Court to Cox: It’s Crystal Clear

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.

First, there was the Randazza amicus filing. Then came the Martin Cain amicus filing.  What started out as an “apparently” was now about as conclusive as it comes. Well, he asked.

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.

40 thoughts on “Court to Cox: It’s Crystal Clear

  1. Christopher Jorgensen

    I still think there’s no explanation other than Eugene Volokh did this deliberately. He knew he had a shitheel client and wanted the world to know this. He still preserved the larger speech issue. He won. He could put the victory in his pipe and smoke it, but it was a tainted flavor. The easiest way to justice was precisely this. Give his client the negative press she obviously craves and make sure as many others were warned about her as possible.

    Only other possibility is Cox has something on Volokh.

      1. Jim March

        Meh…I suspect this crazy beeotch was calling him a dozen times a day screeching at him until he said “fine, I’ll file it” knowing it was going to lose and she was going to look like even more of a twit.

        Eugene is good people but a good lawyer can be harassed by a bad client into doing silly stuff just like anybody else. And if there’s one thing this client is good at, it’s harassment…

        1. SHG Post author

          Of course Eugene is good people. If he wasn’t, this wouldn’t be an issue in the first place.

  2. Matthew I

    Hypothetical question, SHG: What do you usually do when a client insists on a self-destructive course of action (say, refusing a plea deal when they have no hope of winning at trial) and refuses to change their mind? Would you follow your client’s wishes or your reasoning?

    1. SHG Post author

      The answer begins with whether the decision belongs to the lawyer or the client. The decision to take a plea always belongs to the client, so while I will advise the client, I will respect his decision. It’s his life, his decision, and the lawyer is obliged to honor it. Tactical decisions, on the other hand, are the domain of the lawyer. While I will consider and respect my client’s wishes and reasoning, the decision will always be mine. If I indulge a client’s ill-advised choice as to a tactical choice, it is my responsibility. This is why clients have lawyers to exercise their professional judgment on their behalf, rather than clerks who do as they’re told.

  3. Bill

    I still cant see how she ever became a cause celeb for anything. I get why Eugene might have taken her on, but it seems he should have taken his win and went home like you said. Statistically the more you go against Randazza the more likely you are to lose.

  4. Dave D

    I see the court denied Cox’s motion for a rehearing. That doesn’t seem too bad of a result for her, given everything else that was brought to the court’s attention because of it. Why didn’t the court also beef up the earlier reference to her “apparent” history of seeking payoffs with the background information Randazza & Cain had provided in their briefs opposing the motion? Or would that be highly unusual? (I’m not a litigator)

    1. SHG Post author

      You will have to ask the court if you want to know why it did something. But perhaps the slap was hard enough, and they didn’t need to make it a punch.

  5. Amy Alkon

    Loved this from Randazza: “To an extent, Amicus agrees at least partially with Cox: the Court perhaps should not have referred to her extortion and then cited only to The New York Times for support. There are opinions from courts, arbitrators, and administrative bodies that have found, even after affording Cox due process, that she is an extortionist. This Court should add these sources to its Opinion.”

  6. alpharia

    I can imagine the brain meltdown and conniptions that this would of initiated wherever Cox was at the time she heard of it.

    Though then again I just read her (surprisingly coherent for her) counter claim against Randazza specifically (though she names and casts negative aspersion on other so called ‘co-defendants’ *brain hurts now*) and has a HUGE section yabbering about the above wrongdoings by Randazza, Cain, and the worldwide legal conspiracy against her… Hey I said it was surprisingly coherent for her.. Not coherent in a legal or reasonably mentally capable way.

    Though I suspect she had some help with the formatting (no capslock problems is a big hint) and structure, I would be very very shocked if it was Eugene though. Like Christopher and Jim above I believe Eugene initiated the whole after action to shut her up, or if he didn’t he’s probably happy now anyway.

    If you need a copy of the counter claim it’s on her web site/blog/rant and please take care if you go there since it is not conducive to anyone’s mental health

    1. SHG Post author

      Bennett’s First Rule of Dealing with Crazy People: avoid dealing with crazy people whenever possible. It’s a good rule.

  7. John Burgess

    Just a thought, but I wonder if Volokh isn’t smarter than we may think. While he had to sort of hold his nose on the case due to its importance outside the dreamworld of Cox, and while he obviously couldn’t work against her interest, it seems that he could allow her to work against her own interest, vile as they were.

    I can imagine a conversation:

    Volokh: You don’t want to do that. It’ll open the door to even more damaging information being put on the formal record

    Cox: Yes, I do! I want to clear my name and make those @#[email protected]#$s eat their words! I know I’m right and I’ll get those ^&%%@%$

    Volokh: Okey dokey.

    1. Jim March

      This makes sense because Eugene was in a tough spot here. If he pisses her off she could fire him and go do her own appellate work and maybe crash the foundation of the internet in her insanity.

      Poor Eugene… this was and remains a mess but he salvaged something decent out of it despite a client who’s batshit insane :). We should forgive him a bit of of ugly as long as it works.

  8. Crystal Cox Supporter

    You think you are funny making fun of Crystal Cox but she is very good at exposing corruption which is EVERYWHERE. And you think that Randipshit is worthy of being clapped for? You want to see corruption LAS VEGAS democRAT style? Look at the judge in her case
    [Ed. Note: Link deleted per rules.]

    and look who gives money to democRATS too!!!!!

