I Think the ACS Blog Might Be On to Something

In a post called "Frivolous Trademarks" (9/17), Joel at the ACS Blog writes:

[T]he Legal Underground reports that the American Tort Reform Association has trademarked the phrase "Judicial Hellholes." In comments, Federalist 84 expresses doubt that this trademark would ever be upheld by a court.

Does this mean that in order for the American Tort Reform Assocation to protect their "trademark," they would have to engage in a frivolous lawsuit?

I last reported about ATRA's trademarking of the term "Judicial Hellhole" here. The comments to the post by Kevin Heller, Abnu, and Federalist No. 84 were interesting, and led to posts at other sites here and here.

So is Joel right? Is ATRA's trademark frivolous? It was John K. Hsu at Shook, Hardy & Bacon who filed the application--I wonder if he'd share his opinion with us? (Oddly, he's not listed on the Shook, Hardy website. Otherwise, I'd send him an e-mail.)

Comments

[Kevin]

Just take a look at how SHB sets up their email and try him -- I'd go with jhsu@shb.com

[david giacalone]

Kevin, you'd make a great secretary!

Evan, a defense only has to be colorable to be non-frivolous. You guys keep confusing "without merit" for frivolous, but the concepts are not identical. See, e.g., Model Rule 3.1, and this article on the MetLife case.

Hey, I just learned that "frivol" is an intransitive verb meaning "to act frivolously." So, I must use it: The senior partner wondered how all the weblogging associates had so much time to frivol online everyday.

Off topic: Note to all you law students: The NYS Bar just revoked the admission of a lawyer, who (six years ago) omitted a prior job (fearing he'd get a bad recommendation letter). Honesty pays, dudes.

[Prof Yabut]

Giacalone meant to say "omitted a prior job from his Bar applicaction." (Senior moments in public can keep an old lawyer humble.)

[Federalist No. 84]

David, I do not use "frivolous" as a term of art, specifically as understood under the MRPC. Rather, I use it as understood by the ATRA, namely: "A cause of evidence or piece of evidence, e.g., a type of expert testimony, that is currently legally allowed, but - for some compelling public reason, should not be." More importantly, I apply the overlawyered smell test (registration pending!) If, when I see something, I think "The boys at overlawyered would love to get a hold of this," then it passes the smell test.

Thus, ATLA's trakemarking "trial lawyer" smells like something overlawyered would cover. ATLA suing someone for using "trail lawyer" without the (R) smells like something that overlawyered would cover and that the ATRA would criticize.

Is my sense of smell off?

[david giacalone]

Fed84,
As you know, Walter and Ted have hyper-sensitive noses (a few of their arguments even border on the frivolous, but zealots are like that), so I'm sure your smell test won't often be wrong about cases they might "cover." But, I think you need to find another adjective, since "frivolous lawsuit" or "frivolous claim" already has a very distinct meaning in the legal context and blurring it does not help the policy debate.

Also, "frivolous evidence" seems, to my ear and brain, totally inapt. Evidence is or isn't relevant, material, strong, circumstantial, intrusive, probative, misleading, independent, trustworthy, objective, etc., but not "frivolous." [If a claim has no basis in fact, then there is no probative or supporting evidence; it's the claim that frivolous, not the evidence.]

If there is a colorable legal argument for a claim, but Overlawyered would still be interested in shining its spotlight on it, the more appropriate adjective might be: imprudent, foolish, unwise, ill-conceived, silly, anti-consumer, outlandish, or even over-reachingly greedy.

[Ted]

I'm not a fan of the word "frivolous" myself. It confuses the debate, and tort reform opponents often elide issues by equivocating between the colloquial and the considerably narrower legal meaning of the word.

David, in the spirit of receiving constructive criticism, I'd be curious if you have specific examples of where you think my "zeal" has led me into frivolous arguments. I certainly try very hard to stay intellectually honest. Indeed, I once cost myself a CNBC guest spot (and what would have been a nice bullet-point on my resume) when I refused to characterize a particular verdict as that of a runaway jury. (A considerably more Machiavellian friend of mine who's also a better attorney thinks this was foolish of me; thousands of people who I'll never meet may have thought I was saying something idiotic, but for that price, I could get my name in front of thousands of others. That still wouldn't have changed my decision.)

