Marc Randazza’s Entertaining—and Effective—Legal Writing

Marc Randazza is an uncompromising First Amendment lawyer who fights for pornographers, beats copyright trolls to a pulp, and even defends the occasional law practice blog threatened by a trademark bully. As a First Amendment lawyer, Marc Randazza takes words more seriously even than most lawyers, and that is probably why his legal writing is so remarkable.

It is also remarkable for its subject matter. For example, Randazza once wrote a brief about the history of penis imagery (PDF). Here is the meat of the outline:

II. Phallic imagery has been a constant form of expression since the dawn of man and thus [is] not shocking to the sense of decency and propriety.

    1. The symbolism of the shaft.
    2. Our phallic history.
    3. Erecting the phallus.
    4. The dome.

I mean, I would pay to read some of Marc Randazza’s legal writing. He doesn’t beat around the bush or hide behind legal jargon. His writing is in-your-face advocacy, done with respect for the tribunal but contempt for his opponents’ feeble arguments. If I’d known more about Marc’s writing back when I was teaching appellate advocacy, I would have given his glennbeckrapedandmurderedayounggirlin1990.com WIPO brief to my class to study. Here is my favorite quote, found under the heading “Why Are We Here?”

There is no indication that the Respondent has intentionally attempted to confuse anyone searching for Mr. Beck’s own website, nor that anyone was unintentionally confused—even initially. Only an abject imbecile could believe that the domain name would have any connection to [Glenn Beck].

We are not here because the domain name could cause confusion. We do not have a declaration from the president of the international association of imbeciles that his members are blankly staring at the Respondent’s website wondering “where did all the race baiting content go?

Two points: (1) Marc won, because he was right; and (2) this kind of writing—somehow—came off as completely appropriate. It was appropriate because, like most of the cases Marc gets publicity for, Beck’s WIPO dispute was completely ridiculous, brought to bully someone who could not afford a lawyer until Marc Randazza stepped in. It was as close as lawyers get to a frivolous lawsuit, and so it was entirely appropriate for Marc to call it one.

Marc practices fearless advocacy; he takes cases he believes in and then fights like hell for his clients. You can’t do that in every case, but Marc Randazza’s legal writing is an example of what you can do when you champion a just cause.

Here’s another one. When an in-over-his-head young lawyer, Joseph Rakofsky, sued, well, everyone, Marc stepped up to defend the internet:

Rakofsky set the wheels of his own reputation’s demise in motion by exercising poor judgment. The wheels gained momentum due to Rakofsky’s unwillingness to take responsibility for his actions. Rakofsky now lashes out at others for his errors and omissions, and as unfortunate as it is that this suit has been filed at all, it will be a constitutional travesty if this case survived a Motion to Dismiss.

If you want to learn how to write great legal briefs, spend some time with Marc Randazza’s work product. You can’t get that fired up all the time, but when a case really matters, this is how it’s done.

  • http://koehlerlaw.net/ Jamison

    Yes, the motion to dismiss he filed in the Rakofsky case is a true masterpiece. As a defendant in the case (represented by other counsel), I had thought a lot about the case. I had two reactions upon reading the motion: (1) Why hadn’t I thought of that? (2) Why couldn’t I put it like that?

  • Guest

    It is actually common advocacy practice to blame the opponent, say that he has refused to take responsibility, lacks integrity, etc., as Marc did in the above quoted text against Rakofsky.

    Most of the time, I think that lawyers make a mistake in going too far in doing this. I recently had a business litigation case where the two sides had a dispute about interpreting a settlement agreement. Opposing counsel jumped up and down in her brief about how terribly we were acting. I calmly stated the facts, the law, and why our position was the more reasonable. I won. Judges don’t like the back and forth bitching between lawyers. They like professionalism, respect, and good arguments. Statements impugning the integrity of the opponent should just be the icing on the cake on top of a good legal position; and shouldn’t be over used.

    • http://lawyerist.com/author/samglover/ Sam Glover

      Fair enough, but in that case, the plaintiff’s qualifications were fair game, and I think Marc was right to attack them.

    • http://blog.simplejustice.us shg

      The problem with trying to assess the merit of an argument via a quote is that it ignored context and substance. The quoted portion is what Sam chose to include, not Marc’s argument or what it responds to.

      Guest’s (and I’m assuming there’s an incredibly good reason why Guest commented anonymously, probably related to his position in the Mossad) comment is a rather basic rule, that attacking the integrity of the other party is generally unpersuasive. However, when the other side relies on claims of intrinsic integrity to overcome his own lack of support in either law or facts, and thus places it directly in issue, it’s not only fair game, but a necessary point of attack.

      That’s the difference between a simplistic understanding of argument and a nuanced one. General rules are fine. Knowledge of when to deviate distinguishes the experienced lawyer.

  • http://gyitsakalakis.com Gyi Tsakalakis

    “The Tower of Invincibility will be built “as a permanent monument celebrating freedom, sovereignty, and peace in America.”11 The mere thought of it
    brings the memorable song from Team America, World Police to the Red, White, and Blue Mind. The only thing scandalous in this case is the bizarre and arbitrary rejection of the Mark, and in this context it is as if we are reading a graphic account of the forcible castration of an American Bald Eagle.”

    America, F*$#@ Yeah!

    • http://lawyerist.com/author/samglover/ Sam Glover

      Sometimes Marc’s briefs read like they were group-edited by Something Awful. I’m not saying that’s necessarily a bad thing.

  • http://www.godfreadlaw.com Paul Godfread

    In case anyone reads all of this and concludes that Marc is a jerk, I can tell you from experience, he is quite courteous in person. He shows that you can be aggressive and creative without being ass. Attacking the person is not persuasive, but attacking and ridiculing the arguments is usually fair game.

    “Why are we here?” For a heading, that is pure gold.

    • http://lawyerist.com/author/samglover/ Sam Glover

      I second that. I met Marc to talk about our case while he was in Minneapolis for a conference, and he was great.

      • http://blog.simplejustice.us shg

        I probably know Marc personally better than either of you. He can be a jerk. Wanna make something of it?

        While Marc can be as polite as the next guy, and is quite a lovable character, he is a character and wants to be a character. To make him out to be too white bread, or sweet and tepid, is as insulting as to call him a total asshole.

        • http://lawyerist.com/author/samglover/ Sam Glover

          Fair enough!