Re: The Sex.Com Chronicles, by Charles Carreon
Posted: Fri Jun 13, 2014 1:41 am
NSI, SORCERY, AND I
The practice of the trial arts can be analogized to sorcery, which allows us to see the marks left on the modern lawyer’s psyche by the medieval mold in which it was forged. The witch trials were, first and foremost, trials. The prosecutors who conducted them were priests. All the participants in those charged events were involved in a web of supernatural projections, but the influence of rationality was also felt. Much of the same dynamic inspires modern courtroom action, hidden beneath a veneer of modernity.
The courts use special language to inspire solemnity and add weight to the process. Papers are not merely mailed or delivered, they are “served” on the opposing party. One doesn’t simply start a lawsuit, one “commences the action.” Once started, the proceedings continue until “judgment.” Judges often refer to themselves in the third person, delivering rulings in the capacity of “the Court.” In many courts, lawyers are expected to show an exaggerated politeness, a courtly style if you will. There is still room for the use of an apt Latin phrase in argument before a judge.
Seen as sorcery, the trial lawyer’s filings with the court operate as spells to destroy the foe. For the lawyer as sorcerer, the defendant is a demon who must be “summoned” and thus brought within the “jurisdiction of the court” that can pass judgment upon him. Until the lawyer places a person under the court’s jurisdiction, he relates to him just like anyone else. Once a lawyer establishes jurisdiction over someone, he may deal with that person using the power of the court. Using that power, a lawyer can dispossess a person of their property, detain and imprison them, end the bonds of matrimony, sentence to death and otherwise modify the earthly relations of the members of our society. The business has very little to do with kindness and much to do with compulsion.
In criminal prosecutions, the prosecutor establishes jurisdiction over the defendant by arresting him. The act of arrest establishes the court’s authority. In civil cases, the formal service of the summons and complaint on the defendant establishes the court’s jurisdiction. After jurisdiction is established, the defendant is held in a magic circle, and ignores the court’s directives at his or her peril. When thinking as a sorcerer, all cases are magical contests, and all procedural devices are viewed as spells. A motion to dismiss, for example, is a “terminating spell,” as is a motion for summary judgment.
If you go about summoning demons and putting them under the court’s jurisdiction, you quickly learn they don’t like it. They try to break out of the magic circle in which you’ve confined them. They curse at you. The complaint is the first spell where you allege that the demon committed certain wrongs that the court is bound to redress. This spell must be constructed to meet formal requirements. The lawyers for the demons (defendants) often first move to dismiss the complaint on pedantic grounds, using legal erudition to argue that the complaint does not recite the “elements of the claim” in the proper fashion, or that it has been filed too late, or that this demon is immune to that spell. The beginning of adequate plaintiff-side sorcery is building an excellent complaint that will hold even a nasty demon. A good complaint anticipates some defenses that will be raised and heads off objections. Thus, when the inevitable motions to dismiss arrive, the plaintiff sorcerer can defend the complaint with arguments thought out before the complaint was even filed.
NSI didn’t bother with motions to dismiss like the ones that Cohen hurled at Gary’s first four complaints. NSI did what classy defendants do–it filed an answer to the complaint, saving its thunder for the Big Kahuna, the Motion for Summary Judgment. When I first went to work in the trenches of sorcery as a young apprentice, it was commonly said that motions for summary judgment were rarely granted. This no longer seems to be true. Years of tort reform rhetoric has made judges more willing to terminate cases and free civil demons who in the past would have been required to stand trial. Particularly in the Federal courts, a Supreme Court case called Cellotex gave federal judges a shot of testosterone that made them more willing to dismiss lawsuits at summary judgment. NSI is a big winner under this policy change. As of 1999 NSI had won virtually every lawsuit against it via summary judgment, which made about eighty wins in a row. So I was not looking forward to receiving NSI’s motion for summary judgment.
NSI filed its motion for summary judgment in mid-December, 1999. NSI’s take on the case was simple. NSI admitted that Gary had been the first to register the domain name. NSI admitted it had transferred the domain name to Cohen, in response to the October 15, 1995 forged letter that appeared to be from Online Classifieds, Inc. However, NSI claimed it “did not know anything about Ms. Dimmick’s relation with plaintiff,” and thus had no idea that the letter was forged. NSI also argued that Gary didn’t have a contract with NSI, because Gary had paid nothing for Sex.Com, and “the domain name registration application is... devoid of any language indicating any expectation of a quid pro quo.” NSI also argued that since domain names were “not property,” Gary had no rights to the name arising separately from contract. Thus, argued NSI, Gary’s problem was with Cohen, and NSI should just be dismissed from the case. As spells go, NSI’s motion for summary judgment had very good prospects for getting the nod from the judge, the arbiter of our magical contest.