    [This one too.]

    Randipshit will go to Prison when the exposure comes of the TRAP that should be expose! Cox will lose in Nevada, but again win in the 9 Court of Appeals!

  9. Crystal Cox Supporter 2

    I deont know why you deleted the links. WHY are you trying to suppress the evidence!

    1. SHG Post author

      You didn’t read the rules. If you had, you would know. And nice use of capitalization of “why.” Very emphatic.

      1. AlphaCentauri

        Just as you can have “scare quotes” you can have “delusional ravings capitals.”

      2. Crystal Cox Supporter 3

        i can see that in the rules but it seem that the rule is to stop promotion and not to stop sharing of evidence. you as a lawyer should know that you need to provide citations to assertions. now you left the assertions without the citations, and that of coarse makes the assertions seem crazy. there should be an exception in this comment, because some of us want to see the evidence. or are you just trying to be a friend to randawza (i know how to spell his name, but i dont want to give him any credit). so why dont you post the links so that the world can see what the truth is, instead of pretdnding it is not out there? it is more ethical to provide the links. if they were advertising for someone or “link bait” then you should enorce the rule. but this time, you made a bias decision that hurts the search for the truth.

        1. SHG Post author

          and that of coarse makes the assertions seem crazy.

          No, they’re batshit crazy with or without the citations, just as your changing the number after your nom de comment is at trying to pretend it’s not you. But hey, this is America and you can be as crazy as you want to be.

          The rules apply to everybody, including you. I would add that you’re not special, but, in fact, you are indeed special. Still the rules apply. You don’t have to like it, but they’re still the rules here.

          However, I will bring up your objection at the next meeting of the Decennial Rules Committee.

          1. SHG Post author

            This was posted by Crystal Cox Supporter 3 (as opposed to the other voices in her head, 1 and 2) to the wrong post (because what’s batshit crazy without stupid?). As a public service, I repost it here so everyone can enjoy:

            Have it your way. do a google search for “judge dorsey nevada $150,000 harry reid” than you will find some interesting stories about donations. and then you can do a search for “marc randazza political contributions obama” and you find that he is a big democRAT donor. why you are fearing the evidence? the documents! they show you are hiding the massive corrupt political and legal scandal where donors are ganging up on (and gangstalking) an anti-corruption blogger!

            See? I don’t want you to think no one will see your evidence of “the massive corrupt political and legal scandal.” No need to thank me. It’s just the kinda guy I am.

            1. CrystalsTumblingCox

              It’s a conspiracy?… and here I thought it was still in the committee planning phase. How out of the loop am I!

              Oh and I got named in an affidavit by Bill Windsor (another crazy Cox freakazoid). I’m so proud! *sniffles*

            2. State paid cyberstalker

              Welcome to the world of Crazies tumbling… Sorry you got dragged into the Vexatious vortex.

        2. Sgt. Schultz

          (i know how to spell his name, but i dont want to give him any credit)

          Randazza, Randazza, Randazza, Randazza, Randazza, Randazza, Randazza, Randazza, Randazza, Randazza, Randazza, Randazza, Randazza, Randazza, Randazza, Randazza, Randazza, Randazza, Randazza.

          I want to give him credit.

          1. Crystal Cox Supporter 4

            I am glad that you think it is funny but you would not find it funny if you were the victim of his corruption and judge buying. he bought a governor in nevada to pass his STUPID anti-SLAPP law that he should be SLAPPED with and then his cronies bought a judge and now just by magic happenance the judge that his buddies bought is the new judge who is now threatening the anti corruption free speech warrior who he SHOULD be fiting FOR?

            1. SHG Post author

              Don’t blame him for thinking it’s funny. He’s not batshit crazy, so it’s not his fault for not appreciating you. Has it occurred to you that he really didn’t buy a judge, but you’re just nuts, dangerous and wrong? Even self-proclaimed anti-corruption warriors can be nuts, dangerous and wrong, you know. In fact, most of them are, by definition.

              Here’s a challenging question: Do you think it’s fooling people to keep posting as a sockpuppet? If you aren’t ashamed of who you are, let’s use your real name from now on. No more comments will be posted until you come clear. After all, it’s wrong for an anti-corruption warrior to be a liar, right? So let’s stop the pretense. No comments will post unless you use your real name, Crystal.

            2. Jim March

              Courtney, for God’s sake, do you understand what a SLAPP statute is all about?

              It is a way of doing a quick resolution to a lawsuit where there’s an unconstitutional basis for it, and punishing those who bring unconstitutional suits. Without a SLAPP law somebody can file a lawsuit that isn’t going to go anywhere but still punish the target with the costs of defending. That’s called “lawfare” and it’s a bad thing.

              If you are arguing against SLAPP laws, you’ve gone so far off the deep end it ain’t funny. In particular, it strongly suggests you’ve been doing what other people claim you are doing: filing suit purely to get paid for pulling the case so they don’t have to run up defense costs.

              A whole lot of people are saying a whole lot of bad stuff about you by now. Have you sat down and really pondered whether there’s just maybe a reason for it?

            3. AlphaCentauri

              @Crystal Cox Supporter (n+1): Please call Vanna White and tell her you want to trade in some capital letters to buy a few punctuation marks.

  10. Bob

    “A Motion Too Far,” the story of Gen. Eugene Volokh’s failed attempt to litigate his way over the Arnhem Bridge.

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