BAD DEFENSE ATTORNEYS
The topic of BAD ‘DEFENSE’ ATTORNEYS keeps making its way into every single article I post, but I keep editing the topic out because it is so DISTRACTING from any topic I am trying to write about. However, this topic is so important to the message and essence of this blog — exposing scams and schemes surrounding copyright trolls — that bad attorneys deserve their own section.
However, unlike COPYRIGHT TROLL ATTORNEYS who do not really care that I write about them or their lawsuits, BAD ‘DEFENSE’ ATTORNEYS have very thin skins, and they take action immediately, often changing their website to adjust around what I have warned against. Then they’ll go on Twitter and the social networking sites, re-tweet what I have written about them, and loudly proclaim that they hate these people too (when it was them I was writing about in the first place).
In sum, I have found that the more I expose a BAD ‘DEFENSE’ ATTORNEY, the better I make them at succeeding in their scheme. And because it helps no one to teach an unethical attorney where he is exposed (remember, my focus is on educating “John Doe Defendants” on how to handle the copyright infringement lawsuits they find themselves in), sometimes I just stay quiet and I leave these exposing factors as they are for other people to pick up on.
[NOTE: If you are reading this blog, you are part of an inner-circle of readers, likely Twitter buddies of mine. Short of explicitly blocking these attorneys from seeing my Twitter feed (and I have done this at times), I am keeping this article off of my TorrentLawyer blog feed.]
“TURNKEY” / “SETTLEMENT FACTORY” DEFENSE ATTORNEYS
There are attorneys who have turned the copyright infringement lawsuits into ‘turnkey’ settlement operations, ‘riding the gravy train of a broken system’, as one prominent blogger correctly put it (if you want me to reference you here, let me know). These attorneys scale up and hire attorneys to answer phone calls, but instead of honestly evaluating the meritorious defenses of a would-be client, they scare, threaten, and apply high-pressure tactics to accused defendants manipulating them to settle the claims against them.
Typically, the sign that you are dealing with a ‘turnkey’ operation is unusually low costs to represent a defendant in a settlement. (Don’t get me wrong, I am all for low-cost representation, but in a law firm, you pay for the time that attorney expects to spend on your case. If he is billing $400/hour (this surprised me too), and he charges a flat fee of $800, expect that only two (2) hours will be spent on your case IN TOTAL (including the so-called ‘free’ conversation). I have had too many run-ins with these attorneys and their methods, and all I can say is that they are part of the problem, not the solution.
(FULL DISCLOSURE: My law firm also does settlements as a step in the progression of steps to defend a client. Sometimes settlements are a good solution, and sometimes they are merely a useful step in helping a client plan for what to expect in the form of opposition from a plaintiff attorney (a ‘copyright troll’ who is clearly running his cases to elicit settlements is often woefully unprepared to defend the claims against my client in the courtroom).
I also do not fault the many attorneys who do negotiate settlements as part of their overall defense arsenal in representing clients; I fault the law firms who use manipulative tactics to scare their own clients into settling when another strategy would have gotten them dismissed from the case without paying a settlement.)
“WERETROLL” ATTORNEYS (THOSE WHO PRETEND TO DEFEND, BUT ARE LOYAL TO THE ‘COPYRIGHT TROLL’ ATTORNEYS).
This is a horrible reality, but there is no quick money in the defense side of the lawsuits. The alluring rush of settlement commissions (I call these ‘kickbacks’), notoriety, and a sense of empowerment no doubt come from those who team up with the copyright holders, yet a ‘weretroll’ profits from both sides of the lawsuit (from the defense side AND from the plaintiff side) and they continue the loud facade that they are representing defendants when they simply are not. These attorneys might as well call their law firms ‘slaughterhouses’, because all they do is take scared clientele, and serve them to the copyright trolls to be slaughtered.
These attorneys are sometimes masterful in their marketing, but their clients do not know that they end up paying a premium for the settlements they pay to the copyright trolls. This premium the ‘weretroll’ attorney would receive might be the difference between a ‘fair’ settlement and the inflated settlement they ultimately force upon their clients. (Being real, no settlement is ‘fair’, but here is not the right place to go into it.)
I have seen this kind of ‘weretroll’ attorney a number of times since we have represented clients since 2010, and usually, EVENTUALLY they will ‘switch sides’ and stop pretending to be on the defense side of things, and they will outright start suing the very kind of defendants they once promised to defend. My best guess is that psychologically, it messes with an attorney’s head when they say one thing and do another (and this ‘need to come clean’ is why John Steele, mastermind of the Prenda Law Inc. scheme, just pleaded guilty and admitted every single one of his wrongs). However, there are still a few holdovers, and I usually don’t even need to mention them because other bloggers such as FightCopyrightTrolls and DieTrollDie have done a good job calling them out.
Even so, people have often called me after speaking to one of these attorneys, and they regularly tell me they ‘felt’ that something was wrong in their gut. I usually tell these people to trust their instincts, and if I cannot take them as a client (funny enough, this happens in a firm such as mine when I take multiple clients for a particular set of cases, and then I stop taking clients until current clients get dismissed from the cases, or I cause the case itself to implode by speaking to a judge or a clerk or showing up to hearings [I’m very satisfied when this happens]), I’ll refer them to an attorney who not only has a good reputation, but who I would personally call for help if I ever was put in similar circumstances as those I speak to are in.
