Third Party Funding of Litigation: Hulk Hogan Edition

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“I love my grudges. I tend to them like little pets.” – Big Little Lies 

Funding your lawsuit just got easier. People can now start online campaigns to raise money. Including signing up for Kickstarter, Gofundme, IndieGoGo, and so on.

However, the most interesting source of funding is Peter Thiel. The co-founder of PayPal. In the case of Hulk Hogan versus Gawker, Peter Thiel allegedly funded Hogan’s lawsuit against the media company Gawker. This lawsuit dealt with the publication of Hogan’s sex tape.

Peter Thiel allegedly funded the lawsuit as part of a personal vendetta against the media company Gawker. A vendetta that allegedly started almost ten years earlier, when the company outed him as gay.

As a result of this vendetta, Hogan’s lawyers were allegedly instructed to draft the pleadings in a particular way. Particularly to avoid triggering Gawker’s insurance. Forcing Gawker to fund their own defence and to pay for any judgment against it out of its own pockets.

This tactical manoeuvre was only possible because of Peter Thiel. Had Hogan been required to pay for the lawsuit himself, he probably would have intentionally triggered the insurance coverage for Gawker. And he would have settled the case with the insurer. In order to avoid incurring more legal fees and to guarantee that he would recover some money.

However, by cutting out the insurer,  Thiel could ensure that any judgment against Gawker would be paid personally by the company. Allowing him to bankrupt Gawker. Which he ultimately did when Hogan was awarded around $140 million in court.

As they say, “revenge is a dish best served cold”.

(Views are my own and do NOT represent the views of any organization.)

Silencing Meghan Markle

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Last month, rumoured future princess Meghan Markle disbanded her social media accounts and closed her lifestyle website. You can see her proudly talking about her website in this Holts Muse clip. As a feminist, her descent into silence disturbed me. Transformed into yet another “princess”, whose power lies in a wave or a smile. To quote Shonda Rhimes in this week’s Scandal:

They don’t give a crap about what you’ve sacrificed to get here, every drop of blood, bead of sweat and fallen tear — they just want to turn you into a figurehead … into some princess whose only power lies in a wave or a smile.

But does joining an institution mean “shuffling off this mortal coil? And only speaking with institutional approval?

The answer appears to be “yes”.

Interestingly, judges in Canada experience a similar pressure. Once outspoken in private practice, their ascendence into the judiciary often means a sacrificing of one’s public voice. A muting of one’s self. A dulling of the critique.

This stands in contrast to the United States. Where judges have social media accounts. Which remain active. Which remain thought-provoking. Which remain civilized. Well after their appointments to the Bench. For an example, see Judge Dillard’s account here: https://twitter.com/JudgeDillard

I believe that our judges should be encouraged to connect with the public, including on social media. When done tastefully, it breathes humanity into an often sterile institution.

At one time, institutions had no choice but to speak through a unified spokesperson. But, the emergence of social media allows for judges, members of established institutions, to have their own voice. And to invite the public into an institution, too often shrouded in exclusivity.

Given social media’s power in connecting us, why should joining an institution – be it the Royals or the judiciary – mean the silencing of one’s voice? Isn’t there enough room to be both an individual and a member of some greater institution? Why all the subordination? How does this type of silence help institutions maintain their relevancy?

(Views are my own and do not reflect the views of any organization.)

Do Judges have a Public Relations Problem?

Recently the TV show This Hour has 22 Minutes did a piece on Canadian judges. It’s a riveting piece on the public’s perception of judges.

The skit called “Judges: a Danger to Canadian Women” can be viewed here: http://www.cbc.ca/22minutes/videos/clips-season-24/judges-a-danger-to-canadian-women. At first viewers think the show is commenting on xenophobia, then it turns out to be about judges.

The judiciary should take this piece seriously. It is a current temperature read on the public’s feelings towards judges.

Is it fair that judges are seen negatively?

No. Most judges are excellent, care about justice, and are deeply competent.

Despite this, the public sees things differently. The internet has transformed the way we receive information. However, our courts have failed to reflect this change. Simply rendering decisions in dense, legalese is not enough. The public expects and requires our courts to communicate with them in a way that they understand.

I hope that our courts can adapt new ways of explaining itself to the public. Including explaining our judicial system, explaining the law, and explaining their decisions in novel ways.

To find new ways of doing things, we need to ask questions. Why are decisions only provided with written reasons? We now can create videos. We can create flowcharts. We can create graphics. We can use social media.

