No one's position is unassailable. In areas where questions of legal strategy intersect with business dynamics (e.g., Will the defendant settle for more if we take this case all the way to the courthouse steps?), non-lawyers often have a lot of add, and their instincts may even be superior to the instincts of a lot of lawyers.

With the sort of thing we are discussing (What is the standard for class certification and is the proposed class likely to be certified?), I don't know that I have ever met a non-lawyer whose judgment I would trust over the judgment of a good litigator with subject matter expertise.

I don't see any reason to blindly follow any advice. But I suspect that people who reflexively follow medical device make better medical decisions on balance than people who "do their own research" and take that research heavily into account when making medical decisions.

Everyone is free to have an opinion. I may walk into my cardiologist's office with a lay opinion about whether I need heart surgery. Maybe my opinion will be informed by what I read on medical websites over the previous week. But if my cardiologist disagrees with my opinion, and if the person I go to for a second opinion also disagrees with my opinion, I am going to be pretty quick to change my mind. That's because my conviction in my opinions is highly correlated to whether I know wtf I am talking about. And I don't know much about heart surgery.

I'll share an anecdote Cuepee. When I has a very junior lawyer, I worked on a securities fraud case that arose from alleged accounting improprieties. There was a mid-level associate who worked on the case. He was an extremely smart guy -- Harvard or Yale law school type. He had no professional training in accounting but he had spent a lot of time reading the relevant accounting rules and he certainly knew wayyyyy more about accounting than most litigators. Lawyers hate wading through the accounting rules, and for the most part, we were all happy to let this guy do the early heavy lifting on the accounting stuff. He wrote a bunch of internal memos that were, for lack of a better word, risk assessments. Early in the case, we made some strategic decisions based on those risk assessments.

Years later, long after I had moved on to other work, I ran into someone from the old team. That person said to me: "After we hired an accounting expert, we learned that most of those accounting memos that Mr. X wrote were off-base. In some cases, they were just flat out wrong. Can you believe that?"

Yeah, I can believe that.

Agreed.
My question was more to why it seems to bother you and at least one other lawyer here that anyone might both give deference and yet still hold to some minor disagreement.

We had an instance a few days back where I was very deferential to your view and everything was polite and well discussed and yet the other lawyer who chimed in basically treated it as if some offense since I did not simply abandon my view entirely.


Sure from an EV standpoint, following the expert advice as opposed to going against is not going to end well most of the times.


That said what about the situation I speak to specifically.

I can see there is no harm in going against their view. So what, I bought and have in storage masks I don't need, that we will use next time we paint and if they end up being wrong I have protected my family if masks end up in short supply.


Do you specifically set aside that logic and thinking simply because 'the experts said' in a belief that since it is always long term EV to follow the professionals it is therefore always the case you should do without being critical when the EV shifts, as it did with my very insightful purchase?

Could you ever and would you ever detour from such 'expert guidance' in a similar scenario as i did based on my analysis or do you consider yourself more of a conformist on that?

I only ask as many, arguably most, are more the conformist type on that. I did not have one family member who understood or agreed with me buying those masks anyway when the CDC and even Canada's health professionals were not supporting it.

I simply will not put it aside. The next Novel potential Respiratory Pandemic, I will again buy masks early and if it turns out it is not respiratory, so what??? I have masks I don't need.

Do you think you could or would ever make that call against the CDC or other expert advice?

300k? That seems absurdly low, even for the early 2000s.

Now, in a typical patent case in the U.S. with $100 million in alleged damages, it would not be unusual for each side to spend $10 million or more to get very close to trial.

One of my most favored mentors and a continual biggest investor in any company I got involved with once said to me re litigation 'The lawyers job is to assess legal risk and to present the worst case scenario. Your job is to determine Business Risk and to weigh the odds of each scenario presented by the lawyers against the upside or downside the company will face. These two views will over lap but not perfectly and it is your call to then determine where the path you cut will go between those positions'.

It was great advice and made me far more comfortable in my natural tendency to push back against 'expert advice'. You push back not because you saying they are wrong but because it is important they 'convince you' by making their arguments in a way that is persuasive. Because if you are in a position of leadership and you default to logic you don't understand or do not agree with it 'just because experts said so', you have no defense if the expert advice ends up being wrong and it costs the company. No investor wants to hear 'well ya things may have ended badly but the experts gave us that path.... It was not one I agreed with but...'

The first time an Investor hears that, is the last time you will hear from that Investor again. They expect you to understand and agree with the course of action taken and push back until you do. And if you don't (as in my IP example) then make your case.

Blanket deference is not a good look (and I am not suggesting you are calling for that).

There was never any chance that there would be any serious negative consequences to buying the masks and wearing the masks. At worst, you were erring on the side of caution, which is harmless. Other than the cost of the masks, it was obviously risk free for you to follow your gut.

