When Sued Don't Tweet

http://jacquesmattheij.com/when-sued-dont-tweet

by bussetta • 12 years ago

130 115 12 years ago

jacquesmattheij.com

throwaway9988• 12 years ago

I'm curious to when/if there are exceptions to this standard advice. When could it be a strategic move?

danielrmay• 12 years ago

When your lawyer tells you it is a strategic move.

josefresco• 12 years ago

Agreed. Also it can help with this http://en.wikipedia.org/wiki/Court_of_public_opinion which can be a major factor in the outcome.

arethuza• 12 years ago

I can't think of any - I know that having been sued (OK it was my start-up, but I took it rather personally) and it was incredibly stressful and at the start I nearly replied to the other side with communications trying to naively "sort things out" that could have made things even worse.

My stress levels decreased hugely when all communication was put into the hands of our lawyers - and it was eventually resolved with both sides walking away and paying their own expenses, which wasn't great as we had done nothing wrong but was probably the least worst option.

Honestly - if someone raises a legal action against you - talk to a lawyer who specializes in the relevant area and do what they tell you, which is likely to include no public statement without their approval.

stingraycharles• 12 years ago

Exactly. The desire for communication with the public is mostly based on emotion, not on a rational decision. Lawyers give you rational advice.

Having been involved in a lawsuit last year, even after I won, I still don't dare to publicly talk about it for fear or repercussions. I simply ask myself: what do I have to gain, and what do I have to lose?

Usually the risks and impact of the things I have to lose outweigh the things I have to gain, and it's a good way of making myself shut up.

patio11• 12 years ago

Approximately as frequently as when replacing John Carmack with a lawyer would improve your codebase.

TomGullen• 12 years ago

Perhaps if you can't afford a good lawyer to defend yourself so you have to attack the reputation of the sueing company hoping they will drop it from public pressure?

6cxs2hd6• 12 years ago

For criminal matters, the short answer is, never. See Don't Talk to the Police. [1]. You want a defense attorney to handle this.

For civil matters, although IANAL I think similar reasons apply, so similar answer: Don't Talk to the Public. If you're truly famous enough to need to break this rule, then you need an attorney who specializes in high-profile cases like this.

Edit: By "cases like this", I mean an actor or athlete level of celebrity. Probably not John Carmack, despite how famous and awesome he may be within our circles. Really, the smartest thing is to just "shut up". Even though a false accusation is a genuine personal violation and you want to defend yourself, the best defense usually won't be DIY.

[1] https://www.youtube.com/watch?v=6wXkI4t7nuc

kubiiii• 12 years ago

Maybe when your position largely depends on the public opinion and will be taken from you before you have a chance to have a trial. Maybe there is no pattern but elected officials, rock stars, often cry out their innocence when being accused of something, while having great lawyers.

buro9• 12 years ago

A possible exception: When you have no means to afford a lawyer and the case is obviously frivolous.

Whilst I would nearly always go for shutting up, we've probably all witnessed the David being sued by a Goliath and their only viable action is to make it know and get support.

That isn't what's happening here though... but no rule is black and white.

danieltillett2• 12 years ago

Yes when you have nothing to lose you can afford to not worry about the legal niceties.

nailer3• 12 years ago

Also: if you're a game developer, and Zenimax offers you a job, and you know this is how they treat people people who've moved on, you might consider taking a different role.

milliams• 12 years ago

Perhaps his lawyer okayed his tweets.

sbarre• 12 years ago

Then he should get a new lawyer

michaelq• 12 years ago

While that may help you in the courtroom, the court of public opinion doesn't wait for a verdict. It confuses silence with guilt. Acquittals are less likely to make front pages than acquittals.

arrrg2• 12 years ago

Does the public care about this? I really don’t think so. This is a case about some boring legalities. I really can’t see it having any impact on how Carmack is viewed.

There are probably many other situation in which that is not the case, but here I really can’t see anything bad happening as a consequence of Carmack not responding publicly.

prof_hobart• 12 years ago

About this - possibly not.

