly read The Trial Warrior Blog. Ditto for Bennett at Defending People and Tannenbaum at My Law License work and Simple Justice. The latter three focus on criminal law but consistently hit deeper and more important issues in the justice system.

City of Portland takes a pass on enforcing housing discrimination laws

Another great coffee-spitting moment brought about by political wisdom. This one from my friend and former colleague, Nick Fish. According to this Oregonian article, a study commissioned by the City of Portland found widespread discrimination in housing rentals. In 50 tests, 64 percent of Black and Latino renters encountered discrimination in rental housing.

Commissioner Fish waffles a bit, but the upshot is that it looks like Portland is simply not going to enforce fair housing violations. Instead, the City defaults to education of wayward landlords.

This is wrong in more ways than I can count. Teachable moments come in many forms, but most notably they include the process of enforcement.

As a trial lawyer, I am much more effective at changing an adversary’s thinking and obtaining resolution if I can point to serious and concrete consequences of misconduct. “Yes, Mr. Jones, I understand that you don’t think you should follow the law like the rest of us. Neither did Mr. Smith. After that jury issued its verdict, Mr. Smith seems to have…uh…changed his thinking on the subject.”

Commissioner Fish’s conduct sends a couple of poisonous messages. First, every landlord who practices racial discrimination just got a love letter saying that there are no consequence for flaunting the law. Bad move. Second, every person of color just got a bureaucratic brush off letter. (“Oh, gee that’s bad. Good luck to you.”) That’s a helluva a message to send, huh?

The ironic part of all of this is that city officials and good liberals wring their hands over the lack of diversity in this way-too-white metropolis. And yet we have elected officials choosing to ignore enforcement of civil rights laws. Seriously?

While it’s not nearly as effective as City enforcement, private citizens can file lawsuits for race-based housing discrimination. So I suppose I should be pleased because I represent consumers for a living and handle discrimination claims. Those who loudly complain about lawsuits and the litigious nature of American society frown on such notions. Worse, those who the laws protect have every right to expect that the government will actively enforce racial discrimination laws.

The truth is that I have more work than I know what to do with, given the nature of unregulated greed in our society. It’s time for the City to get serious about enforcing anti-discrimination laws. A few high-profile enforcement actions would go a long way toward stopping abuse.

My hope is that we see some push back and that the backlash on this causes the City to reconsider and enforce our civil rights laws. This reflection on this morning’s coffee-spitting moment is my modest contribution toward that goal.

David Sugerman

I am not dead yet: Oregon Unlawful Trade Practices Act and insurance reform

Kudos to Steve Duin of  The Oregonian for this column on Azusa Suzuki’s struggle to prove that she is entitled to Regence Blue Cross supplemental medicare insurance coverage for medical expenses incurred in a motor vehicle collision.

Apparently Regence decided that Ms. Suzuki was dead and–for that reason–Regence decided it did not need to pay her bills. She worked for years to prove she’s very much alive. It sounds almost comical. But if you watch the linked video or read the article, it’s apparent that outrage is the only response.

The Duin article points up a serious problem in Oregon. Consumers are at the mercy of insurance companies. When they do not pay claims, when they violate Oregon law, and when they do not fairly adjust claims, Oregon consumers are virtually out of luck. The problem is a lack of consumer remedies against insurance companies that misbehave.

Senator Chip Shields is trying to fix that. He has introduced a bill–SB 719–which protect Oregon consumers by making insurance companies meet the bare standards set out in Oregon’s Unlawful Trade Practices Act.

In this session of godawful Salem bills, it’s nice to see the champions of consumers are still fighting for the rest of us.  Appreciation is due–as always–to Sen. Shields. Consumers have few friends in the Oregon legislature. He is one of our best.

Mom called

I’m at home this evening with two computers going side by side. On the desktop, I have a  several thousand page PDF of Army FOIA documents open, as I wade through KBR discovery. My laptop is up with a running digest of the interesting tidbits.  It’s my own odd-duck style of learning the case.

The phone rings, and I answer it absentmindedly.

“David Sugerman?,” asks the woman on the other side brightly.


She runs on without a pause about how she’s calling to thank me for my great work and wondering whether she can help. Can she send money, or bake cookies, or weed my yard?

I stammer, “Who is this?” I have the presence of mind to not ask her how she got my number or why she’s calling a stranger out of the blue.

She chuckles lightly, “I’m just a Mom.”

“And why are you calling?”

“Because your work makes Portland great. And besides those guys are killers.”

Might be the exhaustion, or maybe it’s that I’ve lately been reflecting on my mother and wondering what she would have said about her son’s latest work. But for whatever reason, I was practically moved to tears.

Turns out that she had collapsed two people into one. She thought that Stu Sugarman, a Portland civil rights and criminal defense attorney, and I were the same person. It happens now and then…. I corrected her. And she STILL wanted to help and to send money. She wondered what she could do.

So this is what I said. “Do something great that you think matters and then drop me a line to tell me what you did.” She liked that.

