Counting his Chickens Before the Eggs Have Been Laid

I have a couple of interesting things to write about today.

First, Michael Avenatti keeps whiffing at the plate. He is coming apart like Charlie Sheen at a Mormon retreat.

Avenatti represents porn actress (“star” is not an appropriate word to use for people who compete for the worst jobs in the movie industry) Stormy Daniels. She has sued Donald Trump based on two legal theories. One is that Trump defamed her by suggesting she lied about him. The other is that a nondisclosure agreement Trump got her to sign is invalid.

When you’re a public figure, which, regrettably, Daniels is, it’s hard to sue for defamation. Not only do you have to prove someone lied about you; you have to show they did it with malice. Daniels couldn’t even clear the first bar. Her suit was rejected because Trump’s remarks concerning her were just bloviation, or “rhetorical hyperbole.” True or untrue, his remarks were not serious statements of fact.

Daniels has to pay about $300,000, including money for filing a meritless claim. No matter how you look at it, this reflects more harshly on Avenatti than Daniels.

Avenatti went to a very good law school and graduated first in his class, yet somehow, he wasn’t able to get a run-of-the-mill tort case before a finder of fact. The case never got off the ground. He should have seen that coming. A law student shouldn’t screw up this badly. I know. I did better work, before federal judges, when I was in law school.

I don’t get Avenatti. Doesn’t his academic success mean anything? How can a person who did so well in law school do such a poor job? As far as I know, the most successful lawyers are not all top students, because law school and the practice of law are not the same thing, but you would still expect a valedictorian to be able to read and apply the most basic rules of defamation law. The problems with Avenatti’s case would come up, literally, within the first four or five minutes of research.

Maybe he’s a bad lawyer. It looks that way. It’s hard to see how a good lawyer could do something this stupid. He has made a lot of money, but successful lawyers are not always good lawyers. Look at Michael Cohen. The world is full of terrible lawyers who got rich fast by chasing ambulances, running firms that were really referral services, lobbying, and so on. Maybe Avenatti is like John Edwards. Maybe he’s just an ambulance chaser with a lot of gall.

Here’s the other thing I find interesting about the legal fees award: Avenatti committed a gross, public ethics violation in a ludicrous attempt to defend himself. Responding to Twitter users who were ridiculing his failures, he called Trump’s lawyer (who beat him) “dishonest.”

Here is the text of his remarkable tweet:

Charles Harder and Trump deserve each other because they are both dishonest,” Avenatti tweeted. “If Stormy has to pay $300k to Trump in the defamation case (which will never hold up on appeal) and Trump has to pay Stormy $1,500,000 in the NDA case (net $1,200,000 to Stormy), how is this a Trump win?

It is unethical for one attorney to insult another. That may be hard to believe, if you think TV shows are a good guide to what goes on in law practice, but it’s true. Take a look at what the Florida Bar says about it:

Whether orally or in writing, lawyers should avoid vulgar language, disparaging personal remarks, or acrimony toward other counsel, parties, or witnesses.

One idiot in Florida got suspended for two years, simply because of his rudeness. It’s not a joke.

Avenatti works in other states, but I’m sure the rules are the same there.

How can you be at the top of your law school class and be unfamiliar with a basic rule of ethics?

I can’t figure out how he did so well. Did he blackmail his professors to give him good grades? It’s a mystery.

In his unethical attack on Trump’s lawyer, Avenatti said something else that was bizarre. He suggested Trump had actually lost. You just read it. He asks how Trump can claim victory if he gets $300,000 in fees in the defamation case and loses $1.5 million in the NDA case. The big problem with this argument is that Trump has not lost the NDA case, and there has been no $1.5 million verdict.

What on earth is Avenatti talking about?

He reminds me of a scene from an Albert Brooks movie. In the movie, Brooks and his wife sell everything they have, buy an RV, and start touring the country. They plan to live on their savings. At their first stop, Las Vegas, the wife loses everything playing roulette. While Brooks is yelling at her, she says, “I’ll win it back.”

Avenatti is saying, “I’ll win it back.” Actually, it’s worse. He’s basically saying he already won it back.

Meanwhile, Daniels says she was not behind the defamation lawsuit. She said he filed it without her consent. That’s unethical, too.

I admit, I don’t know the rule he broke, and I don’t remember being taught that it was unethical to file suits without getting permission, back when I was busy getting an easy A in Ethics, but come on. The rules also don’t say it’s unethical to show up in court naked, but it’s still pretty obvious that it’s a problem. He created a giant debt for this woman. She may have to take her clothes off 50 or 60 times to square it. You can’t do that to a client!

