Tim Rogers - the pastor of Ebenezer Baptist Church in Indian Trails, NC - continues to make the absurd claim that Jon Autry's filing a motion for legal fees is itself a "lawsuit" against Ergun Caner. Earth to Tim: Jon Autry NEVER filed a lawsuit against Caner. Caner filed the lawsuit. Caner lost, and lost big. Both federal judges laughed Caner out of the courtroom.Now it is time for Caner to pay the lawyer of the other party for his time spent defending his client from a lawsuit that the judge ruled should never been filed in the first place. But for fees to be paid, Joshua Autry has to file a motion within the existing lawsuit filed by Caner. The existing lawsuit that Caner started. Not a new one. Got it, Tim? The judge is now considering this motion, and will rule after Caner has a chance to respond, and Autry responds to their response.
Makes sense, doesn't it? Not in Tim's world, apparently.
Tim Rogers says the following at his blog:
"...Jonathan Autry has clearly filed a lawsuit against Dr. Caner. His, is the same lawsuit, that of a civil suit.""Clearly filed a lawsuit". Uh, no, Jon Autry has never, ever filed a lawsuit against Caner. My guess is Tim Rogers uncovered an Old Testament verse on which he is basing his expert analysis.
Gene Clyatt tried to respond to Rogers' nonsense by posting this to Rogers' blog comment section, but Rogers didn't let it through:
"The documents that I have seen asking for the court to award Autry’s legal expenses contain, in their header, the exact same docket number (6:14-cv-000046:14-cv-00004 (Caner v. Autry)) as Caner’s suit of Autry, which means that these motions are not a separate lawsuit, but motions filed in the same legal proceedings that were instigated by Caner. These documents are available online from the court —https://ia600607.us.archive.org/17/items/gov.uscourts.vawd.92537/gov.uscourts.vawd.92537.docket.html"Then Rogers argues that for Autry's brother to expect his fees to be paid is "worse than the suit". At least in this statement, Rogers is admitting Caner's suit is bad, but that Autry's attempt to collect legal fees is worse! This doesn't even make logical sense. But Tim is a Man of God, and thus the logic of this world is not the logic of Tim Rogers.
"For people like JD Hall calling it absurd for Christians to sue Christians see nothing wrong with Autry filing a legal request of the court to recompense for funds he was not charged. His Brother [Jon's brother, Joshua] was on a “pro Bono” basis. Pro Bono means no charges so now to seek recompense is even worse than the suit. If it was no charge then one cannot now say there was charges. Certainly if there were filing fees that is one thing but to charge for hours to defend, that is something else because it was pro Bono."Tim is wrong. "Pro bono" doesn't mean that there will be "no charges". He didn't bother to do some basic research here. It is perfectly acceptable action on the part of a lawyer who has taken on a pro-bono case to seek out reasonable attorney's fees when they prevail in a legal action. In fact, whether a case is pro-bono depends not on whether any fees are secured through motions by the prevailing party, but on the expectation of fees when the lawyer accepts the case.
"According to the ABA, whether work qualifies as pro bono turns on the lawyer’s intent at the time of undertaking the project. Because Rule 6.1 requires that service be provided without fee or expectation of fee, the intent of the lawyer to render free legal services is essential for the work performed to fall within the meaning of pro bono. Therefore, the ABA has taken the position that an award of statutory lawyers’ fees in a case originally accepted as pro bono does not disqualify such services from qualifying as pro bono." (Fraisinette and Cunningham of the PLI)So if Joshua Autry does secure legal fees for his work on this case, his time spent will still be credited to him as "pro bono" because his intent was to take the case without an expectation of fees. The ABA does expect lawyers to extend 50 hours of pro-bono legal work each year, and I think Joshua's work on his brother's behalf will earn him payment for his services when the judge rules, and credit for pro bono service rendered. So thanks, Ergun, you helped Joshua hit a grand slam: payment for his time spent on your case paid by you, and credit for pro bono services in 2013 and 2014. Excellent! Seminarians like Tim may disagree with this, but no one cares what seminarians think when it comes to matters of law.
