On the bright side, when Eugene Volokh made the decision to take his big win in the 9th Circuit in Obsidian Finance v, Cox and move the court to tweak the opinion around the edges because a sentence hurt his pro bono client’s feelings, it gave rise to a number of interesting discussions about the duties and obligations of counsel.
Cox had good reason to be unhappy with a sentence in the opinion that was unflattering toward her, to say the least:
Cox apparently has a history of making similar allegations and seeking payoffs in exchange for retraction. See David Carr, When Truth Survives Free Speech, N.Y. Times, Dec. 11, 2011, at B1.
Still, Eugene beat back a $2.5 million judgment for his client (at least for now) and obtained a ruling that no one, whether nutjob, blogger or journalist, could be held liable for defamation without at least a showing of negligence. It was a huge win.
But then came the post-win motion to manicure the opinion, seeking to eliminate the offending sentence. Having won the point, gotten the judgment vacated and been hailed a hero to the blogosphere, even though the case had nothing to do with blogging, the time was ripe for Eugene to take his bows and wish Cox well.
Instead came a motion which struck me as dubious for two reasons. First, it was a volitional motion on Eugene’s part, not so much wrong to make as a motion he was under no duty to make. This aligned him more closely with his client’s peccadilloes than her cause or legal needs. After all, whether he sought to sanitize the opinion from her conduct had nothing to do with the win or the issue. It was just a personal, tangential issue. Not wrong to be concerned about, but also not necessary.
The other issue was tactical: It was a boneheaded move. First, when you get a big win, leave the courtroom as fast as you can before the judges change their minds. Why? Because you won. It doesn’t get better. Second, if you complain that there wasn’t enough of a foundation for the mention of bad deeds, the alternative to removing the mention is to provide a much stronger foundation. And so it happened.
And now the 9th Circuit has decided the motion: DENIED.
Bet you didn’t see that coming. So here’s the takeaway:
1. The motion attracted far more attention to the issue of Crystal Cox’s conduct. When Eugene got the big win, it was all about the rights of people who publish on the internet, whether bloggers are self-proclaimed investigative journalists. Good stuff for Cox. Now, not so much.
2. To the extent the original opinion was tepid on the subject of extortion, both with its equivocal “apparently” and its source being David Carr’s New York Times report, people might think Cox was engaged in extortion. Now, they know, with the record on steroids where before it was just a suggestion.
3. Eugene Volokh went from brilliant first amendment scholar turned lawyer for the downtrodden into brilliant first amendment scholar turned lawyer with a significant tactical blind spot, as well as lawyer who chose to go down the rabbit hole where his client lives.
4. It was all for naught. Cox lost. Before she was a winner. Now, she’s a loser.