On the Internet, threats of legal action - justified or otherwise - are about as common as pornography.
(Essential NSFW link.)
Actual legal action, however, is about as common as measured and careful explanations of the many good points that've been made by someone with whom you strongly disagree.
But wouldn't you know it, the other day, for the very first time, someone who'd threatened to sue me actually stumped up the cash to get a real live lawyer to send me a letter.
Well, actually just an e-mail, not a paper letter. But this still went above and beyond anything I'd ever seen before.
I've been threatened plenty of times, but not one of those people has, until now, actually gotten any further than saying "I'm a-gonna sue yo' ass!".
(I'm not counting the couple of times I got e-mails from "lawyers" who had Yahoo e-mail addresses and very poor spelling.)
Because real letters from lawyers are so rare, people are likely to get scared if they receive one. But you shouldn't. It's not really that big a deal.
But first, The Letter, and my reply to it.
I've lightly anonymised this, because the identities of the person who had it sent, and of the lawyer who sent it, are irrelevant here. We've now settled our dispute (and no, not in the "for an undisclosed sum" way), so there's no need for me to draw any more attention to this guy over all the others. Regular readers will be able to figure out who it is without much trouble, but it really doesn't matter. It's the content, not the source, that matters here.
Also, do please note that I am not any sort of lawyer, and no expert on the law here in Australia, or anywhere else. If you think what you're about to read constitutes actual legal advice, you have made a terrible mistake and need to look somewhere - almost anywhere - else.
I welcome comments from any readers who do have legal qualifications, though!
Date: Tue, 22 Jul 2008 22:21:03 +1000
From: Larsen E. Pettifogger
To: Dan
Subject: [Redacted]
Attention: - Daniel Rutter
Dear Mr Rutter,
We have been referred to your web publications by Mr Smith, a resident of the United States of America.
We understand and have viewed for ourselves your posting on the internet concerning Mr Smith.
Understandably, that posting has caused Mr Smith considerable aggravation and embarrassment.
Notably also, we understand that it has given rise to a number of threats having been received by Mr Smith personally.
It is apparent from your postings and publications that you have a very low opinion of Mr Smith. In any event, that view may not be shared by others - it is certainly not shared by Mr Smith.
Whatever your views as to the matter may be, they cannot be put forward in justification of the publications in respect of the way in which you are proceeding.
We expect that Mr Smith seeks an end to this matter and wish to suggest to you that you remove the posting immediately (within 24 hours).
The haste of your co-operation may have a positive impact on the Mr Smith's views as to damages.
Yours sincerely,
--
LARSEN E. PETTIFOGGER
SOLICITOR AND BARRISTER
PETTIFOGGER Partners
I replied thus:
WITHOUT PREJUDICE
At 10:21 PM 22/07/2008, Larsen E. Pettifogger wrote:
> that posting has caused Mr Smith considerable aggravation and embarrassment.
I might suggest to Mr Smith that if he wishes to avoid embarrassment, he might like to reduce the number of bold statements about my sexual proclivities which he, or his associates, makes available for global perusal.
> Notably also, we understand that it has given rise to a number of threats
> having been received by Mr Smith personally.
Perhaps you should have a word with the people he alleges have been threatening him, then, if in fact they exist.
I certainly haven't threatened him, and I didn't ask anybody else to do so, either. I held Mr Smith up, based on what he did, as a figure of fun, not as anybody who needed to be "threatened".
If Mr Smith has any evidence to the contrary, or indeed merely any evidence of actual threats regardless of their connection to me, then I am sure he will present it to you in the very near future. If I could only be in your offices, about to receive such a wondrous bounty!
> Whatever your views as to the matter may be, they cannot be put
> forward in justification of the publications in respect of the
> way in which you are proceeding.
Your command of grammar appears to exceed mine. I am having difficulty understanding the exact meaning of this sentence.
But no matter; I shall forge ahead.
Does Mr Smith contend that anything I posted was not true?
I do not of course need to remind you, but I feel you may need to remind Mr Smith - while billing him at, I hope, your standard hourly rate - that truth is now by itself an adequate defense against defamation actions, here in New South Wales at least. If I am incorrect in this assumption, do please correct me - unless such correction is only available upon payment of the abovementioned fee, which I regret to say I most probably cannot afford.
I would be very pleased to appear in court to defend myself against Mr Smith's allegations. I do hope that Mr Smith will do me the honour of flying to Australia to face me in person.
