While I am not all that interested in the Brodsky/Peterson case, apparently there is some bruhaha over the fact the judge didn’t like something that Atty Broadsky said to the press after the case was over and some of you have written me concerned if this is first amendment privilege.
OF COURSE IT IS. The judge is dead wrong. (Somebody PLEASE send him a “Constitutional Law for Dummies” book–better yet, get a dozen copies for the ARDC attys too). Illinois has plenty of case law saying your attorney can say anything publicly which helps vigorously defend a client. Many clients don’t want to or just don’t have the abilities to speak to press. Of course, you can have your attorney do that and no problem. It should be protected speech under “litigation privilege” (statements made in and out of court), “fair reporting” (try not to get too out of line so it is basically “fair”) and “opinion”. You shouldn’t have to worry about being sued over something your attorney said on your behalf so your attorney can present the case properly.
I don’t really know what exactly ticked off that judge. But the judge is clearly does not know Illinois law. It is my understanding the case was over and Brodsky was talking about some trial strategy. I think every lawyer talks openly about trial strategy after a case is over.
Peterson’s case is highly unlikely to be overturned–except on the heresay perhaps, but even that is unlikely.
Ken agrees as follows:
Subject: Re: First Amendment
Response to a blogging client:
I am aware Ms. Sykes that the ARDC apparently finds nothing wrong with the aforesaid acts as it investigates Ms. Denison and myself for complaining about the ‘above’ situation, writing to the Attorney General of the United States and other citizens about this situation. The fact is however, that one wrong does not make another wrong right! The fact is that Democracy is not a spectator sport and we have to stand up and be counted not only when the Civil rights of friends are being violated, but also when those we do not hold in
**** end of quote ****
Whatever Brodsky said, the judge was clearly out of line. Talking about trial strategy after the fact is not privileged or anything else for that matter–but it is clearly protected by the First Amendment.
If we, the public, don’t stand up and say that we have First Amendment rights from time to time, the slippery slope, the wedge with the edge, the skater on ice mountain will find out were our precious rights will end up–being flushed down the toilet.
So write the Department of Justice today, write your Congress person, call for an investigation, tell the ARDC (I’ll put up a page, where to write and email), you want your attorneys to have clear and open First Amendment rights.
Otherwise the constitution can be made into toilet paper for all it’s worth.
And for those of you out there that think what you say to you lawyer will ALWAYS be protected under attorney client privilege, know this, many things are not protected and the privilege is to be construed narrowly and just make sure what you say and write is self serving.
If an attorney learns of the location and existence and type of a murder weapon, those things are not protected by attorney client privilege–only things you SAY are protected by the privilege. Physical items are not privileged.
SOME clients out there need to learn to always write self serving, polite, civilized emails because they COULD be discovered and a judge or jury might not like it if Plaintiff were rude, obnoxious, uncivilized and crude. That’s just the way judges and juries are–they get to determine facts and weigh truthfulness with pretty much impunity. They can make or trash a case. Remember the Blago team–swearing and acting crude and uncivilized on FBI tapes? That’s a huge uphill battle for any lawyer, trying to repair that credibility. Like it or not, there are staunch Christians, Jews and even Muslims out there that HATE that stuff. And they will spread their distrust and unhappiness with you to other jury members. Or the judge who is a staunch anything will easily infect a jury.
So WATCH what you say, make certain it is self serving, polite, free of swearing and scathing endless sentences.
If you need to make a point that some atty is a pompous ass, poke fun at them. Invective, satire and polemic is a tried and true method to keep your reader on your side, make them laugh and get them to repeat what you have said. A judge and jury that laughs is easier to keep on your side. You make your point, you make someone laugh and you make someone remember.