When the dark cloud of summary judgment looms, however, and things look bleak, the plaintiff sorcerer initiates a two-fold course of action: (1) Buy time, and (2) Build the record. Thus, the first and most important spell after filing complaints is the “time spell.” One must deprive an opponent of the pleasure of making things happen on his or her schedule. And one must free oneself of the pressure of working on a deadline imposed by the other guy. If bad things are about to happen, your first battle cry is, “Not now!” Later you will have time to build the record, write your arguments, and organize your evidence.
As soon as I got the motion from NSI, I looked it over to learn what new, additional facts I didn’t have that would enable me to defeat the motion. I then wrote Dave Dolkas, NSI’s counsel of record, a letter asking him for an extension of time to oppose the motion while I gathered those facts through discovery. Naturally, he wouldn’t give me the extra time, so I filed a motion under Rule 56(f), asking the judge to give me more time. I wrote a skeleton of what my bigger opposition would be, mainly emphasizing how much I needed to get these additional facts that I didn’t yet have, and thus my need for more time. Under 56(f), the judge is basically always supposed to give you that time.
Usually, when you file a 56(f) motion, the judge will just reschedule the hearing on the motion for summary judgment so you can complete the discovery you claim will enable you to prepare the opposition. That had been my uniform experience up until this case. However, this time, something new happened. Judge Ware kept the hearing on NSI’s motion scheduled for January 24, 2000, and scheduled my motion for more time to be heard at the same time. This meant that on January 24th, the judge could either give me more time or grant NSI’s motion for summary judgment.
On January 24th, I stood in front of Judge Ware. He was very pleasant, but got right to the point -- he didn’t see how he could hold NSI liable if its people were duped by Cohen’s forgery. Judge Ware likes to question the advocates. He asked me whether the letter was a forgery, and whether NSI was taken in by Cohen’s deception. I answered that the letter was a forgery, and that NSI may have been taken in by it, but there was some evidence to indicate that NSI conspired with Cohen to aid in the theft of Sex.Com. Judge Ware asked what evidence that was. I felt like I was standing in front of locomotive that was just pausing briefly before running me over. Well, I told Judge Ware, there was a man named Lee Fuller in Riverside, California, who told me Cohen had told him “he had a girlfriend at NSI, and he could get any domain name he wanted.” Judge Ware questioned further. Had I spoken to this Lee Fuller myself, directly? Yes, I confirmed, I had. I felt as if the locomotive shifted into neutral, although its engines were still throbbing, while I held it at bay with a slender reed. Because of that slender reed, Judge Ware said he would give me more time to conduct discovery into whether “the domain name Sex.Com was not transferred by Network Solutions in the normal course of business.” Part one of the twofold strategy was complete -- I had more time. Now for part two -- building the record through discovery. Judge Ware could help there, too.
Remembering Judge Ware’s willingness to order Gary to resume his hastily adjourned deposition, I asked Judge Ware to allow me to take the depositions of appropriate persons at NSI. Judge Ware questioned further. Who would I depose, and what would I ask? I would want to question the human resources manager of NSI, at least, I said. No, said the Judge, he wouldn’t allow me to pry into the sex lives of people at NSI; however, if I wanted Cohen’s deposition, Judge Ware volunteered, he would order that to take place. I could hardly believe this was happening. Dorband had been stonewalling on producing Cohen, but I hadn’t filed a motion to compel him to appear at deposition, and here the judge was just offering it. Yes, I responded, I wanted to do that, and an order would be a big help. No problem, said the Judge. Where do you want to take the deposition? San Diego, I responded. Fine, said the Judge, and he ordered Cohen to appear for deposition “at the Edward J. Schwartz United States Courthouse on February 3, 2000 at 9:00 a.m. for a deposition” covering “any matters pertaining to this litigation.”
Judge Ware gave us until February 14, 2000 to file an opposition to NSI’s motion for summary judgment. That gave me just shy of three weeks to prepare for and depose Cohen, prepare an expert declaration from Ellen Rony, and build my record in opposition. When I left the courtroom, I could still feel that locomotive idling on the track, waiting to resume its advance.