Some things are so obviously unethical, it’s not necessary to draft a rule to prohibit them. Putting a bomb in opposing counsel’s car is unethical. Hitting on a judge to get favorable rulings is unethical. Filing a lawsuit without asking your client for permission is so far out of bounds, I doubt ethics experts have even considered the question.

No, they probably have. There are so many crazy, untalented, desperate lawyers; I’m sure Avenatti isn’t the first to pull this trick.

I predict Avenatti’s other lawsuit will fail, and I can more or less guarantee that he, not Stormy Daniels, will be paying the $300,000 that just got awarded. If he doesn’t, she may hire a real lawyer and sue him. If she does, I hope he hires a real lawyer instead of trying to represent himself.

Unbelievable. How did a public figure this strange even come to exist?

Second thing for today: my dad is enrolled in hospice care.

If you have an older relative who has a serious medical problem that MIGHT be fatal soon–just MIGHT–you may be able to get a lot of free hospice stuff from Medicare. I’m surprised at what we got. We’re getting a social worker, nursing visits, possible CNA help, an oxygen concentrator (which he doesn’t need), a box of emergency morphine, and a lot of other things I can’t remember.

They’re going to work with him for a few weeks, and if it appears that he’s declining badly, he’ll stay in the program.

The only question now is this: will it make my life easier or harder?

My dad’s care is going to be pretty good no matter what. The real purpose behind the effort I’m making is to save my own life. I need backup and rest. When people come to your house to help a disabled relative, it’s not helpful unless you can stay out of it. If you have to sit and watch, or you have to answer questions, or if you have to participate in any way at all, it adds to your burden.

We’re going to see what happens. If they make things worse, I’ll send them packing.

Meanwhile, he’s all set up for a brief ALF stay. I’m going to drop him while I travel for a couple of days. I may give him up for more time than I have to. Why not live a little? Anyway, he’s going to give it a try, and this will help him get used to the idea.

He’s going to be in an ALF eventually, unless he dies suddenly. Within a few months, he will have to go, so he might as well start accustoming himself.

I’m surprised they’re bringing emergency drugs. They like to have such things in the house in case he has a sudden need. He’s very lucky I’m the one caring for him. I’m not going to break into the stash on the first day, turn off the phone, and take all the morphine. Not everyone in the family has my self-control.

When my mother had cancer, we had to buy a locking box for her Dilaudid. The day after she died, my aunt showed us the box. It was open and empty. That didn’t take long.

I’ve been reading about the nonexistent “opioid crisis.” There is no crisis for responsible people, unless it’s the crisis of being unable to get drugs they need. The crisis people are the addicts. The government is taking a gun control-type approach, attacking law-abiding people in order to control the lawless. They’re cutting back on prescriptions and even counting people’s pills. Sounds smart, but in reality, addicts will still get whatever they want. I say that as the brother of an addict. You could seal my sister in a steel box on Mars, and within an hour, she would have at least two bottles of Vicodin.

Addicts are phenomenal networkers. Addiction is an incredible motivator, and they learn fast. They have networks of friends and doctors with foreign-sounding names. They know who will write prescriptions and who won’t. They know which pharmacists are friendly and which ones are smart. They have a remarkable underworld the rest of us never see.

A whole lot of the opioids addicts take are coming in from China. Tormenting the rest of us at CVS won’t have any effect on their supply. If I were an addict, I would bypass the medical system entirely. It’s expensive, it requires a lot of acting, and it leaves a paper trail. No one ever gets prosecuted for doing fentanyl or heroin they bought on the street, and when you buy it, you don’t have to wait in line at the pharmacy.

In view of the idiotic restrictions we are now seeing, I am shocked to learn that someone is about to bring me morphine in a box. I didn’t even ask for it, and I have no idea what I would use it for. They didn’t check to see if I was an addict. They just said, “Here it comes.”

The world has never made much sense. I should learn not to be surprised so easily.

I hope hospice works out. In any case, it will be good preparation for the future, because he WILL need it before long.

It’s nice to get “free” stuff from Medicare, but I still hate socialism. I would much rather have the crazy taxes he has paid throughout his life. We could pay for his medical problems and have enough left over to buy a big house.

I’m sure I’ll write about our experiences.

More

Someone must have reminded Avenatti about the rules of ethics and the elements of defamation, because he deleted the tweet in which he called Trump’s lawyer dishonest. My bet: Trump’s lawyer called him up and gave him a law lesson plus the threat of a severe paddling.

Avenatti has spent the day firing off desperate, frenzied tweets trying to shift the attention to other people’s supposed shortcomings and misdeeds. It’s not a good look, and it doesn’t work. All he’s doing is calling attention to the blood in the water.