From the #MoronFiles | Note to Dabblers: When in doubt, refer it out!

PRELUDE: 

Without getting into too much detail, let’s just say that I see all kinds of crazy stuff in my line of work. Some of the things that come across my desk make me frustrated with society and you probably know that I blog about Fighting Fair on the Internet because of the things that I see.  In addition, sometimes the things that I see that frustrate me include others that are part of my profession. Like any profession, there are certain shit bags (okay, maybe they aren’t all shitbags…just most of them) out there that give us lawyers a bad reputation and quite frankly, it pisses me off.

Some things that I see warrant a full blog article – so I write those.  Others just warrant a short mention because I find the conduct both outrageous AND funny.  I’ve decided to start a collection of true stories, with some identifying facts modified so I don’t have to deal with the psychos, and will be continually adding more of those to the #MORONFILES for your reading pleasure:

09/10/2018 #MORONFILES ENTRY:

If you are a lawyer and your website boasts that you are the top “insert any law practice not having to do with civil internet defamation matters here” and that is ALL that it is listed that you practice on your website…perhaps you should stick with what you know.  More often than not, dabbling makes you look like an unprofessional asshole to those who do practice in the area you are dabbling in and you are really doing a disservice to your client.  Don’t get me wrong, I’m all for learning new areas of law…  I wouldn’t be doing what I am doing but for me learning new stuff…but I could do reasearch on my own and I also found mentors.  And if you don’t have a mentor, you should be damn smart enough to conduct basic research first before you go sending your little nasty grahams.  Have a leg to stand on for crying out loud!  Be smart enough to know what you don’t know.  When in doubt, refer it out!

So client gets a letter from a law firm, from a foreign jurisdiction (but not THAT foreign – like this country likes to cite to our case-law on occasion) that basically provides the run of the mill demand letter and threat of litigation if the client doesn’t comply.  Sounds rather standard; so what’s the problem?  This particular lawyer has not a f*cking clue what he/she is talking about.  This is evident by the fact that they cited to a local statute that would ONLY make sense if it was filed some 2+ years ago…and if they applied to someone OTHER than this particular client. *Sigh*

I don’t care what area of law you practice in – claims have some sort of statute of limitations.  If your law school education didn’t teach you that – go get your damn money back!  It’s basic legal analysis 101.  If you are going to make a demand, you should probably look that up first to see if your threat of litigation is going to make you look like a tool or not by being outside of the statute of limitations for the claim you are asserting. Now, I know that some attorneys argue that it is okay to bring a claim that is outside of the SOL and wait to see if the Defendant raises that defense.  I do not subscribe to that kind of lawyering and some State Bar opinions are with me on this.  Second, you should see if such liability actually even extends to the person/entity that you are threatening…and if your own jurisdiction didn’t just create some law that is totally opposite of the position that you are trying to pursue.  Yeah, because I can do research too…and that happened here. *Asshat*

This is a prime example of a person/firm that I won’t forget…and it is a person/firm that I would NEVER refer anyone to…because they have already proven they don’t do necessary research to adequately advise a client.  That is true of anyone who makes my #MoronFiles list (the list is getting longer by the day – though I don’t write about them all).  This is why I think it’s important that clients and lawyers understand statute of limitations and other pertinent aspects that should be contemplated before sending such threats.  It’s not just your client that is watching you (and that you could be harming by wasting their resources)…so are others in the profession.  I remember who are above-board and who aren’t…and I’m happy to refer to colleagues in the space, even if they are opposite of a client of mine, if they show professionalism.  To be clear, this isn’t the first of it’s kind…just felt like venting regarding this one today.

Until next time friends!

 

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Arizona Defamation Law

Now that nearly anyone can get online and “speek freely” it is no wonder that there is a rise in defmation related claims.  If only people would have read the Fighting Fair on the Internet series sooner?  Indeed, so many people are either “That Guy” or are on the receiving end of “That Guy.”  Hey, I’m not judging, I’m just telling it as I see it.

As adults that may not have grown up with the internet, many of us were thrust into online situations that, quite frankly, we weren’t equipped to handled.  And now, kids are even getting the short end of the lesson learning stick because of it.

So let’s talk about defamation.  Of course, it’s important to point out that laws vary from state to state and if you are not in Arizona, the following information may not apply to you.

ARIZONA DEFAMATION LAW – THE BASICS

The Elements of Defamation in Arizona.

In Arizona, as outlined in Morris v. Warner, 106 Ariz. 55, 62 (Ariz.Ct.App. 1988), the elements of a defamation claim are:

  1. a false statment concerning the plaintiff;
  2. the statement was defamatory;
  3. the statement was published to a third party;
  4. the requisite fault on the part of the defendant; and
  5. the plaintiff was damaged as a result of the statement.

In order for a statement to be considered “defamatory” the statement made must be false and bring the alleged defamed person into disrepute, contempt, or ridicule, or impeach his/her honesty, integrity, virtue, or reputation.  That is outlined in a case called Godbehere v. Phoenix Newspapers, Inc., 162 Ariz.335, 341 (Ariz. 1989).

Spoken “defamation” is called slander.   Think of rumor telling in the locker room, or maybe even bigger, like saying something on live public television.

Written “defamation” is called libel.  Given the popularity of the internet now, this is what we see happening more often.  Think of postings you see people post online.  Those arguments that get heated and people start making up false statements…yeah, that could be libel.

Distinguishing between defamation per se and defamation per quod.

Distinctions between defamation per se and defamation per quod in Arizona is important because it effects the type of damages that the plaintiff must allege in order to prevail on their claim.

