Man, how a week flies by when you’re having FUN. It seems like just yesterday that we were noting that we had been distracted from commenting on the motion for sanctions that Bill Schmalfeldt sent Aaron Walker and, in particular, the post about that situation that Bill shat out last week over on his blog billschmalfeldt.net.
Schmalfeldt’s improper use of the registered trademark (“®”) symbol has been noted elsewhere, so we won’t tarry there1.
Apparently the term “The Worst Attorney Teabagger [sic] ®” in referring to Aaron Walker is a ham-handed setup by Mr. Schmalfeldt so that he can refer to Aaron as “TWAT [sic] ®” through the remainder of his blog post. When this case is dismissed, I’m sure that this situation will be brought to the attention of the court. It speaks of the utmost disrespect for the institution of collegial litigation and the profession of lawyering, and of contempt for a judge who has indicated that she expects the customary forms of decorum to be observed.
So Bill starts in.
I guess someone needs to ask why Bill Schmalfeldt, who is obviously completely overwhelmed with the task of being his own lawyer, thinks that he has the time to step back and reflect on the job of being a lawyer in the abstract? What’s he going to do, write a book when this is all over? Who cares about the musings that float, on information and belief, completely unobstructed around in Schmalfeldt’s head?
You know, someone with some perspective could rewrite Bill’s statement in the interest of fairness pretty easily:
What does a pro se litigant do when faced with the daunting task of representing a scumbag who has blatantly and frequently libeled and caused extreme emotional distress to the defendants he is suing?
More musing follows…
…hey, there’s plenty of room up there…
…and then- THE ANSWER!
Wow! What vast insight! What voluminous knowledge! What complete authority!
It is apparent that, like so many other things, Bill Schmalfeldt fundamentally misunderstands what attorneys do when they draft a motion. For starters, does anyone here besides Bill believe that Aaron Walker has failed to investigate the case, determine the facts and competently advise his clients on an ongoing basis? I didn’t think so. Aaron has written and filed a pretty much airtight motion to dismiss (“MTD”)2 based on multiple grounds that would give the court at least one and perhaps many reasons to take that action. Bill is obviously confused and confounded by the MTD, as evidenced by his more or less completely incompetent opposition filed in response. A major factor in his confusion appears to be a total failure to grasp that, when an attorney submits a motion, it has three parts: 1) the request or requests to the court that it grant whatever relief is sought in the motion; 2) evidence, which must be facially competent, in the form of supporting affidavits or declarations, documents, photographs, or references to things that the court can take into account as evidence3; and 3) argument, which is the attorney’s best shot at putting together what she or he believes to be the law that applies to the issues raised in the motion together with what he or she believes to be the facts pertinent to the motion. Nothing the attorney says in argument, however, has any evidentiary value whatsoever. She or he is not under oath. She or he is not a witness. Judges understand this. Bill Schmalfeldt, as abundantly demonstrated by his statements on his blog about his motion for sanctions, does not.
So when Bill points out that Aaron Walker writes:
The Plaintiff has failed to allege that non-incidental uses have occurred. Thus, the Plaintiff is attempting to do in this case what the incidental use exception is designed to prevent: the use of the misappropriation tort to suppress news, commentary, and criticism of the Plaintiff that he doesn’t like.
Third, the Plaintiff’s most basic error is that there is no cause of action for such appropriation unless someone is using the Plaintiff’s “good” reputation for his or her economic benefit:
and Bill responds
Bill Schmalfeldt is dead wrong. Aaron Walker hasn’t lied about anything. Aaron has simply made his argument about the law that he thinks applies to the facts as he believes them to be. That’s what Bill needed to respond to- not in a motion for sanctions accusing Aaron of lying, but in his response to the MTD. But wait…
…that response is out the door…
Just like Aaron did in writing the MTD, Bill’s job on receiving it was to: 1) write a statement in opposition; 2) assemble the evidence he was going to rely upon; and 3) prepare argument applying the law he believes to be applicable to the facts of the situation and that would seek to persuade the court to deny Aaron’s motion. But Bill didn’t do that, did he? Instead, he bears such animus toward Aaron that he wasted a bunch of effort on a motion for sanctions that ties things up for three weeks at Bill’s end while he waits for a… well, we’ll let him tell you.
