Good day, eh. Well today’s topic is Attorney Jay Leiderman Files a Hutz brief in the California LOLsuit – 100% VERIFIED! This, of course, is what you get when you hire a well known drug addict who uses wayyyy too much “medical” marijuana mixed with Vicodin. Has Leiderman ever won any cases in the appellate courts? NO! Therefore, do not hire him.
For those of you who do not know, Jason (Jay) Leiderman is a Ventura, California based attorney who styles himself as the Hacktivist Advocate and a public user of marijuana. He has appeared in federal court litigating cases while under the influence of drugs such as Vicodin. This, of course, resulted in much anger and disgust by U.S. District Court Judge Beth Freeman back on November 20, 2014, and she promptly said she was going to dismiss the LOLsuit he filed and told him to call 911 if he felt that the Aryan Brotherhood was trying to murder him.
If you wish to see a copy of the brief filed by Leiderman on behalf of James (Jimmy the Piss Boy) McGibney, we have included a copy of it linked to this article near the bottom.
Since one of our Admins is out of town for a few days this week, you won’t have to put up with the usual misspellings, horrific libels, drug fueled word-salad, or other boring nonsense. This is some quality shit here and we hope you all will appreciate it.
FUN FACT: Jay Leiderman not only boasts that he went to law school, but he further claims that he is one of less than 500 attorneys in California who are Certified Criminal Law Specialists by the California Bar Board of Legal Specialization. See http://www.jayleiderman.com/htm/leiderman.php
Leiderman further claims to having been an attorney in California for over seventeen years – seriously.
If the Aryan Brotherhood, or angry ex-clients, want to find him, he is easy to spot.
Leiderman has been representing revenge pornographer James McGibney (who we don’t like) and his blackmail company ViaView, Inc. in several SLAPP lawsuits filed in three different courtrooms, in different states, all at the same time.
1) In the Texas lawsuit, McGibney and ViaView were recently ORDERED to pay $1.3 million in court sanctions and attorney’s fees for violating the Texas Citizens Participation Act (the state’s anti-SLAPP law).
2) In the federal court lawsuit, McGibney and ViaView’s lawsuit was dismissed with prejudice for lack of personal jurisdiction over the out-of-state defendants.
3) In the San Jose restraining order case, an anti-SLAPP motion for sanctions is pending in the court of appeals (more on that later).
FUN FACT: A strategic lawsuit against public participation (SLAPP) is a lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. Such lawsuits have been made illegal in many jurisdictions on the grounds that they impede freedom of speech.
The typical SLAPP plaintiff does not normally expect to win the lawsuit. The plaintiff’s goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. In some cases, repeated frivolous litigation against a defendant may raise the cost of directors and officers liability insurance for that party, interfering with an organization’s ability to operate. A SLAPP may also intimidate others from participating in the debate. A SLAPP is often preceded by a legal threat.
Hey, BV Files, what the heck is a Hutz brief? you ask. Well hold on a minute while Admin Mike fires up his bong so he can take a hit off of some of his medicine (i.e. “medical” marijuana) and we will tell ya.
First off, it is very important to remember that drugs are BAD. Very bad. James McGibney (who we don’t like) displays all of the outward appearances of being a ‘functional’ meth addict. However, he is also a moron who likes to publicly share links to child porn websites / URLs with friends of his on the Twitter machine.
After all, what kind of a person who is not a drug addict would permanently mark their body up with BULLSHIT like this?
And only a pedophile would be tweeting links to child porn URLs, right, McGibney?
Okay, we get it – Jimmy is a pedo AND a drug addict. But now can we get to what a Hutz brief is? you ask. Alright, but don’t say you weren’t warned….
BUT FIRST SOME UPDATES….
Big surprise, but McGibney opened up yet another Twitter account. Guess he still has not gotten the hint that Twitter does not want him on their platform despite getting hit with the Ban Hammer 19 or so times previously.
For some reason this moron seems to think that the world at large actually gives two shits about what he has to say.
FUN FACT: If Twitter and other social media platforms really thought that McGibney was performing a public service and doing good deeds, would he have been hit with the Ban Hammer as often and as permanently as he has? Yeah, we didn’t think so, either.
