Tom Goldstein (“The Hustler”) and Atticus Finch

The most sacrosanct tenet of American law is enshrined on the facade of the Supreme Court: “Equal Justice Under Law.” The aspiration is ancient; the phrase comes from Pericles’ funeral oration. My favorite rendition of the concept as applied in American law is in To Kill A Mockingbird:

 

But there is one way in this country in which all men are created equal—there is one human institution that makes a pauper the equal of a Rockefeller, the stupid man the equal of an Einstein, and the ignorant man the equal of any college president. That institution gentlemen, is a court. It can be the Supreme Court of the United States or the humblest JP court in the land, or this honourable court which you serve. Our courts have their faults as does any human institution, but in this country our courts are the great levelers, and in our courts all men are created equal.

 

Apart from the obvious examples (e.g., the Equal Protection Clause), the law promotes equal justice in a variety of ways, including by preventing lawyers from arguing to a jury that a party’s wealth or poverty either absolves or indicts them. It may be true, as a practical matter, that a wealthier party can sometimes use their superior resources to thwart equal justice — or, at least, delay it — but lawyers all agree, or at they’re expected to say they agree, that any injustice is a shame on the legal system.

 

With that context, let’s talk about “The Hustler,” which was The New Republic’s name for Tom Goldstein, founder of SCOTUSBlog and name partner at Goldstein & Howe, which is self-described as “an appellate boutique focusing on representation before the United States Supreme Court.” He’s made a living off of arguing consumers can’t sue natural gas companies for manipulating prices, or that cities should be able to shut of residents’ water because their landlord didn’t pay the bill, or that it’s unconstitutional for West Virginia to tax coal companies for the coal pulled out of their mountains, or that drug companies have a right to use patient data to lean on doctors who don’t prescribe their medications enough.

 

These days, Goldstein is representing multi-millionaire poker player and stuntman Dan Bilzerian, who received a demand letter from Janice Griffith related to an accident that occurred after she apparently agreed to be thrown off a roof into a pool last month as part of a photoshoot for Hustler magazine. Here’s a video of the incident. She didn’t make it all the way to the pool, and broke her foot. 

 

So much for Goldstein’s practice being an “appellate boutique.”

 

Two weeks ago, Goldstein sent to Griffith’s lawyer his caustic reply, which you can read here. (Hat tip to Josh Blackmun, though the PDF copy I found is from TMZ.). Essentially, Goldstein argues that Griffith both assumed the risk of the fall and herself caused the injury by (allegedly) grabbing his shirt as he threw her; thus, Goldstein asserts, Griffith’s claim would be “sanctionably frivolous.”

 

I wouldn’t say she assumed the risk, but there is indeed an element of comparative negligence when a person agrees to be thrown off a roof. The comparative negligence door swings both ways, though: Bilzerian is, or at least claims to be, a professional stuntman with experience in ‘extreme sports’ and hazardous activities, including Navy SEAL training. According to TMZ:

 

A venture capitalist by trade, Dan Bilzerian (a.k.a. “Blitz”) has made a name for himself as a high-stakes poker player, thrill seeker and, more recently, Hollywood actor. … From swimming across an alligator infested lake or jumping off a 90-foot cliff to simply betting on a random person’s opinion or the flip of a coin, Bilzerian will take almost any wager. … .As an actor and stuntman, Bilzerian’s credits include “Olympus Has Fallen,” … as well as three films to be released in 2014 … True to his nature, Bilzerian spends his free time doing extreme sports around the world as well as training MMA, scuba diving, mountain biking, snowmobiling and racing cars. … He enlisted in the Navy for four years and went directly into SEAL training. After completing 2 hell-weeks and 500 days of training, Bilzerian was dropped from the program for a safety violation two days before graduation.

 

And yet, despite what could be described as expertise in such activities, there Bilzerian is, wearing sandals, with no safety equipment, trying and failing to throw a woman into a pool. In his letter, Tom Goldstein admits “I’m no physicist,” and that he has no “relevant personal experience,” and so he doesn’t “know the precise amount of thrust it takes to heave someone across to a pool a floor below,” but if anyone present that day should have known that, it was Bilzerian.

 

As Tom Goldstein muses, “I always thought this kind of thing was Photoshopped instead,” which is awfully close to admitting his client the stuntman failed to answer the first three questions that should be asked before a stunt is attempted: “Is the stunt worth the risk? Can it be simulated effectively? Or modified?”

 

My point isn’t to argue the merits of Griffith’s claim against Bilzerian. I don’t know all the facts. Who knows, maybe the full context shows she was wholly responsible and Bilzerian was wholly blameless; my point is that the claim is not frivolous on its face. Griffith, as part of her job, agreed do something hazardous with a person who claims expertise in the subject; this happens a couple thousand times a day on construction sites across the country.

 

No, my point here is to draw attention to the nature of Goldstein’s letter. Hostile letters — I heard them called “nastygrams” by an old-timer I worked for years ago — are litigators’ stock-in-trade. I’ve sent my fair share, received even more, and have written about them in depth here.

 

Nonetheless, I’m still surprised by the intensely personal nature of Goldstein’s letter. It’s more about Griffith personally than it is about her claim. That’s unusual, even for a “nastygram.”

