Posted in Legal

The Ten Commandments of Trying a Case According to Bluestocking

At last the trial betwixt WB/JKR v. RDR books comes to its conclusion. It’s been a rough three days. I won’t cause anyone a stroke by attempting to recap the whole week. Instead I’m going to have fun with this. Why? Because darn, plaintiffs made a whole slew of faux pas! In fact I think third year law students could have done a better job. So I’m going to comment on this travesty of a trial by outlining for you the 
Ten Commandments of Trying a Case as set forth by yours truly Bluestocking. 
(Hem hem. I am about to adopt a somewhat King James tone. You may wish to go to the next post if you can’t handle it. )

1. Thou shalt not bring causes of action based upon moral outrage

Many people don’t realize it but moral outrage isn’t always a legally cognizable right. A perfect example of this concept is the “duty to rescue.”  There is no general duty to rescue. Yes there are exceptions like parent/child relationships or police duty or if you had a hand in creating the danger I. E. You jokingly push a kid into the swimming pool not realizing he can’t swim. Other than that if someone accidentally catches themself on fire you can watch them burn to death. Morally and emotionally outrageous absolutely. Legally culpable- nope.

Pretty much all of WB/JKR’s case consisted of the author’s moral outrage. Yes, we understand that as an author you are naturally protective of what people do with your work. Hey, if they are creating continuations of your story to sell them- suit the snot out of them. But writing reference guides so children can easily understand and keep track of the enormous amount of information you choose to put in your book? You know every great author has reams of reference guides about their work. The man is turning you into a living legend and you sue him? Hmm. 

Anyway, day one of law school the professors hammer you over the head anytime you made an emotional argument. Because what’s feelings go to do with it? Nothing! Apparently Cendali missed that lesson at Harvard Law. 

2.  Thou shalt know thy facts and accept them as they are rather than the way thou wishes them to be.

When I was interviewing for a job, a certified trial attorney told me “cases are won on the facts. The attorney that knows the facts the best is usually the one that wins.” WB/JKR missed the forest for the trees. They narrowed the scope of Fair Use too much. You have to take the work as a whole. The Lexicon is written for children who are the target age of the books. Of course it is written simply. In addition SVA never claimed it was “scholarship” so why treat it that way. WB/JKR seemed determined to fit the Lexicon into a certain mold regardless of whether the book actually belonged in that mold. Also Cendali didn’t seem to have any clue as to what RDR’s witnesses were going to say. Don’t you think you should have checked to make sure Rappaport knew JK Rowling was going to publish an encyclopedia before you make the assumption that he was trying to compete with her? With a lot of the facts, it sounds as though somebody didn’t investigate properly. And for crying out loud you removed the citations and deleted portions of the Lexicon’s actual text to prove your point. Then on top of that you brought up examples of text that aren’t even in the Lexicon because they’ve been edited out. 

3.  Thou shalt properly advise thy client.

People hire attorneys because they don’t know the law. It is up to you as the attorney to correct advise them as to their options. Part of this process is telling your client- YOU DON’T HAVE A CASE or you need to be reasonable. Sometimes, you can to have a sit down chat and rake them across the coals for their stupidity. So be it! You must always be realistic. Clients have this annoying tendency to believe that as you are an attorney you can walk on water or leap tall buildings in a single bound. You really got to nip that one in the bud! 

4.  Thou shalt not send Cease and Desist letters if you cannot reasonably expect to win at trial.

I play fair as an attorney. In fact most of us do. However there are those few who don’t and give the rest of us a bad name. I don’t believe bullying is an appropriate way to settle disputes in favor of your client. Unfortunately WB/JKR have been misusing Cease and Desist letters. Yes, it is appropriate when people are selling your work. But bullying people into not publishing secondary material because you’re client who sells over 10 million copies in the first 24 hours is having either inferiority issues or is tripping on the “p” (tripping on the p is the Bluestocking Guide’s way of saying power trip). That’s wrong on so many levels. Hey I’ve sent out Demand letters before; but I also had an iron clad case. If you’re going to be all big and bad, you better Bring It to court. Cendali didn’t bring it! This whole situation with RDR reminded me of that instance in HP where Dumbledore was explaining to Harry that all tyrants like Voldemort fear that one amongst the masses will rise up and overthrow them. RDR was the one that rose up and decided to fight back. And darn it! They’ve put up a good fight and more than leveled the playing field. I hope WB/JKR decides to proceed with caution in the future. 

