Legal advice


Not for me, for someone else. I just sit quietly and listen, but I must say this “Rule 11 of the FRCP” sounds awfully interesting. I’m not sure exactly what it means, but there sure are a lot of smart lawyers lining up on my side; they probably know, don’t you think?

Comments

  1. says

    PZ:

    I disagree with your use of the category “personal.” Every single one of us is offended by this, and threatened. You should get a new category for this sort of thing. Like “Offense to all of humanity” or something like that.

    You know, everyone is on your side.

    G

  2. says

    Well, something like that could seriously throw a balloon monkey wrench into the already gummed up works of Pivar’s silly antics.

  3. says

    I commented on this a while back at PT:

    http://www.pandasthumb.org/archives/2007/08/so_sue_me.html#comment-198241

    Basically, Rule 11 requires that an attorney only submit arguably meritorious documents to a court… or a party, if the party signs the document. In this instance, that means that both Pivar and his lawyer are on the hook, because Pivar signed (“verified”) the complaint.

    Judge Scheindlin has little patience with suits filed for improper purpose; she’s one of the few judges who will issue a “show-cause” order sua sponte (that is, on her own, without a request by a party) against a patently frivolous motion. I’m not aware of her doing so against the complaint itself, but that’s probably because it’s ordinarily not necessary.

    Now, on to the mechanics:

    The lawyer(s) for the defendant(s) would first issue a Rule 11 letter to Pivar and his lawyer, which allows them 21 days to withdraw the offending pleading. On the 22d day, they may then file the Rule 11 motion for sanctions against Pivar and his lawyer; if the complaint is withdrawn within that safe harbor, no sanctions motion can be entertained. (N.B. It’s not entirely certain that the judge could not, sua sponte, issue a show-cause order within the safe-harbor period; most judges probably would not choose to do so.)

    Once the Rule 11 motion has been issued, there will be some briefing and a decision by the judge on the motion. The judge can issue a variety of sanctions, including dismissal of the action and payment of attorney’s fees. The key point is that the judge cannot bar the offending individual(s) from future filings in that court on the basis of a single Rule 11 motion, and cannot bar the offending individual(s) from filings in other courts.

    The trial judge’s decision to impose (or not impose) sanctions under Rule 11 is reviewed on appeal for an abuse of discretion. It is rare for a party sanctioned under Rule 11 to even bother to appeal; it is even rarer for a party sanctioned under Rule 11 to win such an appeal. (For some strange reason, the decision not to sanction seems to get overturned more often… but the success rate is still far below that of other civil appeals.)

  4. says

    Oh, my, but I loved that part.

    Agreed. And the rest as well…

    Thanks much to Lynch and Irons for the fun read…

  5. says

    Speaking of offenses against reason (well, OK, this is a bit off-topic), I have a question, for PZ and everybody else.

    Isn’t it a good time to let the parent company of Visine know how we feel about spokesman Ben Stein’s movie, Expelled?

    Personally, I’ve written a letter to the CEO of Johnson & Johnson about it, and maybe folks can help spread the word, get others to do the same, and start a boycott of Visine and associated products until they “Get the Stein Out!”

    More here, including a form letter. We really have got to do more than talk, I think.

  6. Firemancarl says

    Sweet! Ah, a crackpot caught in his own crackpottery! Now, about the blood satined wall of the righteous on PZ’s basement wall……….

  7. Chris Thompson says

    This is a review from Amazon- he gave the book 5 stars:

    LifeCode: The Theory of Biological Self Organization is by far the best Pivar book that I have yet read. Pivar takes us on a fascinating, and exciting adventure into balloons and the clowns that love them. It is a tale of derring-do and dimensional manipulation. For would-be clowns snuggled up in their Mini clown cars, and fireman suits, this book, with its many thrills, makes for powerful reading.

    In finishing, a haiku inspired by the Pivarian Muse:

    “Balloon I love you,
    You are round, smooth and pretty.
    I rub you. Static.”

    Priceless!

  8. True Bob says

    I just checked Amazon reviews, and here are some sponsored links that buyers might also be interested in:

    Going Bonkers Magazine

    Tupperware (for your brain?)

    coincidence?

  9. says

    Oh my, but that was sweet.

    You know, almost everybody is focusing on Pivar. But he’s just an idiot. His lawyer, by contrast, is a patently incompetent idiot, an offence to the profession. In agreeing to help Pivar bring this suit, he has committed one of the cardinal sins of lawyerdom: failed to give his client good advice.