Most decisions have potential negative consequences (e.g., my cardiologist example). I'll ask plenty of questions, but if the stakes are reasonably high, and I don't have any expertise, I am very likely to defer to subject matter experts. Do you really find that odd?

You are conflating two different issues. Lawyers don't always appreciate the business consequences of various decisions. For example, a lawyer might tell you it isn't worth the cost of filing a lawsuit because you only have a 20% chance of success. You, as the business owner, know that the entire business is flushed down the toilet if you don't win the lawsuit, so you are willing the roll the dice.

The lawyer isn't giving you bad legal advice when she tells you that the EV of the litigation is less than the expected cost. She just hasn't taken business risks into account. She should be taking those business risks into account when giving advice, but in a lot of cases, the business risks may be more visible to you the executive than they are to the outside lawyer.

No one is telling you not to put your lawyer through his or her paces when you receive legal advice.

Our lawyers were also the lawyers, at the time for RIM (Blackberry) who were undergoing a massive IP suit and challenge that could have ended their business at its most successful point.

I remember this very specifically as the weight on me was pretty intense as is was my first brush with litigation and i was very young (early 20's) . The lawyers told us that we faced a challenge to undo our patent using 'prior art' infringement and that for them to mount a defense against that claim and put together the required review and rebuttal and defense outline and to file it and for us to go thru the discovery process where they would be requesting emails and other correspondence and files pre our first court appearance would be that $300k number.

That would not involve any in Court fighting if we went to that next level.

We knew the litigants were not going to be open to settlement without seeing that we A) had a defense we could elaborate, and B) were willing to spend money willing to fight it. Many times these bigger companies are just testing whether you will fold and give in, as Investors typically hate spending money on lawyers and not building out the company, or whether your will fight and then how competent their lawyers assess your lawyers rebuttal doc.

Once they had our rebuttal filing and if negotiations went no where and in fact this would have the chance to be a long drawn out case because they found no merit in our defense and were emboldened, I think we would have had to abandon it as no investors want to then proceed to a long case where your lawyers stated up front they did not think you would win.

Agreed. Thus why I say you do not put aside your independent thought simply because the 'experts say X'.

I was ridiculed on this very forum (BFI) for admitting I had bought masks, at the time. Why would I when the experts say they are useless and are saying not to buy them? Faced similar incredulity at home.

So again to my point, you seem to take issue that I continue to question once the 'experts have spoken' (you or others in the legal field) and i just don't defer.

You say in cases like this where there is no serious consequences to buying the masks you see no issue with not deferring and for me to remain critical. You seem to be saying to me in situations where it is critical I should put that aside. Stop being critical, stop making it known if I am not in agreement. Is that fair?

I have the opposite view. The more important the more critical we must be on behalf of our own advocacy. Again that does not mean not conferring the proper weighting to the Expert opinion as opposed to your own when looking at it. As I said, when i tell my shareholders I am suggesting we go against legal advice I do so telling everyone 'they are the experts' as I don't take it lightly to go against such advice.

My issue is more that it is clear to me it bothers you and another lawyer here even in my most deferential push back that I don't just fold and defer and still question if I am not 100% in agreement.

I am sure you recall the recent incident and don't need me to quote it where I was basically agreeing with you while holding thinly but respectfully to part of my view and the other lawyer chimed in with nothing but snark along the lines of 'the Lawyers had spoken and yet here i was still disagreeing...how dare I'.

It doesn't bother me on any sort of personal level. We don't know each other, and our respective views have no impact on each other's lives.

When we discuss U.S. legal issues, it is sometimes very clear me to me that you don't understand what you are talking about. I sometimes state plainly that you don't understand what you are talking about. That typically draws a comment from you to the effect that we are each entitled to our opinions. That's true, of course, but it doesn't mean that our opinions are equally well-considered.

Turn the situation around. It sounds like you have started several business in Canada in your professional career and think of yourself as a serial entrepreneur. If I started offering a bunch of opinions about entrepreneurship in Canada, you quickly (and correctly) would conclude that my opinions weren't as well considered as your own.

There is no shame in not knowing everything.

I won't re quote the prior example but it does not follow that at all. Not even a little bit.

The fuss was not even me saying 'agreeing to disagree' it was solely because I did not completely disregard my view.

Anyway enough said on this unless you want me to dig up the example.

So this has nothing to do with class action lawsuits.


Rococo you just got baited into multiple paragraph exchanges over absolutely nothing.

O/U number of posts this derail will end up with?

It's ****ing brutal
This is supposed to be the fun thread.

My point was clear from the onset. Don't blame me for you struggles with comprehension.

I simply asked him a question why, in my estimation he seemed to take issue with me not fully agreeing with his assessment since I'm seeing somewhat of a pattern on that.

The only pattern is Cuepee disagreeing with someone and writing non stop paragraphs.