AND IN TEXAS….
For some reason members of the McGibney Gang seem to think that this has given McStupid a do-over, that the GUILTY finding by the Court of Appeals has somehow been erased and everything is set back to square-one.
THAT IS NOT THE CASE.
The appellate court finding still stands. The only thing that happened is that there will be a do-over on the sanctions hearing on account of the fact that Judge Don Cosby done fucked it up the first time around by ignoring a request by McGibney’s attorney for oral argument.
While we here at the BV Files are not even sure whether or not a party is entitled to oral arguments at such a sanctions hearing pursuant to the Texas Citizens Participation Act, we can say that American Hero and Honorary Admin of the BV Files Jeffrey Dorrell has no intention whatsoever of appealing this latest misstep by the trial court. He will show up, ready to go, at the upcoming hearing and present his case in the manner that we have all seen him do thus far.
DO WE THINK THAT THERE WILL BE ANY CHANGE IN THE OUTCOME?
While anything is possible, the question you have to ask yourself is, “Does it even matter?”
See McStupid has already been found GUILTY of violating the anti-SLAPP law in Texas. Nothing that happens in front of Judge Cosby can ever change that. You can even read the permanent decision from the Texas Ft Worth Court of Appeals right here if you want to====> http://law.justia.com/cases/texas/second-court-of-appeals/2014/02-14-00215-cv.html
That decision is not going anywhere. Thus, the guilty finding stands. The only thing being decided here is the sentence (i.e. amount of sanctions and attorney’s fees).
Attorney’s fees are at around $350,000 (according to Some Random Person We’ve Never Heard Of Before). The time for McGibney or his attorney to challenge this long ago ran out wayyy back in November 2015. Texas Civil Practice & Remedies Code section 18.001(e)(1) places a strict and mandatory deadline for someone to challenge attorney’s fees. CHECK IT OUT: Tex Civ Prac & Rem Code Ch 18
Now keep in mind that Jimmy boy has claimed that he is basically broke and has only a few thousand dollars in his bank account. But if that where the case, how is it that he has been able to carry on and litigate two other LOLsuits simultaneously in both federal AND state court in California against nine other defendants and the same time as the Texas case??
Dumb ass. Not even your lies make any sense, Jimmy!
But whatever. We are sure that whatever happens next in Texas will be really super exciting and all that good shit. But at this point, it does not matter – ViaView and McGibney are toast, no matter how you slice it. Am I right? Yeah, you know we are, Piss Boy!!
WHO NEEDS SOME MONEY….
One of the last (and only) remaining members of the McGibney Gang, some idiot named Steve (who lives in Florida) recently posted some nonsense on his blog, Op Unite Blue, in which he is hollering about some guy named Vinnie and how he supposedly set up a Go Fund Me account for some other guy named Brandon King, and how James McGibney does not like them.
We at the BV Files have no clue as to who any of those people are or what their beef is with one another. We only mention it here because it is funny. What is funny is the fact that this supposedly mean and terrible person, Brandon King, was able to raise far more monies on his Go Fund Me page then Jimmy McStupid ever was able to on his!
CHECK IT OUT:
And here is McGibney’s attempt:
However, unlike Brandon King, McGibney’s GoFundMe was quickly hit with the Ban Hammer:
lol – this will never NOT be funny. Am I right, Jimmy?
PHILIP KLEIN FINDS A MISSING CHILD…..
Is there anyone on the planet who is not aware that Nederland, Texas based private “investigator” Philip Klein is a criminal and a scam artist? Just check out this video and you will die laughing!
And here is a press release issued by that heroin addled e-Detective. Klein suspects that the case is either an “accidental death or homicide case”. WOW – what a great detective (not).
What else could it be but one of these two choices? Klein is a dumb ass – even his lies don’t make any sense. But then again, what else can one expect from a drug addict and a thief, right?
Klein tries to pretend like he is attached to law enforcement and that he has “close ties” with them.
From the beginning I have recommended that DeOrr Kunz fire Philip Klein and tonight I recommend that DeOrr should file a defamation suit against Mr. Klein.
