In re Mediation, 6 Cal. 1 (2012).

Law is filled with terms and words with special legal significance and meaning. It is my opinion that one of the many important reasons why having an attorney in disputes or in transactional matters is so critical is because a licensed attorney is “fluent” so to speak in legal language or “Legalese.” Sometimes we attorneys take for granted that words we use every day are not familiar to our clients. I hope that with this post and others on The Sayyar Reporter I can help define and explain away any confusion people unfamiliar with Legalese may have so that they can better understand their case, their transaction and the services their attorney is providing for them.

Some key and basic terminology refers to the type of mechanism or forum where a legal dispute can be heard and resolved. These words can sound similar but refer to three very different methods of dealing with any legal dispute. Those words are in no particular order as follows: mediation, arbitration and litigation. Each of these terms refers to a complex process of dispute resolution. This particular post will discuss what mediation is, its upsides and down and subsequent posts will discuss arbitration and litigation.

Mediation is a form of guided or assisted settlement negotiations. Settlement is the process by which two or more people or entities (or parties) come to an agreement by which their problem is resolved and each side agrees to be legally bound by the terms of the settlement. When two or more people or entities have a problem with one another they can agree to have a qualified third party attempt to assist them in solving their problem by negotiation. The third party is referred to as a mediator. The mediator is sometimes a judge or a retired judge or some other qualified individual with experience in negotiation and/or the topic area which relates to the problem the parties are having with each other. The mediator does not decide the case. The mediator, even if he or she is a current judge (though never the judge involved in an active lawsuit between the partes), makes no rulings that legally bind the parties. Very often, the negotiations of the mediator are privileged and confidential. Mediation can be an effective tool by which parties can meet with someone who has no “dog in the fight,” who is neutral but who has some experience in the law and can candidly try and bring the parties to a settlement agreement. The mediator cannot force settlement. The mediator can only talk to the various sides, pass along authorized messages or offers of settlement, and provide his or her opinion as to the risks and benefits of settlement. Mediators are ultimately facilitators of open, frank and hopefully fruitful negotiations.

Mediation can be public or private. Public mediation refers in this context to the use of governmental or administrative mediators and usually does not require the parties to pay for the mediator’s time. Some courts have court mandated mediation that requires parties to engage in negotiation through mediation at different points in a lawsuit. Other jurisdictions and states only force mediation if there is a written contract between the fighting parties wherein they agreed ahead of time for mediation. Mediators are offered also by non profit organizations affiliated with the court system. There is a general public policy in most states which favors settlement and mediation over lengthy lawsuits to cut down on legal costs and preserve court resources. The courts and the law want parties to try and work out their disputes. It is often the public policy of a state that courtrooms should be the last resort in a dispute, not the first. That is why some legal cases involve mandatory mediation at various stages of the proceedings.

Private mediation refers to mediation using a company or individual mediator that must be paid for their time; unusually the cost is shared equally between the parties. The parties can agree to engage in mediation in the event of a dispute even before a dispute arises in a written contract. Many written agreements have mandatory mediation provisions where the parties agree in writing that they will engage in some form of mediation (sometimes very specifically spelled out in the contract) in the event of a dispute before either party is allowed by contract to bring a formal lawsuit. Courts generally enforce these provisions because of the public policy in favor of settlement. Alternatively, parties in a dispute can always offer to engage in mediation and if the other side agrees, it is only a matter of picking a mediator, picking a date, and arranging payment of a mediator.

Meditations can be fairly informal and are frequently held in offices or conference rooms. Unusually prior to mediation, each side will submit a written brief to the mediator which is confidential (the other side does not get to see it) where the party can candidly inform the mediator of the facts and the party’s honest take on the situation. Strategically, the information contained in the mediation brief may be highly confidential but provided solely to the mediator to assist in negotiations. Mediators generally never disclose to the other side anything the party does not want them to disclose. If you tell the mediator something in confidence, he or she is bound to keep that confidence and only pass on what you authorize to be disclosed to the other side.