About other things that people, particularly celebs, are taken to court for - absolutely.

dnissley• 12 years ago

What about gamers? They are their customers, and they can be a fickle bunch under the right circumstances. A recent example could be the reaction to the DRM in the latest sim city, and other games. A counterexample however could be EA, which most gamers loathe but continues to sell plenty of games. (Edit: Although now that I actually look it up EA is behind sim city. So who knows.)

danieltillett2• 12 years ago

This is true. Sometimes it is better to respond and risk losing in the legal court of tomorrow than stay silent and lose in the court of public opinion today.

gvb• 12 years ago

Yes, but...

* Public opinion has little or no monetary value where the courts have tremendous costs. Things said in public to influence public opinion can increase your court costs (possibly including judgement costs) tremendously.

* The public's attention span, and thus its opinion, generally is measured in days, maybe weeks. Court verdicts are forever.

masklinn• 12 years ago

While that may help you in the courtroom, the court of public opinion doesn't wait for a verdict. It confuses silence with guilt.

No, it confuses silence with confirmation of its prejudice. If the court of public opinion does not think you're guilty your silence will support that, if the court of public opinion thinks you're guilty your silence will support that.

cookiecaper9• 12 years ago

It's almost impossible to overcome the public's prejudice. Is it better to remain silent and allow people to make their assumptions or put out new statements that will also likely be misconstrued and potentially make things worse?

unwind• 12 years ago

Acquittals are less likely to make front pages than acquittals.

Circular statement error. Parser 'sploded. Go to sleep? [Y/n]

devhinton• 12 years ago

Why is this up-voted? This is basically don't be a dumb-ass 101

smcl2• 12 years ago

I'm confused - was the case of John Carmack cited because his tweets have now been raised in court and have hurt his case? I haven't been following this situation so I've zero context.

Alphasite_• 12 years ago

It's only been a day to two since thise was public, I'm doubtful that they're being mentioned in court.

smcl2• 12 years ago

Ah so it's just general cautionary advice. I'd be interested to see if this comes up in court.

motters• 12 years ago

If someone makes a spurious allegation against you then I think you should defend yourself as much as possible, including via tweets or any other communication channels. Refuse to go quietly into the night.

zavulon• 12 years ago

Did you read the article? The point is you're making it worse by tweeting and making other public statements. You may win in court of public opinion, but you're making it easier for your opponent to beat you in actual court.

personZ6• 12 years ago

The blog post is pure speculation by what appears to be a layman. It has no more weight than any random comment on HN.

It's worth stating that because people are treating it as if a famed IP lawyer has made a pronouncement of fact, when in actuality it's just someone giving, like, an opinion, man.

nailer3• 12 years ago

I can see both sides to the argument. Someone who was subsequently cleared of charges but whose name is still mud probably has a different value on the court of public opinion.

stevetursi• 12 years ago

I agree with the spirit of this but there's also "Do I want to be right or do I want to win?" It's great to rally the public to your cause but if it reduces your odds of winning the case, it's probably not worth it.

chiph• 12 years ago

By making public statements, you're talking straight to the prosecutor/opposing attorney. As the warning says: Anything you say may be used against you in court.

smackfu• 12 years ago

The point is that if they make a spurious allegation in a lawsuit, your lawyer should defend you as much as possible. That's the whole point of a lawyer.

rayiner• 12 years ago

If you're sure it's a slam-dunk case that you can prove it's a spurious allegation, then go have your fun. But it's very easy to get emotionally invested in your position and fail to realize that not everyone will see things the same way.

Let me use an example: have you ever had a less-than-friendly breakup? Whose fault was it? Do you think both of you would answer that question the same way? At the time of the breakup, how much conviction did you have that you were in the right? How sure are you that a third party, that's not in either of your heads, would share your view with the same conviction?

peterwwillis2• 12 years ago

If someone makes a spurious allegation against you then I think you should defend yourself as much as possible

1. Defending yourself makes you look guilty.

2. Defending yourself can provide legal ammunition to the opposition.

3. If it's not a legal matter, defending yourself can provide the opposition with words to manipulate to make you look even worse.