Klein has a professional obligation to keep his findings confidential and only share them with his clients. He has not done this. Furthermore, he refuses to meet with DeOrr if I am present.
I have informed Klein not to make public statements regarding this case and he has ignored my requests.
I’m outraged that, when no evidence has been brought forward in this case, that Klein continues to make outlandish claims. How would you like it if you hired a private investigator to find your son and when he can’t, he makes statements that you are a criminal and should be charged?
—- Allen Browning, the attorney representing (Vernal) DeOrr Kunz
Klein has been fired by the missing child’s family.
In case the Aryan Brotherhood are looking for Klein, this is where he lives at
Here is Klein’s Go Fund Me page. Please everyone go to it and warn people not to be donating money to Klein. Klein is a scam artist and a criminal!
BEFORE WE GET STARTED HERE, we would like to offer up a note of thanks to A Close & Personal Friend of the BV Files for offering up some thoughts and tips on effective appellate advocacy and briefing.
There are several different kinds of briefs that can be filed in an appeal. An opening brief. A response brief. A reply brief. An amicus brief. Even something called an Anders brief. But now we have something new: A Hutz brief!
So what is this thing and how does it work? you ask. Well pretend for a moment that you are involved in some pretty important litigant… some serious business. You and your client have spent a lot of time, hard work, and money on this case, only to have it end up in the appeals court for one reason or another. Once that happens, it is time for the briefing to begin.
Now for those of you who don’t know, an appeal is not a do-over of the complete trial. There is no evidence or testimony offered. It is a chance for you to explain to a group of independent judges why you think you should get a new trial (or why you think the first trial was done correctly and the verdict should stand). It is done entirely by written arguments. Very seldom the court will allow you to give an oral presentation.
So the appeal gets filed, by one side or the other (or both, in exceptional cases), and now it is time to work on your written brief to the court. Each side gets to file one.
So the Big Day arrives and the other side’s brief arrives in the mail. A quick glance at the first few pages hints at the serious briefing defects that lie ahead. There is no table of contents. There is no table of authorities. There are, in fact, no authorities. Or, there are authorities, but they are statutes from other jurisdictions and century-old precedents that are outdated, overruled, and completely irrelevant. The disjointed prose and indecipherable legal argument are accompanied by inapt Latin phrases decorated with the holy trinity of emphasis—bold, italicized, and underlined. The sentences that are comprehensible are laden with factual fabrications and distortions of the law. Structure, theme, and internal consistency departed early if they ever showed up.
This unimpressive document is a “Hutz” brief: It is the type of brief that Lionel Hutz, the ne’er-do-well attorney from The Simpsons, would have written had the show’s brain trust ever decided to produce an episode about legal writing.
Hutz: Well, Your Honor. We’ve plenty of hearsay and conjecture. Those are kinds of evidence.
Almost every lawyer has come across a Hutz brief at some point. These briefs are produced by litigants appearing pro se, by competent lawyers who are short on time, and by others lawyers who exhibit deficits in the legal writing department (or who are morons who litigate while high on Vicodin and smoking dope!).
Such briefs seem like easy targets. In the absence of clear arguments presented to the court, what is the likelihood that the court will find in the party’s favor? The reality, however, is that responding to a poorly written brief can be just as challenging as responding to a well-crafted brief if not more so. As explained below, responding to a Hutz brief is an exercise in reframing, restraint, and clarity.
SO WHAT IS AN ATTORNEY TO DO??
Well, according to one of our co-Administrators:
1. Think thrice before filing a motion to strike, then sleep on it, and then wait two days before finally sticking the motion in a drawer. Yes, the Hutz brief lacks tables. Yes, it violates most of the Rules of Appellate Procedure regarding form and content. And, yes, it grossly distorts the facts and the law. It probably should be stricken.
But that does not mean that you should give into temptation and clog the court’s docket with a motion to strike. Some attorneys appear inclined toward such motions, but courts generally dislike them, particularly motions to strike a portion of an opponent’s argument.