Different mediators had their own style of how they handle Meditations. Some want to only meet with the parties separately in different offices or conference rooms. Some want to meet with the parties all together. Some mediators will pressure both sides to settle. Some mediators do very little other than shuttle offers back and forth between the parties, acting as a messenger. Some mediators have a great deal of advice to offer, some speak very little. I once represented a party in a mediation that involved he and I sitting in a conference room for 3 hours before the mediator even came to say hello. During that 3 hours the mediator had spent the entire time with the other side, persuading and urging them to make an offer which the mediator presented to us largely as a “a take it or leave it” offer. Very little actual negotiation or “back and forth” offering took place in that case even though a fair compromise was reached. The different styles of a mediator can be a downside to mediation. Because you may not know the style of your mediator, the mediator you are assigned (if you have no choice) or the mediator you pick with the other party may not fit the needs of the parties or the case. Some cases are ripe for negotiation so a less “hands on” approach from the mediator is all that is needed. Some cases involve parties who hold unrealistic legal or economic positions and require a great deal of input by a mediator to reach compromise. If you get the wrong style of mediator for your case, the mediation can seem like a waste of time.

Mediation can occur before, during or after a case. Mediation can happen just about any time the parties agree and can arrange their schedules. If a court orders mediation or a settlement conference, very often there is an obligation by all parties to participate in good faith. Since no one can force a party to settle in a mediation, what constitutes good faith is not a hard and fast rule. Meditations end either when one or more of the parties informs the mediator that they are not willing to go any further in negotiation (say when the parties are too far apart in their negotiating position) or when the mediator decides the parties are too far apart or that further mediation would be polarizing and a waste of time. I have seen parties make one offer and when it was rejected walk out of a mediation. Was that bad faith? Hard to say.

I have been in meditations where the representative of the company on the other side of the dispute showed up to mediation without any authority or power to settle. This frequently happens when insurance companies are involved in lawsuits or when a company is involved in a lawsuit but the board of directors has not authorised the client representative to settle for certain terms. In that instance it is very hard not to feel as if the other side is acting in bad faith. I once represented a client who reached a settlement with the president of a company only to be told that the board of directors had to approve the matter at next month’s meeting and the settlement was later rejected by the board of directors. I have also represented clients in mediation when insurance is involved and the insurance agent with the power to settle was not available via phone to participated in the negotiations. I have participated in Meditations where the mediator talked briefly to both sides, threw his hands in the air and declared the matter incapable of resolution without making any effort to try and talk either side around. I have also seen times where the parties were ready to quit but the mediator refused to let either side leave and insisted that the parties stay for the full 4 or 8 hours (with lunch break) while the mediator pressured (but never forced) the parties to settle. While your attorney may have some personal knowledge or have prior experience about a prior mediator’s style or what to expect, mediation can be a very fluid and surprising experience.

The benefits of mediation are many. First, mediation can provide the parties with a neutral third party’s view of the problem or dispute. It can be very helpful to hear from an experienced outsider who is hearing the case for the first time, even if no settlement is reached. Second, mediation cast light on weaknesses in a case before it is brought in a court. A mediator who is an experienced lawyer or judge may be able to give his or her opinion on how they would rule on the case if they were the judge. The offers from the other side can also illuminate potential weaknesses in your own case and can give you a idea of the other side’s strategy and thinking. This can also help a client determine whether the risk of a lawsuit is worth it or is compromise preferred. Third, mediation is generally much cheaper in terms of costs and attorneys fees than a full blown court case, and can resolve a matter unusually much faster than filing a complaint with a court. Court cases now can take years to be fully ruled upon in some cases. Fees and costs can mount quickly and can climb into the 5 or even 6 figure range. This is especially troublesome when considering demanding fees and costs as part of a mediation settlement is usually not an acceptable term. Mediation, especially early on can save a great deal of time and money.

Fourth, and most valuable in my opinion is the fact that mediation allows the parties, if they reach a compromise, to craft their own agreement resolving a problem. Why is that valuable? Because a judge or arbitrator is limited by law on what relief it can grant to the “winning side.” In mediation, the parties can be as creative as they want without regard to the law. One memorable occasion illustrating this point sticks in my mind. I represented a party in a private mediation involving a business dispute. The parties reached an agreement regarding their problems and part of the resolution was rather than one side paying the other in cash money, one side was effectively paying the other in the form of manure (more specifically, organic fertilizer). No judge would be able to award someone manure in a court of law but that was of value to the parties so in mediation they were able to reach a compromise using manure rather than money. Fifth, mediation if successful provides a certain outcome to a dispute. You know what you are getting. In a court room there are no guarantees no matter how “strong” your case is that you will get what you hope to receive. Moreover, even if you win in court, you still have to collect on what you are awarded whereas in settlement, someone is unusually agreeing to pull out their check book then and there.