The practice of the trial arts can be analogized to sorcery, which allows us to see the marks left on the modern lawyer’s psyche by the medieval mold in which it was forged. The witch trials were, first and foremost, trials. The prosecutors who conducted them were priests. All the participants in those charged events were involved in a web of supernatural projections, but the influence of rationality was also felt. Much of the same dynamic inspires modern courtroom action, hidden beneath a veneer of modernity.
The courts use special language to inspire solemnity and add weight to the process. Papers are not merely mailed or delivered, they are “served” on the opposing party. One doesn’t simply start a lawsuit, one “commences the action.” Once started, the proceedings continue until “judgment.” Judges often refer to themselves in the third person, delivering rulings in the capacity of “the Court.” In many courts, lawyers are expected to show an exaggerated politeness, a courtly style if you will. There is still room for the use of an apt Latin phrase in argument before a judge.
Seen as sorcery, the trial lawyer’s filings with the court operate as spells to destroy the foe. For the lawyer as sorcerer, the defendant is a demon who must be “summoned” and thus brought within the “jurisdiction of the court” that can pass judgment upon him. Until the lawyer places a person under the court’s jurisdiction, he relates to him just like anyone else. Once a lawyer establishes jurisdiction over someone, he may deal with that person using the power of the court. Using that power, a lawyer can dispossess a person of their property, detain and imprison them, end the bonds of matrimony, sentence to death and otherwise modify the earthly relations of the members of our society. The business has very little to do with kindness and much to do with compulsion.
In criminal prosecutions, the prosecutor establishes jurisdiction over the defendant by arresting him. The act of arrest establishes the court’s authority. In civil cases, the formal service of the summons and complaint on the defendant establishes the court’s jurisdiction. After jurisdiction is established, the defendant is held in a magic circle, and ignores the court’s directives at his or her peril. When thinking as a sorcerer, all cases are magical contests, and all procedural devices are viewed as spells. A motion to dismiss, for example, is a “terminating spell,” as is a motion for summary judgment.
If you go about summoning demons and putting them under the court’s jurisdiction, you quickly learn they don’t like it. They try to break out of the magic circle in which you’ve confined them. They curse at you. The complaint is the first spell where you allege that the demon committed certain wrongs that the court is bound to redress. This spell must be constructed to meet formal requirements. The lawyers for the demons (defendants) often first move to dismiss the complaint on pedantic grounds, using legal erudition to argue that the complaint does not recite the “elements of the claim” in the proper fashion, or that it has been filed too late, or that this demon is immune to that spell. The beginning of adequate plaintiff-side sorcery is building an excellent complaint that will hold even a nasty demon. A good complaint anticipates some defenses that will be raised and heads off objections. Thus, when the inevitable motions to dismiss arrive, the plaintiff sorcerer can defend the complaint with arguments thought out before the complaint was even filed.
NSI didn’t bother with motions to dismiss like the ones that Cohen hurled at Gary’s first four complaints. NSI did what classy defendants do–it filed an answer to the complaint, saving its thunder for the Big Kahuna, the Motion for Summary Judgment. When I first went to work in the trenches of sorcery as a young apprentice, it was commonly said that motions for summary judgment were rarely granted. This no longer seems to be true. Years of tort reform rhetoric has made judges more willing to terminate cases and free civil demons who in the past would have been required to stand trial. Particularly in the Federal courts, a Supreme Court case called Cellotex gave federal judges a shot of testosterone that made them more willing to dismiss lawsuits at summary judgment. NSI is a big winner under this policy change. As of 1999 NSI had won virtually every lawsuit against it via summary judgment, which made about eighty wins in a row. So I was not looking forward to receiving NSI’s motion for summary judgment.
NSI filed its motion for summary judgment in mid-December, 1999. NSI’s take on the case was simple. NSI admitted that Gary had been the first to register the domain name. NSI admitted it had transferred the domain name to Cohen, in response to the October 15, 1995 forged letter that appeared to be from Online Classifieds, Inc. However, NSI claimed it “did not know anything about Ms. Dimmick’s relation with plaintiff,” and thus had no idea that the letter was forged. NSI also argued that Gary didn’t have a contract with NSI, because Gary had paid nothing for Sex.Com, and “the domain name registration application is... devoid of any language indicating any expectation of a quid pro quo.” NSI also argued that since domain names were “not property,” Gary had no rights to the name arising separately from contract. Thus, argued NSI, Gary’s problem was with Cohen, and NSI should just be dismissed from the case. As spells go, NSI’s motion for summary judgment had very good prospects for getting the nod from the judge, the arbiter of our magical contest.
