What You Need to Know Before You Diss (and Why You Should Anyway)

Allow me to confess: I post snarky reviews on Yelp.  All the time.  Well, maybe not all the time.  A couple of times.  I try to keep things reasonable.  But if I have a really bad experience at your place of business, expect me to say something about it and to make it funny.  In a not-good-for-your-online-reputation way.  (People who follow me on Twitter seem to think I’m funny, so people are paying attention, I guess.)

I am not the only person doing this, you may have noticed.  There are whole online ecosystems these days.  Gawker, Above the Law, the new Dish.  Right-wing pages I avoid like the plague but nevertheless must grudgingly admit exist.  I’m not much for Reddit but if there’s anything you wish to discuss you’ll find it there.

Violentacrez and similar trolls aside, though, most people post or comment about something because they have an opinion and they want to share it.  The First Amendment is supposed to protect that sort of speech and generally it does.

What folks don’t always understand, though, is that the First Amendment can’t stop someone from suing you.

This seems counter-intuitive.  People assume that if a lawsuit ultimately will not have merit – meaning it’s a loser – that it won’t get filed.  Unfortunately that’s not true.

Businesses targeted for negative reviews on sites like Yelp are more and more frequently filing SLAPP suits against posters.  They do this because they know that the costs of defending a lawsuit are prohibitive.  Retaining a lawyer to defend you against a defamation suit is expensive.  In the United States, parties to litigation pay their own attorneys; so even if you ultimately win, you could end up bankrupting yourself.  The businesses filing these suits want you to be afraid of this so that you’ll end up not commenting at all.

Witness the Casey Movers saga.  Basically, a woman complained about a moving company on Yelp.  In what has to be one of the most spectacularly tone-deaf, idiotic responses to a customer complaint of all time, Matthew Overstreet, sales manager extraordinaire, sent her a letter peppered with poorly-used legalese, the gist of which was a threat to sue her if she didn’t remove the comment.  And not just to sue her, but to make her travel to a distant court to defend the case.

Turns out, of course, that the original poster had a husband who was 1) intelligent; 2) a blogger; and 3) not easily intimidated.  He took to the web with the story, and the big guns at Popehat not only took notice, but offered to locate an attorney to defend the poster, pro bono, if any suit was filed.

The law on these issues – SLAPP suits, defamation, First Amendment defenses in commercial contexts – is evolving on an almost daily basis.  Many of the published decisions, however, deal with complex First Amendment issues like prior restraint, not the nuts-and-bolts of liability and damages.  Which in practical terms means we as lawyers don’t always know how particular courts will deal with these cases.  So there certainly is risk in posting negative reviews online.

It’s easy enough for me to say I’ll continue posting, because I’m probably not going to get sued.  It’s not like “Joe’s Auto Shop” is hiring the best, most experienced counsel to prosecute its lawsuits, so the ambulance chaser it likely does hire is probably going to decide that suing me would be more trouble than it would be worth.  That calculus isn’t necessarily true of you, though.

One response is to blog, like the Casey Movers guy.  Sunlight is the most effective disinfectant, meaning that bringing these kinds of threats, and the suits themselves, before the public can make them go away.  It’s the Streisand effect at its best.

Another, and I hope this will come to pass, is for lawyers to step up to defend these cases pro bono.  Businesses file these cases because they’re counting on them being expensive to defend, not because they really expect to win.  If they’re not going to be expensive to the defendant (but potentially will be for the businesses, who do have to pay their lawyers), they won’t get filed.

But probably my best piece of advice to you is to keep your reviews as factual and true as possible.  Provide concrete examples of what you’re trying to communicate.  Don’t say “the food was crappy;” say, “the omelet was overcooked.”  The line between justifiable statement and slander gets murkier when you’re dealing with statements of opinion.  That doesn’t mean you’re not entitled to your opinion, but it does mean that it’s a lot harder to argue about simple factual statements.  Just my two cents, for whatever it’s worth.

There are statutes in some states designed to curb SLAPP suit abuses.  Maryland has an anti-SLAPP statute, but like many others it’s weak.  A bill that would have reformed the statute to make it more effective at shutting down meritless cases failed to pass the Maryland Senate last year but will likely be reintroduced during this session.

 

Best Reason for Doing Pro Bono

I’ve got a couple of minutes before I have to get to a scheduling conference. As I wolf down my Yoplait Lite, I’m paging through this month’s ABA Journal. I come across an article on how diminishing funds are forcing cut backs of court programs and free legal services. This makes me sad, but I offer a small solution.

We need more lawyers who are willing to provide pro bono legal services. Period. The need is great, especially now. Attorneys are needed to represent parties in foreclosure proceedings, work outs, bankruptcies, domestic cases, tax cases, guardianship proceedings. We need more experienced attorneys. We need less experienced attorneys. We need retired attorneys.

And there are plenty of reasons for doing it. I’m just going to tell you about one, because for me it’s the best.

Five or six years ago I was representing a defendant in a multi-party case pending in a circuit court in Maryland. Somehow or other, a hearing notice came into my office and was mis-calendared. It shouldn’t have happened, blah blah blah, but in my fourteen years of practice it’s the only time it’s ever happened.

Anyway, on the morning of the conference, which I didn’t know about since it had been entered on my calendar for the same date in the following year, I received a call from Judge So and So’s chambers, wanting to know where I was. I was horrified and apologetic. Luckily the courthouse was two minutes from my office. I ran. I arrived sweaty and out of breath in Judge So and So’s courtroom.

At which time Judge So and So launched into a tirade the likes of which I hope never to witness again. This judge berated me. This judge berated my poor secretary. This judge berated my mother for bringing me into the world. Meanwhile, my colleagues stood by, embarrassed (for me), and waited for it to be over. It went on for a good five minutes.

Then, when this judge was finished with me, this judge concluded the business of the case, which was minor and could have been conducted in my absence, frankly. I was instructed, again in open court, to take a seat and wait for the conclusion of the other matters before the court,so that the court could have another go at me.

So I sat. As I sat I took out a legal pad. On my legal pad I started making of list of the pro bono cases I have handled over the course of my career, what they were about, how they were resolved.

When the last case was done I was called into chambers for another go round. I took my pad with me. It was brutal. I kept my eyes on the pad.

And when I left the courtroom I took it with me too. I took it back to my office. I placed it in a drawer. When I left that firm the pad came with me. It’s here, in my desk drawer, now.

It’s not very often that a lawyer gets to confront a judge about his or her inappropriate behavior. Few situations rise to the level of a complaint to the Judicial Disabilities Commission, but let’s face it: the members of the bar know that certain judges, on certain days, or every day, are going to be difficult. I personally believe that the behavior of the judge in my case was horrible. I hope that no one in the courtroom that day was an unrepresented lay person. I hope that no one walked away from that morning believing that this is how our judiciary works. But this judge – and others like this judge – will go on behaving in this fashion and there’s very little we can do about it.

But I have my list. On my legal pad. In my desk. And I know that on that morning, as I stood with dignity and respect before a judge who was not treating me with dignity or respect, that I was a better person, and a better professional. That’s why I do pro bono work, or one reason,anyway. And if you need one, it can be yours too.