Experienced Anti-SLAPP Lawyers Are Few And Far Between

Posted on June 28, 2011 by Adrianos Facchetti

I routinely hear the following kinds of comments from experienced civil litigators in Los Angeles:

In my 40+ years of practice as a business litigator, I've only handled one anti-SLAPP motion and I lost because I missed the 60 day deadline to file a SLAPP motion by just 5 days. (This lawyer is an excellent litigator with experience in nearly every field of law, including securities, intellectual property, real estate, personal injury, malpractice, you name it. But this lawyer fell into one of the many traps awaiting attorneys in the anti-SLAPP statute).

I've been doing litigation for almost 20 years, and I've only encountered one anti-SLAPP motion on the plaintiff's side, and I lost because the other attorney misled and outmaneuvered me. (This lawyer was a solo but now works as a partner for a very large and respected law firm in Los Angeles).

Adrianos, I wish you could have seen my work product in another context, I actually do good work (this was said just after I prevailed on an anti-SLAPP motion and was awarded 100% of my requested non-contingent attorney's fees).

Adrianos, I wish I had called you sooner. (lawyer who was personally served with a lawsuit and only had 2 days in which to file an anti-SLAPP motion).

I don't say any of the above to impress you. I say it to impress upon you the fact that it is important to realize that the anti-SLAPP statute is a specialized area of law. It is highly technical and complex, with somewhere around 400 published decisions interpreting the statute. And, as the above quotes show, experienced anti-SLAPP attorneys are few and far between.

So it is very important that if you are served with a lawsuit that targets your free speech or petitioning activity, usually in the form of claims for defamation, libel, slander, malicious prosecution, abuse of process, intentional infliction of emotional distress, or intentional interference with prospective economic advantage, you need to call an experienced lawyer right away. 

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Texas Passes Anti-SLAPP Statute

Posted on June 22, 2011 by Adrianos Facchetti

The dominoes continue to fall, as Texas becomes the 27th state in the union to pass an anti-SLAPP statute. It's about time. 

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Preserve Your Objections In Anti-SLAPP Motions

Posted on June 21, 2011 by Adrianos Facchetti

There are many reasons why people either succeed or fail in making or opposing anti-SLAPP motions. But by far the most common is the failure to properly deal with evidence. Too often I see plaintiffs spending an inordinate amount of time rebutting defendant's contention that the alleged speech arises under the first prong of the anti-SLAPP statute. Instead, plaintiffs should be focusing on producing evidence to meet their burden under the second prong to show a "probability of prevailing" on the merits. For example, if one of the claims is for defamation, plaintiff should include evidence of damages, which may be required unless the claim is a specific type of defamation.

Typically, parties fail to lay a proper foundation for their evidence, or they attempt to introduce statements which are hearsay. When this happens, a good lawyer will file written objections to the evidence in an effort to get the court to rule that the proposed evidence is inadmissible. This is important for two reasons. First, as a defendant, if you can show that plaintiff's evidence is inadmissible, you may prevail on the anti-SLAPP motion. Second, making written objections (or an objection orally at the hearing) is necessary to preserve those objections on appeal. If you do not make the objection either in writing before the appeal or orally at the hearing on the anti-SLAPP motion, the appellate court treats those objections as waived.

Another point to remember is that it is no longer necessary to ask the court to make a ruling on an objection during the hearing. Since some judges will not provide written rulings to objections to evidence, attorneys used to be required to make an effort to get judges to make those rulings at the hearing, e.g. "Your honor, what is your ruling on Objection No. 3." If the attorney didn't at least make an effort on the record (even if they submitted written objections in advance) the appellate courts would treat the objections as waived for purposes of appellate review. The California Supreme Court changed that rule in 2010. Given the Supreme Court's decision, reviewing courts treat objections in those types of situations as having been overruled. In other words, the evidence will be admitted.

On the flipside, you should only make good objections. Do not try the shotgun approach because judges do not like it. They already have enough work to do and you should endeavor to make their jobs as easy as possible. Only focus on the other side's evidence that may make a difference to your case.

 

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