My thoughts on his Answer Brief

Asshat Rat ... Great Lawyer ... NOT!

I was pretty shocked by Asshat Rat Lawyer's Answer Brief.  I mean, he's a practicing lawyer, and that's the best he could do?  He's a seasoned and experienced divorce lawyer.  His Florida Bar record shows that he was admitted in Florida on 4/25/1996.  It also shows he graduated from law school in New York in 1991.  New York Bar's records indicate he was admitted the same year. That's 20 years of experience.

With that much experience, I thought he should have done a MUCH better job.  I could have created a much more persuasive Answer Brief myself.  In fact, one of my exercises in writing my Initial Brief was to imagine what he might argue in his Answer Brief.

Asshat Rat Lawyer's Appellate Experience

I began to wonder how much appellate experience he actually has.    At least -- pathetic as she was -- my last attorney had the decency to say that she had no appellate experience and, therefore, never takes on appeals.  Did he lie to his client regarding his experience?  Or, did he and his client assume that I would be incapable of writing a brief?

I could only find one appellate case in which Asshat Rat has ever submitted a Brief before.  It was a pretty straightforward case involving temporary attorney's fees being awarded to his client, a 77 year old man.  His client's wife -- a very wealthy 82 year old woman who filed for annulment not long after the wedding -- argued her husband had waived his right to fees during an annulment hearing.  Her husband claimed he had the right to attorney's fees based on an antenuptial agreement which the wife stated was entered into with coercion and overreaching.  Because the husband retained Asshat Rat to defend against the wife's claims regarding the agreement, the appellate court affirmed the lower court's decision that he was entitled to temporary attorney's fees.  I guess that because Asshat Rat won that case, he believes he is a qualified appellate lawyer!

How interesting that his ONLY case in appellate court is one where a woman claimed her husband used coercion to sign an agreement.  Asshat Rat Lawyer has apparently created a niche for himself representing abusers.

Asshat Rat Lawyer's Bankruptcies and Foreclosures

Upon further research, I found a Ripoff Report on Asshat Rat.  He's been busy responding to it defaming the author.

Apparently, he's also been pretty busy with his own (and his wife's -- who is also his paralegal) bankruptcies and foreclosures of late.  He filed for bankruptcy in 1998, he tried to sue someone he bought property from in 2009.  And apparently, he filed for bankruptcy again in December of 2012.   His wife filed for bankruptcy in May of 2011.  They just do not like paying their bills!  They're perfect companions for ogre!  Oh, and I did I mention Asshat's license to practice law was suspended for two years back in 2004 for unethical conduct?

What I Learned About Brief Writing

Prior to writing my first Brief, I studied for months.  Reading it over now, I think I could have done a better job on parts.  It was very difficult for me to write.  It was very personal.  It re-traumatized me to go through all of that again.  I had no brief-writing experience.  I learned the process in law school, but only recall perhaps one or two cases involving appeals in any of the law firms I've ever worked for, and that was many years ago.  This was an entirely new experience.

One of the things I learned is what the appellate judges actually read and pay attention to.  Appellate judges read hundreds of briefs per week so it's important to capture their attention.  It was suggested that I tell a story, not write in legal-eze, and create something compelling to read.  After all, these judges, their clerks and staff attorneys read brief after brief after brief all day long.  It's boring!

No Personal Attacks!

The number one point appellate judges detest:  personal attacks against the judge, the other party, or his/her attorney.

Right away, in the second paragraph of Asshat's Counterstatement, he launches into attack mode:

"It is apparent from the Statement of the Case and Facts of the Appellant’s Initial Brief that the Former Wife continues to completely distort and/or fabricate the facts in a self-serving and legally insufficient manner."

He goes on to say in his next paragraph:

"Throughout the litigation, and throughout this Appeal, Appellant attempted to present herself as a “domestic violence victim.” There is absolutely nothing in any court record recognizing the Former Wife as such. In fact, the parties entered into an Agreed Final Judgment of Injunction (2 R. 210-218) which specifically states “By agreement of the parties, the Court makes no findings of fact.” 