The best vehicle for responding to a wildly inaccurate factual statement, a distortion of precedent, or an excessive word count is a brief, not a motion to strike. Apart from the obvious reason that it is better to rebut the offending portions of the Hutz brief at the same time and place as your affirmative argument, motions to strike may not be reviewed by the same appellate judge or judges that ultimately will decide the case.
Courts, of course, do grant such motions on occasion, such as a where a party includes extra-record material in the appendix or where a party attempts to insert a new issue in a reply brief. But even in those circumstances, will a motion to strike truly advance the ball? If a party includes new evidence in the appendix, just point out that fact in a footnote in the response or the reply brief. If a party makes an argument for the first time in a reply brief, seek leave to file a supplemental brief that will allow you not only to highlight the impropriety of misusing reply briefs, but also to debunk the new argument. No matter how inept the Hutz brief may be, there are few occasions in which a motion to strike makes sense.
2. Assume your brief will be read first. It is impossible to predict the order in which judges and clerks will review the case materials, but when a Hutz brief is in play, it is worthwhile to assume that your brief will be read first (even if that is not what ends up happening). Imagine a judge who, after reading the decision under review, opens the appellant’s brief and quickly realizes that he or she is reading a Hutz brief. Perhaps the judge finishes the brief, not fully understanding what exactly is going on in the case. Or, perhaps the judge puts down the Hutz brief and opens your offering, hoping for enlightenment.
Either way, your brief should function as a self-contained unit that provides the foundation that the judge needs to understand the case and, ultimately, your position. Many attorneys strive for this ideal in all circumstances because they want to present the issue, the facts, and the law in the light that best suits their client. But, when responding to a quality brief that clearly describes the issues at stake and the context in which they arise, the focus is more on rebutting the opposing arguments than rehashing the background.
In a Hutz brief, that background is often incomplete or missing, and the response brief performs a service for client and court alike by filling in the blanks. The process of clearing the clutter begins with the statement of issues/questions presented. Hutz briefs sometimes dive into the facts without grounding those facts in a legal context. Thus, the Hutz brief may state the question presented, without more, as “Whether the parties entered into the contract on July 10” or “Whether Mr. Smith traveled to Wisconsin to meet with Mr. Jones regarding the contract.” The relevance of a factual dispute regarding a contract date becomes much clearer when the court understands that the case is about a statute of limitations. Similarly, a court is more likely to understand why details about the negotiations that led to that contract are important if the court sees from the outset that personal jurisdiction is central to the appeal.
In general, the less clear the Hutz brief is about the legal questions presented, the greater the necessity that you include a brief paragraph describing the legal context before stating the issue(s) presented. The rest of the brief should follow suit: jurisdictional statements, descriptions of the proceedings, and factual recitations should be as robust as their Hutzian counterparts are lacking.
As they often remind us, judges shoulder hefty loads. Opaque and confusing Hutz briefs do not aid judges in their task of resolving the cases before them. A brief that cuts through the murk and reorients the judges to the legal issues at stake and the facts that determine their outcome is valuable because it accelerates the decision-making process and provides the court with a clear vision of how the case should be decided.
3. Lay out your argument before tackling the points addressed in the Hutz brief. As David Mamet would probably say (if he penned briefs instead of scripts), the best response briefs are responsive. We have it drilled into us (appropriately) that an effective response brief should not pretend that the other side’s brief does not exist, but rather should dissect the flaws in the other side’s offering. In the normal run of things, this strategy makes sense; after putting down the first brief, the judges will have a good sense of the case and will look to your brief for the best explanation of why those arguments are wrong.
The Hutz brief, however, is a different beast. After reading the Hutz brief, the judges may not have a good sense at all of the facts, the context, or the legal foundation upon which the particular case rests. In this instance, it may be better to eschew the normal advice and present your argument in its entirety before circling back to what the Hutz brief has to say.
4. Try your best to restate and then knock down the other side’s arguments. Trying to make sense of the arguments in the Hutz brief can be a difficult task. And therein lies the dilemma: should you ignore poorly made arguments in the hope that the court rejects them because of their sheer incomprehensibility, or should you do your best to offer a rejoinder even though doing so implicitly suggests that the argument is credible enough to merit a response?
