California Defamation Law Blog : Los Angeles Defamation & Anti-SLAPP Lawyer & Attorney : Adrianos Facchetti Law Firm

I'm reading an excellent book by Bryan Garner and Supreme Court Justice Antonin Scalia, entitled "Making Your Case."

The first page contains a profound quote by T.W. Wakeling:

"Experience is undoubtedly a great teacher, yet it may be counterproductive if what has been cultivated and refined are bad habits. The point is that excellence is the product of diligent study and application of sound principles, not simply the accumulation of time logged in . . . courts."

Wakeling's astute observation mirrors my previous comments in a post about measuring the value of an attorney's services. The difficulty, from a potential client's perspective, is how to determine whether an attorney has "cultivated and refined bad habits," or whether he has diligently studied and applied sound principles. Having 20 plus years of experience does sound impressive and would lead the average person to believe that that should be enough time to achieve proficiency in any area. But there is little to no correlation in my experience between "time logged in courts" and legal ability.

I think the better approach would be to review what other clients and attorneys have said about the attorney, read articles the attorney has written about that area of law, and discover the kind of results the attorney has been able to achieve with clients like you in cases like yours.

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There are many reasons why a lawyer or attorney is unlikely to take your case. However, I am going to focus on the three most common reasons for purposes of this post. The last one is something that most attorneys will never admit, but it is absolutely true.

1. Not Enough Money Is Involved

The vast majority of potential cases that I receive (and I believe most attorneys receive) are Plaintiff's cases. This means that the prospective client wants to sue someone else. They usually ask for a contingency fee arrangement, which means that the attorney will agree to defer his/her fees for a percentage of whatever is recovered in the case. Because of the uncertainty of this arrangement, a lawyer is unlikely to take on cases where small damages are involved. What is a small case? I would say that a case where the possible damages are less than $100,000 is not worth it from the point of view of most Plaintiff's attorneys, at least here in Los Angeles. But every attorney is different, so you never know.

2. Lack of Liability

Liability essentially means whether the person or entity you would like to sue is responsible for what you are saying they did or what you believe they failed to do. Typically when a client comes to me for a consultation I can tell within 2 minutes whether they have a case or not. In many situations, there is a major problem with the case from a liability standpoint. It could be the that the statute of limitations has run or something else. In those kinds of circumstances, an attorney is unlikely to take your case and there is nothing you can really do about it.

3. The "X" Factor

I call it the "X" factor because there is no other way to describe it. It's the same reason why you're friends with certain people and why you are not with others. The bottom line is that a lawyer has to feel comfortable with a client. If the client seems mentally unbalanced or particularly high-maintenance, I I will not take the case no matter how good the case might be. And I know other attorneys feel the same way because they've told me so.

Bonus Reason: 

Trying to get advice from an attorney for free. This is a big one. Lawyers generally are very busy and they get paid by the hour. Many of my colleagues have complained to me that many potential clients call them up merely to try to squeeze some information out of them. While I don't blame people for trying to get advice, I think they need to realize that attorneys should be compensated for the advice they give, which, is the product of an expensive education and years of experience. Do not call an attorney merely to seek free advice. Only call or contact an attorney--unless you are calling a legal aid society--if you are capable of paying for legal services.

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I am pleased to announce that the Law Office of Adrianos Facchetti has established an Of Counsel relationship with Traverse Legal, a niche law firm based out of Michigan that handles cutting edge issues in Trademark, Copyright, and Domain dispute matters. Some of the largest and most successful companies in the world select Traverse Legal to handle matters within their areas of expertise.

I am excited to work with them and I am glad to share the good news with you.

Thanks and enjoy the holidays.

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As I wrote about in earlier blog posts, Tennessee congressman Steve Cohen introduced a bill in the House of Representatives called the Citizen Participation Act. It's effectively a Federal anti-SLAPP piece of legislation and seems to be modeled after California's robust anti-SLAPP law. For many reasons, it is very important that this law (or something like it) passes. 

I recently gave my support to the Public Participation Project, which is one of the groups leading the effort to pass the SLAPP law.

Perhaps you should visit their site and give your support as well.

Check it out here: http://www.anti-slapp.org/?q=node/17

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Relying primarily on a recent California Supreme Court decision, I wrote a while back that the discovery rule does not apply to defamation cases. That is, generally, you have one year to file a lawsuit for defamation (slander/libel) from the time the statement or statements are published. Unfortunately, the Supreme Court did not address specifically whether the discovery rule applies to internet libel. 

Well leave it to the Fourth District, Court of Appeal to decide the issue. It determined that Internet websites are subject to the single publication rule. In plain English, (and grossly simplified) it means that you can only sue for damages based on the first publication of a defamatory statement. You can't, for example, sue multiple times based on a single defamatory statement. This is important because the statute of limitations is triggered at the first publication of a defamatory statement. So the Fourth District effectively held that in regard to alleged defamatory statements made on Internet websites (like blogs or Twitter), the statute of limitations begins to run at the time the statement is first published.

Many lawyers are not aware of this rule. They believe that the discovery rule applies to Internet libel or that the single publication rule does not. But they are wrong on both counts. This is why it is necessary for you to consult with a defamation lawyer, or at least someone who is somewhat knowledgeable in this area.

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