Leo · @jeff_jumpin

9th Oct 2020 from TwitLonger

A longtime paralegal's view on the recently filed Postle lawsuit

I just spent the time to read through the recent complaint that was filed on behalf of Mike Postle by his attorneys Lowe & Associates, P.C. in the Superior Court of California and I have a few thoughts that I wanted to get out there. I have worked as a paralegal for over a decade for both government and private attorneys and have a lot of expertise in the drafting and filing of legal documents. For people not involved in the legal field, paralegals are often the people who actually draft the pleadings that are filed in cases and attorneys then take that first draft and complete it by making sure it is legally sound and conforms to the standards and rules of the Court. There are obviously exceptions, and sometimes attorneys will draft more substantive pleadings and then the paralegal will review them for clarity, accuracy and typos etc. I should also point out that in my professional experience I have mostly worked in the criminal courts but I have also worked on many civil cases and am familiar with the formatting and general process of motion practice in civil cases. I am not an expert in defamation law, but I can tell you if a pleading has been drafted with care and I can compare it to other pleadings of the same general type and get a good sense of the quality of a given pleading.

I say all of the above to lay a foundation. My impression reading through the Postle complaint against Ms. Brill, Mr. Polk, Mr. Ingram, ESPN and others is that the pleading is shoddy and looks to me like it was written in haste or at least not with great care. I will link here an example of what I perceive to be a well-written complaint which is the pleading filed by Lin Wood on behalf of Nick Sandmann v. Washington Post:

Please understand that I am generally apolitical and I am not endorsing Sandmann but it should be noted that his lawsuit was ultimately very successful in that it has been reported that there was a quarter of a billion dollar settlement paid out to Mr. Sandmann by the Post. By contrast, here is the complaint of Postle:

The formatting of the Sandmann suit is much cleaner and the contents are much more specific. These pleadings are of roughly equal length, 35 pages in Postle v Brill and 38 pages in Sandmann v Post. The Postle complaint, however, barely touches on the specifics of what the defendants did other than to say he was cheating and even more notably does not broach what Postle's defense might be to refute these allegations. Sandmann directly refutes the Post and other media outlet's assertions that Sandmann was being aggressive and blocking an activist's path by pointing to video evidence and the testimony of witnesses. Sandmann's complaint asserts his innocence. Notably, Postle's complaint does not directly address his innocence other than to state that the defendant's statements were false. It is perhaps a small distinction, but there is a difference between saying someone has made a false statement and saying that you are innocent and I think this is probably because the attorneys for Postle couldn't or didn't for whatever reason marshal any evidence that demonstrated why Postle wasn't cheating. Postle says he had a generally good reputation and has never previously been implicated in a cheating scandal. That's basically it. In the Sandmann complaint there is much more of a sense of the perspective of Mr. Sandmann and it point-by-point refutes the press coverage of the Covington incident and explains why it was inaccurate.

Also it is very important to note that in this first filing of a complaint, one of the initial hurdles for a lawsuit to clear is the jurisdictional issue. In the Sandmann filing, pages 16-18 explain exactly why the U.S. District Court in the Eastern District is the proper venue based on the Post selling newspapers in Kentucky, Sandmann being from there, etc. Postle doesn't explain at all in the half of a page section on jurisdiction how all of these various defendants actually conduct business in California. Are they selling poker courses to consumers in CA? Do they have an office there? There is just a bare assertion.

The jurisdiction portion of the initial complaint is especially crucial in a defamation case based on comments online. Jurisdiction is not nearly as big of an issue if you have a lawsuit based off of a car crash in a given area or medical lawsuit based on an incident that occurred at a specific location but in a case where the defendants are spread across the country and possibly the globe given that Postle includes one thousand John or Jane Does in the lawsuit, jurisdiction is crucial and you as the complainant have to prove that each defendant meets a threshold for minimum contacts with the state in question.

Finally, I have some quick notes on formatting and the editing of the document. The Postle complaint looks like it was filed by an attorney who has been using the same templates for a long time and by someone who is not very meticulous about the presentation of the pleading. The page numbering of the Postle document is non-standard and confusing in that it starts on page zero. As I read it the Adobe pdf reader would say I am on page ten but the actually numbering on the bottom of the document says page nine. The old school line numbering and double-line left margin are vestiges of the pre-computer days when motions were filed on pleading paper and written with typewriters.

Most modern motions are filed electronically and so in recent years things have trended towards a much cleaner format that is easy to run through OCR programs. The Postle complaint appears to have been filed via fax which is pretty rare these days although there may be some weird requirement to file via fax in Sacramento and I am not familiar with the rules in that jurisdiction. Also in the Postle complaint there are numerous typos including some pretty egregious ones like a "there / their" error and inconsistent use of apostrophes and commas. Judges and attorneys in general are pretty anal people in my experience. They see through the bullshit and can tell when a motion has been filed by someone who just cribs citations and half-asses a boilerplate document. By their nature they judge. Also of minor note is that there are no footnotes in the Postle document although there generally aren't many in the initial complaint as the function of the complaint is more to just establish the factual basis of the claims in a short summary, identify the parties involved, and to establish the jurisdiction.

There are a ton of other thoughts I have on the case including wondering how Postle will be able to demonstrate damages especially given that live poker has basically not been a thing for the last seven months or so given that COVID has shut down the casinos to varying degrees. Postle claims emotional distress and loss of invites to poker games, but he really opens a can or worms in that he will now have to go to discovery presumably and show his financial records. Based on some of what Postle has said about his internet winnings back in the day he may have downplayed them in his tax filings so he is now in the position of both having to open his records to show how much he was winning at poker to demonstrate his earnings potential and also to survive scrutiny given that he likely minimized his tax obligations which would also then dilute what can be proven about his earnings potential if that makes sense. This has been a very interesting case to follow and I am working on writing a long-form article comparing and contrasting the Postle scandal with other modern internet investigations like the recent Astros cheating scandal. If anyone has any suggestions or nuggets of information they'd like to pass on to me I would very much appreciate it.

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