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. 

Posted in Legal

The “Hammer” Strikes Back: I hope Cendali is Ready

Yes it’s a clever variation on the title of the Fifth Star Wars movie. This poor man. I know he’s literally working around the clock to be cranking out these kind of well-written briefs. The brief is pretty self-explanatory in fact, I pretty much hit the hammer on the head with my last post. I just wanted to give you a little background on David S. Hammer, Esq. He is a trial attorney. Check out his resume:

Law Practice of David S. Hammer, New York City 
My practice encompasses both civil and criminal litigation. Presently, I am serving as trial counsel in a copyright case, a murder case, and several state court damage actions.
2003 to 2008
Partner, Mysliwiec & Hammer, L.L.P., New York, N.Y. 
At Mysliwiec & Hammer, I tried a number of civil and criminal cases. My civil practice chiefly involved contract law, but also focused on accounting issues, as well as director liability under recently promulgated federal litigation. I conducted several arbitrations under the federal securities laws, and also became involved in partnership, copyright, antitrust and bankruptcy law. My criminal practice included the representation of witnesses in federal grand jury investigations, including antitrust investigations, and the representation of defendants in state and federal prosecutions and appeals. I also represented professionals in disciplinary proceedings.
1994 to 2003
Law Practice of David S. Hammer, New York City.
My criminal practice included the representation of defendants charged with every conceivable type of crime, from murder for hire to securities fraud to drug conspiracy to antitrust violations. In additional to trying criminal cases, I have represented witnesses in both state and federal grand jury investigations, and defendants in both state and federal appeals. My civil cases spanned a cross-section of commercial disputes, involving contract law, securities, partnership, intellectual property, antitrust, real property, bankruptcy law and matrimonial law. 
1992 to 1994
Senior Litigator, Mayer Brown & Platt, New York City
My case load included construction,white collar crime, products liability, real property and personal injury matters, as well as miscellaneous projects such as a litigation review of a merger target. While at Mayer, Brown I worked on several jury trials, a criminal forfeiture proceeding and argued appeals to the New York State Appellate Division and the Second Circuit.
1987 to 1992
Law Practice of David S. Hammer, New York City
My practice involved bankruptcy, securities, white-collar crime and antitrust cases, as well as general commercial litigation. 
1982 to 1986
Assistant United States Attorney, Southern District of New York
While an AUSA in the Southern District, I tried fourteen felony cases, several trials lasting more than a month, briefed and argued numerous motions to district courts, as well as ten appeals to the Second Circuit, directed lengthy and complex grand jury investigations, and supervised several new Assistants during their early trials. I served in General Crimes, Narcotics and Securities Frauds Units.
1980 to 1982
Special Assistant United States Attorney, Southern District of Florida (Miami)
During my two years as a Special Assistant, I tried fourteen felony cases, briefed and argued motions and appeals, supervised all prosecutions arising out of the 1980 Cuban “boat lift”, in the process overseeing several attorneys and a task force of agents. For this work, received the Justice Department’s Special Achievement Award. 
1979 to 1980
Attorney-Advisor, Policy Planning, Antitrust Division, Justice Dept., Washington, D.C.
At Policy Planning, I worked on anti-merger enforcement policy and legislation, helping to draft a statutory “pro-competition” defense to proposed conglomerate merger legislation. 
1975 to 1979
Litigation Associate, Davis Polk & Wardwell, New York City
While at Davis Polk, I was chiefly involved in antitrust and securities suits, including five contested tender offers.
Now check out the some of the cases he’s won on:
Trials & Appeals
Selected Trials
Warner Bros. Entertainment Inc and J.K.Rowling v. RDR Books, Federal Court in Manhattan