This is typical argumentative "Asshat Rat style" attempting to portray an ongoing irritation that occurred again and again in the lower court.  While he may have been able to create that perception in the lower court by going before the same judge three times in a week, does he not realize that the appellate judges who read these briefs will be hearing about this case for the very first time?  Does it not appear strange that a man would enter into an Agreed Injunction Against DOMESTIC VIOLENCE if there was NO domestic violence?

It gets even worse in his first argument when he attacks me outright:

"The Former Wife, in her Amended Initial Brief, attempts to paint herself as an alleged victim of domestic violence. This is either simply a self-serving portrait of the Wife, or the ravings of a delusional individual, as there is absolutely nothing in the record indicating that she is a victim of domestic abuse."  

It's often said that judges read either the Reply Brief or the Answer Brief FIRST!  Does he really want their first impression of him to be that of attacking the other party?  

In another attack, he mocks the name my attorney gave to the Motion In Opposing of Motion to Strike by using (sic) after it.  Sic is Latin abbreviated from sic erat scriptum which means "thus it had been written."  In other words, "look at this stupid title."  Nice one, Asshat Rat!

Did He Not Review The Record?

I was also surprised at Asshat Rat's apparent lack of familiarity with the record.  His glaring inaccuracies are not difficult to verify, and that's what clerks of appellate courts do, and do very well.

He alleges that I had 5 consecutive attorneys.  The record shows that I had 2 attorneys at the same time during the first 6 weeks of the case, a third attorney from then until the 5th month of the case, and was thereafter, unrepresented for 8 months before I retained my 4th and final attorney.  The vast majority of the pleadings filed in the case were filed by me, pro se.  Does he not realize that the appellate court staff have the record available to review?

He alleges that my attorney called him at the time of the deposition to say that I would not be appearing.  His own Motion to Strike states that my attorney called him at 4 p.m. the day BEFORE the deposition.

Some of his other arguments make even less sense.  He alleges that I only began to "paint" myself as an abuse victim AFTER I relocated.  The arrest report is dated March 14, 2011.  The Agreed Injunction -- which he referred to multiple times throughout his brief -- is dated March 29, 2011.  Yet, according to his own client's testimony during the final hearing, I did not relocate until the first week of June 2011. Did they change the calendar in Florida so that June now falls AFTER March?

He vehemently argues there is NOTHING in the record to indicate that I could not afford to pay an attorney.  In actuality, it's all over the record in multiple pleadings and mentioned in hearing transcripts.

On FOUR different occasions, he refers to the ONE and ONLY court warning I ever received regarding striking my pleadings.  He claims that court warned me "numerous" times and "time and time again".   Does he think that including the ONE and ONLY warning four times will be persuasive?

He argues that striking my temporary relief motion would have had "absolutely no effect" two weeks before trial and would not have been sufficient "punishment".  The main goal of that motion -- which he calls "a bizarre move" --  as my attorney explained to the court during a hearing, was so that I could pay her to represent me at trial.  How then, could it have no effect if I could not afford an attorney during trial?  Of course, yes, striking ALL my pleadings had the effect he wanted:  it gave him and his client another method to track me down.


He Found My One Mistake Though

I will give him some credit.  He caught the ONE item mentioned in my brief which is NOT in the record.  I made the statement "To a woman who had to borrow $2,500 to retain an attorney,  that is a small fortune."  That should have been in the transcript of one hearing as it was stated in court -- but he told his court reporter when to come on the record, and that transpired beforehand.  I owned that error in my Reply Brief.




Um Asshat, It's Not In The Record

It's a pity he wasn't quite as conscientious about his own record checks.  He claims his client was going to appear in West Palm Beach for my deposition.  He claims he was never served with my Motion for Reconsideration.  Neither of these are in the record.  He claims the Order on the Motion for Contempt hearing was never objected to.  My attorney submitted a competing order which is in the record.  And actually, he discusses her order in his Motion to Enter Proposed Order on Contempt -- which IS in the record.  He claims there's nothing in the record to support my claim that I was prohibited from participating in the final hearing.  My Motion for Reconsideration addresses it -- and it'a sworn motion, under perjury, because I was pro se.  He argues that I wasn't in substantial compliance with discovery when it's plain to see that the only information not provided was my home address and the address of my employer.


