Update: Coble and Kirk Settle Their Differences

I wrote several days ago about threatened litigation against blogger Katherine Coble by legal counsel for JL Kirk & Associates for libel stemming from comments Coble and her readers had posted on her blog. Coble now reports that the Media Bloggers Association took up Coble's cause and, as these things tend to happen, a mutually agreed upon resolution short of litigation appears to have been reached.

Here's an old joke: The only lawyer in a small town was starving to death until another lawyer moved in and then they both got rich. Here's the reality, at least in many situations: The threat of litigation is a double-edged sword at least once competent attorneys are representing both sides in the dispute. Sanity short of expensive litigation usually prevails.

Here's another reality, albeit of an anecdotal nature: Being once a "starving" young lawyer, myself, I was approached by a would-be client who wished to sue someone for slander. We discussed the facts and, as it turned out, she had a reasonably good case as far as meeting the technical elements of the tort of slander was concerned but her only real damages were her wounded feelings. I explained to her that even if she were to win her suit the court would in all likelihood award no more than nominal damages (traditionally, one dollar) as a token of her vindication. She thought about this and decided not to proceed. Much though I would have liked to earn the fee, I was glad she did the right thing; but if she had decided to proceed I would have taken the case and not because I needed the work. Part of the problem with the so-called law and economics school of jurisprudence is that life is not a business.

One last reality, also mostly anecdotal, but I think relevant here: a memory from law school. We were discussing rental contracts, that is, leases in class one day and the almost universal inclusion in such contracts of clauses giving landlords putative rights that we had already learned were unenforceable. If you went in those days to an office supply store (these days probably somewhere online) and found boilerplate, fill-in-the-blank leases, you would find they almost all included such unenforceable provisions. Now, the ethics of a practicing attorney including such provisions in the drafting of a lease for a client are dubious at best, but that happens, too, and not because the lawyer doesn't know the clauses are unenforceable. Indeed, what she does know is that the average tenant will assume that such provisions are enforceable and is unlikely to challenge them. As often as not, perhaps, the law is as much a game of poker as it is of chess.