When the dark cloud of summary judgment looms, however, and things look bleak, the plaintiff sorcerer initiates a two-fold course of action: (1) Buy time, and (2) Build the record. Thus, the first and most important spell after filing complaints is the “time spell.” One must deprive an opponent of the pleasure of making things happen on his or her schedule. And one must free oneself of the pressure of working on a deadline imposed by the other guy. If bad things are about to happen, your first battle cry is, “Not now!” Later you will have time to build the record, write your arguments, and organize your evidence.
As soon as I got the motion from NSI, I looked it over to learn what new, additional facts I didn’t have that would enable me to defeat the motion. I then wrote Dave Dolkas, NSI’s counsel of record, a letter asking him for an extension of time to oppose the motion while I gathered those facts through discovery. Naturally, he wouldn’t give me the extra time, so I filed a motion under Rule 56(f), asking the judge to give me more time. I wrote a skeleton of what my bigger opposition would be, mainly emphasizing how much I needed to get these additional facts that I didn’t yet have, and thus my need for more time. Under 56(f), the judge is basically always supposed to give you that time.
Usually, when you file a 56(f) motion, the judge will just reschedule the hearing on the motion for summary judgment so you can complete the discovery you claim will enable you to prepare the opposition. That had been my uniform experience up until this case. However, this time, something new happened. Judge Ware kept the hearing on NSI’s motion scheduled for January 24, 2000, and scheduled my motion for more time to be heard at the same time. This meant that on January 24th, the judge could either give me more time or grant NSI’s motion for summary judgment.
On January 24th, I stood in front of Judge Ware. He was very pleasant, but got right to the point -- he didn’t see how he could hold NSI liable if its people were duped by Cohen’s forgery. Judge Ware likes to question the advocates. He asked me whether the letter was a forgery, and whether NSI was taken in by Cohen’s deception. I answered that the letter was a forgery, and that NSI may have been taken in by it, but there was some evidence to indicate that NSI conspired with Cohen to aid in the theft of Sex.Com. Judge Ware asked what evidence that was. I felt like I was standing in front of locomotive that was just pausing briefly before running me over. Well, I told Judge Ware, there was a man named Lee Fuller in Riverside, California, who told me Cohen had told him “he had a girlfriend at NSI, and he could get any domain name he wanted.” Judge Ware questioned further. Had I spoken to this Lee Fuller myself, directly? Yes, I confirmed, I had. I felt as if the locomotive shifted into neutral, although its engines were still throbbing, while I held it at bay with a slender reed. Because of that slender reed, Judge Ware said he would give me more time to conduct discovery into whether “the domain name Sex.Com was not transferred by Network Solutions in the normal course of business.” Part one of the twofold strategy was complete -- I had more time. Now for part two -- building the record through discovery. Judge Ware could help there, too.
Remembering Judge Ware’s willingness to order Gary to resume his hastily adjourned deposition, I asked Judge Ware to allow me to take the depositions of appropriate persons at NSI. Judge Ware questioned further. Who would I depose, and what would I ask? I would want to question the human resources manager of NSI, at least, I said. No, said the Judge, he wouldn’t allow me to pry into the sex lives of people at NSI; however, if I wanted Cohen’s deposition, Judge Ware volunteered, he would order that to take place. I could hardly believe this was happening. Dorband had been stonewalling on producing Cohen, but I hadn’t filed a motion to compel him to appear at deposition, and here the judge was just offering it. Yes, I responded, I wanted to do that, and an order would be a big help. No problem, said the Judge. Where do you want to take the deposition? San Diego, I responded. Fine, said the Judge, and he ordered Cohen to appear for deposition “at the Edward J. Schwartz United States Courthouse on February 3, 2000 at 9:00 a.m. for a deposition” covering “any matters pertaining to this litigation.”
Judge Ware gave us until February 14, 2000 to file an opposition to NSI’s motion for summary judgment. That gave me just shy of three weeks to prepare for and depose Cohen, prepare an expert declaration from Ellen Rony, and build my record in opposition. When I left the courtroom, I could still feel that locomotive idling on the track, waiting to resume its advance.