BAD LEGAL SYSTEM – NO PUBLIC DEFENDER FOR ‘CIVIL’ CASES FILED IN FEDERAL COURTS (WHERE ABUSIVE SCHEMES, TROLLS, AND UNETHICAL ACTS HAPPEN).
(Not exactly relevant to this topic, but it too deserves space.) Here I have spent 6+ paragraphs detailing the pitfalls a client could fall into when hiring a defense attorney, and I did not address the faulty legal system itself. What is missing from the federal courts on the civil side of the lawsuit is some ‘public defender’ or attorney paid for by the court to represent defendants who cannot afford to represent themselves. I would happily volunteer for this position here in the Texas federal courts because it is very needed.
Further, with the copyright laws and DMCA statutes as they are, there is no mechanism or method to force a copyright holder to consider the circumstances of a defendant, where even if that defendant is guilty, the copyright holder would agree to release that defendant from liability just because they cannot afford to mount a minimal defense.
What I just wrote sounds hokey, but the $150,000 statutory damages coupled with the high cost of representing a client in a copyright infringement case creates an ‘uneven playing field’ where the copyright holders (the ‘copyright trolls’ can run rampant suing hundreds of downloaders with the same set of boilerplate filings, but ONE DEFENDANT needs to spend thousands or more to pay for a minimal defense.
In short, the public defender system for civil cases is broken, and because of this, you will often hear the stories of “old ladies,” “the elderly,” and “war vets” who are thrown through copyright infringement lawsuits, even though they don’t have the funds to defend themselves (and too often, they don’t even have an attorney to defend themselves). To implement a defense, our firm does take cases at reduced rates and we even provide pro bono (free) representation for those who need our help as well, but comparing the number of calls I get with the number of clients I can take on, it is a daunting task.
THEN THERE IS MY KIND OF LAW FIRM
Then there are law firms such as mine (Cashman Law Firm, PLLC) and others like mine who will take the accused defendant through the steps of 1) analyzing the case, 2) reviewing the potential damages given the circumstances, 3) faithfully reviewing each option with the accused defendant given their particular circumstances, and we do this for free as “free legal assistance,” often spending an hour or more with accused defendants without the intention that they ever become clients. I have literally thousands of people who our firm has helped this way.
We are not “Wal*mart” low as far as our prices go, and we cannot compete with a Legal Zoom. However, we do minimize our expenses as much as possible, and we do not bill multiple clients for the work done once on a case. This sounds unimpressive, but it is a big benefit to our paying clients because many of our clients are “John Doe” Defendants in the same lawsuit. Similarly, once a settlement contract and terms is negotiated with a particular attorney for one client, there is no need to bill future clients for settlement negotiations (unless there are specific goals or needs specific to a particular client, and then we would bill for the time it would take to accomplish those goals or needs.) Lastly, we have set up methods of allowing clients to spread out the cost of their attorney fees, sometimes over the course of six months. We also do not charge clients for credit card fees or other miscellaneous expenses, because this is part of the cost of doing business.
IN CONCLUSION, A LITTLE MORE ABOUT MY OWN BELIEFS
So I am ending this article not with a bang, but with a whimper. One of the biggest contributions I have made to the copyright troll cases is that I have shared who the plaintiff attorneys are, what their proclivities are, and when possible, I have shared when there is a link or connection between apparently unrelated attorneys to help people identify a hidden agenda or uncover a strategy. This has been useful to literally more clients than I ever thought I would work with when I started this blog.
Part of being a defense attorney, I too have been solicited to ‘switch sides’ or engage in nefarious actions by a number of copyright holders and trolls. I simply believe too strongly in what I do, and I am not greedy, and I have enough to support my family and meaningfully contribute to my community doing what I do. I personally hold very staunch beliefs about copyright, infringement, and the privacy and technology concerns surrounding these cases, so I have a personal stake in directing the outcome of these cases. I simply do not believe in the plaintiff ‘copyright troll’s’ viewpoints, or what they have to offer, and my law firm will be fine if these copyright troll cases dropped off the map forever, never to return.
While I can never know for sure which defense attorney is doing what, I have been made privy to a number of schemes, and which copyright trolls are doing what. Thus, I have been able to accurately spot a defense attorney who has been compromised or corrupted, and I am sad to say that some of these defense attorneys, I once called friends and peers. However, although most of them have flamed out and have long since switched sides after becoming corrupted, there are still a few bad ‘defense’ attorneys who fit the two descriptions I have written about above.
5/2/2017 UPDATE: DieTrollDie has written an article on the topic of settlement factories, entitled “Greed And The BT Copyright Troll Settlement Factories.” It is good to see that the topic of corrupted defense attorneys and settlement factories is gaining traction.
CONTACT FORM: Most of you reading this article already speak to me daily on Twitter and WhatsApp. However, if you have a question or comment about what I have written, and you want to keep it *for my eyes only*, or if you have evidence, proof, or you have reason to believe that a certain attorney has engaged in a certain practice, please feel free to share this with me using the form below. The information you post will be e-mailed to me, and I will happily keep your identity as my source confidential.