Also, why do we televise Supreme Court proceedings and not others? What about matters at the Ontario Court of Appeal? What about trials of national importance or of great public interest? Wouldn’t seeing great lawyers and great judges in action increase our faith in our judiciary?

Of course the medium would need to be adjusted accordingly. But if our courts want to continue to maintain the public’s trust, then it needs to look seriously at how it communicates with the public. Public trust in the judiciary is integral to democratic order.

(Views expressed in this blog are my own and do not reflect the views of any organization.)

The Hillbilly Elegy: One Man’s Ploy Into Politics

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In the Hillbilly Elegy, J.D. Vance tells the tale of his struggle to attain the American Dream. From his humble roots of “white trash” (self-described) to Yale law school graduate, Vance paints the story of a home life in crisis. He then extrapolates from his personal experience to comment on the sociological causes of poverty.

Although touching at times with some poignant insights, this memoir reeks of white, male privilege. Vance recognizes his privilege in passing. But his acknowledgement rings hollow, especially as he compares his plight to that of impoverished black Americans.

Vance is a tall, attractive, white, Christian, heterosexual, healthy, able-bodied man. He can walk into any room and command an audience by virtue of these characteristics. A privilege that he comments on, more for lip service and optics, than for anything else.

Rather the narrative is constructed perfectly and tactically for a future career in politics (my prediction). At its core the narrative is simple – a must for any political campaign. He worked hard. He escaped poverty. He enlisted in the army. He went to Yale. He got married. And he clerked for a judge.

Now at 32 years of age, he feels empowered to tell you what’s wrong with America. No doctorate needed. Just personal experience.

Vance explains why his people are poor:

“We spend our way into the poorhouse. We buy giant TVs and iPads. Our children wear nice clothes thanks to high-interest credit cards and payday loans… We spend to pretend that we’re upper middle class… Our homes are a chaotic mess. We scream and yell at each other… At least one member of the family uses drugs… We don’t study as children, and we don’t make our kids study when we’re parents… We choose not to work when we should be looking for jobs… We talk to our children about responsibility, but we never walk the walk… Our eating and exercise habits seem designed to send us to an early grave…” [Emphasis added.]

There are kernels of truths in his statements. But his under-valuing of the systemic roots of poverty goes to show how deep his own luck and privilege runs. Poverty has nothing to do with iPads.

Not everyone can just pick themselves up by their bootstraps and attain the American dream.  Systemic barriers run deep.

 

(Views expressed in this blog are my own and do not reflect the views of any organization.)

Once a Lawyer Always a Lawyer?

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On February 20, 2017 law professors from across the United States filed a disciplinary complaint against Ms. Kellyanne Conway. Ms. Conway is currently a suspended lawyer due to her failure to pay fees to the District of Columbia Bar.

In the disciplinary complaint, the professors cite several instances of misconduct by Ms. Conway, including putting forth alternative facts about the size of Mr. Trump’s inauguration crowd.  They argue that “[i]f Ms. Conway were not a lawyer and was ‘only’ engaging in politics, there would be few limits on her conduct outside of the political process itself. She could say and do what she wished and still call herself a politician. But she is a lawyer…”

Under Rule 8.4(c) of the DC Rules of Professional Conduct, it is professional misconduct for a lawyer to engage in conduct that involves dishonesty, fraud, deceit, or misrepresentation. The professors then go on to argue that lawyers in public office have a higher obligation to avoid conduct involving dishonesty, fraud, deceit, or misrepresentation than lawyers outside public office.

In “Government Lawyers in the Trump Administration”, W. Bradley Wendel states that while any government official must take an oath to support and defend the Constitution, lawyers have additional obligations. There is a fine line “between doggedly seeking a lawful solution to the problems facing a President and his administration, on the one hand, and assisting government officials in conduct that is unlawful, on the other”.

It appears that Ms. Conway has crossed a line. After all, his goals are her goals. His message is her message.

But does it make a difference that she crossed the line while not actually practicing law? And, what would the punishment be? She’s already suspended.

Hopefully, the complaint does not turn into a circus show.

(The views expressed in this blog are my personal views and do not reflect the views of any organization)

Candid Conversations with Supreme Court of Canada Judges

On February 6, I had the honour to attend the program “Candid Conversations on the Challenges and Seizing Opportunities in the Practice of Law Today”, held by the Ontario Bar Association. It was an honour to hear from Justice Moldaver, Justice Cote, and Justice Wagner of the Supreme Court of Canada.

