Rakofsky Versus The Internet: Advantage, Internet

Remember Joseph Rakofsky? He's the brand-new lawyer who thought it was prudent and appropriate to attempt, as his first trial, the defense of a man accused of murder. Havoc ensued. A federal judge granted Rakofsky's request to withdraw, which coincided with the defendant's request for a new lawyer, and granted a mistrial. In doing so the judge said that in the alternative he would have granted a new trial based on Rakofsky's incompetence:

I must say that even when I acquired [sic — probably "inquired of"] Mr. Deaner [the defendant], I — as to whether or not, when the Court found out through opening, at least near end of the opening statement, which went on at some length for over an hour, that Mr. Rakofsky had never tried a case before. And, quite frankly, it was evident, in portions of the trial that I saw, that Mr. Rakofsky — put it this way: I was astonished that someone would purport to represent someone in a felony murder case who had never tried a case before and that local counsel, Mr. Grigsby, was complicit in this.

It appeared to the Court that there were theories out there defense theories out there, but the inability to execute those theories. It was apparent to Court that there was a — not a good grasp of legal principles and legal procedure of what was admissible and what was not admissible that inured, I think, to t detriment of Mr. Deaner. And had there been — If there had been a conviction in this case, based on what I had seen so far, I would have granted a motion for a new trial under 23.110.

So I am going to grant Mr. Deaner's request for new counsel. I believe both – it is a choice that he has knowingly and intelligently made and he understood that it's a waiver of his rights. Alternatively, I would find that they are based on my observation of the conduct of the trial manifest necessity. I believe that the performance was below what any reasonable perrson could expect in a murder trial.

And later in that hearing . . .

And I think that the – As I said, it became readily apparent that the performance was not up to par under any reasonable standard of competence under the Sixth Amendment.

This was widely reported, resulting in Rakofsky suing a ridiculous array of news outlets and lawbloggers, and stubbornly pursuing those claims in what became known as "Rakofsky versus the Internet."

Last week he lost — a judge granted motions to dismiss his case. That represented two major victories last week for Marc Randazza, who not only represented many lawbloggers in Rakofsky's case, but also crushed infamous copyright troll Righthaven on appeal. This will not make him any easier to live with.

Rakofsky's lead argument was that he was defamed because his detractors reported that a judge had declared a mistrial based on his incompetence, when in fact the judge had declared a mistrial based on the defendant's request and had only said that in the alternative he would have granted a mistrial based on Rakofsky's incompetence. The correct rejection of this argument is a good example of the substantial truth doctrine, also known as the "gist" or "sting of it" doctrine — the rule that says that a statement isn't defamatory if the main insulting thrust of it is true. So, if you accuse me of molesting squirrels in a public park, and I sue you for defamation on the grounds that my companion was a chipmunk and I was in the storm drain adjacent to the park, my defamation suit against you should not survive. (Unless, I suppose, we live in a community where squirrels are held in high esteem but chipmunks are generally despised.) Here, it was patently ridiculous for Rakofksy to maintain that the "mistrial resulting from incompetence" story was meaningfully misleading or false. The trial judge was brutally frank in his evaluation of Rakofsky's ability, and trial judges don't just go around letting defendants change lawyers mid-trial for no reason.

There are a few lessons to learn from this regrettable affair.

1. Our legal system is so broken that it can take years to resolve even the most patently vexatious, harassing, and incompetently prosecuted lawsuits like this one.

2. Rakofsky doubled down. Had he slunk away after his grave error in judgment, giving thanks that his rashness did not lead to someone being convicted, he might have learned the trade, become a competent lawyer, and overcome a brief flurry of bad publicity. Instead, he chose to file a vexatious lawsuit. Now he belongs to the ages. He will never, in the half a century he has left to him, live this down.

3. Yielding to censorious thuggery like Rakofsky's is harmful to your reputation. Cowardly and unprincipled University of St. Thomas School of Law, I'm looking at you. You yielded to a frivolous suit and taught your students and alumni a terrible lesson about being a lawyer and a citizen. You encouraged vexatious and speech-chilling litigation. Let your cringing suckitude be proclaimed throughout the land.

