Plaintiffs behaving foolishly 1.

Let’s get back to the New York Times article of a few weeks ago, called “A Suit Familiar And Remarkable,” because in it are lessons for plaintiffs, on how not to be a plaintiff.

The lawsuit the article talked about was brought by a songwriter who claimed that an “established artist” [I’m not that loose with the word “artist”] had stolen her song. As it turned out, the songwriter was right and won her case against the entertainment company that produced the recording of her stolen song. She won despite herself.

The case, as laid out by Benjamin Weiser in the Times, is an almost perverse lesson on how not to behave as a plaintiff. Indeed, Mr. Weiser says, “… [She] proceeded to do just about everything possible to sabotage her own claim.”

Boy, did she. The lessons:

  • If you have a righteous case, and this plaintiff did, you must hire a lawyer. This plaintiff did not hire a lawyer. It’s possible that she couldn’t afford a lawyer; her story, as briefly related in the piece, sounds as if she had no money. But it also sounds as if she would have put any lawyers off by her behavior. I haven’t yet seriously worked on how one is supposed to find a lawyer for a non-contingency case if one doesn’t have any money. But as I was told years ago by a terrific lawyer, “If it’s a good case, there will be a lawyer to take it.”
  • A plaintiff who presents herself as rational (even if distressed), and shows a lawyer her time line and the record she’s made of documents and proof for her case, might be able to work out a deal with a lawyer even if she has no money. But this plaintiff behaved as a lot of us behave when we realize someone has injured or cheated us: we go crazy, get obsessive, act angrily and unpleasantly to everyone and in general suggest to people — especially people who don’t know us, such as a potential lawyers — that we’re impossible to reason with and, worse, that we’re paranoid and making unjustified claims. See this previous post on this topic.
  • Paranoia (infused with rage) is a counterproductive attitude to present if you really have a case. Please take a look at several Sidebar posts on the subject of crazy people who don’t have cases, and a crazy person who did. If you do have a case, you don’t want to behave in such a way that people think you don’t have a case.
  • So this woman didn’t — or couldn’t — retain a lawyer. She wrote and filed her own complaint “riddled with misspellings and grammatical errors.” Also riddled with over-statements of her emotions (I recently pointed out to a plaintiff who asked my advice that there are two kinds of causes of action: emotional and legal. Emotional causes of action shouldn’t be spewing from a legal complaint.) At the least, if you’re writing your own complaint, use spellcheck and any grammar check your writing program offers. There’s nothing that will produce doubt about the validity of a complaint as quickly as bad writing.
  • The plaintiff “failed to appear for hearings or showed up late.” I’ve written quite a lot about deadlines, and showing up for court appearances, so won’t go into it again here. Except to say, you’ve got to show up and be on time. If you don’t, you are seriously dissing the entire court process, especially the judge. This woman was representing herself in her lawsuit, yet failed to respect the person who would decide her case. Bad.
  • This article, though, shows how far out of the way judges will go to help a pro se plaintiff. As irritated and angry as a judge can get, he or she will try very hard to help a plaintiff understand her position and the process, and will make extra efforts to decide judiciously. This plaintiff won because of a good judge. She should have treated her with respect. A righteous case doesn’t give you a permit to behave badly to anyone and it’s simply crazy to behave badly to your judge.
  • The plaintiff filed suit “against about a dozen defendants…” A lawyer would have determined if all of these defendants were actually potentially liable. Accusing so many people is again paranoid overreach. A lawyer would have explained to the plaintiff that even if, as the case proceeded, additional potential defendants were revealed in deposition testimony and discovery documents, they could be added to the case later. No need to overload the initial process with defendants. And a complaint like that looks weird, as if the plaintiff is naming everybody she knows.
  • The plaintiff “offered little in the way of evidence yet made sweeping claims. She said she was going up against the music industry’s ‘heavy hitters’ and feared she would be ‘blackballed’ for ‘pursuing justice.’ … The defendants had ‘conspired’ against her.” Paranoia, again. And you can’t just make statements like this without having some admissible evidence. Apparently, she didn’t present much evidence of anything at all.
  • She did not serve copies of the complaint upon all of her defendants. You have to. You have to announce, via a complaint, that you’re suing someone. You can’t just slip it in under the radar, without offering your defendants a chance to be … well, defendants. A chance to defend themselves. It sounds as if she was trying to effect a Soviet-era (paranoia rampant) trial, i.e., people get accused without knowing what they’re accused of and therefore can’t defend themselves.
  • And you don’t want to call your defendants “a gang of pillagers and thieves.” I’ll bet there’s legal terminology for that, if indeed pillaging and thievery are verifiable charges to be brought in the complaint.
  • I think I’ve said this before: when you file a complaint in the court, you must (1) buy an index number, i.e., pay the filing fee, then (2) serve the defendants with the whole complaint, either by using a process service company that will (3) provide an affidavit swearing the complaint has been served, or by serving it yourself and then writing your own affidavit, and, finally (4) file the affidavit, i.e., proof of service with the court.
  • But. But. But. Although I’ve discussed and even recommended Do It Yourself courts, i.e., courts in which a plaintiff can and should do the work alone (these courts are constructed to assist pro se plaintiffs), a big complaint in Supreme Court is not a DIY situation.

This has gone on too long, I think. So I’ll take up more of “Plaintiffs behaving foolishly” in a later post.

This entry was posted in The Facts of Life. Bookmark the permalink.