Confidence based on knowledge and skill is effective in an advocate. Confidence premised on ignorance and bluster isn't really confidence at all — it's arrogance, and it's ineffectual and frankly embarrassing.
Just ask Florida attorney Joel Hirschhorn.
Attorney Hirschhorn apparently represents the proprietors of the site www.adamwins.com, some sort of sports betting enterprise. Apparently www.adamwins.com engages in some amount of telemarketing, and drew some highly unflattering comments at 800notes.com, a site that acts as a message board about unsolicited telemarketing, where consumers can browse and post based on company name or telephone number.
If Mr. Hirschhorn were a cautious type, he might have done a bit of due diligence and noted that other lawyers had previously sought to insulate their telemarketing clients from criticism on 800notes.com and got their ass handed to them by Paul Alan Levy at Public Citizen. That might have led Mr. Hirschhorn to educate himself about, for instance, the provisions of Section 230, which (broadly speaking) insulates people who run web sites from liability for the comments written by visitors. Such due diligence might have allowed Mr. Hirschhorn to navigate the treacherous shoals between confidence and arrogance.
Mr. Hirschhorn didn't. He opened right up with a bumptious legal threat to 800notes. When one of the principals of 800notes attempted — with vastly more courtesy than Mr. Hirschhorn had earned — to explain the relevant law to him and why they would prevail under it, he reacted with buffoonish old-man lecturing:
The last time I was told: If you sue us, we will fight back and win, the Florida Supreme Court disagreed with that arrogance and I actually won.
Nonetheless I appreciate your kind and cogent advice. I presume with your confident attitude you must have graduated at the bottom of your class from a third world law school. If I am wrong, I am certain you will correct me.
In the meantime, I will let my client make the decision. No lawyer I know worth his/her weight would ever guarantee a win (you just did) as I have learned in my 43 years of practicing law there are far too many variables.
What transforms this arrogance from run-of-the-mill posturing to transcendent fuckwittery is the fact that Mr. Hirschhorn — who has just delivered a condescending lecture about predicting victory — uses "www.acquitall.com" as a domain for his firm. See, that's arrogance, not confidence.
Paul Adam Levy — again, offering far more courtesy than was warranted — called Mr. Hirschhorn and attempted to educate him about the relevant law. Mr. Hirschhorn hung up on him. Such unprofessional petulance is, once again, the mark of arrogance rather than confidence. It's clear that Mr. Hirschhorn has no basis for confidence:
Hirschhorn bragged that he is not just a member but the founder of the First Amendment Lawyers Association, but acknowledged that he himself did not know anything about the law in this area; instead, he said, he hires others who know the law to help him.
Mr. Hirschhorn ought to talk to the subject-matter experts he hires before he issues legal threats, not afterwards. Otherwise, he will continue to make a fool of himself, as he has here.
It remains to be seen whether Mr. Hirschhorn is so intransigent and unethical that he will go through with a baseless lawsuit against 800notes. If he does, he will get creamed. Merely by threatening to do so, he has guaranteed that — thanks to the Streisand Effect — thousands more people see and hear about the unflattering comments about his client than otherwise would have. Do you suppose he had sufficient competence to know that ahead of time? Do you suppose he advised his client that (1) the entity he proposed to threaten was known for standing up to threats, as a brief Google search would have shown, (2) the threats lacked a good-faith legal basis, as even a minimal amount of diligence in the relevant area of law would have shown, and (3) the almost certain outcome of making the threat would be to more widely publicize (possibly by many orders of magnitude) the allegedly defamatory statements?
Gosh, www.adamwins.com, you tell us. Did Mr. Hirschhorn advise you of those things?
Last 5 posts by Ken White
- A Response To Marc: Institutions, Agendas, and the "Culture War" - January 13th, 2016
- Lawyering Is About Service, Not Self-Actualization - January 11th, 2016
- Lawsplainer: Was FAU Prof. James Tracy Fired in Violation of His First Amendment Rights? - January 7th, 2016
- Defy, Defy, Defy. - January 7th, 2016
- President Obama And The Rhetoric Of Rights - January 5th, 2016