Some quick general tips to remember therefore when engaging in mediation or deciding to engage in mediation are as follows:

1. If you have a choice of who your mediator is, consider the cost benefit of choosing a public mediator versus a private mediator. Also consider who your mediator is. A private mediator may be worth the extra money if their mediation style is just what your case needs.

2. When you know your communications with a mediator are confidential, be candid about your case. Take the opportunity to pick your mediator’s brain, though take what they say with a grain of salt. Their evaluation of a case is not always accurate.

3. Be creative. Remember, you do not only need to think in terms of money. Manure can work just as well, or whatever services or assets you have to exchange or barter for. Sometimes a simple apology can be part of a settlement and make a world of difference.

4. When making an offer or considering an offer in mediation, remember the process is about compromise. A good mediation outcome is where neither side is 100% happy but they can both live with the agreement. That is a fair or “good” compromise.

5. Bring a book or something to occupy your time. Mediation can be filled with a great deal of “hurry up and wait” time.

6. Remember that if the mediator or even your attorney keeps bringing up the negatives and risks of not settling, they are not trying to force you to settle but are wanting you to make your decisions fully aware and understanding the risks and potential negative consequences. There is no greater gamble than going to court. The mediator and your attorney are doing what they can to help you by being frank and even being a bit pessimistic about your case in mediation.

7. No one can force you to settle.

8. If you do make an offer or consider an offer, think of all the little details not just the big terms. Nothing is worse than agreeing to settle for X amount of money but then forgetting that you have to agree as to when it is paid, how it is paid, in what form is it paid, and what about the attorney fees and costs, the liability release, the convents and other promises, etc.. The devil is in the details. Don’t forget them as they can ruin a potential settlement if you do and plunge you back into an expensive and uncertain legal dispute.

9. Make sure that any settlement reached is put in writing and signed by the parties. Do not leave the mediation table until that is done even if your attorney has to hand write it out, something I have done on occasion. All to often, the second the parties end the mediation thinking they have a settlement, someone wants to change a term or change their mind and without something in writing, you have no basis to enforce the settlement in court. Get it in writing AND signed or you have no deal. Insist upon it no matter what the other side says.

10. Come to the mediation prepared. That means have your financials in order so you know what you can offer and/or what you can accept. Have your facts straight ahead of time so you can urge the mediator to spend more time persuading the other side than you. Make the most of the process and participate in good faith.

11. Make sure that if you are ordered to mediation you ask the judge to order the other side’s decision maker, someone with actual authority to be present or available via telephone. If you are offering privately to mediate with the other side, make that a condition of agreeing to mediation. This may not avoid the problem of having someone at the mediation with no authority but it can help with the problem.

I hope your mediation experiences are positive ones and you use them to your advantage even if settlement is not reached.

Assly Sayyar, Esq.

In re Deposition Preparation, 5 Nev. 1 (2012).

Frequently when I represent a client in a lawsuit, I find myself preparing my client for his or her deposition. What is a deposition? A deposition is a tool by which an attorney on behalf of their client can find out and discover evidence. This is done by putting a person under oath and asking them questions which a recorder or reporter takes down in transcript form. Depositions are not taken before a judge in most civil proceedings. The oath is the same oath taken in a court of law and carries with it the same criminal penalties of perjury if violated by the witness (also known as the deponent). A deposition is not a conversation, it is a question and answer session that borders on the point of a full out interrogation by the attorney taking the deposition of the deponent. With some few exceptions, a deposition is the only time the opposing side’s attorney gets to talk to a represented client. A deposition is not the time for a deponent to be overly helpful to the opposing side (if the deponent is involved as more than a third party witness and is instead a client). Nevertheless, a deponent does have an obligation to answer almost every question asked of them under law.

Depositions are much broader in scope than testimony at trial. A deponent is typically asked about their educational background, work history background, personal relationships as relate to the case, all sorts of facts and events as relates to a case and even about legal theories, claims and beliefs of the deponent. Questions that are generally not permitted are those that delve into areas of attorney client privilege or similar protected information or questions that are badgering and harassing. Only certain communications are privileged. Most questions, even personal ones do not constitute harassment. It is important to keep in mind that at trial many of the questions asked during a deposition cannot be asked at trial due to rules of evidence. On the flip side, if you as a deponent are a party to a lawsuit, anything you do say may and will be used against you in some fashion or another by the other side during a trial or a motion hearing to prove their position and disprove yours. A client’s conduct during a deposition can alter positions and strategies on both sides of the case. Sometimes these alterations are positive for a client, sometime negative.

