2015.95: WTAF STCL


From Matthew’s November 13, 2015 demand letter:

Under Texas law Chapter 18A Section 1.1, it is unlawful to engage in defamation of another’s character and reputation. The elements for defamation are as follows:
1. The defendant published a statement of fact
2. The statement referred to the plaintiff
3. The statement was defamatory
4. The statement was false
5. With regard to the truth of the statement, the defendant was
1. acting with actual malice
6. The plaintiff suffered pecuniary injury.

Texas statutes are generally organized into codes—Penal Code, Civil Practice and Remedies Code, Probate Code, and so forth. Those Codes are divided into chapters dealing with particular subjects. Chapter 18 of the Texas Code of Criminal Procedure, for example, deals with search warrants.

There is no “Chapter 18A” in any Texas code that I can find, much less any Chapter 18A dealing with defamation.

So at first I was puzzled what “Texas law Chapter 18A Section 1.1” is. It is meaningless, cite soup. There is no such defamation-related law in Texas.

So I puzzled over it for a while, then I thought to google various combinations of <Texas law Chapter 18A Section 1.1 defamation>, and somehow I blundered into <18a defamation>, which brought up this result:

Screen shot of google result for 18a defamation
Screen shot of search result for <18a defamation>.

The form number (18A:3) looked familiar to me from using O’Connors practice guides. And sure enough, the link went to a copy of O’Connor’s form for an original answer in a defamation case.

So then I looked for <O’Connors forms 18a> and found that “Chapter 18A” refers to the “defamation” chapter of O’Connor’s Texas Causes of Action (Amazon link).

O’Connor’s books are awesome and indispensable and authoritative, but they are not legal authority. They are a good place to start if you want to figure out what the elements of a defamation claim are. You shouldn’t cite to them, but if you were to do so you wouldn’t refer to them as “Texas law.”

With his initial proposal Matthew called into question his own ethics. With his response to my first post he called into question his own judgment. With his cease-and-desist letter he calls into question his own competence: what kind of lawyer cites to “Texas law Chapter 18A Section 1.1”? An incompetent one.

Yes, in my opinion Matthew is not only unethical and foolish, but also incompetent.

Of course, the great thing about hiring an incompetent lawyer to write your will is that by the time his incompetence is discovered, you’ll be dead anyway, so you won’t care.

Why do people write cease-and-desist letters anyway? According to this site (which may be where Matthew got his template),

A Cease & Desist Letter is often times the first step to asking an individual, or a business, to stop an illegal activity. The purpose of the letter is to threaten further legal action if the behavior does not stop.

According to another site,

Sometimes the threat of legal action is enough to compel someone to change what they are doing.

Well, that worked. I was going to leave Matthew alone, until he sent me a stupid fucking cease-and-desist letter. So now I’ve written two more posts, Scott Greenfield has written a post (I outsourced my apology to him), Brian Tannebaum has written a post (he has a an ethics opinion), and Keith Lee has written a post (reminding us of the Streisand Effect).

Few people wish to get involved in the paperwork and courtroom appearances that a defamation lawsuit would require.

It’s a nice theory, but obviously not applicable here. The proportion of people who “wish to get involved in the paperwork and courtroom appearances that a defamation lawsuit would require” is, I suspect, substantially higher within {people who defend lawsuits for a living} than outside it, and highest of all within the subset {people who defend the First Amendment for a living}.

Not only would a successful lawsuit end up causing the accused party more money for court costs, but it would take up the accused party’s time and could even damage their reputation.

I am fairly sure that if Matthew can find his way to the courthouse and come up with $350 to file suit against me, not only will I not be paying court costs, but Matthew’ll be paying Marc Randazza’s fees and sanctions under Texas’s anti-SLAPP statute. (That’s “Chapter 27 of the Texas Civil Practice Remedies Code.”)

A cease and desist letter is a way of giving someone a chance to stop what they are doing and avoid the hassle of a legal fight.

So apparently the cease-and-desist letter is not widely recognized as chum to throw into the water for the practical blawgosphere to have a feeding frenzy on.

Even aside from the folly of sending this letter to a guy who fancies himself ((Not without good reason, to be fair.)) a First Amendment and trial lawyer after you’ve been specifically warned … even aside from substantive ignorance of defamation law …

How do you get through law school and not know how to write even an approximately correct cite?

For your next cause of action, Matthew, instead of filing suit against me and getting your ass handed to you by Marc Randazza, may I suggest an educational malpractice suit against South Texas College of Law?


2 responses to “2015.95: WTAF STCL”

  1. Does O’Connor’s have a chapter on the elements of an educational malpractice claim? Asking for a friend.

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