As they like to say in Puerto Rico about those who are simple minded: "Bendito". Poor Tim. His pea-brain can't fathom that Joshua Autry is due reimbursement for the time he spent defending his brother against a frivolous lawsuit (even though it was pro-bono - which anyone might expect a brother to do for his brother!), and the man who must pay it is the man who decided to bring the suit in the first place. This is how the legal system works, Tim. When potential plaintiffs see examples of judges granting legal fees to the defense, this deters future frivolous lawsuits from clogging up the courts. I know that is complicated, Tim. Read that a couple of times and it might sink in. Or talk to one of the lawyers in your church, they'll help you figure it out.
Caner should consider himself lucky that the judge can't throw punitive damages on top of the legal fees, for filing such a ridiculous lawsuit in the first place.
13 comments:
I've read through Pastor Timmy's blog post and comments, and I THINK I MIGHT have ascertained what he is TRYING to say (and believe me, it is an arduous task) - that Autry is now seeking affirmative relief for attorney fees against Caner and therefore he has effectively "sued" Caner. I'll go ahead and give Pastor Timmy that. Yes indeed, Autry chose to seek affirmative relief against Caner, albeit TO OBTAIN RELIEF AGAINST CANER'S FRIVOLOUS LAWSUIT. So yes, I'll agree that in substance Autry is "suing" Caner, even though in legal form it is part of the lawsuit that Caner filed. The big difference is that Autry's "suit" has MERIT.
But that's all really secondary. What's more fun than a barrel o' monkeys is reading through Rogers' bizarre argument that Autry is sinning by "suing" Caner, whereas Caner was, in effect, doing the Lord's work by suing Autry. You'll just have to go read it for yourself. But watch an episode of Beavis n' Butthead first to get your brain warmed up, though.
Finally, I'd note that Pastor Timmy is apparently also a lawyer, and a very knowledgeable one at that. Because he knows all about copyright law and civil procedure and "constitional" law as he spelled it. He explains us, in no uncertain terms, that the judges in these two Caner suits were just flat out wrong - they don't know the law like Pastor Timmy does, apparently, and/or they're corrupt because they don't like Liberty University, so to get back at the school that fired Caner from his position as seminary dean, they rule against Caner.
I suppose that there might be an issue with justification of the fees. On the one hand, it is open and shut. Many in here say Caner never stood a chance. I know of a similar case with about as many court appearances and body of work that was less than $10,000. I do not pretend to know what all was involved, experts?
Thanks for this. When i was reading what Tim wrote I truly thought that either he or I was in the Twighlight Zone
I don't think that anyone who has read anything that TR has written expects a good explanation to make any difference to Tim. But I suspect it was fun and I appreciated it.
1. The relationship between attorney and client, that the attorney is not charging the client, hence acting pro bono publico -- for the benefit of the public -- is not an issue in the recovery of fees. Most civil rights litigation is undertaken with no expectation that the client will be able to pay, but with the hope of recovering attorney fees and, on occasion damages.
2. The award of attorney fees is generally at the discretion of the trial judge.
3. It is rare that a federal judge is accused of bias and it is generally not a good idea to base an argument that a federal judge was biased. It will guarantee that the judge recuses himself if a suit involving Rev. Tim lands in his court, since judges make extensive efforts to avoid even the possible appearance of bias.
4. Finally, if Caner's attorney believes the judge was biased, an appeal can be made. But I suspect that won't happen, because were such an appeal made and lost, the court would likely award the attorney fees and Caner would become a debtor in extremis.
From Pastor Timmy's blog post questioning whether Dennis Kim should be the choice for SBC President:
"Dr. Kim is a Korean and certainly has maintained a great church there in the Maryland area. Thus, this is not about Dr. Kim as a person."
What the heck does the fact that Kim is "a Korean" as Pastor Timmy puts it, have to do with anything? When Fred Luter was nominated did he say, "Luter is a black and certainly has maintained a great church there in the New Orleans area"?
...and the SBC wonder why they are declining in membership?
They should start their services with the words, "Step right up folks! Popcorn, get your popcorn, cotton candy..."
...and the SBC wonder why they are declining in membership?
They should start their services with the words, "Step right up folks! Popcorn, get your popcorn, cotton candy..."