Depositions generally can last up to 7 hours per day and can continue on through successive days until completed. If you as a deponent are represented by legal counsel, your attorney will be there with you but there is very little your attorney can do during the deposition to help you answer questions. Your attorney cannot answer for you. Your attorney cannot signal you how to respond. You cannot ask your attorney for help during the deposition if you don’t understand a question or if you are not sure how to answer. Your attorney may raise objections but unless he or she instructs you not to answer, you must still answer the question. You as the client and as a witness must speak for yourself. What you say can help or hurt your case or the case of others. Therefore it is critical that a deponent be prepared for what to expect when facing a deposition.

During the deposition, the attorney on the other side may appear or come across as friendly, kind, understanding, aggressive, snide, disbelieving or even rude. Unless the questioning attorney actually violates a procedural or ethical rule, just about anything goes and it is vital that a witness keeps calm and focused and does not react to provocation. The attorney on the other side is NOT your friend. Conversely, in most cases the attorney on the other side is just doing his or her job and their questions are not a matter of personal attack but gathering of information and furthering of case strategy.

I have some common rules that apply to most civil depositions that I review with my clients. Obviously, if you are noticed to appear for a deposition, your individual deposition preparation will vary depending on the facts of the lawsuit in question and you should consult with your own attorney to prepare rather than just relying on these general pointers. What follows are five general guidelines that can aid in deposition preparation but are certainly not the be all end all of deposition prep.

RULE 1: TELL THE TRUTH. Very simply, when answering a question only speak the truth based on your perception, recollection and memory. Not only is lying an act of perjury which carries with it criminal consequences, very frequently a lie can be easily detected by the other side. If you as a deponent are shown to be lying, your credibility at trial suffers and your case consequently is negatively affected. Both judges and jury weigh your credibility when deciding cases. If you lie you also are potentially placing your attorney in an ethical dilemma which may lead to them withdrawing as your counsel because attorneys have ethical duties of candor and truthfulness to the court and to the opposing party. It is hard to keep lies straight and makes it extremely difficult to prove a case based on lies. If you are worried about revealing certain facts, discuss this matter with your attorney ahead of time. Sometimes being open and up front about facts that could potentially harm your case takes the wind out of the sails of the other side’s argument. Keep things simple. Tell only the truth.

RULE 2: DO NOT GUESS; DO NOT ASSUME; DO NOT MAKE THINGS UP BECAUSE YOUR MEMORY IS UNCLEAR. This rule goes hand in hand with telling the truth. Too often during a deposition a deponent will be pressed on a particular factual point by the interrogating attorney. The other side is looking for an answer. They will ask and reword and ask the same question again and again in some instances. If they ask you if something did or did not happen, it is completely acceptable to say “I don’t know” or “I don’t remember.” If that is the truth, then stick to the truth. If you are pressed or the other side tries to jog your memory (all perfectly acceptable deposition practices) only change your answer if your memory is actually refreshed. Do not suddenly say “I assume X could have happened” or “I guess that is right” if you do not actually know for sure. Do not imagine things. Either you recall and know what happened or you don’t. Even if you think it will somehow help your case, do not assume. Stick to your answer. Otherwise, you are opening up weaknesses to be exploited later in your testimony and your credibility as a witness.

RULE 3: ANSWER ONLY THE QUESTION ASKED, NOT THE QUESTION YOU WANT THEM TO ASK. Too often in deposition even after being warned, deponents will fall into the trap of thinking the deposition is a friendly conversation. Worse, a deponent will think they have to prove something to the other side or are arguing their case to the other side. Deposition is not trial. You are not there to prove anything to anyone. The more you talk the more you are giving to the other side to use against you. Remember why you are there: this is the other side’s one chance to talk to you face to face and ask you questions that you must answer. The other side is on a fishing expedition. They are not there for you to be friends with. They are not there for you to argue with. They are not there for you to convince or persuade. They are their for their client only. The more you give them, the more they have to use against you later. Therefore if someone asks you a question, no matter if you think the answer “sounds” bad in your head, answer only the question asked. For example:

Question: “When do you believe you and Mr. Smith entered into a legal contract?”
Answer: “In June of last year.”