I presently am trial counsel for RDR Books, in an action by Warner Bros. and Ms. Rowling in the United States District Court for the Southern District of New York.
Callahan v. Emeritus Capital Parnters, LLC, AAA Arbitration 
Represented Respondents in Securities Fraud Arbitration. Defense completely successful: all claims were dismissed. 
People v. Israel, New York State Supreme Court 
Defense counsel in murder case pending in Manhattan Supreme Court. 
People v. Mayer, New York State Supreme Court 
Successful Defense of client accused of armed robbery.
Ehrlich v. UBS PaineWebber, Inc., NASD Dispute Resolution 
Pending arbitration brought by investor against brokerage firm for losses arising. 
People v. Melvin Grant, New York State Supreme Court
Defense counsel in murder for hire case. Obtained an acquittal in spite of three alleged eye-witnesses, and an alleged confession.
Keystone Corporation v. AMNEX, Inc., American Arbitration Association
Defense counsel to telecommunications company in arbitration involving accounting issues, merger law and billing methods for long-distance telephone calls
People v. Allen Wiggins, New York State Supreme Court
Defense counsel for accused in murder for hire case.
The SoftAd Group, Inc. v Lintas, Inc. , New York State Supreme Court
Plaintiff’s counsel in breach of contract action by software designer against major advertising agency. Verdict for plaintiff, jury granting more damages than requested.
People v. Jun Hua Yang, New York State Supreme Court
Defense counsel for accused Asian gang-member. Even though defendant absconded in mid-trial, jury acquitted him of major charges.
United States v. Dr. Irving Greenfarb, U.S. District Court, S.D.N.Y.
Prosecuted and convicted four doctors for distributing Quaaludes through “sleep clinics”.
United States v. Leopold Frade, U.S. District Court S.D. Fla.
Prosecuted and convicted three of four defendants for Trading With The Enemy.
Selected Appeals
Rotterdam Ventures, Inc. v. Ernst & Young, LLP, New York State Supreme Court, Appellate Division, 3rd Department) (reported at 752 N.Y.S.2d 746). 
(Civil) Appeal for plaintiffs in accounting malpractice case, involving issues in the law of negligence and fraud.
Merzon v. Lefkowitz, (pending in the New York State Appellate Division, 1st Department)
Appeal for Plaintiffs in a real estate transaction, involving issues of breach of contract, fraud in the inducement and breach of fiduciary duty.
People v. Juan Garcia (pending in the United States Court of Appeals for the 2nd Circuit)
Defendant’s appeal from a conviction for illegal reentry to the United States following commission of an aggravated felony. Addresses the meaning of “aggravated felony” under the deportation laws.
People v. Rosario (pending in the New York State Appellate Division, 1st Department)
Appeal from two convictions for murder, the first involving issues of self-defense, the second, issues involving the government’s “Brady” obligations.
People v. Evans, New York State Supreme Court, Appellate Division, 1st Department (reported at 693 N.Y.S.2d 593).
Appeal from a conviction for drug dealing, involving issues of inconsistent verdicts, the meaning of probable cause.
United States v. Ventura, United States Court of Appeals for the Second Circuit (reported at 146 F.3d 91).
Appeal from a conviction for drug dealing, involving questions of a sentencing court’s discretion to depart from the United States Sentencing Guidelines.
United States v. Morelli, United States Court of Appeals for the Third Circuit (reported at 54 F.3d 770).
Appeal from a civil forfeiture order, involving questions including the right to a hearing before such an order is issued.
WOW!! This man knows how to try a case. According to his attorney profile he has tried over 60 cases. That’s phenomenal. What most people don’t realize is that 90% of cases settle. Depending upon the area of law, some attorneys rarely try cases. Mr. Hammer was a federal prosecutor. When I was in law school, my criminal law teacher was a federal prosecutor. All I can say is I’m glad I wasn’t the defendant she was prosecuting! Given his extensive background, I wouldn’t want to have to be cross examined by him. Former prosecutors don’t play around when it comes to trying cases! I didn’t realize RDR has such a heavy hitter on board! 