5.  Thou shalt not manufacture evidence.

Seriously, if you are going to show that somebody “actually copied” your work, you should actually show what they did. I mean if you have to change the supposed quotes in the books or remove all the citations to prove your point, you must have not had a case to begin with. Not to mention, what do you think the judge is thinking of you when you bring evidence that you’ve “created.” Damages your credibility alot. 

6.  Thou shalt win thy case on the merits rather than win thy case by unduly delaying trial.

This is another dirty trick. Like I’ve said before, unfortunately justice can be purchased. The larger your wallet, the more justice you can get for yourself. Come on, if you have a good case, then you have a good case and you’re ready to try it and get it over with. But making your opponent spin his wheels so he can’t afford to fight you. Isn’t that kicking someone while they’re down. Yeah, I don’t play that way.

7.  Thou shalt not allow thy client to make an ass of themself on the witness stand.

Yeah, when I go to court, I read my client the riot act on how to conduct themselves in court. In fact, I told my client off in the court one day, because he probably would have gotten arrest acting like a jerk! Ok so I have told my municipal clients that if they screw up I won’t be going to jail with them. I mean sometimes crying is appropriate, but acting like a lunic is something different. Having your client disrespect other people on the stand doesn’t get you brownie points with the judge. Allowing your client to have a rant shows an utter lack of respect for the court. Cendali didn’t have to allow JKR to testify as rebuttal. Your client has ultimate say on issues of settlement, but as an attorney, you have the final say as to how the case is tried. Don’t know what Cendali was thinking

8.  Thou shalt properly prepare thy expert witnesses beforehand.

Ok so having the judge say that he’s not adopting the expert’s testimony as his own because she isn’t giving specifics is not good for your case. Hiring an expert in the wrong field i.e. Jeri Johnson is not a child literature expert is a big mistake. This case really boiled down to the battle of the experts. And both WB/JKR’s experts got taken out. One by the judge; the other by David Hammer. You really have to pick your experts properly and given them all the facts. If the other sides can knock out the basis for their opinions, then the expert is worthless. 

9.  Thou shalt not try a case unless you actually know what the heck thou art doing.

Ok so Cendali has only won 3 cases. She probably hasn’t tried many more than that. Copyright law is more transactional than litigious. Mostly you send out a lot of Cease and Desist. She settles most things or gets it knocked out on Summary Judgement. This is a far cry from trying a case. And when your opposing counsel has 60 trials under his belt, you really should find a trial attorney in your firm to help you rather than attempting it yourself. Hammer railroaded Cendali all over the place and she couldn’t recover. You have to be experienced in trying a case and that comes with time and actually trying a lot of cases. 

10.  Thou shalt start praying when David S. Hammer, Esq comes to cross examine thy witness.

I don’t think this requires elucidation. 

Anyway, I hope you found that as entertaining to read as I found it to write. In conclusion, the trial from a strategy point of view was a fiasco for Cendali. In fact I don’t think there was a strategy. Surprisingly WB/JKR was outclasses by a trial lawyer whose forte is not copyright and some law professors. Maybe a change in counsel is warranted. 

Who will win? Well from all that I’ve read, the Judge wasn’t acting too kindly towards WB and threw out a lot of evidence plus expert testimony. Unless I missed something WB doesn’t have hardly anything for its case. They bore the burden of proof. Unless the Judge made jokes about the HP to throw everyone off, its sounds like he was leaning in favor of RDR books. 

Thus concludes my week in review. 

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