That is an appropriate way of answering a question. What follows is an example of a deponent who is answering much more than the question.

Question: “When do you believe you and Mr. Smith entered into a legal contract?”
Answer: “It was in June of last year when we met for dinner. He promised me that he would buy my widgets for $100.00 and he promised to buy 50,000 widgets immediately. So I went back to my factory and built 25,000 widgets. And I would just like to say something for the record. Mr. Smith made me a promise, to my face and I trusted him. He is a bad and dishonest businessman because he did not keep his word. I don’t just believe he and I had a contract, I know we did and so do you if you did your job.”

While the answer above may be the truth, that answers far more than the question and opens up an entire line of additional questioning for the other side to go into. Why give the other side more than what they ask for? Why argue with them or get emotional? They will not decide the case– a judge and/or jury will. The attorney on the other side is evaluating you for weaknesses in your character, credibility and “like-ability” as a witness as much as they are trying to uncover evidence that helps them. It is much better to listen to the question and answer only what is being asked.

RULE 4: UNDERSTAND WHAT YOU ARE SUING ABOUT/BEING SUED FOR. Very often in depositions, a witness who is also a party in a lawsuit (not just a third party witness) will be asked point blank questions like the following:

“What are your damages?”
“What is your understanding of the contract are you suing under?”
“What facts do you have that support your claim that my client committed fraud?”
“When was the contract in your mind breached?”
“Were you aware of the risks before you went ahead and acted?”
“Who entered into the deal, you or your company?”
“Do you think you were paying attention at the time of the accident?”

These and similar questions all use language that has very specific legal significance. Your attorney cannot help you with these questions even though they may be based on legal theory. The other side can ask for your understanding of certain legal ideas and concepts and you must be prepared to answer. You must have an understanding of your case and what you are suing for or defending against. Your attorney will help you prepare for these questions and assist in mitigating any fall out at trial or at hearing if you answer in a way that negatively impacts your case. However you as a client need to have a basic understanding of what the lawsuit is about. You cannot simply guess or make up something on the spot without any basis or understanding. Take the time to understand how the facts have been placed into a legal framework. Ask your attorney questions. If your attorney’s answers are unclear, let your attorney know. Be able in your own words to articulate why you are in a lawsuit and, as applicable, what your damages are.

RULE 5: KEEP CALM. Anger, frustration, stress, anxiety and confusion are all normal reactions to being deposed. You are on the “hot seat” so to speak and every word you say is being recorded to be used against you if possible. Focus on answering one question at a time. Listen more than you speak. If you are unclear about a question, ask it to be rephrased. If you answer a question, it is assumed you understand the question. Do not allow yourself to be provoked. The facts are the facts. There is no way to time travel (yet) to change what happened. Good, bad or indifferent, the events that have lead to a lawsuit have already occurred and cannot be altered. Take a deep breath and stay focused by keeping your emotions in check as you answer to the best of your ability, truthfully and according to your actual recollection.

Do take preparing for a deposition seriously whether you are directly involved in a lawsuit as a party or are just a third party witness. Your words and actions during a deposition can affect the outcome of a case or the possibilities of settlement. Do take the time to work with your attorney so that you can provide your very best testimony. Good luck.

In re Initial Legal Consultation for Spider-Man, 5 Cal. 2 (2012)

My new business website www.vistalawyer.net is now up and running. My sister tested the interactive form for new clients seeking an initial consultation and I successfully received the following email from my first potential “client.”

Message about nature of legal dispute:
The Daily Bugle is defaming my boss, Spider-Man.
__________________________

From: Peter Parker (peter@spiderman.com)
Form Filler Phone: (701) 123-4567
Form Filler Email:
Form Filler Fax: (321) 123-4567
Relationship: Friend
Other Name If Applicable: Spider-Man
Other Fax: 781-234-1243
Other Phone: 702-345-6778
Other Email: spidey@spiderman.com
Conflict: Mary Jane Watson, The Daily Bugle, Aunt May
Dates and Times: Sunday Mornings
Time Sensitive or Not?: Yes, I want them to stop insulting Spider-man
Documents: Archives of the Daily Bugle

It made me laugh to read the email but then I got to thinking. How would I respond to such a potential client legal inquiry?