4. Judge Wright's photon torpedo salvo notwithstanding, most judges are reluctant to award sanctions even against conduct that richly deserves it. Here the judge declined to award sanctions against Rakofksy. I'm inclined to agree with Scott that Rakofsky's youth, inexperience, and nationwide humiliation probably stayed the judge's sanctioning hand.

5. If you want the law to be an instrument of self-actualization, start a blog. Law practice — the profession of providing services to clients who need you — is not your personal voyage of self-discovery and empowerment. If you practice as a lawyer, you owe it to your clients only to do the things you are competent to do. Embarking on the defense of a man accused of murder as your first trial is a moral and ethical outrage. Regrettably, the profession is barraged with eager voices telling us that attracting clients with puffery and keywords and Twitter accounts is the way to build a practice. Nobody's reminding us that you have an obligation to know what you're doing before you accept the client. Somebody should.

Last 5 posts by Ken White


  1. David but not that David says

    Did this man watch My Cousin Vinny and think, "surely this must be a documentary?

  2. SassQueen says

    Quote: "Nobody's reminding us that you have an obligation to know what you're doing before you accept the client."

    It would be like a GP fresh out of residency performing open heart surgery. Sure, you know where the heart is and you may have even seen the procedure done before, but you need training first.

  3. Nicholas Weaver says

    However, the sheer reluctance to issue sanctions is also telling. If someone no longer has a reputation worth protecting (*Cough* Cox *Cough* Carreon *Cough* Rakofsky *Cough*), the message is now in place that they can sue to their hearts content, as only insanely abusive practice (e.g. Carreon's discovery and deposition business, making him an extrodinary douchebag) ever gets punished.

  4. says

    The "unwillingness to issue sanctions" bit reminds me of an old lawyer joke whose punchline is "professional courtesy".

  5. Joe Pullen says

    This will not make him any easier to live with.

    Somehow I suspect Marc has never been "easy to live with" :-)

  6. Sami says

    I think the lack of sanctions might be unfortunate, for the reasons mentioned above; this kind of litigation really needs to be deterred.

    I do applaud your point about the need for lawyers to assess their competence to undertake specific cases. SassQueen's comparison to doctors and surgery is probably pretty apt. There's a reason why surgeons have so much additional training before they get to do all their surgery.

    Last year I had orthopaedic surgery that involved putting screws into my badly-broken ankle. There were three surgeons around for that – one was fresh out of med school, one was a registrar a year or two out of med school, and one was twenty years out of med school. I have no idea who did what in the actual procedure, but the experienced surgeon was responsible for the operation as a whole, and it went fine.

    A few months later, one of the screws had to be removed, a procedure that took literally five minutes under local anaesthetic. *That* was done by a registrar flying solo, because it was a minor operation. That was a case he could handle alone.

    It's not a crime to be new to a complex profession, but there are stages of professional development to go through in all of them. Doctors have somewhat formalised this process. I won't say "lawyers should too", but I would think that most lawyers would recognise that it exists.

  7. Jim Tyre says

    A couple of things.

    Footnote one is worth the price of admission for practitioners, even though it has nothing to do with the substance.

    For the many who've commented on the lack of sanctions, sanctions are the exception to the rule. Further, sanctions under New York state law (as opposed to either federal law or the law of any other state) are particularly difficult to get. Whether that's a good or bad policy by those who make New York state law is a different matter. But the denial of sanctions here has nothing to do with whether, under similar circumstances, sanctions would have been granted elsewhere (or in federal court in New York).

  8. says

    I could almost feel sorry for Rakofsky. I mean… anyone looking for a competent lawyer these days might do a quick web search before writing him a check. Even McDonalds is going to be leery of hiring someone with the potential to sue them for french fry exposure. How's he going to earn…

    Oh. Right.

    Prenda needs a replacement for Gibbs.

  9. says

    "If you want the law to be an instrument of self-actualization, start a blog. Law practice — the profession of providing services to clients who need you — is not your personal voyage of self-discovery and empowerment. If you practice as a lawyer, you owe it to your clients only to do the things you are competent to do. Embarking on the defense of a man accused of murder as your first trial is a moral and ethical outrage."


  10. Turk says

    Further, sanctions under New York state law (as opposed to either federal law or the law of any other state) are particularly difficult to get. Whether that's a good or bad policy by those who make New York state law is a different matter.

