My Words Used Against Me

Not yet, but it's inevitable.  Although I've been blogging for just over 16 months, I resign myself to the inevitability that someday, somewhere, someone will try to use my words against me.  Or worse yet, against my client.  Blogging is like diamonds.  Once imprinted onto cyberspace, it's forever.

Long Island attorneys Jonathan Dachs and his father, Norman Dachs, have been prolific legal writers for over 35 years.  Since before Al Gore invented the Internet.  When newspapers, journals, periodicals, and looseleaf services printed on acidic paper were how lawyers received updates on new statutes, regulations and case decisions.

Back on August 19th, I posted about the Baldwin v. Garage Management Corp. decisions, which involved an interpretation of New York Vehicle & Traffic Law § 1210, the "key in the ignition law".  I ended that post with an observation of the plaintiffs' request for sanctions against the successfully moving defendants for having made what plaintiffs characterized was a frivolous motion.

An avid reader as well as writer of all things auto insurance coverage-like, Jonathan Dachs, the lawyer who successfully defended the Baldwin case, commented on and explained the plaintiffs' request for sanctions:

I was the successful attorney for the Defendant in the Baldwin case -- a very interesting case, and one that I did not, in fact, think I would win. With respect to your comment regarding the Plaintiffs' motion for sanctions, that motion was even more interesting to you than you know. As a prolific blogger, writer and commentator, you should be interested to learn that the actual basis for the cross-motion for sanctions was Plaintiffs' counsel's (erroneous) contention that the affirmation in support of our motion "relied upon out-dated and/or inapplicable law which defense counsel himself has previously stated has no application to the issues before this court" -- referring to an article that we had written ten years earlier in the New York Law Journal. As specifically stated by Plaintiffs' counsel, "... defense counsel has written extensively about the change in the common law and the enactment of VTL 1210(a). Defense counsel then cites numerous cases, some of which he has lectured to his Law Journal readers are no longer controlling...." In my Opposition/Reply papers, I pointed out that, in fact, there was absolutely nothing in the 10-year-old Law Journal article that in any way contradicted or defeated the arguments made in support of our motion, and that counsel had completely misconstrued that article. At oral argument, I made further arguments concerning the chilling effect of what Plaintiffs' counsel was trying to do. The Judge wisely rejected the request for sanctions. Plaintiffs' appellate counsel wisely did not pursue that issue on the appeal.

I am sure you already know the risks we take when we place our words, thoughts and opinions "out there." With all of this in mind, your recently created "disclaimer" is particularly pertinent.

Jonathan A. Dachs
Shayne, Dachs, Corker, Sauer & Dachs
(A big fan of this blog)

Chilling effect, indeed.  But I never found your articles to have a lecturing tone, Jonathan.  And thanks for the props. 

Bloggers being sued for their blog content is nothing new.  The notion that a motion for sanctions could be made against me or my client for things I have said in this blawg, however, is new, at least to me. Finding words printed on yellowed acidic paper is possible, but not easy.  Finding words e-printed in cyberspace takes no effort at all. 

With Jonathan's experience in mind, will I change what I write or not write at all?  No.  In a risk-reward analysis, I still think the rewards of legal writing and commentary, for oneself and others, outweigh the risks.  Until the first motion for sanctions is granted, that is.