 

Goldstein saves the worst for last:

 

Your client should just box up almost every last bit of her property (please exclude all videos and photographs as well as the seemingly inevitable small yappy dog) and drop it off with you in safe-keep for Mr. Bilzerian. After he receives the judgement in his favor, he will have it all delivered to him. Then he will probably blow it up with a mortar in the desert.

 

And there it is, the ugly truth of the law, coming down from on high from “one of the nation’s most experienced Supreme Court practitioners,” “one of the 50 most powerful people in Washington, D.C.,” “one of the nation’s 40 most influential lawyers of the decade.” Bilzerian is rich, and so if Griffith dares seek her equal justice under law, Bilzerian will retaliate in full, and will use the courts to seize all of her belongings and destroy them for his amusement.

 

I wish I could say Goldstein’s threat won’t work, and that the Courts remain available to make “a pauper the equal of a Rockefeller, the stupid man the equal of an Einstein, and the ignorant man the equal of any college president,” and a porn star the equal of a venture capitalist. But Atticus Finch was just a fiction about the law; Tom Goldstein is its reality.

 

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  • Sean Adwele

    The letter appears extortionate because it fails to account for bankruptcy protection and exempt assets under the law. (I don’t practice in California, but I assume that its law is similar to my state.) Even after a judgment, debtors have rights, especially against unsecured creditors. To tell a potential defendant that he will lose everything reeks of a sort of “debtor’s prisons” and really goes beyond anything sensible. It is like writing in a demand letter that the defendant will be subject to criminal penalties while knowing full well that there will be none.

    • http://www.litigationandtrial.com/ Max Kennerly

      Great point. I similarly can’t see any reasonable scenario in which the filing of Griffith’s claim, even if it lacks merit, actually results in the forfeiture of her property.
      I suppose there’s a “willful and malicious” exception to bankruptcy discharge protection, but it’s an insanely high bar to meet, and I’d assume that, even if a “frivolous” case could meet that standard (which is doubtful), reliance on counsel would defeat it as a matter of law.

      • Sean Adwele

        Right, and the effort to go after the limited sanctions, if any, for filing a frivolous case (e.g., appearance fee cost, attorney’s fees of maybe a few thousand dollars for drafting and filing a MTD) are not enough to make these avenues financially worthwhile. The whole letter indicates a fiction in which the plaintiff loses everything because she filed a frivolous suit. This sort of rhetoric is disgusting because it intimidates potential plaintiffs from having their day in court.

  • Lily

    I’m amazed by the unprofessional tone of Tom Goldstein’s letter. I’ve written and received sternly worded letters, but this one is harsher and more personal than I would expect from a member of the bar.

    Would his letter be admissible at trial?

    • Sean Adwele

      Probably not. Even if it gets past the usual bar on offers to compromise/settlement discussions, it is highly prejudicial (403 standard in federal court) and has little probative value because it is the statements of counsel and not of the defendant himself.

      • Lily

        So, it sounds like some judges would keep it out and others might let it
        in. I’ve certainly seen a lot of minimally probative pieces of evidence
        get through. Apparently, it’s a risk Goldstein was willing to take. I
        doubt a judge would be pleased to see a letter like that. They might
        think a lot less of Goldstein. I know I do.

    • http://www.litigationandtrial.com/ Max Kennerly

      Normally, settlement communications aren’t admissible at trial, but Goldstein’s letter is just a nasty threat, not part of a negotiation. I’ve seen those same sorts of letters admitted as evidence at trial, including in trials where I represented the target of the letter. The cross-examination isn’t pretty.

      I’m not licensed in California, but this CLE article suggests they follow a similar rule as elsewhere, in which letters like this aren’t protected by the rule, and thus can be admitted at trial. https://www.dailyjournal.com/cle.cfm?show=CLEDisplayArticle&qVersionID=299&eid=905828&evid=1

      • Sean Adwele

        Mr. Kennerly: that is very surprising to me. I would not even think of tendering such a letter as evidence because it seems so prejudicial and serves no evidentiary purpose.

        • http://www.litigationandtrial.com/ Max Kennerly

          You are correct that the letter is not automatically admissible, but it might be relevant to a fact at issue, in which case it would be admissible. Goldstein is acting as Bilzerian’s agent and stating Bilzerian’s side of the story. If Bilzerian later takes a factual position at odds with the facts conveyed in that letter, then the letter can be used for impeachment purposes, and the lawyer can be called to testify about the source of those facts. I’ve done this before. It didn’t go well for the other side.
          The prejudice is, to me, not that great. It’s not like we’re holding Bilzerian to a legal argument advanced by his lawyer. It’s about the facts asserted there, including facts asserted about Bilzerian’s mindset both at the time and presently. Presumably Bilzerian approved this letter before it went out and, even if not, the factual assertions therein had to come from Bilzerian. It’s not as good as if Bilzerian wrote it himself, but it’s just as good as when you cross-examine a corporate representative with a press release from the company.

  • John Day

    This is a letter written by a bully. He should be embarrassed.

    • http://www.litigationandtrial.com/ Max Kennerly

      I have to assume he is by this point. I doubt he figured it would become this widely known.