Initially, I would take into consideration who is contacting me – Peter Parker – and his relationship with his “boss” and “friend,” Spider-Man. Spider-Man and not Mr. Parker would be my potential client and it would be Spider-Man to whom I would owe various client duties of loyalty, confidentiality and care. No matter who contacts me, the person or legal entity who has the legal issue is who needs to actually hire and retain the attorney. Even if Peter Parker contacts me, I would need to speak with Spider-Man or otherwise receive confirmation from him in writing that he chooses to retain my law office and that he confirms the information Peter provides to me on his behalf.

Because the duty of confidentiality extends to potential clients, I could meet with Spider-Man and he could be assured (subject to very limited exceptions such as the threat of imminent bodily harm or death to a third party) that everything we discussed would remain confidential including his identity.

SIDE NOTE: This of course assumes Spider-Man is contacting me pre Marvel’s Civil War story arc where Spider-Man unmasked publically or post Brand New Day story arc where his identity is once again hidden. And yes, I am in fact that much of a comic book geek. Guilty as charged.

Thereafter, my concern would turn to who is the person or entity that is on the other side of the potential dispute or conflict, or the potential Defendant in this disagreement. According to Peter, Spider-Man’s claim is against The Daily Bugle. I must investigate and make sure that is something that can be proven. Who is the Daily Bugle? Is it a corporation, fictitious business name, a limited liability company, a sole proprietorship? Where does it operate and engage in business? Is it really the Daily Bugle or its parent company that is potentially liable or responsible to Spider-Man or is it a particular reporter or editor who works for the Daily Bugle or both? Could this just be Eddie Brock or some other employee going rogue and falsifying photos or are these articles being published without authorization?

This inquiry is of vital importance for several reasons. First, bringing a lawsuit against the wrong entity or without factual or legal basis is arguably frivolous which can possibly lead to the imposition of sanctions and attorney fees and costs against both attorney and client. Second, where the potential Defendant is domiciled and engages in business can affect an attorney client relationship. A Defendant cannot be hauled into court in just any state or any city. A client should engage an attorney who is licensed and practices in the area where the Defendant can be sued and be subject to the court’s authority also known as personal jurisdiction. Third, there is the question of collection. Once you identify the Defendant or Defendants, assuming a client sues and wins, does the Defendant have assets that are subject to collection? If there are limited or no assets for collection perhaps Spider-Man may not want to pay attorney fees to pursue a case against the Defendant. Fourth, I as the attorney need to know if the potential Defendant is someone that I have an existing or prior attorney client relationship with. If I do, that will more than likely preclude me from taking the case or even engaging in the initial consultation with Peter Parker on behalf of Spider-Man.

Luckily, I do not have a prior or existing relationship with the Daily Bugle or John Jonah Jameson, Jr., its assumed to be editor and likely to be the author of any articles that “defame” Spider-Man. I can speak with Peter about his case. Assuming that both the Daily Bugle and Mr. Jamison engage in business almost exclusively in New York and reside in New York, this would prevent me from taking the case. I am only licensed in California and Nevada and clients are generally better served in cost and experience in finding an attorney who is local. I would suggest that Mr. Parker and Spider-Man seek an attorney licensed in New York and therefore experienced in New York law. Matthew Murdock may be available for consultation even though he practices primarily criminal law. She-Hulk would be a better candidate (she has helped Spider-Man before legally) but as she is a daughter in law to Mr. Jameson there may be a conflict that prevents her from taking the case.

Since this is purely imaginary and putting aside the fact that I am only licensed in California and Nevada, let me follow through with the next portion of the legal consultation: getting to the facts. What follows are just some of the questions I would ask as part of an initial legal consultation.

What exactly word for word do the articles say?
Does Spider-Man have a claim?
What is the strength of his claims or claims?
When did Spider-Man become aware of these “defaming” articles and how much time has passed since then?
If Spider-Man pursues the claim what are the risks and benefits involved?
What are Spider-Man’s goals? What outcome would he like to see come from this? Is it something the law or an attorney can assist him in obtaining?
Can Spider-Man sue as Spider-Man or must he unmask?
Can Spider-Man financially, personally, professionally and emotionally afford to sue and go through a lawsuit?
Assuming Spider-Man prevails, can he collect?
Are there other options to just filing a lawsuit such as mediation, settlement, sending a cease and desist letter or reporting the matter to an agency or governmental authority with the power to act in a fashion that would gain Spider-Man what he wants?