    (I should be very clear here: there’s nothing at all wrong with filing a suit that is a long shot, so long as you’ve properly advised the client that his chances are slim etc., what risks he faces etc., and he still wants to go ahead after you’ve given him the info he needs to make an informed decision. Filing a case that has no basis in law, by contrast, is just about the stupidest thing a lawyer can do short of stealing the client’s money. I’m not a litigator, so I might have this wrong; but I always had the impression lawyers don’t lightly file Rule 11 motions against each other. If anybody deserves one, though, Pivar’s lawyer does; richly so. And C.E. Petit seems to know this judge; sounds like the lawyer picked the wrong one to hand a frivolous complaint to! He’ll be lucky if he comes out of this uncastrated.)

  10. says

    Yup,

    Rule 11 was the first thought I had when I heard about this suit. The second thought was that many states have a law barring what are callled “Strategic Lawsuits Against Public Participation.” These SLAPP suits are designed to stifle free public expression by suing the uppity outspoken indivdual on some spurious ground. Federal courts will enforce this state law, if it is applicable.

    The lawsuit against PZ is a classic SLAPP suit. Whether this remedy is available to PZ depends on which state law applies to the lawsuit. Im’ sure his lawyers already know this and have considered it. If, for some reason, they don’t, my email is good.

  11. says

    “Strategic Lawsuits Against Public Participation”

    Ahhhh – so that’s what a SLAPP suit is. What a good idea for a law – the UK needs a law like that. In the UK Strategic Lawsuits Against Public Participation work all too well.

  12. Jewel says

    Isn’t it a good time to let the parent company of Visine know how we feel about spokesman Ben Stein’s movie, Expelled?

    Stein isn’t the spokes person for Visine. He’s the spokesperson for Clear Eyes whose parent company is Prestige Brands, Inc

  13. k says

    Just completely off topic…”Paul Z. Myers.” I know I could probably look it up and spoil the fun, but a name, nay, an INITIAL representing an unknown name that starts with the rare Z…oh how intriguing!
    Ok, look, I said it was off topic. STFU.

    ON-top, I do like the, “Get the Stein Out!” campaign. I though Ben Stein was a pretty smart guy until his ignorance started coming out (some pathetic passed around email nonsense) and this is just the final straw. Looks like he’s just another dumb-ass actor in Hollyweird like the rest of ’em. I swear, do you have to be a moron to be an actor or is there something in the water in California?

  14. Peter M. says

    As a retired lawyer with a fair amount of First Amendment knowledge, Atty. Irons is 100% correct.

    Pivar’s suit reminds me of the case in the District of Columbia in which an administrative law judge (representing himself) sued a local dry cleaning establishment for a grotesque sum over an allegedly lost pair of pants. The plaintiff has essentially ruined himself financially — he may not get reappointed to the bench because of his shenanigans.

  15. Duff says

    As a non-California actor I can attest that only in the state of California are you required to be certified as a moron to be an actor. An actor in any other state can actually have a brain, but I must caution, they usually don’t. That can quickly be ascertained by asking them if they have a sign.

  16. says

    Can we get a version of this Crackpot Index made for biology?

    …or, (if you can excuse the shameless plug), The Kookometer.

    I am not sufficiently familiar with Pivar to fill in all the blanks, but I’m sure that many other people would be capable.

  17. True Bob says

    Mrs Tilton @ 15 (or others), can a lawyer be sued for malpractice? It seems Pivar might make a case there…

    Z, could it stand for Zaphod?

  18. Splash says

    It may also be that the attorney who files the frivolous complaint thereby violates the Rules of Professional Responsibility (“the Rules”) and is subject to professional discipline. In addition. the Rules generally *require* an attorney who witnesses another attorney commit a violation of the Rules to report that attorney to the appropriate State Bar authorities.

  19. PhysioProf says

    And just to be clear, since no one else seems to have pointed this out, if your attorneys are experienced civil litigators admitted to practice before the SDNY, there is absolutely no doubt that they are quite aware of Rule 11.

  20. says

    Jewel,

    I don’t know if it was you who commented on my blog, but in any case thank you for correcting my rather bone-headed error. I have fixed both the entry and letter; you are indeed correct.

  21. Jewel says

    Mike,
    It wasn’t me that commented on your blog, but you’re welcome. I can’t tell you how I hate the Clear Eye’s commercials…

    And just so I actually post something on topic here, it was such a pleasure to see Pivar get such an eloquent smackdown. It was such a pleasure to read. :)

  22. says

    True Bob @25,

    of course lawyers can be sued for malpractice. In fact, in my own field this is much likelier than in Pivar’s lawyer’s. But Pivars is a rich man, and his lawyer an immigrant only a year or two out of law school. Theory aside, I’m not sure what Pivar could get by suing his lawyer. (But then, of course, I’m not sure what he hopes to get by suing our host.)