Thx attorney - how do you suppose $ 30,000.00 of attorney fees accumulated? I am trying to imagine what what the body of work was that caused that amount. Treble charges?
That is only 120 hours of work at 250.00 per hour, which is reasonable attorney compensation in much of the U.S. Now some was legal assistant time at approximately 1/3 of that rate, but it is still not a lot, given the research time and writing time, responding to phone calls and demands from the other side, etc. I usually figure 2-3 hours prep for a one hour hearing, and that is after the research and writing, interviewing of the client, etc., has been done. Truly not an unreasonable amount. And I am sure that had Caner won, his attorney would have been asking for something in the same range.
My comment on Roger's blog (awaiting moderation):
Most of your criticisms of me and my brother are fully addressed in my brief filed with the motion for attorney fees, which involves an in-depth look at Ergun’s true motives (suppressing criticism and removing misstatements from the internet), Ergun’s unreasonable legal posturing, and the reasonableness of my time in the case. It is available here. Reading this would likely correct your incorrect views about my brother.
I write here to address them head-on. First, Jonathan is not suing Ergun Caner. I have filed this motion asking the Court to reimburse my current firm and former law firm for the time that the firms have allowed me, an associate, to work on his case. Almost all of the fees will go to the firm I used to work for to reimburse the firm for allowing me to work on the case instead of requiring me to work on other cases with clients who pay. I am gracious that both firms permitted me to work on the case, and I do believe that they should be rewarded for doing so.
Jonathan will not see a dime of an attorney fee award. Under the Copyright Act, generally speaking, the losing party has to pay the winner’s attorney fees. Although Jonathan had no choice, Ergun chose to file a frivolous lawsuit knowing this risk and continued to assert his nonsense legal positions for almost a year now knowing that he will pay attorney fees when he loses.
Second, my representation is still pro bono because I never charged my brother for my services, nor would I have if my brother lost. My filing of a fee petition against Dr. Caner does not affect this at all. If the court reduces my fees or awards no fees at all, my brother will not receive a bill for even a fraction of an hour. This is a common practice of many Christian legal organizations, including the Alliance Defending Freedom, of which I am a member and have worked with on numerous cases to protect the rights of Christians. If you think this is unethical, then you have a fundamental disagreement with every Christian legal organization that I know.
As far as the amount of time I put in the case, it was necessary due to the multitude of issues presented. Ergun initially filed in Texas (a state without jurisdiction) and refused to transfer to Virginia until after I had to get admitted in Texas by motion, file a motion to dismiss for lack of jurisdiction, and a motion to transfer—all of which had to be researched before written. All of this time was wasted due to Ergun’s unreasonableness.
I also had to address more issues than fair use (what the judge ruled on). For example, I addressed whether Ergun has any rights to videos produced by the military and released under the Freedom of Information Act, whether Ergun waived his rights to the videos, whether Ergun can seek attorney fees at all when he didn’t apply for a copyright until after the videos were removed from the internet, and whether Ergun can seek any relief without proving that Jonathan would ever repost the videos. Because Jonathan could not afford to hire a copyright attorney, he was stuck with me (a civil rights attorney). As a civil rights attorney, I had to research every single one of these issues for the first time.
Rest of comment:
Finally, Ergun has repeatedly shown and expressed through his counsel that he does not care about protecting his so-called “copyright” for the purpose of generating revenue. For example, the way copyright actions typically go is that a person or business sues to protect their ability to generate profit because, if someone makes the work freely available, it makes it harder to sell. So, if I post an entire season of 24 on YouTube, it would be harder for Fox to sell DVDs to people what they can see online. From the beginning, Ergun has not sought to sell the lectures in question; rather, he sought to remove the lectures from public view because they expose clear false statements. This would be like George Allen suing the person who posted the “macaca” video online without his permission. Not only does such litigation seek to stifle criticism, it seeks to remove works from public view, which is precisely the opposite of the purpose of the Copyright Act.
Second comment (awaiting moderation):
The link I posted apparently doesn’t work. This should: http://ia700607.us.archive.org/17/items/gov.uscourts.vawd.92537/gov.uscourts.vawd.92537.68.0.pdf
Third comment (awaiting moderation):
I don't know if you care or not, but before you make assumptions, I'm not Calvanist.
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