    The law and court rules are firmly in place. The rarity of sanctions in New York has more to do with local judicial culture.

  11. NI says

    A few things:

    1. At one time, I myself would have joined the general hooting at Rakofsky's expense. Maybe it's just that as I get older, I have a longer and longer list of things that I myself have screwed up over the years, so I'm inclined to

  12. NI says

    OK, let's see if I can finish the thought this time before I accidentally hit the submit button.

    (continued) . . . so I'm inclined to cut him some slack for being an obviously immature and flawed human being. That does not mean he should be practicing law.

    2. I hope that as the years go by, he will grow and mature and become a better man, and perhaps even a better lawyer, tomorrow than he was yesterday.

    3. Once upon a time I was a libertarian who found it utterly outrageous that the state regulated the practice of law at all. Cases like this have taught me that I was wrong.

  13. says

    Having seen and listened to him in court several times and read his various submissions, it's seems clear to me that he has no understanding for the harm he has done to Mr. Deaner or to himself.

    I continue to think the Judge thought he could be reformed, but believe the Court made a grave error in that regard. I've experienced far too many people like Mr. Rakofsky and even the lows at which he now finds himself are likely not enough to cause any personal reflection. I wish it were otherwise, but I do not hold out hope.

    I'm particularly offended by the DC bar, however, for their failure to do anything about this situation other than tell him they looked into the situation. If his claims in Court are to be believed, he wasn't even aware of a bar investigation. Regardless of his conduct at trial, his advertising for work in DC and NY should have been addressed. The DC bar gives document reviewers working under the supervision of large firms headaches over UPL issues, why not someone soliciting business in the District? Similarly, NY gave me six kinds of trouble about my patent work before becoming licensed in their state, but suddenly a Supreme Court Judge is brushing off a nonlawyer soliciting criminal defendants in the courthouse across the street? It's enough to make one wonder whether our ethics rules mean anything.

  14. Charlotte says

    Hey, I don't have to live with Marc Randazza. I just want him to keep on keeping on being his badass self and successfully defending First Amendment rights. Well done, sir!

  15. JMS says

    NI, I see what you're saying. I certainly have made a lot of mistakes in my life when I've gotten in way over my head professionally.

    However, I never had the hubris to put another person's freedom in jeopardy through my overconfidence. That's the point at which Dunning-Kruger Syndrome turns to China Syndrome in my book.

    And the "Holy shit, what was I thinking?" instinct is one I thank whatever gods may be for every day.

  16. says

    It seems like a Parlay of Stupidity (I think Parlay is the right word). Hmm, let me pick a fight with the Internet, what could go wrong? It's such a sure thing, I'll run with it *and* pick a fight with Randazza, specifically in his strongest area. I'm in no position to pile on about doing something stupid, put the best bet is to admit you're wrong, ask forgiveness while admitting you've learned your lesson. You don't take steps to make sure every last refuge on Earth is soiled by it. I guess Rakofsky is a young guy, but it's kind of late to plea 'young and ignorant'.

  17. says

    I have a quick for any lawyer (or even a student of human psychology). As a software developer, I'll get requests that I know I can do without even researching it. I get other requests that necessitate a 'let me look it up and get back to you" response. To quote Marsellus Wallace, I don't want to be in the business of thinking, i want to be in the business of knowing. So when in doubt, you try a quick POC (if you can do a small portion, then you know doing more of the same is possible). The same isn't possible with law. But there's some stuff I can hear and know immediately, "There's no way I'll be able to do this in any sane amount of time/budget if I can even do it at all." even if a client offered me the world, if I knew I couldn't do it, the enticing $ amount would just be a bigger red flag to not touch it. If I screw up on a $10,000.00 project, It'll suck but life could go on (I could make the client whole and compesnate for the screw up). But for say $1 million, not so sure. Is this the same case for most sane people in the law profession and this guy is just an huge anomaly, or is it fairly common (maybe not Murder 1 but something way out of one's league) b/c you can't objectively know what you're capable of? Wouldn't the guy's spouse/partner, parents, friends, peers or someone say "Dude, are you sure you're good with that?" when he told them about his great new case? I've run across some pretty crazy narcissistic people in my day, but this seems like it's the worst nightmare you could have – being contracted to do something you have little to no chance of pulling off. I'd think that self-concern/preservation would kick in pretty profoundly even if you were so selfish you didn't give a crap about another person's life (I'm assuming for most people, concern and empathy would be forefront but if it wasn't, wouldn't self-preservation typically kick in?). I realize I'm all over the place, but I'm just fascinated (sickly) at what the thought process would have to be to get in this situation. Anyone have any thoughts?