As an attorney, I don't like losing credibility making throw-it-at-the-wall arguments that can be easily undercut. While blogging can result in some sloppiness, I can only think of one occasion where I made a blogging argument boo-boo, and Walter caught it before anyone else did. You can e-mail me, no need to trouble Evan's message board.

An attorney and former business partner of mine recently became a bit of minor celebrity; shortly after Greg appeared on a widely-watched television program, someone reserved a domain name with his nickname, bought up Google ads, and is now selling spam-quality products using Greg's photo on the cybersquatting site. Greg's legal recourse, to the extent he wants one, would be somewhat easier if he had trademarked his nickname.

In other words, while I initially winced the first time I saw the trademark symbol, I can on reflection think of similar defensive reasons that ATRA has trademarked "Judicial Hellhole" (for example, it's the title of an annual ATRA publication). Although I don't wear pajamas, I have an inquiry into them.

[david giacalone]

Ted,
I may have been engaging in a little bit of hyperbole, but note that my assertion was limited to "a few arguments" (out of thousands) that were described merely as "bordering on frivolous". Moreover, the "they" I was referring to was the full contingent of contributors at Overlawyered.com.

I agree that you (and Walter) try very hard to get your facts straight. And, I will posit that most of the instances of overzealousness that I can immediately point to at Overlawyered.com have been committed by authors other than yourself. (My close reading of posting at your site is, of course, focused on a small number of topics, and I don't attempt to monitor most subject areas that are beyond my expertise and/or ken.)

However, like most human beings (even I at times) -- and especially folk in the midst of a crusade or a book tour -- there is a tendency at Overlawyered to paint some kinds of activity (such as regulation) and certain kinds of people (such as trial lawyers) as guilty unless proven innocent beyond a reasonable doubt, in a rather knee-jerk fashion.

A recent example on your part was your complaint about "fax reform measures" that would weaken the frivolousness standard in Nevada. I responded at my site:

I'm not sure Ted is right that Question No. 5 "redefines 'frivolous' to narrow the classification as to be meaningless." The proposal would require lawyers to pay all expenses of opponents if they file cases soley to be vexatious or "to seek economic gain unrelated to the merits of the lawsuit." That doesn't sound weaker than the customary frivolousness standard, which is "without basis in law or fact," and which allows a good faith argument for an extension, modification or reversal of existing law. See Model Rule 3.1, and law.com. As the 2d Circ. App. Court recently asserted in the MetLife case, a case can be "meritless" and not be "frivolous."

I have elsewhere responded to overly-broad condemnations or over-reactions by Overlawyered. Examples: (1) imputed income for deadbeat dads; (2) damages related to a lack of foster care supervision; (3) Minnesota anti-Bias CLE requirements; and (4) discussion of compensation caps in lawyer client protection funds.

[Ted]

We've hijacked Evan's blog a bit here on a side-topic, but the current version of Nevada Rule 11 does impose sanctions for the "empty head, pure of heart" scenario where a reasonable investigation was not performed. Question 5 requires proof that the lawyer acted "solely" for impure motivations. To me, at least, it seems unclear how such proof is ever going to arise without a volunteered confession. That's a different issue than presented in the MetLife case; I'm not challenging the idea that an argument can be without merit but not frivolous. (Whether the legal system would be better off if meritless arguments were sanctioned is a different question.)

Regardless, because there's no "stop and think" requirement, I think it's fair to describe it as a narrower standard than existing rules, and thus a faux deterrent. The word-choice of "meaningless" may have been poor.

[Kevin J. Heller]

I'm going to take that as a compliment.

[david giacalone]

Absolutely, Kevin. If only every lawyer had the problem-solving skills of a good secretary!

[Kevin]

More secretarial work:

The House of Representatives passed a bill - The Lawsuit Abuse Reduction Act of 2004 - on Tuesday that would require sanctions against lawyers who file lawsuits judged frivolous. The bill is meant to "amend Rule 11 of the Federal Civil Rules of Procedure to improve attorney accountability, and for other purposes."

elawlibrary

[FN84]

Could someone please explain why my blog is #3 for "judicial hellholes" and #9 for "judicial hellhole" when I linked to Evan? That's not what I had in mind when I discussed the issue!

[Evan]

FN84: It's because I'm a liability, I suppose.

Run away! Run away!