A client hired me to represent him in court. His case was no slam-dunk, but after some in-depth research, I thought he had a decent shot at winning, and I believed in the legal correctness of his cause.
The opposing attorney had much more experience than I had. He even looked every bit the distinguished attorney -- silver-haired with tastefully trimmed facial hair.
So it was hard, at first, to remain unintimidated when he more or less called me a frivolous, unethical liar to the judge.
Specifically, he argued that I had violated Rule 11, a rule of civil procedure requiring that every representation attorneys make to the court be well supported by facts and law. An attorney who signs and files a document in court and has reason to know it is not true has violated Rule 11 (not to mention committed a substantial breach of ethics).
The attorney's basis for the accusation was that he felt my client's claim was so weak that I was violating Rule 11 simply by arguing it (my well researched 38-page brief notwithstanding).
Still pretty green back then, I took a while to realize that this was a "throwaway" argument -- posturing designed to intimidate while trying to knock down my credibility. I would come to learn that such tactics are not uncommon when David dares challenge Goliath.
Take the lawsuit brought by Paul Ceglia, who claims half of Facebook is rightfully his. Facebook's attorneys are pulling similar stunts.
DLA Piper, the megafirm that took on Ceglia's representation in April, withdrew in June. Facebook's attorneys recently moved to have the court compel Ceglia's new attorneys to sign Rule 11 Certifications for the amended complaint filed by his former attorneys.
What makes it crystal clear that this motion is mostly silly posturing is that Facebook's attorneys concede that whether Ceglia's current attorneys sign a Rule 11 Certification should have no legal bearing on their duties to the court or on Facebook's ability to get sanctions. Silly motion as this may be, however, it's also silly for Ceglia's attorneys to fight or argue against it. (Imagine telling a judge you don't have to promise not to lie to him.)
Of course, it's perfectly possible that Facebook's attorneys are merely dotting the Is in protecting Facebook's rights to sanctions, but other language in their court filings suggests that they're taking every opportunity to posture, beyond mere legal advocacy.
"In light of the overwhelming evidence of fraud," Facebook's attorneys argue in support of the aforementioned motion, Ceglia's attorneys "should be required to certify that they are pursuing this lawsuit in good faith and on the basis of a reasonable factual investigation into their client’s claims."
This concern about whether attorneys are investigating their client's claims properly is bogus. In a brief filed in June, Facebook's attorneys wrote, "The evidence of fraud is so overwhelming that Ceglia’s own lawyers, in an apparent act of self-protection, have been reduced to making their client take a polygraph examination."
First, Facebook’s attorneys criticize Ceglia's attorneys for making sure his claims are bona fide because of "the overwhelming evidence of fraud," and then they argue Ceglia's attorneys should be required to make sure the claims are bona fide because of "the overwhelming evidence of fraud."
It's become obvious that Facebook isn't just making legal arguments in its court filings. It's making press statements. Ceglia threatens Facebook's initial public offering. Accordingly, Facebook needs to control the message on this lawsuit and to neutralize the potential for investor uncertainty.
And it's working. Ceglia has aptly observed that the news media are publishing Facebook's arguments as "gospel" (e.g., the claim of a smoking gun). Instead of reminding people about the Winklevosses and Eduardo Saverin, the press has taken up Facebook's name-calling against Ceglia -- and even actively sought out others to malign him.
Of course, none of this has anything to do with the merits of the case, whoever is telling the truth. Facebook's attorneys are playing a PR game while vigorously defending a lawsuit. Their bolder claims should be taken with a grain of salt.
— Joe Stanganelli is a writer, attorney, and communications consultant. He is also principal and founding attorney of Beacon Hill Law in Boston. Follow him on Twitter at @JoeStanganelli.