The latter is almost always the best choice. Nearly all arguments, no matter how bad, deserve an answer of some sort; after all, call-and-response is the whole premise of the brief-writing enterprise. (Avoid the “this argument deserves no response” formulation. It makes no sense—if the argument truly did not deserve a response, you would just ignore it rather than making a point of writing that it does not deserve a response.)
But far more important is the risk that the court takes interest in the argument no matter how inartfully the Hutz brief has framed it. Those responding to Hutz briefs should be concerned about arguments made of straw that a court turns into gold. Your case would not be the first time a court has granted a victory to a poorly represented litigant who unintentionally and unintelligibly made an argument that turned out to be a winner. Courts take seriously their responsibility to ensure a fair process for all litigants, particularly those appearing pro se, even when their briefing failures create more work for the court. Put simply, do not assume that a court will discard an opponent’s argument merely because it is poorly made.
Instead, mitigate the risk by engaging in the debate. Restate the argument—or, at the very least, what you understand the argument to be—and explain why it is incorrect. If the Hutz brief contends that the judge ruled against the litigant because he or she had a foreign accent, it is fair to construe this as an argument regarding bias, and to respond by pointing out such an allegation is insufficient to show bias without much more. If the Hutz brief contends that the judge erred by admitting the litigant’s damning statements into evidence, it is fair to construe this as an argument based on hearsay or relevance, and to respond that the statements were made by a party-opponent and are not unduly prejudicial. And so on.
5. Resist the lure of ridicule. Hutz briefs are huge targets. They are filled with errors and misstatements. All those acerbic witticisms that you have devised would go to perfect use. It is just too easy.
Resist the temptation. If the Back to the Future franchise taught us anything, it is that no one likes a bully and a bully never wins.
The judges who read your brief will read thousands of other briefs during the year. They will instantly recognize that the Hutz brief is a mess. Your ridicule can only invoke their sympathy. So, put down the poison pen, minimize the adverbs (a good lesson for all briefs), and save the snark for the comments section of your favorite blog – the BV Files, right?!. As Napoleon supposedly said, “part of brilliance is winning and part is leaving your opponent alone when he’s losing.”
So you guys want to see the Hutz brief that Leiderman filed? (Be advised that it is 66 pages long and 1.5MB in size.) BUT before you do so, there are some very important things to keep in mind:
When a party files a brief, they are REQUIRED to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations. LEIDERMAN DID NOT DO SO AT ALL IN HIS RESPONSE BRIEF.
Factual statements in appellate briefs not supported by citations to the record are improper and cannot be considered.
Under the California court rules, when a party fails to provide citations to the record in support of their factual assertions, their arguments are deemed waived.
Secondly, a party is absolutely NOT ALLOWED TO REFER TO MATTERS OUTSIDE OF THE APPELLATE RECORD whatsoever.
As one court of appeals recently put it:
When practicing appellate law, there are at least three immutable rules: first, take great care to prepare a complete record; second, if it is not in the record, it did not happen; and third, when in doubt, refer back to rules one and two.
The entirety of ViaView’s fourteen page “Statement of Facts” has absolutely no citations to the record for any of the “facts” ViaView claims were established in this case – which are hallmarks of a Hutz brief.
And here is an interesting “factual” claim made by Leiderman / McGibney (totally unsupported, of course, by any citation to the appellate record):
Without access to a court order or subpoena, exactly how was McGibney able to determine the exact physical location and personal identity be these IP addresses?
AND THIS LITTLE PORTION HERE WILL NEVER NOT BE FUNNY, AM I RIGHT?
When attorney Jay Leiderman claims that McGibney is “extremely proficient with respect to IP address location technology” what he really means is that Jimmy can Google and use such websites as:
Hey, Jimmy! You still wondering why U.S. District Court Judge Beth Freeman declared your “evidence” both “baffling” and “inadmissible”?
CHECK IT OUT: Leiderman response brief
In any event, by now Jimmy and that drug addict Leiderman ought to know that no one here gives two shits about restraining orders, police, ATFs, court orders, or any of that other BULLSHIT. Am I right? Bottom line: It does absolutely no good to have a court order when it cannot be enforced. But, hey – Thanks for playing!!