Working on Answer to ARDC Defamation Complaint–Is there a brick there?

Dear Ken;

Thanks very much for working on an Answer to the ARDC’s mostly defamation complaint where they basically complain about the fact I am running this blog.  I did not steal money, I have not neglected any client matters.  In fact, the allegations make it clear that the complaint has nothing whatsoever to do about my law practice.

Essentially the ARDC is complaining I am a mouthy chick running a blog they just don’t happen to like and they want to censor it.

Eventhough the ARDC does not allow it, as you are aware in Federal Court you have to mention your affirmative defenses or they are waived.

Be sure to put at the end that I am not waiving my rights under the  1) First Amendment to the Constitution, Article 1 of the Illinois Constitution, and since we don’t know what they will bring up at trial, the plethora of defenses I have already found 2) “fair reporting privilege”, 3) “opinion privilege” (where you cannot prove or disprove a statement, it is just someone’s opinion”, 4)  “newsworthy privilege”, 5) “satire, comedy and humor privilege”–the Campari ad, “litigation privilege”, 6) “SLAPP or 750 ILCS section 110,7)  “truth or substantial truth”–the truth does not have to be exacting, there is slop room, “innocent construction”, for example where you say “follow the trail of money leading to the miscreants”–that does not mean that they necessarily stole anything, it merely means they may have a bias because they make money declaring elders incompetent quickly and easily and 8) “business communication.” where employees transmit statements during the ordinary course of business they should be exempt from defamation claims.
A court must always consider and utilize the “innocent construction” rule when it has been alleged and it is seems fairly plausible.

 The ARDC has apparently alleged “defamation per se” which is supposed to require detailed pleading according to the cases.  Then, one of the elements of “defamation per se” is that the communication must not have been provably false.  Once the defendant brings up truth or substantial truth as a defense, then the burden shifts to the plaintiff to prove the statement was false by clear and convincing evidence.  For the “litigation privilege” the Illinois courts have not limited that to the parties, their attorneys or others directly involved in the case.  You can just “refer or relate to a case” and get the privilege.

All I do is blog.

All the courts do is figure out how to dump defamation cases out of their courtrooms.

All most clients want to do is whine, moan and groan about how someone “defamed” them or trash talked them and they want to sue for defamation.

Any lawyer that does not have a brick for a brain knows that defamation is a huge loser, a time waster and the cases go no where real quick.  The court knows you have a wimpy whiner for a client that has more money than brains.

I get that sometimes reformed alcoholics and drug addicts might want to clear their names, I do get that. (the Carol Burnett case). There might be some special, limited instances where a client wants to sue for defamation, slander, libel, false light, etc.  But if the courts allowed trash talk to get to trial, 90% of court business would be trash talk and we’d have to dump Maury, Sally Jessie Raphael, Gerraldo and a whole host of professional trash talkers on cable TV.  We couldn’t even accommodate in our courtrooms all the trash talk from cable TV!

The courts “get it” and know that defamation as a tort was done for when cable TV hit the airwaves with all the trash talk and sleeze for entertaiment.

Apparently the ARDC does not “get it” and does not know we have first amendment rights and defamation is a clear loser.

While courts dump defamation cases left and right, the ARDC apparently latches on to these when they have nothing else to say.  If you have no facts, pound the law, if you have no law, pound the facts, if you have no law or facts, just pound the table.

My complaint is clearly a table pounder.  Grandstanding at it’s best.  Besides aren’t you happy to know Leah Black got promoted for her great work on your case?  Just like Justice Connor.

Do we get any depositions?  Do you have the transcript yet from your case?

take care


PS the comments about Dorothy Brown came from their very own Help desk, and also when all the civil servants got fired in 2001 when the fed courts switched to Pacer.  I have been told it numerous times.  I have discussed it with other lawyers numerous times.  Why the ARDC thinks a lot of stuff on my blog is somehow great original news, I think they are perhaps just a few too floors too high up in their ivory towers.

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