Program participants were divided into three groups, and the judges rotated through each group. A multitude of topics were discussed, including career insights and the role of the judiciary. Below are a few interesting comments I heard:

  1. Think outside the box when arguing for a change in the law. Judgments have a shelf life.
  2. Be resilient.
  3. Preparation is key. You can never be too prepared when arguing a case.
  4. To attract business, it is important to be seen in the business community.
  5. Don’t feel stuck in a practice area or firm. There is flexibility. The path of life is filled with the improbable. When one door closes another one opens. It just might be an unexpected door.
  6. There is no certainty in the courtroom.
  7. There are no small cases. Only small lawyers. (reference to the quote – no small parts, only small actors). Every case is important.
  8. You don’t have to have your name in lights to help people get through the morass of laws.
  9. To keep the public’s faith in the judicial system, we have to explain to the public what the courts do, who the judges are, where they come from, and why we do things a certain way. The court needs to communicate with the public. Courts need to be transparent.
  10. The essential ingredient in the judicial system is faith. Without faith in the judicial system, there will be anarchy.
  11. People take news from social media now. We have to update the judicial system’s communication with the public to reflect that.
  12. Lawyers need to be more creative with their fee structures. We are starting see self-represented litigants trickle up to the appellate levels at higher rates.

 

 

(The views expressed in this blog are my personal views and do not reflect the views of any organization)

None is too Many

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“None is too many.” That was the famous Canadian response to the question of how many Jewish refugees could enter Canada during the Second World War. During that time, only 5,000 Jewish refugees were allowed to enter Canada, while six million Jews died.

In December 2016, Toronto Jewish Holocaust survivors spoke out about the atrocities in Syria and the need to do more. Holocaust survivor Vera Schiff said: “You see those pictures come out of there with all this heartbreak with those maimed and crying children. It breaks my heart because I can see the replay of those children, of our children which were lined up to be gassed in the camps and the mothers who could not save them.”

Now one month later, President Trump has signed an executive order titled “Protecting the Nation From Foreign Terrorist Entry Into the United States“. The order states: “I hereby proclaim that the entry of nationals of Syria as refugees is detrimental to the interests of the United States and thus suspend any such entry until such time as I have determined that sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest.”

The Order has plunged the world into chaos, strained diplomatic ties, and further fractured the American people. An Article by the New York Times titled “Judge Blocks Trump Order on Refugees Amid Chaos and Outcry Worldwide” tells the story of lives turned upside down by a poorly thought out decree. People worried about returning home to the United States while away on travel. People suddenly denied entrance into the United States after months of being vetted.

Trump’s decree is truly disturbing and is laced with the same xenophobia experienced by Jewish refugees decades ago.

Closeted Sexists 

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Why did Trump win? There are multiple theories out there. Populace thinking. People’s ignorance. Human stupidity. Hatred for Hillary. And sexism. 

Sexism is alive and well. For some men and women, the idea of a woman being President is just too much to handle. 

It makes me wonder how many people out there are closeted sexists too. Afraid to announce that they too think a woman is unfit for leadership. 

The Case of the Stolen Jewellery

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This week Kim Kardashian made headlines. It went far beyond her normal headlines. She was robbed. In the middle of the night. In a foreign city. In a secluded hotel. In a shocking manner. Most likely by a gang of organized criminals. The execution: perfect. The legal remedy: predictable.

So who might she sue?

First, she can sue the hotel for failing to have adequate security measures and by creating a situation of danger. Then she can sue the hotel’s employees for failing to take proper care of her and by allowing danger to unfold.

Second, she can sue her own security team for failing to properly watch her or perhaps for breach of contract (depending on the terms). Rumour has it, her security team left her completely unattended as they guarded her sisters in a nightclub.

Third, she can sue her own insurer if they refuse to reimburse her for the stolen jewellery (assuming she has insurance).

Fourth, assuming she has inadequate insurance, she can sue her advisers for failing to reasonably advise her of her insurance needs.

But what about the defendants?

The defendants might argue that she was the author of her own misfortune. That she was the careless one. That she invited this danger. She endlessly paraded around her jewels. She bragged to the world about her whereabouts. She took picture after picture of herself wearing expensive diamonds. She invited cameras to capture her in all of her wealth. And she pursued constant attention from television, to books, to pictures, to apps, to selfies, to Instagram, to Snapchat, to Twitter, and beyond. Thereby allowing the perpetrators to plan the perfect scheme.

Injury aside, I look forward to the reality tv show “Kardashian vs the Hotel: the saga of the stolen jewellery”. They say it will be her best work to date.