A few thoughts before I go back to the mind-numbing document review.  There are some days when I know that I am blessed or–if you prefer–profoundly fortunate.  This is one.

So Mom, your call was a boost. Hope you don’t mind that I’m putting it down here. I imagine doing so will help me remember this moment as we trudge on toward trial.

Thanks and love-Just a son

Calling out Oregon lawyers by name

Yes, I’m going to name names here. That’s how we do things. But before I start throwing the dirt, I want to be clear about what they’ve done.

Last week, a case I’ve been working on–Bixby v. KBR–got a lot of press. This is the Oregon National Guard soldiers’ toxic exposure injury case against KBR, Inc. (New motto: “We’re no longer Halliburton.”) [Brief note to KBR/Halliburton: That was a joke. -ed.]

Anyhow, I received a number of comments from friends and colleagues. Invariably, some included gentle ribbing about the picture of the middle-aged attorney who seems way more serious and sober than usual. Some included the kind of “Attaboy” comments from colleagues with whom I’ve shared foxholes.

Those are good. But there were a few that were better.

Over the course of the years, I’ve been up against talented and tough opposing counsel in all manner of cases. Two former (and future) adversaries took time to send notes and emails lauding my efforts and wishing me well on these cases. And these are the two Oregon lawyers who I want to call out by name.

Carol Bernick, Partner-in-Charge at Davis Wright Tremaine, and W.A. Jerry North, a shareholder at Schwabe Williamson Wyatt, have both been opposite me in hard-fought cases.  We’ve each had our wins and our losses in big cases.

Each of them wrote notes about the Oregon National Guard cases. The recognition is nice, but what’s better is what it says about the legal profession in Oregon. Both are top-notch opponents. Neither gives an inch in their cases. Still, they can recognize the work of a colleague.

This is why I treasure practicing law in Oregon.  Despite our differences and our courtroom fights, we still have the sense and wisdom to recognize the good works of our colleagues and opponents. When I talk to colleagues in other states, they can’t believe that we generally get along with opposing counsel, work toward stipulations on things on which we can agree, and then bring it full force to fight when we cannot agree. Our clients are well-served by all of this, and we who fight for a living gain a measure of comfort by knowing that the places and times we battle are simply what we do.

So Jerry and Carol show by quiet act what professionalism means to Oregon attorneys. I am deeply appreciative of their kind private messages. But more, it speaks to a vision of how Oregon attorneys carry themselves.  Thank you, friends, for your grace.

Church sex abuse–Oregon deposition of Cardinal Levada

Sex abuse is one of those challenging areas where lawyers have to tread. I have handled several civil cases for sex abuse victims over the years. They’re tough.  The victims lives are often trashed. The amount of denial and levels to which some will go to protect predators is horrifying.

These topics cause fires, so I’ll lay out my background and biases here. First, I write this as someone with experience representing sex abuse victims, though I have not handled any cases against the Church. I am not Catholic, though I have friends who are engaged in the Church and friends who have left it over the years.  My daughter attends St. Mary’s Academy, a fabulous Catholic school here in Portland. The school is particularly welcoming to those of us who are not Christian.

Today’s story focuses on Cardinal Levada, a high ranking Vatican official who has been extremely critical of press editorials regarding the Church’s failures in dealing with child sex abuse problems. Cardinal Levada previously served as Archbishop in Portland.  Oregon attorney Erin Olson deposed then-Archbishop Levada in connection with Church sex abuse cases here.  (Technical law term: A “deposition” is pre-trial testimony taken under oath.)

Ms. Olson–who has handled many of the Oregon church sex abuse cases–had the deposition transcript in her files, and she released it yesterday to The Oregonian. According to the news report, Ms. Olson explains that Cardinal Levada reinstated an Oregon priest who was a child sex abuser.  The story quotes from the transcript. While there are always differences in how people interpret evidence or testimony, my own take is that the quoted testimony suggests that Cardinal Levada was at least inattentive to the horrible risks of priest sex abuse.  At a minimum, it’s easy to see that Cardinal Levada’s own experience in the civil justice system might undercut his criticism of those who question the Church’s actions.

I suppose some legitimately may feel that the Church has been unfairly criticized and that it has done enough to confront and repair this awful black chapter in its history. On the other extreme, there are those who see what the Church did and what it failed to do as unforgivable, no matter what. I tend to fall toward the middle.

The Church has confronted some of the misdeeds from these dark times. But that only happened because the victims mustered the immense courage to come forward to challenge the Church. As well, the civil justice system and dedicated and tough attorneys like Erin Olson refused to back down. And facing those things and the awful and immutable truth beneath, the Church had some of its reckoning.  I use “some” deliberately here, as it looks to me like there is far to go.

Perhaps I’m naive, but I don’t accept that any group of people, any nation, any religion or any institution is beyond redemption. So I hope that those in the Church committed to healing and reconciliation continue their efforts.  I also hope that leadership of the Church stops the circling of wagons and defensiveness, as these are legitimate criticisms and questions.  Denouncing the critics like The New York Times or the victims or their attorneys seems to me to be the opposite of reconciliation.