Who thinks, like Bill Schmalfeldt, that Aaron Walker might change even one little tiny thing in the MTD? Heh! That dog just won’t hunt, Bill. That train has left the station. And, since you read this blog several times a day, what do you think that the chances are that the court will have ruled on and granted the MTD long before the end of the first week in May or thereabouts. Imagine if you will how foolish
you will look as your case goes away while you were focused like a laser on how much you hate Aaron Walker. You could have been spending time coming up with a competent opposition to the MTD, but no…
…you’ve already filed that after spending more time addressing the envelope to the court than you spent coming up with helpful law and good arguments.
So there you have it. Except, Mr. Journalist…
…sure is amusing that you can’t recognize real libel when you have it right in front of you. All Aaron Walker faces is a totally screwed up motion for sanctions where Bill Schmalfeldt accuses him of lying that, in my opinion4, would be best off withdrawn yesterday. Thinking it will get you anything other than trouble is like thinking that shooting a charging grizzly bear with a handgun will help, when all you are going to wind up doing is pissing off the bear even worse and wasting ammunition.
Let’s hear from Public Domain Bill one more time.
1 Oh hell, I’ll tarry here and say it. You can spend all day in the Code of Federal Regulations and case law and cobble together why it is pretty much unlawful to use the “®” symbol without having registered whatever the symbol goes with. I’ll leave it to what the US Patent and Trademark Office says on its web page (http://www.uspto.gov/trademarks/basics/register.jsp): “[Y]ou may use the federal registration symbol “®” only after the USPTO actually registers a mark , and not while an application is pending. Also, you may use the registration symbol with the mark only on or in connection with the goods and/or services listed in the federal trademark registration.”
Bill Schmalfeldt being Bill Schmalfeldt, though, Bill the Fearless Outlaw, Bill the Edgy Progressive Rule-breaker, yeah… that guy. Bill, just like was the case with his theft of the “Easy Cheesy” logo, the “Game Over” artwork, his plagiarism of attorney Tranen’s work, and his usurpation of the WAAK radio station call letters, is just acting here in character. He knows it it very unlikely that he will suffer any material consequences from doing these things. In fact, it seems like he gets a perverse charge out of being caught and then being able to complain about the unfairness of being so picked on. He gives not one tiny damn for the rules and constraints of polite society, or for the disapproval of decent folks. But when Bill Schmalfeldt puts a registered trademark symbol behind a phrase that is in fact not, or operates his “hobby” radio station under another station’s legitimately acquired call letters, or files a legal brief smartened up with someone else’s words- those sorts of things, he is acting nothing more so much as you did when you were a nine year old making an “FBI” badge out of tinfoil and cardboard in order to flesh out your fantasy play that you were a top agent out there in the world fighting crime. He’s, at bottom, a 61 year old child, and a pretty much garden variety nine year old child at that. The potty mouth, the lack of impulse control, the fascination with poop and bodily functions, his abhorrence of GIRLS! (ooh! ick!), the infantile gay, racist and misogynist slurs… the list goes on.
2 When I say “motion to dismiss,” I refer to both the defendants’ original motion to dismiss and the supplemental motion allowed by the court taken together.
3 There are a lot of complicated procedural rules that apply to evidence, both at the federal and state level. See, e.g. the Federal Rules of Evidence. In law school, the year-long Evidence class, usually taken in the second year, is usually a “make-or-break” point for students in law school. At many schools, a low, but significant number of students fail Evidence, which must be passed before graduation.
4 My “guy watching a trainwreck” opinion, not any opinion I might have as a retired lawyer. I haven’t given any legal advice whatsoever in this post, and anyone who would think otherwise should know that I am probably wrong and the advice is almost certainly worthless. Please, anyone reading this, don’t rely on anything I have said for anything other than a laugh. It’s commentary, folks. You want advice from a lawyer? Go hire one.