4. If they're already making spurious allegations against you, your replies will just prompt them to make more spurious allegations, much of which you may not be able to disprove. Their process of continually coming up with "new information", even if it's fake, will seem genuine to outsiders (due to cognitive bias). Responding just gives them new avenues to attack.

5. If you do defend yourself, it has to be in the form of an attack on the opposition, to discredit them. They can continue to come up with new claims all day which will just make people believe them more. You have to make it so people don't buy anything they say.

6. Besides the tactics of one-on-one mud-slinging, multiple parties provides greater weight to claims or concerns. Even if you have proof that someone is wrong, if they have 5 people all claiming the same thing, the crowd will believe them over you.

7. If this involves some kind of tight-knit in-group or community, you have to completely discredit your opposition for anyone to give a crap what you say.

The biggest problem with defending yourself is that you think the truth will win out, or the truth will come out in the end. It doesn't. The most convincing tactics win out. Lies are a lot easier weapons to use than the truth, and a lot more effective. And all of this also becomes a lot more difficult depending on the circumstances of the claims. Nobody will care if you're right if it looks like you might be wrong.

Tyrannosaurs• 12 years ago

Depends who they're defending you against - the court of law or the court of public opinion.

As a very highly paid barrister once said to my father "your mistake is that you think because you're right, you're going to win. You won't."

In a court of law being right may not be enough.

Luc2• 12 years ago

One thing I've often wondered: how does one even find the best lawyer, with the most appropriate experience etc.?

It seems you'd almost need another lawyer, who knows the best people in each specialty, to advise you.

james-skemp2• 12 years ago

You have a couple options, as I see it (there could be more):

Find someone who's had to deal with something similar to find out who they used and their experience.

Contact a state or local bar association. In Wisconsin our state bar has a lawyer referral program. They're not necessarily the best in their field, but they're a good start, and a limited consult might be free or of little cost.

Luc2• 12 years ago

Thanks. I just checked the website of my local bar association, and they have a search form with about a dozen specialities. That doesn't narrow it down a lot, but it's a start.

pjc502• 12 years ago

There always remains the possibility that you may not be able to find a suitable one at all: http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgment...

This recent high-profile case has been thrown out because nobody that legal aid is willing to pay (for the defendants) for is capable of handling it. Even the first step, "read 10,000 pages of documents", is not affordable since the legal aid cuts.

That document describes the desperate search for someone suitable and willing ("silk" == barrister or QC, required at this level of court)

pbhjpbhj• 12 years ago

http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgment... is an interesting case indeed. It's like a DoS on justice, make sure that your case requires the reading of a large document and you can get off because the lawyers, silks, etc., will refuse the work.

This is a flaw in the legal system. I'd be surprised that the monarch doesn't have power to order someone, a QC say, to take the trial on.

Also, aside, "bro bono" (para 19), first time I seen that one - taking on a job for free under obligation to family/friends.

Edit: typo at para.85 adds more weight to my previous thoughts on needing more contextual spell checking. "scare resources" is almost always going to be a typo.

pmorici• 12 years ago

I've found Avvo.com helpful as a starting point. It's like linkedin for lawyers with ratings reviews etc...

danielweber3• 12 years ago

Contact friends and ask them for attorneys they've worked with and liked. Then ask those attorneys for a referral to one who specializes in your case.

wpietri11• 12 years ago

I would encourage everybody to have a lawyer. I've used the same guy for circa 15 years.

We talk maybe once a year, as I rarely need legal advice, but it's enough to keep the relationship alive. If I ever needed a legal specialist, I'd instantly go to him for a referral. And I'd use him to double-check any advice from the specialist.

The first time, it seems a little weird paying somebody $200-500 to, say, look over an employment contract. I was used to half-assing that myself, which cost nothing. But now I look at it as two kinds of insurance. First, you're drastically lowering the risk that there's something in the documents you missed. Second, if something bad does go down, your lawyer's now involved; it's not a new matter, it's something they blessed. And as a practical matter, negotiating contract points is much easier when you can, "My laywer says X" instead of, "I'm no expert, but I think X".

ilamont• 12 years ago

An interesting counterpoint to this is Julie Ann Horvath, who leveraged Twitter to expose a toxic culture at Github (1) and eventually forced the CEO and his wife to leave the company (2), and has kept Github and certain employees on the defensive (3).