  18. says

    @Mark Lyon – re-reading your comment, you have seen the guy in action (and don't seem impressed) so you might have some insight. What do you *figure* (I don't want anyone getting sued ;-) so just asking for pure conjecture here) drove him to attempt this – I mean taking the first case, not trying to legally maneuver his way out of the consequences. Again it's just so perversely interesting – I for the life of me can't see how I'd talk myself into something like this even as young and stupid I was – so I'm just really curious as to how something like this comes to be.

  19. Ancel De Lambert says

    "It appeared to the Court that there were theories out there defense theories out there, but the inability to execute those theories. It was apparent to Court that there was a — not a good grasp of legal principles and legal procedure of what was admissible and what was not admissible that inured, I think, to t detriment of Mr. Deaner. And had there been — If there had been a conviction in this case, based on what I had seen so far, I would have granted a motion for a new trial under 23.110."

    This is a transcript, right? 'Cause this is unreadable.

  20. Cat says

    I, for one, don't believe that Ken would be so silly as to provoke any squirrely wrath upon himself for performing any questionable acts without full consent of the involved furry mammal.
    But you're right, eh, chipmunks can be pretty forward.

  21. Clownius says

    Bad Joke Warning.

    It seems this guy has been "practising" law for some time. some day soon he will no longer need to practice.

  22. AlphaCentauri says

    Deaner's grandmother was paying Rakofsky, and he expected to be paid, even after being fired with prejudice. What if Deaner had been indigent. Might someone like Rakofsky have been appointed as his pro bono attorney to get some practice?

  23. He really said that...?!? says


    That was some good reading when I looked up the Dunning-Kruger Effect. Some of our Prendanistas have a terminal case of that, with the symptoms as described in comment numbers 1 and 3 of the Wikipedia article leading the way.

    From the Wikipedia article:

    Dunning and Kruger proposed that, for a given skill, incompetent people will:

    1. tend to overestimate their own level of skill;
    2. fail to recognize genuine skill in others;
    3. fail to recognize the extremity of their inadequacy;
    4. recognize and acknowledge their own previous lack of skill, if they are exposed to training for that skill.

  24. That Anonymous Coward says

    @Joe Schmoe – 10 years and 5 years probation according to a post I read on TechDirt…

    Has anyone considered that this is what happens when someones special snowflake goes through life with people smoothing their path for them? Whenever they encounter a situation where they might have a bad outcome, someone steps in and makes it all better for them keeping them from understanding there are limitations.
    They might work hard, but maybe not up to snuff and the parents then pressure the teacher into a better grade.
    Everyone wins a ribbon!
    So that the coaches don't have to deal with parents angry that their child lost.

  25. gramps says

    Ken's point number 5! What a masterpiece. Everyplace he says "lawyer" or "law" you can plug in any profession or enterprise, from accountant to zookeeper. Feel free to create your own examples.

    Ken, 'm stealing this and laying it on all kinds of people I know who think that having a state license means that they know what they are doing. (With proper attribution, of course; I don't want Randazza on my 6.)

  26. wumpus says


    I to am wondering just how much experience public defenders have, and how much a "real attorney" (or how much the state will charge you for their services). My understanding of public defenders is that they will always steer you to a plea bargain (regardless of guilt) largely due to the lack of time per case they have. I am now also wondering about sheer competence (aren't they traditionally an avenue for green lawyers).

  27. ZarroTsu says

    "Oh. Right.
    Prenda needs a replacement for Gibbs."

    If lawyers had super villains, this would mark the episode in the series where the villains teamed up.

    Although in this case, it's probably an Adam West episode.