Other Oddities And Stupid Mistakes

Some of the other oddities of his brief are things like the fact that he misspells my name in the first paragraph of the his Counterstatement.  He filed his brief, then amended it twice.  One would think this would be an easy error to correct.   Also, he changes his numbering in the Summary of the Arguments using 1, 2, 3, 4, whereas, in the rest of the brief, he uses roman numerals, I, II, III, IV, as is  appropriate.  And he capitalizes the third issue in the table of contents and the argument heading, whereas he does not capitalize the others.

One of the most amusing errors is his mistake in citing a case.  He cites Poling v. Palm Coast Abstract and Title (a case I cited in my Initial Brief) twice as 357 So. 2d 464 (Fla. 2nd DCA 1978).  The correct citation is 882 So. 2d 483 (Fla. 5th DCA 2004).  Did he not even look up the case?  I mean, he is an attorney running a law practice, with two paralegals, a secretary and a receptionist in his employment.  Could no one look up a citation for an appellate court brief?

Then, as if it's important, he references that his client continues to live in Florida, while I relocated to the Washington, DC area, so we live hundreds of miles apart.  Is there no way to travel from Florida to DC anymore?  Did airlines discontinue that route?  One also has to wonder exactly WHY a woman would leave a house in sunny SE Florida and move to a rental apartment in the DC area .  Could it be to escape domestic violence?

He argues over and over that I seek to re-litigate my case and to continue arguing my case; yet, while the case was pending, I refused to comply with discovery which would have enabled me to litigate at the lower court level.  What reason -- other than to protect myself from a violent man -- did I have to conceal where I live and work?  If I did not need to protect myself, surely I would have provided information regarding my location so that I could litigate at trial.

As one friend who read the briefs said, "He's blowing smoke and mirrors because he's got nothing."

His Favourite Cases

He seems to love three cases:  Mettler v. Mettler, 569 So. 2d 496 (Fla. 4^thDCA 1990), Rosen v. Rosen, 696 So. 2d 697 (Fla. Supreme Ct. 1997) and Diaz v. Diaz, 727 So. 2d 954 (Fla. 3d DCA 1999).  He used them in two motions in the lower court, and again, during the final hearing -- in his Order.  Unfortunately, he doesn't seem to understand them well.

My last attorney practiced law by forms -- forms made available online by the Florida Supreme Court for pro se litigants.  She used them for everything, and really struggled to compose a motion herself, if there wasn't a form available!  Since Asshat Rat seems to cite these cases over and over, I wonder if he works from templates?  I wonder if he realizes that Rosen is the prevailing authority as a Supreme Court case?  (Oh well, at least he cited these three cases correctly!)

He also loves claiming I'm "vexatious and overly litigious."

What Will The Appellate Court Think

It remains to be seen what the appellate court decides.  Very few cases are overturned on appeal.  Appeals are successful perhaps 10-15% of the time.  While I think his Answer Brief is atrocious, how the appellate court views it may be entirely different.

Will the appellate court simply view this as me refusing to comply with court orders which then, justifiably led to my pleadings being stricken?  Or, will they agree that I should not have been ordered to disclose my address to an abuser and that I was, otherwise, in substantial compliance with discovery?  Will they understand that as a non-driver, disclosing my work address was akin to disclosing my home address, since he could follow me home?  Or, will they -- as drivers in a state where everyone drives -- not quite understand that point at all?

If I win on the discovery protective order regarding my address, the other issues are moot.  If I lose, do I have a chance on the striking of pleadings?  Maybe.  Or, maybe not.  If I lose on that, will they consider his fraud during the final hearing?  Will they consider that I had already been sanctioned enough?  I hope my Reply Brief clarifies some of the issues.

Will they see the pattern of abuse and legal abuse?  Or, is that something only those of us who have been through the legal system with an abuser know of?

My friend, who has worked for law firms for most of her life drafting and reviewing many pleadings, read his Answer Brief first.  She thought my Initial Brief was a breath of fresh air after that.  She really enjoyed my Reply Brief and thought it was my best work yet.  But she's also a domestic violence victim.  She "gets" it.  There's no way to know how the judges will feel.  I don't even know yet which judges are assigned yet.

So many questions ...

Win, lose, or draw ... at least, I tried.  I've now done everything I could possibly do.