Ok to be fair here is the run down on Dale Cendali:
Dale’s practice focuses on copyright, trademark, patent, and trade secrets law, as well as defamation, the right of publicity, false advertising, privacy, and similar areas. From cases involving cutting-edge issues of new technology, to entertainment, to core branding and merchandising disputes, Dale has successfully represented domestic and foreign companies in litigation involving a wide range of intellectual property assets, products and services. Dale also counsels clients regarding the acquisition and retention of intellectual property rights (including Internet issues) and litigates disputes concerning such rights. 

Dale chairs and has chaired numerous bar committees and lectures and writes prolifically on intellectual property, media, and litigation topics. 
Illustrative Professional Experience
• Arguing before the U.S. Supreme Court on behalf of Twentieth Century Fox in Dastar v. Fox, a copyright and Lanham Act case involving General Dwight D. Eisenhower’s acclaimed memoirs, having won trials below on liability and damages
• Representing Victoria’s Secret in the U.S. Supreme Court with partner Walter Dellinger in a case of first impression interpreting the federal dilution statute, and leading to Dale’s appointment on the International Trademark Association Presidential Select Committee that helped rewrite the federal dilution statute and her key role in preparing for the Congressional hearings regarding the bill
• Winning summary judgment in a high-profile copyright and trademark action that accused J.K. Rowling, the author of the Harry Potter books, of plagiarism, as well as $50,000 in sanctions, and an award of attorneys’ fees because of claimants’ fabricated evidence
• Winning a landmark trial on behalf of the Martha Graham Dance Center, in a case that preserved Martha Graham’s dance legacy in a bitterly contested intellectual property battle against the heir to Martha Graham’s estate
• Representing in a high-profile copyright action involving the allegedly improper use of music on the widely popular MySpace social networking site, brought by the largest music company in the world, Universal Music Group Recording , Inc. (UMG)
• Representing Nuance Communications, a leading provider of speech and imaging solutions for businesses and consumers around the world, in several patent infringement, copyright, trademark, contract and trade secret misappropriation actions involving speech recognition and related technology, including cases in the Eastern District of Texas and in private arbitration
• Securing a favorable settlement for License Management Co. during the second week of an expected two and a half week bench trial in the District of Connecticut in a case involving breach of fiduciary duty and corporate opportunity claims, and license rights to the world-famous “Swiss Army” branded products and trademarks
• Leading an O’Melveny team in obtaining a unanimous federal jury verdict in favor of the American National Theatre, a nonprofit theatre organization in New York, in a trademark infringement case brought by ANTA, another nonprofit theater organization, over the right to the American National Theatre mark
• Successfully representing J.K. Rowling in numerous intellectual property disputes nationwide, including a recently filed lawsuit against RDR Publishing concerning the proposed publication of an unauthorized Harry Potter “lexicon” and a highly publicized copyright infringement action brought against the New York Daily News involving the premature release of excerpts of the fifth Harry Potter book
• Representing Honeywell in class actions premised on fraud on the trademark office involving the famous Honeywell Round trademark for thermostats
• Representing and advising Lionel LLC in all of its intellectual property litigation, and in developing, protecting and enforcing its intellectual property rights, including assisting to secure the reversal of a $40 million adverse judgment on trade secret claims that threatened the company with bankruptcy, and successfully resolving a high- profile trademark dispute against Union Pacific train line
• Successfully representing Twentieth Century Fox in a high-profile copyright, false advertising, and breach of contract lawsuit against Marvel Comics, Tribune, and Fireworks concerning the movie X-Men and television show Mutant X
• Winning summary judgment for Twentieth Century Fox in a copyright infringement matter brought by the purported owner of the photograph allegedly used to create the “I WANT TO BELIEVE” poster in Fox Mulder’s office on The X-Files
• Successfully representing Time Warner Entertainment and related companies, such as Time, Inc. and Home Box Office, in a variety of matter including a major fraud in the inducement case and the successful defeat of a preliminary injunction involving Time’s expansion of its “Real Simple” line of products
• Successfully defending the Gallo Winery from false advertising charges brought by Heublein in a case that involved the extensive use of survey experts
• Successfully representing various major companies in arbitrations involving numerous contractual issues involving hundreds of millions of dollars
• Obtaining transfers of domain names for numerous companies pursuant to both the ICANN dispute resolution procedures and the Anticybersquatting Consumer Protection Act and counseling on Internet issues in general
Defeating as a prior restraint O.J. Simpson’s attempt to enjoin broadcast of the Simpson/Brown wedding video and later obtaining a demurrer as failing to state a claim under privacy and unfair competition law.

Both attorneys are experienced. However when it comes to actual trial experience, Hammer has a lot more. Why is this important? Trying a case and representing a client are two separate things. I’ve represent over 50 clients in the last year. None of the matters has gone to trial. Some time being a good lawyer means merely negotiating a good outcome. Like I said most things settle before going to trial. Now from what I actually counted, Ms. Cendali has actually only won 3 cases. Please check my math. Look for works like verdict, won trial, acquittal, conviction (these indicate trial occurred and concluded) not summary judgement or settlement. FYI the terms “successfully representing or defending” doesn’t mean a trial actually occurred. For instance, the Rowling suit against Stouffer was dismissed prior to trial; but that is considered successful defense. Anyway, this will be very interesting. I’m sure nothing Cendali tries to pull at trial will phase Hammer. No doubt he’s seen it so many times it’s boring.