  28. orvis barfley says

    i don't know about most professions, but i do know about aerospace design.  when i was a pup, fresh grads from engineering schools went to a tedious and lengthy apprenticeship at the direction of oldsters who had been doing design for the many years since their apprenticeships.  the assumption was that engineering school does not train people to do design, and the apprenticeship served to perform that critical function.  it engendered a hefty inertia in the industry that tended to reduce errors and promote production.

    those days are long past, gentle flying public.  grads these days are popped into critical positions almost directly out of school.  leads are often chosen on the basis of dressing right and speaking up in meetings.  i've seen hardened professionals reduced to handling busywork while the primo, critical assignments go to young buddies of the young lead.  nothing gets checked until it is installed on the vehicle, and gross errors are the order of the day.

    if what rakofsky did is an aberration, i salute your industry.

  29. Ed says

    1) I am surprised no one has mentioned the "Streisand effect" here. I am not a lawyer, and would never have heard of Rakofsky if he had just taken his whippen' and gone home.
    2) I have been visiting this site long enough to know that "it was patently ridiculous" does not mean it won't happen.

  30. says

    I know it's probably the Trendsurfing in the Boardroom effect but how does any sane adult convince themselves "The thing I need to really drive business is 140 character tweets". No one cares about business tweets. HS boys subscribe to girl's feeds and vice versa hoping to see some links to killer instagram photos, hear the object of their affection feels the same way or to hear drama. The only reason people subscribe to business tweets is b/c "Pointy Haired Boss/Consulting geniuses told me I must" or coupons – the only way I can imagine Legal Tweets might even remotely work is b/c clients think "Ken won't return my calls but I know he is on twitter" or in Ken's case, perhaps be a way to communicate without invoking billable time (jk). There are people convincing ATTYs and other high rate professionals that not being on Twitter/FB is what ails the – many what I could have done with such a silk tongue 20 years ago – even if twitter was around though, I wouldn't have used such a talent to help Twitt'er's business – I'm guessing I'm not the only guy that feels that way.

  31. Michael K. says

    Maybe Mr. Rakofsky never really wanted to be a lawyer, and just did it to please a demanding parent. Flaming out so spectacularly may be his only way out.

    At least, that's what would happen if this were a movie in which he were being played by David Spade.

  32. naught_for_naught says


    To me, nothing has come close to the original social medium: cake. I think it helps to think of social media using an 80-20 filter. 80% of it is complete and total crap, leaving 20%. Of that, 80% is mere crap, leaving 4%. Of that 4%, you can safely ignore 80% because it's really just a way to waste time when you're board. This leaves a total of .8%, of which 20% (.16% of the total) might be as rewarding as a piece of cake, maybe.

    The Onion, in their send up of TED talks (a branded form of what people in the 20th century unimaginatively referred to as lectures), they produced this piece on social media. They force you to sit through a commercial first, but that gives you time to go to the fridge for, you know, cake.


  33. Damian says

    My local court-appointed attorney panel requires a minimum of five years experience and a certain number of completed jury trials (I forget how many but it's more than one) before allowing a panel attorney to represent someone in a murder trial. I expect the public defender's office has similar criteria. So yeah, dude would have been better off asking for a public defender since he would almost certainly would have been appointed an attorney who had some trial experience.

  34. whheydt says

    Re: naught_for_naught.

    What you're looking for is "Sturgeon's Law" (named for Theodore STurgeon). "905 of *everything* is crap."

    You're just applying it recursively.

  35. Jim Tyre says

    Sometimes someone writes a post that is so good it says everything that needed to be said.

    This is that post.

    So you're saying that, for Ken, it's all downhill from here? '-)

  36. nlp says


    This is a link to Ken's first post on Rakofsky, where he describes the very first time he prosecuted a case. It was a totally unimportant case, utterly meaningless, and he still had two veteran lawyers beside him. Public defender lawyers who are assigned to major felony cases are experienced. They start out with very small, unimportant cases, and then work their way up to the point where they know how to deal with crucial cases.


  37. JWH says

    I'm not completely up on this … but was this guy not working with a more experienced lawyer? I've seen cases, particularly pro bono matters, where a young attorney will take on a client in an area of the law he doesn't know well, but even if he's acting as "first chair," he usually has more experienced backup.

  38. AGeorgiaLawyer says

    Some things not yet mentioned in this thread …

    1)After the lawsuit is filed I read on Turk's blog that Rakofsky and his then counsel filed some papers with possible alterations to them. Again, more rookie mistakes.