You mean in this thread, or the forum as a whole?

Why is that problematic in a discussion forum?

I think those things are very important and unhealthy. But I was referring more to how the Obama admin had a lot of negative aspects for how it handled the press (becoming far more closed off than previous administrations). They also aggressively pursued and wielded executive power (intelligence branches, law enforcement) against journalists and their sources.

Other than that, yes the transfer of power and respect for democratic process is the key point that we saw erased in 2020 / 2021 on the federal level. The bar seems increasingly to become "well, it isn't illegal". Democracies are in large, large parts made possible through political norms. If they only remaining barrier is "well, it isn't illegal", they will no longer function.

And as you say, the next step is going to be disregard for the rule of law. We already see that trend rearing its ugly head, where the first thing people check it to see who installed a judge and what their political allegiance is / was.

Did I say problematic?

If you enjoy worthless spam then its perfectly fine.

I see no situation where if numerous people were caught consistently, like in the below pictures, in any attempt or plan to kill various top Republican Political persons and these people were found to all be following the communications of one political outsider (lets say a highly regarded activist preacher who supported ANTIFA) and they had a lots of speeches, written material, etc that could be easily seen as incitement that any Republicans with the power of prosecution (Bill Barr prior or any future GOP Federal or State AG or others) would not make the case against him and we would see him tried using the same type of 'scream fire in a crowded theatre' type prosecution.

Does anyone disagree and think Republicans would just let this go? Let this continue risking one person succeeding eventually?



...and a different person...


...and and a different person...


...and again a different person...

Just a bunch of peaceful tourists visiting the capital. What is all the over reaction about?

Brandenburg v. Ohio is the more relevant SCOTUS decision for the question you raise, not Schenck (the "shouting fire in a crowded theater" case).

The test is whether the speech is directed to inciting imminent lawless action and whether the speech is, in fact, likely to produce the action.

If I went to a public park and held up a sign that said, "Violent opposition is the only solution to corporate influence," my conduct almost certainly would be protected by the First Amendment. That's because (i) my statement is too vague to constitute an incitement to imminent lawless action and (ii) no one is likely to act because I am holding up a sign in the park.

Without more detail, it's tough to say whether your activist preacher's comments would be protected by the FA or not.

Thx for info re Brandenburg. I plan to google later and see if i can find any legal analysis on the case and debate between competing views.

As i've seen discussed at the heart of these 1st Amendment Infringing cases is not a technical or literarily examinations of the words said. Yelling fire or holding a sign technically and literally is no issue if no one reacts.

What has to be considered is a 'Reasonable Man Test' or something akin to that. What do people 'HEAR' and 'How they then react' absolutely is key.

A comedian on a stage in a packed theatre yelling fire that no one reacts to as they perceive it as a joke is not being charged. That same comedian at the back of the theatre unbeknownst to the audience yelling the same thing resulting in a stampede and deaths will be charged.

You can see in how they react that these reasonable people took it seriously and as result people died and thus this is a chargeable offense.


In the case of Trump you have a very direct parallel. with an added plus Dozens, if not a hundred or more now, people testifying under oath (our highest threshold for considering it truthful) that they heard Trump yell fire and they responded in a stampede that resulted in death and chaos. And Trump is not a comedian (ya, ok) he was POTUS at the time giving him the title of commander and Chief, and he was giving commands while also appealing to peoples patriotism.

It begs the question 'do we put the obligation on normal citizens to understand when a POTUS calls for Patriots to step up as a wrong is happening in real time,' to sift and discern that the POTUS should be ignored?

We have seen in history Presidents and Prime Ministers having to make the call on normal citizens to take extraordinary measures to protect the Republic and themselves.

Do we want to live in a place where any POTUS or PM can do that, and if the call is 'Just' the citizens are going to not be indicted but if the call was not 'just' (as Trumps was not) we say 'you citizens should have known better and not acted'?

This needs to be tested in a Court with the AG charging Trump and let the court rule that this type of incitement is FINE AND OK for any future POTUS to do if that is how they want to rule. Then Congress can take that away and if they believe that ruling is wrong, then they can try to craft laws to curtail it in the future. Letting it go unchallenged is a massive mistake IMO as that normalizes this line Trump has drawn and allows the next POTUS to go a bit further and 'if Trump go zero charges for his line, my only 'slightly' further one has to be ok.'

Instead the AG has to look at this as Red States due abortion challenges. We push the case, even when a loser to gain insights in the SCOTUS ruling and comments on how to better get to our goal in the future. Every ruling against is seen as a blueprint to future success.

I'm not a FA expert, but I'm 99% certain that the identity of the speaker and the identity of the audience are taken into account in the second prong on the Brandenburg test.

In other words, I don't think the analysis is framed in the way you describe, but as a practical matter, I think the analysis functions more or less in the way you suggest.