Should he, instead, wish to bring suit against my blog hosts, I regret to inform him that he will then have to retain representation in Ireland.
Defamation actions are, I believe, rather more likely to succeed there, but I assure Mr Smith that should he silence my blog there, I will swiftly find another host - in, most likely, the United States of America. The existing posts regarding Mr Smith, not to mention several others which suggest themselves to me at this moment, will in that case, and in every other case I can at this moment imagine, remain.
> We expect that Mr Smith seeks an end to this matter and wish to
> suggest to you that you remove the posting immediately (within 24
> hours).
I cordially invite Mr Smith to stick this suggestion where I believe he, equally if not more cordially, once invited me to stick a small electronic device.
(Can you tell I was drunk when I wrote that?)
OK, here's the deal.
A letter from a lawyer is just that - a letter, from a lawyer. Even if it's delivered by registered mail and not e-mail (I presume e-mail nastygrams are cheaper), even if it's got a big "CEASE AND DESIST" printed on the top - it is not "legal action". It doesn't mean you're being sued. It doesn't even mean that you might be sued.
All it means is that someone paid this particular lawyer to send this particular letter.
If someone walks into a law firm and asks them to send a letter to someone else demanding that that other person cease and desist from beaming voices into the complainant's head via mental telepathy, the law firm will shrug, hold the complainant's money up to the light to make sure it's real, and send the letter. You can hire a lawyer to send a letter for you that says pretty much anything.
Said lawyer will, in his role as the legal equivalent of hired muscle, do his utmost to make the target of the letter think that you mess with him and his client at your peril, and that you will surely find yourself on the losing end of a billion-dollar lawsuit if you do not do exactly as you're told.
This is, in many cases, what legal professionals refer to as a bluff.
The deadly-serious, here-comes-the-subpoena, check-yo'self-before-you-wreck-yo'self attitude that legal nastygrams always project is at least half of what the client is paying for. That attitude will be precisely the same regardless of the lawyer's opinion regarding the merits of the case, and regardless of what the client's said he's willing to pay for. The lawyer will act just as scary even if he's 100% certain that the complainant is a raving loony who has obviously just paid his last $200 to have that letter sent.
It's possible to sue someone for just about anything, but actually suing is way more difficult, and expensive, than just having a lawyer send a letter. If you pay a lawyer to send Joe Bloggs a letter telling him that you sincerely believe it's an infringement of your human rights that Joe keeps wearing blue socks on Tuesdays, the lawyer will take your money, smile broadly, and send the letter. If you then want to actually sue Joe for his terrible actions, then your lawyer will start talking to you about the value of psychiatric care. (Although even then, some lawyer may take the case.)
When the case is preposterous - as many Internet Drama cases are - even the most enthusiastic of complainants aren't going to find it easy to locate a lawyer who's willing to take it on. Not even, necessarily, if the complainant is seriously wealthy and happy to spend. If the case is so stupid that the judge is obviously going to throw it out after the first ten minutes, lawyers know they won't get much chance to earn from it anyway. If a case is sufficiently stupid, the lawyers themselves could end up being punished for their violation of legal ethics.
(I'll wait for the laughter to die down before I continue.)
If you're actually guilty of some civil wrong or other, or if you're innocent but the evidence available doesn't make you look good, then you should take a legal nastygram seriously, and possibly seek your own legal advice. And if you are going to be sued, you're probably going to receive one or more nastygrams first. But just because nastygrams usually come before lawsuits doesn't mean that nastygrams are good predictors of a lawsuit. Getting on a plane always comes before crashing into the side of a mountain, but that doesn't mean that outcome is likely.
If you're neither guilty nor guilty-looking, and cannot conceive of any way in which you could possibly seem otherwise to a jury composed of people who can tell a right shoe from a left one more than half of the time, do feel free to send a snarky reply like I did, or indeed ignore the letter entirely.
Just the same, though - take this guy as a lesson, Internet nutjobs!
Step up! Grow a pair!
Put your money where your mouth is, and actually drop some dollars on a lawyer to send a nastygram to the object of your irritation!
I'm actually half-serious about this. Sometimes, Internet Drama really does have some sort of substance to it, and in that case, just dropping a few hundred bucks on a little lawyerly activity can very much be worth the effort.
But remember: All a nastygram actually means, in and of itself, is that someone is angry enough at you that they are willing to spend the time and money to get a lawyer to send you that letter.