She may have to deal with legal repercussions because of her actions on Twitter, but I can't help but think that nothing would have changed had she kept silent or quietly hired an employment lawyer after being forced out.

1. http://www.theverge.com/2014/3/19/5526574/github-sexism-scan...

2. http://recode.net/2014/04/21/julie-ann-horvath-on-github-inv...

3. http://www.dailydot.com/business/julie-ann-horvath-names-git...

jacquesm7• 12 years ago

When you're on the offensive things change considerably.

jpmattia• 12 years ago

That would make for a good followup article.

teacup503• 12 years ago

It's an interesting counter-point, but I'm not sure it's an example to be lauded; most of her complaints were found to have no basis in fact, and she's likely poisoned any future legal suit she might wish to bring.

Additionally, she's incurred significant personal liability in the process.

She may have to deal with legal repercussions because of her actions on Twitter, but I can't help but think that nothing would have changed had she kept silent or quietly hired an employment lawyer after being forced out.

I can't help but think the court of public opinion has been used to bludgeon an opponent, not achieve justice.

The public absolutely lacks the facts necessary to judge the merits of the accusations, and the objectivity necessary won't be forthcoming through inciting angry internet mobs. This wasn't something as simple as Sterling's overt racism -- and even then, the public's ability to observe and act on his overt racism wasn't possible until it saw the cold light of day through objective and verifiable evidence.

The safest and likely most productive way for GitHub to be held to account, if GitHub as an organization needed to be held to account, was by providing a clear, objective statement of the allegations, vetted by her lawyer, and if possible, a tenacious lawsuit and refusal to settle for anything less than a public statement.

ceejayoz2• 12 years ago

most of her complaints were found to have no basis in fact

Enough of them had a basis in fact to get a founder fired.

noisy_boy• 12 years ago

The difference is that when she did that, she wasn't getting sued. The point of the article is, when matters have reached the court of law, keep mum and let the lawyer do the talking.

danielweber3• 12 years ago

If you are interested in not losing court cases, "naming names" is a very very bad idea.

nailer3• 12 years ago

Horvath's professional standing would be greater if she took on GitHub in court, proved they were harassing her on the basis of her gender, and won.

wpietri11• 12 years ago

Sure, but it's a tradeoff. The Preston-Werners have made legally threatening noises. Julie Ann Horvath's public comments have made an impressive difference in the court of public opinion, but if she gets sued in the court of actual court, they provide a lot of attack surface to a plaintiff's attorney.

I think it's great when people speak up about bad conditions: it's a big way that exploitative and oppressive behavior gets remedied. It seemed like Horvath knew the risks she was running, and I admire her bravery. But I wouldn't want people speaking up to be heedless about the risk they're taking.

wisty• 12 years ago

If you want to hurt someone, then tweeting can be effective. So can setting fire to their dog. Neither is likely to help you win a court case though.

cgshaw• 12 years ago

(another attorney here)

Tweets aren't under oath or anything, but it opens up Carmack to lots of questions and possibly affects his credibility.

Often times cases come down to "he said / she said" types of claims and how a jury views them.

If ZeniMax mentions the tweets in court, it will likely be to try and make Carmack look like he acted out of hand, and that he rushed to make claims that arne't true (i.e. the IP / code distinction the poster makes).

Here's the thing about software suits. Most judges / juries are in a TERRIBLE position when it comes to evaluating the nuance involved in a suit like this. Think about the average person and how much they understand about what you do.

Lawyers will try to boil it down to themes and narratives that portray you as "bad." "Winning" in terms of how you evaluate claims or the press or your followers evaluate claims does not matter. It's all about how the lawyers convince a judge or jury you are wrong.

bhartzer• 12 years ago

Wouldn't most attorneys advise their client to keep quiet and not post on Twitter and talk to the media about the case?

esquivalience• 12 years ago

It's not always that simple. There is never anything wrong with talking about a case in principle. As an attorney myself I am often asked to look over this sort of article, press release or other notification. I encourage my clients to be open if they have nothing to hide.