    Splash @26,

    formally, you’re right. But I think you fail to take into account a lawyer’s gift for nuance.

  23. Graham says

    Finally, you and Mr. Little are subject to monetary sanctions under Rule 11 of the FRCP; I’ll let Mr. Little explain that to you, since he is presumed to know of this potential consequence of filing a meritless suit.

    Well. A guy tries to file a little meritless lawsuit and all these “Sciencey” types get all hard-assed about it.

    What’s a crackpot to do?

  24. Goonhongo says

    Despite the bravdo, PZ is scared.

    He will no doubt win, but he is pissing his pants!

  25. says

    Goon @33,

    you correctly note that PZ will win. (As a technical matter, actually, he won’t win in the strict sense; but only because this case will never survive long enough to go to trial.)

    But why on earth should he be scared? Numerous lawyers (many of whom, unlike me, are knowledgeable about litigation in US federal courts) have explained to him why Pivar’s complaint is without merit. This is nothing that need scare PZ; rather, the whole thing is merely an annoyance.

    Now be off with you, back under your rock.

  26. swanlakers says

    PZ, you are my new hero, supplanting my first physics teacher. Thanks and keep fighting the good fight

  27. says

    Here is some language from a decision of Judge Scheindlin in the case of Weinraub v. Glen Rauch Securities, Inc., 399 F.Supp.2d 454 (S.D.N.Y. 2005) that is relevant. Even though she did not impose a sanction in that decision (only ordering the plaintiff to show cause why she shouldn’t), it should be instructive of her attitude:

    Based on a preliminary review of the record, it seems probable that Rule 11 was violated in this case. Weinraub’s claims appear to be frivolous, clearly precluded by existing (and well-settled) law, and unsupported by any cognizable argument for the modification of existing law. Moreover, given the strangeness of many of Weinraub’s arguments, and the general disorganization of his papers, this case is similar to a recent Rule 11 case where I noted that “[s]ome of plaintiffs’ claims and arguments … seem so ill-defined and incoherent that they are, in the words of the physicist Wolfgang Pauli, ‘not even wrong.’

  28. Graculus says

    Oh, I’ve enjoyed following LifeCode on Amazon.com. The tags are amusing, the reviews are nothing short of hilarious.

    Oh, I see my entry “classic crackpot” is now showing up.

    C’mon folks, make it number one, just to get a bit of extra steam out of Pivar’s ears.

  29. S. Fisher says

    It would seem to be a good thing, in a case like this, to have a judge who quotes Pauli in her decisions. On the other hand it does not bode well for Pivar.

  30. peter irons says

    thalarctos @ #20 — we can work that out; sounds like fun. More seriously, I’ve discovered (not really a surprise) that Pivar published his book himself by setting up a dummy publishing company (Ryland Press) in his own office; he runs a company that sells septic tanks. Anyone want to make the obvious connection?

  31. Pero says

    I think this Pivar is only trying to get some publicity. It’s often said that bad publicity is always better than no publicity at all!
    All our support PZ!

  32. says

    Too bad you’re not a collector, PZ. Mr. Tikistitch and his friends have a lovely assortment of ridiculous cease and desist letters from various entities (all of whom, IMHO, pay their staffs of lawyers far more than they’re evidently worth). We now consider the sheets of paper a treasured part of our collection. Also, good for a giggle. Though, I must say, your brouhaha is already shaping up to be quite diverting (if a bit overmatched).

  33. says

    How apropos… I just finished watching “The Case of the Black Cat” (which does not actually feature a black cat), WB, 1936, w/Ricardo Cortez playing Perry Mason then came here before heading to bed and noticed that even a fictional lawyer like Perry Mason could tie Mr. Little, Esq.(?) in knots. Well, Perry Mason *is* a special fictional lawyer, but still…

    By the way, besides pwned and n00b, another response to Mr. Pivar would be “Quick, call teh WHAAmobile!” Yes, too many hours playing World of Warcraft… it’s a lowest common denominator thing. :)

    “Can I have your gold?”

  34. MartinC says

    Hopefully it will be thrown out before trial but in a worse case scenario could PZ be looking at doing some serious jail time?
    As a worse case scenario I’m getting a picture in my mind of PZ as the Tim Robbins character in ‘The Shawshank Redemption’ – with Kent Hovind as Morgan Freeman!