Focusing on the legal issues, there are some major concerns regarding any accusation of defamation. Spider-Man is probably considered “public figure,” which raises the level of proof under some state common law to establish defamation. Spider-Man would likely have to prove actual malice. In my experience with prior defamation cases even when the writer of a newspaper article admits his hatred and malice of the subject of his article that is not in and of itself enough to win the day at trial. Defamation has many other elements that must also be proven. If the articles in question are opinion such as editorials or a mix of fact and opinion a great deal of U.S. law protects such speech entirely from any defamation claim. Freedom of the press and freedom of speech are protected liberties and the law favors those freedoms in defamation cases. Depending on the jurisdiction involved there may be other statues protecting a newspaper from claims of defamation as a matter of privilege. There is also a concern with truth. In many states defamation requires a false statement of fact that lowers the subjects estimation in the eyes of the public and is derogatory in content. Questions, opinion, partially true statements, true statements, hyperbole and insults are usually not actionable as defamation in and of themselves. If the articles claim that Spider-Man has committed a crime, to some extent that is true unless New York allows for vigilante justice. If the article claims Spider-Man robbed a bank or that Spider-Man had an illicit affair with Susan Storm that would likely be false and derogatory in nature but it would depend on the wording of the article. What, if any damages can or must Spider-Man prove to also prevail? Can he point to actual harm caused by the alleged defamation? These are just some of the legal issues raised and that I as an attorney would discuss with my potential client. The more potential claims the more factual inquiry that goes into any evaluation of a case.

Turning now to the more personal and economic issues, there are additional concerns that I as an attorney would have to discuss with my potential client. Can Spider-Man afford a long and likely highly contentious litigation or should he instead try and work things out outside of court? Will bringing a formal lawsuit expose Spider-Man to scrutiny that Spider-Man either personally or professional cannot or is not willing to endure? How will this affect his crime fighting? How will this affect Peter Parker or others at the Daily Bugle? What about Spider-Man’s friends and family? What if Spider-Man loses? Is he willing to take that risk?

As you can see, even the most simple potential “client” inquiry raises a whole host of questions which is why many attorneys simply cannot offer free consultations– the investigation and legal research necessary to even preliminarily advise a potential client can be extremely extensive and time consuming. A mere half hour or one hour consultation is usually not enough time to really address a client’s questions, concerns, legal issues, goals and options. New or potential clients should be prepared to think about the answers to these or similar questions when they are consulting with an attorney. Potential clients should also remember that your potential attorney is not a mind reader. If you do not tell me something I cannot magically know it. Professor Charles Xavier I am not. Even the smallest detail could change the whole direction of an initial consult. When contacting an attorney be prepared and be ready to give a detailed account of everything.

Finally, to Mr. Parker and Spider-Man if you are reading this blog, this blog does not provide legal advice and the information it provides is of an extremely general nature. Your case or legal issue may require more detailed or contrary legal advice from a licensed professional. Go call She-Hulk as your claims are time sensitive. Thank you for your inquiry to Assly Sayyar, Attorney at Law.

In re A Day at the Races, 5 Cal. 1 (2012)

Being back in San Diego County, California has a tinge of nostalgia to it. It is kind of bizarre to visit places I saw as a child and see them through adult eyes.

When I was a child, on occasion I went with my family to the Del Mar race track to watch the live horse races. There was no live horse racing today at the Del Mar race tracks but I headed for Del Mar anyway to watch the 138th running of the Kentucky Derby and “have a little flutter” as they say in England.

I will usually watch the race at home but instead I drove down the Pacific Coast Highway 101, enjoying the perfect weather to the Del Mar Surf Side Race Place. It was so much more exciting to watch the race being televised in a large crowd, everyone calling for their chosen horse to win the “Race for the Roses.” It makes a sporting event that much more enjoyable to watch it surrounded by people who are just as emotionally (or financially) involved as you are.

I chose to forgo the wearing of a large fancy hat and dress and placed my bet.

My system of choosing a horse to bet upon is hardly a scientific or logical one. I tend to pick ones that have interesting names. Number 3, Take Charge Indy which reminded me of the Indiana Jones movies. Number 8, Creative Cause because I like to think of myself as a creative person. Number 11, Alpha for belonging to a Dubai Sheik no less. Number 1, Daddy Long Legs which reminds me both of the novel and the Fred Astaire musical.

Of course none of the horses I bet on came even close to winning the Kentucky Derby. If they had, I would have given up the practice of law and retired happily upon my winnings. Alas, it was not to be and it is back to work on Monday.