    2)More than once, Rakofsky as PLAINTIFF submits a letter, or even has a chance to 'speak' in Court and on the record. Why in the hell would you a. do that and b. allow your client to do that?

    Again, more huge rookie mistakes. Presuming he ever got past the MTD stage, that's more ammunition for any deposition. Again, the need to do so did not match the information provided. Any halfway experienced civil litigator would have told him so.

    Looking at the arc of the case, he would have been better served to name a handful of in state NY defendants, and get them served. Service alone is a giant headache for many of us.

    There's a whole civil procedure set of lessons in the mess this guy created.

  39. AlphaCentauri says

    IANAL, so I may be misunderstanding. But as I understand it, there was a second lawyer, because Rakofsky wasn't actually admitted to the bar in DC. But I don't know how much experience he had and how much he actually participated in the defense.

  40. naught_for_naught says


    I am told that in our fast paced, the-brand-is-everything age, you have to have a hook. I, for example, intend to henceforth filter everything I say through my newly minted online persona: the Social Critic that Goes to Eleven (TM). In keeping with that, let me one-up Mr. Sturgeon and state that 96% of social media is crap, with another 3.84% of it being of only marginal value.

    (NOTE TO SELF: Create a new social media site, "point16.com." A "velvet-rope" site that caters to the 99.84% of the social-media user population: people who speak exclusively in partisan talking points, post pics of drunken friends leaning in for group shots while flashing devil fingers, and routinely use the expression, "I'm giving it 110%.")

    Cake is king!

  41. says

    @naught_for_naught – your post made my day on so many different levels. More than anything, you confirmed for me that not everyone on Earth is impressed with Ted Talks – which i utterly loathe. Every time I've made fun of htem, everyone in the room looks at my like I stood up and started yelling N Bombs. The fact the Onion mocks it – man, I feel like I'm not so crazy after all. Slight digression but you seem to be of the like mind -when you work with someone who's a Ted fan, it's almost axiomatic that they've exhibited Cliff Clavenesque tendencies before. They are history experts, and have all this stupid trivia that's all apppeared on history channel, but ask them about history books they've read and they always 'can't remember'. You hear these folks talking about wormholes and string theory and I think "someone must have been watching Ted Talks." And you can verify by simply (which isn't hard b/c I don't know a lot about many areas) saying "I didn't know that, tell me more " and watching how quickly things hit the end of the road. Ask for a book recommendation or favorite blog on teh subject, you get a response with the top Google or Amazon hits right after they get back to their desk. G*d I hate Ted Talks.

  42. Nick S says

    Congrats on your calling out University of St. Thomas School of Law and their cowardly and unprincipled act in settling. To me, one of the most disgusting acts involved in this case was that settlement. How does a Catholic school, which preaches ethics and principles as its core values (see their website), throw that all away and give Rakofsky even one penny? And they have not responded to any requests for comment. Cowards.

  43. whheydt says

    Re: Bill

    It comes naturally by now…I first learned FORTRAN IID and SPS IID on an IBM 1620 Mod. I in 1964.

  44. andrews says

    Now he belongs to the ages. He will never, in the half a century he has left to him, live this down.

    He might. Does anyone know if he is even practicing law any more? If he does something else for a few years, and then comes back using a slightly different name (maybe J. Middlename Rakofsky), there is a pretty decent chance.

  45. He really said that...?!? says


    This line from the India law would have spectacular results if it was implemented in the US:

    "In India, Section 66A of the Information Technology Act makes it illegal to use a computer to publish "any information that is grossly offensive or has menacing character" or to publish false information."

    The grossly offensive and menacing character parts of that law would back up the US courts for YEARS.

  46. KJ says

    I giggle every time Ken uses the squirrel molestation example. Let's hope the squirrels don't hire a lawyer after reading about Ken on the internet.

  47. Dan Weber says

    I might be repeating someone else, or even myself from a previous thread about this, but:

    I can understand a defendant bailing on a case when someone threatens to sue them for legitimate speech.


    1. a university gets sued all the time for stupid crap. They can't just roll over and not expect the piranha to not all show up the next night.

    2. a university OF LAW. My word. This should have 100% a learning experience for a student.