  • Slander per se is a statement that does any of the following:
    • Imputes the commission of a crime involving moral turpitude (meaning an act or behavior that gravely violates the sentiment or accepted standard of the community.); or
      • Examples of this are false accusations that some has commit rape, forgery, robbery, and solicitation by prostitutes.
    • Tends to injure a person in his profession, trade, or business; or
      • For example, falsely telling someone that a business took your money without providing the service promissed.
    • States that someone has a contageous or vanerial disease, or that a woman is not chaste (meaning that she is not pure from unlawful sexual conduct).
      • For example, falsely saying that someone one has AIDs.
  • Slander per quod is basically a slanderous statement that does not otherwise fit under the definition of slander per se.
  • Libel per se is a statement written which “on their face and without the aid of any extrinsic matter” tend to “bring any person into disprpute, contempt or ridicule” or “impeach the honestly, integrity, virtue or reputation.”
  • Libel per quod is bascially a written statement that on its face doesn’t fall within the definition of defamation BUT by which special circumstances actually make it fall within that definition.

Statute of Limitations for Defamation in Arizona

As I discussed in a prior article, it is important that people understand Statute of Limitations.  They are there for a reason and, in my view, counsel that file claims that are barred by the statute of limitation are doing nothing more than wasting client resources and, arguably, committing an ethical violation.

The statute of limitations for defamation in Arizona is one (1) year.  A.R.S. § 12-541(1).  There may be, in some very limited circumstances, an argument to be made that there should be a tolling of the statute of limitations in situations where the information would have been concealed from the plaintiff (like in a confidential memo) in which case the statute of limitations may run fron the date of “discovery.”

Another important fact to know is that Arizona, by state statute, applies what is referred to as the “single publication rule” or, more specifically, the “Uniform Single Publication Act.”  A.R.S. § 12-651.  The important langugage of the statute states as follows:

A. No person shall have more than one cause of action for damages for libel, slander, invasion of privacy or any other tort founded upon a single publication, exhibition or utterance, such as any one edition of a newspaper, book or magazine, any one presentation to an audience, any one broadcast over radio or television or any one exhibition of a motion picture. Recovery in any action shall include all damages for any such tort suffered by the plaintiff in all jurisdictions.

B. A judgment in any jurisdiction for or against the plaintiff upon the substantive merits of any action for damages founded upon a single publication, exhibition or utterance as described in subsection A shall bar any other action for damages by the same plaintiff against the same defendant founded upon the same publication, exhibition or utterance.

The single publication rule applies to content posted to the internet and under the “single publication rule,” a cause of action for defamation arises at the time the statement is first published; later circulation of the original publication does not start the statute of limitations anew, nor does it give rise to a new cause of action.  Larue v. Brown, 235 Ariz. 440, 333 P.3d 767 (2014)

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction. 

Statute of Limitations is a real thing and why you, a client, should understand it.

In the last couple of weeks I have seen an increasing amount of demand letters threatening litigation or actual lawsuits based on alleged claims that are far outside of the statute of limitations.  A statute of limitations is the law which defines a period of limitation for bringing certain types of legal actions.  Most statute of limitations are between one (1) year and six (6) years depending on the claim.  When a lay person doesn’t know and sends the demand letter or files the complaint I can kind of understand that.  Some people don’t even think about things like that.  While ignorance of the law isn’t a real excuse, it is often looked at with a softer lens by many.  When it is an attorney who does this kind of stuff – I’m sorry, it’s absolutely not excusable.  Indeed, I have seen MANY attorneys make this mistake and it upsets me – not only because it makes other attorneys in the profession look bad but I also feel for the attorney’s client who probably paid for that mistake because they didn’t know better.

An attorney should not be taking a client’s hard earned money to draft a meritless demand letter or complaint!  If your attorney is worth their weight in salt they will spend the time necessary to do the research and will be honest and tell you when your case has no merit… not just take your money and set YOU up for failure.  In fact, such conduct isn’t in line with the Professional Rules of Conduct.  While states typically have their own rules of professional conduct, also known as the Rules of Ethics, it is pretty clear that the American Bar Association’s Model Rules of Professional Conduct, Rule 3.1, says this kind of crap is a no-no.  See the pertinent excerpt below:

Advocate
Rule 3.1 Meritorious Claims And Contentions

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law…

It seems that the moment someone feels wronged  in some way someone, that person’s first line of thinking tends to be  “I’m gonna sue!”  I see that written and posted online all over the place or hear it in general conversation.  The problem is there are indeed times when you don’t have the legal standing to sue.  Some of the first questions to your attorney should include:

  1. What kinds of claims might I have given my situation?
  2. What are the applicable Statute of Limitations to those claims?
  3. Are any of my claims within those Statute of Limitations?
  4. Are there any viable exceptions to those Statute of Limitations?

If the answers regarding question nos. three and/or four above is “NO” then don’t ask your attorney to draft a demand letter threatening legal action for those claims and certainly don’t ask them to draft a complaint anyway.  Similarly, don’t let your attorney talk you into drafting a demand letter threatening litigation or actually filing a  meritless complaint.  You will only be footing the bill to fail – and filing fees, process server fees, and the time that your attorney will charge you to draft the bogus letter or complaint will only hurt YOUR pocket book.  And, to add salt to the wound, there is a chance that the Defendant could turn around and sue both you, and your attorney, for malicious prosecution.  It happens…and you could end up paying for not only your attorney’s fees BUT the attorneys’ fees of the other party as well.

Long story short – know the statute of limitations for bringing claims and don’t waste time and resources on frivolous demand letters and complaints.  It will save you a lot of time, money and other resources in the end.

If you are in Arizona, and have questions about statute of limitations for a particular claim in Arizona, feel free to contact me.