However even posting honest, accurate articles online can come back to haunt you. Unless written very precisely, words can be interpreted by different people differently and often in a way that wasn't intended by the author.

This process doesn't have to be a cynical twisting of words - naturally, a reader's interpretation will be informed by their pre-existing point of view. When that view is one of a litigant, it can open up new issues in a case and lead to new ways to analyse evidence.

If you are posting about a case, make sure you're doing it calmly and definitely get it edited by your lawyer!

[edited for accuracy, typos]

erso• 12 years ago

I'm curious to know if, were the tweets to be used, they would also have to prove it was he that made them. Sure, they're from his account, but would that hold up in court? See: the many celebrities who have people tweet on their behalf with their (the celebrities') account.

Hansi• 12 years ago

Couldn't the same be said about e-mail? Which does hold up in court.

larrys2• 12 years ago

Ianal, but in a deposition he would be asked whether they were his tweets or not.

If he denied they were, he would be asked further questions and possibly caught in a lie. Such as "is this the only time that your account has been used by someone other than yourself?" or "So you are saying that this is the only tweet that you didn't make but the others before and after you did". And so on. My guess is that he would be advised to tell the truth to prevent getting further trapped as far as his credibility. There may also be other people that he discussed the tweets with that could be brought into the picture as well under oath in court I'm guessing. Bottom line: Denial is easier said than done.

wpietri11• 12 years ago

The basic advice of "Don't just do something; stand there!" is sound, but I'm curious if you (or other people) have practical suggestions on how to do that. In practice, it can be quite difficult to do nothing when it feels like that action is desperately necessary.

apalmer• 12 years ago

When sued the appropriate action is to immediately higher a qualified lawyer with expertise in the specific area. Then follow his advice. Until you do that... do not do ANYTHING.

mathattack• 12 years ago

I found a true gem hiding amidst great advice: the only lawyer that’s yours is the one you pay

Corporate lawyers exist to protect the corporation.

motdiem• 12 years ago

Without commenting on why Zenimax would launch such a lawsuit now and be public about it, I can't help but see Carmack's response as a potential intimidation move, e.g "You may win in court, but you will lose in the court of public opinion, and this will hurt your business more than losing this suit. Now think again about wether you really want to sue".

jacquesm7• 12 years ago

That would be an exceedingly dumb strategy because if such a link could be made then it would open up Carmack to yet another round of damages if the suit would be lost.

Blackmail is not a sound legal strategy if you have a lot to lose. If you're on your last dime and you don't own anything that can be seized you might try this route.

darkarmani• 12 years ago

That would be an exceedingly dumb strategy because if such a link could be made then it would open up Carmack to yet another round of damages if the suit would be lost.

How exactly? Plenty of people sue a company, lose the case, and still do a lot of damage to the company because of the distraction and public confidence. One example, is startups getting sued that are looking for another round of investment. They are definitely harmed even if they win the lawsuit. It cuts both ways. Sometimes a victory can be made to cost more than settling -- for either side. That's why people settle. If you can make the PR cost higher, the price to settle comes down.

jfoster• 12 years ago

I understand what the common wisdom is ("shut-up") when it comes to this type of thing, and I understand the stated reason why ("it will get used against you!"), but I don't understand the "how" part.

Carmack made a very clear, short public message about it. Rather than being any kind of admission, it was the opposite. A complete denial. How could Zenimax use that to strengthen their case? He's likely to repeat the same denial to the court anyway.

I'm not pretending I know better than the common wisdom, just trying to understand it better. If you were Zenimax, how would you use this tweet against him?

jacquesm7• 12 years ago

It wasn't a complete denial ('code' and 'patents' are not the only work products protected by IP laws and by employment contract terms).

That alone makes me believe this was not vetted by his lawyer unless they specifically wanted to misdirect the opposition. I don't think that's likely, and such misdirection would most likely fail anyway assuming the opposite side is halfway competent.

Making falsifiable claims in public simply does not help.

As for how Zenimax could use this against Carmack, let's not make their lives easier than we have to.

personZ6• 12 years ago

I am very confused that Carmack finds himself in such a position.

