In any other year, Marc Stephens would be a contender, but what he did was, basically, pretend to be a lawyer like Vicki Roberts or Joseph Rakofsky. It wouldn’t be fair to Roberts or Rakofsky to give the award to wannabe Stephens when they, Stephens’s models (not to mention lawyers Joel Hirschhorn, Maeghan Maloney, Martin Leaf, and Albin H. Gess) are nominees. Call me an exceptionalist, but I think this award should go to someone who, having graduated law school and passed a bar exam, ought to know better.
Vicki Roberts and Joseph Rakofsky both ought to know better. (Both were, at some point, licensed in New Jersey, as is Rachel Kugel; what is it about New Jersey?)
All Roberts did was send a demand letter—something some lawyers do, with no intention of following up, in hopes of shaking a few dollars loose. (This is a blog post for another day, but in the days before the Internet lawyers could send demand letters to nonlawyers and assume that they wouldn’t be called out, much less punched in the virtual throat by Marc Randazza. Roberts, a woman of a certain age, is still living in those days—or was: Randazza’s pro bono response on behalf of blogger Amy Alkon may have educated her.)
Rakofsky—of a generation that should be familiar with the Streisand Effect, went beyond sending a demand letter; he filed a frivolous lawsuit and then, when the frivolous lawsuit wasn’t widely lauded, tried to sue critics of the lawsuit as well, and tried to add the cockamamie theory of “internet mobbing” to his complaint.
I see Roberts’s age as a mitigating factor, and Rakofsky’s conduct—he actually filed suit; not only that, but he actually filed suit against me—as highly aggravating. Asshat advantage: Rakofsky.
Rakofsky’s court documents read like the pro se pleadings of crazy people and, indeed, Rakofsky claims publicly that he will need psychological treatment for the rest of his life. If Rakofsky is not malingering, his mental illness is a mitigating factor. I don’t think the possibility of mental disease or defect can be entirely ruled out in Roberts’s case, but the asshat advantage in this category is hers.
Roberts picked on a nonlawyer. Rakofsky filed suit against lots of lawyers: lawyers who could reasonably be expected to know the law and to fight back. Again, asshat advantage: Roberts.
Roberts sent her demand letter to try to shut down criticism of the government. Rakofsky filed suit to try to cover up his violation of his Sixth-Amendment duty to a client who had put his life in Rakofsky’s hands. I call that a draw.
Roberts (presumably) got paid to be an asshat; Rakofsky did it all by himself; mitigation or aggravation? Make of it what you will.
So far, it’s a close call. What am I missing?