  35. Graculus says

    Hopefully it will be thrown out before trial but in a worse case scenario could PZ be looking at doing some serious jail time?

    Nope, it’s a civil case.

    The Count: it’s “call a WHAAAAmbulance!”, you are obviously not playing enough WoW.

  36. says

    My Comment: It Could Be Worse. Mr Pivar has made its name by publishing a beautiful book on the eighteen century French Master Antoine Barye’s Animal Bronzes, a work of art by a connoseur that is unique in its class. Reflecting on the antique texts in his rich library, like The theory of the Flogiston by the German Physician Stahl, and of course the books of Monsieur de Lavoisier, he discovered the secret of biological self organization, which is the subject of his lavishly illustrated book. Mr Pivar rejects Stahl’s Theory of the Flogiston that tells that every material has some specific proportion of Flogiston (“nothing”) “inside”. For example Iron (a metal) has a high proportion of Flogiston “inside” and burning Iron, its weight rises, because of the loss of Flogiston (see Wikipedia). If my imagination serves me well, he does mention the work of Aleksandr Ivanovich Oparin who showed that the “primeval soup” of organic molecules would combine in ever-more complex fashion until they dissolved into a coacervate droplet. J. B. S. Haldane’s theory of biopoiesis, the process of selforganization of the living matter, is also dealt with. Pivar’s Theory of the LifeCode, which I am unable to say what it is because I have not read the book, is certainly different. All in all, Mr Pivar’s book is very important, because it confirms the tendency of powerful people to formulate theories on areas which they have no expertise at all, which is OK with me, and their inclination to become enamoured of their pet theories and treat anybody who dares to voice an objection as their personal enemies. In case of Mr Pivar, he has chosen as “personal enemy” a modest self-effacing teacher of biology in a remote village on the frozen Canadian border, and is waging a pityless campaign of judicial vengance against the unfortunate professor. As I said in the title of this comment, it could be worse, much worse. For example, Mr Joseph Vissarionivich Stalin conceived a theory about the origin of the language and wrote a small book on the subject. His degree (uncomplete) was in theology, while his professional expertise was in the field of political conspiracies and bank robberies, but he felt he made a pivotal contribution to the theory of language. Those daring to criticize his theory found themselves accused of various crimes and sentenced to long terms of community service in the Arctic circle coal mines. It also comes to my mind the case of an Ukrainian agronomist who caused his Mendelian critics to be shot. Therefore, Mr Pivar’s demand that Prof. Myers pay him 15,000,000 dollars plus expenses for having dared to criticize his theory of self organization, seems to me rather reasonable and mild. he should be commended for his moderation. It could be worse. Regarding the book, it is not a work a science but a work of art, in the class of books on French animal bronze sculptures, and in that category may be meritous. Animal books never killed anybody. I only object to its price, which I find very expensive, but then I am not a millionaire art collector as the author, so he may disagree with my impression.

  37. says

    26 (Splash): I’m afraid that won’t happen, because New York is one of the minority of states that still uses the old Code of Professional Conduct, with its “zealous advocacy” exception. The main difference is that in a Rules state (most of the country, excluding

  38. says

    An underemphasized aspect of the complaint is the shoddy editing from a layout standpoint, basic rules of consistent capitalization and so forth. The attorney’s misuse of tab spacing on multiple pages is atrocious, ESPECIALLY page 1. If you sue for 15 million dollars you proofread the thing.

  39. says

    Graculus: “…it’s “call a WHAAAAmbulance!”, you are obviously not playing enough WoW.” Heh, agreed use on the Blizz forums, but WHAAmobile is the favored form on my server… maybe because it’s an Aussie server?

    Who knows… I’d love to see all the various papers written about these on-line-only societies, from psychology to sociology to economics to evolution. How memes evolve from server to server and game to game as an idea reaches each isolated island (an individual server).

    To the “serious readers” out there, think of these moments of buffooenry as a dash of spice for the thread.

  40. Andrew says

    Just to temper the enthusiasm a bit: it is *very* unlikely for anyone to be awarded sanctions under Rule 11. American courts explicitly reject the “loser pays” principle (and, I would add, for very good reasons as a general principle) and are accordingly highly reluctant to impose penalties for the filing of even frivolous lawsuits.

    -Andrew

  41. Brian says

    Nice letter. It’s great that he mentioned Dudley’s case; it was the first thing I thought of when I heard of Pivar’s suit. The parallels are extrememly strong.

    And here’s a plug for Underwood Dudley’s books. “Mathematical Cranks” is alternately fascinating and hilarious.