Carmack quite famously made "Fuck You Money" over a decade ago. He was driving garages full of super expensive cars. He should have been the one with the levers.

Instead he became, effectively, an employee again. Why? Why would he do that?

jacquesm7• 12 years ago

funding Armadillo can't have been cheap.

http://en.wikipedia.org/wiki/Armadillo_Aerospace

bchjam• 12 years ago

pretty much, he said Armadillo had drained all of his 'crazy money' at a QuakeCon a couple years ago

TodPunk• 12 years ago

This article has some flaws. For instance, Carmack isn't getting sued, Oculus/Facebook is.

Also, I didn't get the impression that Carmack was "angry" when he tweeted that. I always get the impression that he is pretty calm about all of the things he's saying, and the two tweets being referenced are just statements about his perception on the case. Since anger is the tone of the entire "mistake" from the article's perspective, it seems the article author is the one jumping to conclusions and writing things on the internet before they're due.

jacquesm7• 12 years ago

Good points! Have an upvote...

The actual defendant for now is Oculus Rift (because I suspect that's where the money is), but Carmack is very much in the line of fire (as the one who allegedly did the deed) and is currently CTO of Oculus Rift, so even if he's not the named party he definitely is in a defensive position here.

On top of that his current interest is in this particular case probably not aligned with Oculus Rift.

That means that your words should be weighed on a gold scale, especially when uttered through a public medium. I've fixed the post to take into account your comments.

personZ6• 12 years ago

I've gotten my karma pummeling elsewhere in this thread for taking this to task, but this is one of those cases where raw speculation is voted up on HN purely because the speaker panders to this audience, and the audience returns the favor. Put that blog post under a less known (on HN at least) name and it would would rightly have disappeared as raw uninformed speculation.

peterwwillis2• 12 years ago

What to do when people make you angry online:

1. GET OFF SOCIAL MEDIA. Everything you say and do will make you a target. The only things you can say that might help you would be contrition, so if you're not willing to do that, get the hell off social media. This is also good because it removes you from having to read things about yourself that people are saying. People's talk will not harm you; your reaction to people's talk will harm you.

2. GET AN OFFLINE JOURNAL. If you have strong feelings, write them out. Write until you can't feel anymore. But don't put it online; keep it offline. The purpose is to have an exercise that gets your thoughts out, and to be able to read through your thoughts and clarify them later. Write letters to the people you're angry with, then review them and edit them many times, and never send them.

3. TALK TO FRIENDS. It's incredibly easy to let internalizing your feelings change how you think, change your memories, and turn you into a shell of your former self. You can even develop anxiety disorders or PTSD if this gets out of hand. Talk to people who understand and love you and let them keep you in check. You need positive outside influences to keep yourself sane. Talk to a good psychiatrist if you can.

4. KEEP THE BIG PICTURE IN MIND. It's easy to confuse yourself and wrestle over details. Start by considering the intent of your actions, and work from there to understand the whole chain of events, impartial and without emotion. It takes a while to get there. Be totally honest with yourself, but don't convince yourself of things that you didn't do.

wpietri11• 12 years ago

Yes, yes, yes. Excellent advice.

The only thing I'd add is that it can be worth being visible about this. If you can make a polite and neutral statement before disappearing, that can help. E.g., "I wasn't expecting such a strong reaction; I obviously need to take some time to think this over and talk with friends before saying more in public."

pimlottc• 12 years ago

1. GET OFF SOCIAL MEDIA. Everything you say and do will make you a target. The only things you can say that might help you would be contrition

IANAL, but this seems like bad advice. If there's litigation involved, any sort of apology could be taken as an admission of guilt.

simonebrunozzi• 12 years ago

This is a HARD thing to cope with. I've been through it once, and I lost much sleep over many nights just because of it. Especially the first time, you have NO idea on how to deal with it. I can say that the best advice is to do nothing UNTIL you talk to your lawyer, and I can confirm that YOUR lawyer means the one YOU pay. Try to stay calm. Things like this take months, sometimes even years, to unfold. Good luck.

When Sued Don't Tweet

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