On Ali’s Decision

My good friend Ali Akbar’s decision to represent himself during the Kimberlin v. Walker, et al. nuisance trial was his own, but he did not make it on his own. He consulted with Aaron, Stacy, and me—and our lawyer—before he made it. We each gave him advice. He took some and left the rest.

Aaron, Stacy, Ali, and I all wanted to win, but we each had somewhat different views of what a best-case win would look like. Ali took the choice that he thought would be most likely to optimize his win without significantly endangering his codefendants.

In the end, we won, and I got around 95% of what I was looking for. That’s pretty good. Ali got some things out of the case that were important to him that he could only get by representing himself. If you want to know what they were, ask him. I’m happy with how the trial ended.

UPDATE—Ali speaks for himself in the Comment Section.

42 thoughts on “On Ali’s Decision

  1. Without or with? “optimize his win with significantly endangering his codefendants.” Just an observation, but I could be wrong.

  2. While I’m greatful for the 411 on the trial, I really hope we don’t let this minor issue start some riff between #TeamFreeSpeech. It’s just the sort of thing that BK, NR, BS, et al would jump on and attempt to do damage. Prayers for tomorrow Mr. Hoge.

  3. At the end of the day, a lot of these details and heat-of-the-moment aspects will fade. What we remember will be that a few stood up to a scary and purely evil man, and won.

    • While others with more legal education will disagree — and I’m no lawyer — darned LSATs…I would have done the same crazy thing. Nobody should turn down the opportunity to cross examine Brett Kimberlin about his reputation. Good going all.

  4. Mr. Hoge is a class act. Ali is his friend and he isn’t being critical of him, despite the fact that Ali made what was potentially a really, really bad decision – See Popehat for details. The old saying, a person who represents himself has a fool for a lawyer is true (even to Mr. Hoge, no offense sir and to Mr. Walker – who has full legal training and should know better). If people could do better jobs speaking for themselves, there would be no need for lawyers. Period. The Ostronic’s of the world are rare birds; people who dedicate a portion of their time and efforts, at great personal expense, to take on cases in circumstances such as this. The defendants were lucky to have him in this case.

    To be clear, though, this case was not won based on a great defense… which may in fact have been delivered if the opportunity presented. It did not. To the contrary, this case was won due to gross incompetence by a vexatious diddler who had a fool for a lawyer. THIS very blog explained to him, in great detail, in multiple instances, how it was HIS duty to show the things said about him were not true. Despite this correct and free advice, this diddler failed entirely to present evidence on a crucial element of his case. Woops.

    I don’t know Ali, personally. I don’t know Mr. Hoge, personally. I am thrilled they won. I don’t want to be hypercritical of Ali, but I think Ken White nailed this analysis of Ali’s decision and will leave it at that.

    Sadly, this was but a major battle in a war of attrition. The Rico case continues, the vexatious diddler has promised appeals… New lawsuits are now doubt in the works. Until an injunction is entered declaring TDPK a vexatious litigant, our gentle host is not out of the woods. To that end, tip jars, amazon popcorn, team lick spittle gear are all good ideas. Good Luck Mr. Hoge.

      • You are welcome, sir. I wish you the absolute best in your pro se efforts, but would strongly encourage you to seek counsel in all cases where you represent yourself. I wish I was a Maryland lawyer, I would give you a huge discount.

    • I would note there is another side. Since Brett Kimberlin has announced his intention of suing Ali, John, Aaron, Stacy and others “for the rest of their lives,” they may very well see the day that they are sued by Brett Kimberlin and cannot find a pro bono attorney. Then, either they will have to represent themselves pro se, or they will have to allow Brett Kimberlin to engage them in a war of financial attrition.

      If they opt for the former, yesterday’s trial was a good dry run for latter possible trials. Having an impartial attorney representing other defendants at the table was an excellent backstop. If Ali missed objecting to some question, or motion, he could rest assured that the lawyer next to him would not. In future trials he might not have that luxury.

      It is one thing to be shown how to do something. It is another to actual do that something. You learn what you don’t know much more quickly when doing that something as opposed to just listening. Hopefully, enough things went wrong for Ali to gain some insight into what he doesn’t know. That will serve him well if worse comes to worse.

      • Nor Patrick or I (or any of my codefendants to my knowledge) believe this statement: “Hopefully, enough things went wrong for Ali to gain some insight into what he doesn’t know.”

        I wasn’t window dressing and I wasn’t there to make a dramatic scene from Shakespeare either.

        It’s okay to be wrong. Brett Kimberlin is not better at trial than I was. Not in oratory skills or objections or presentation or case law. Fact.

      • As an aside, I am reminded of once watching a paleontologist describing the brain case of a T. Rex. Having such a small brain one would have to wonder how a T. Rex could think well enough to find prey. The paleontologist noted that the key observation was that a T. Rex was smarter than his prey!

        Representing yourself pro se might very well mean you have a fool as a client, but, the Plaintiff’s attorney has a greater fool as his!

  5. Stacey’s explanation of Ali’s decision makes a bit of sense to me. By going pro se, like Kimberlin, he took away Kimberlin’s potential advantage of being “the little guy against the big mean bullies and their lawyers.”

    Another idea that struck me I’m taking from David Eddings’ books. At one point, the kings are off at war, leaving their kingdoms in the hands of their queens. In one land, a rebellious high priest tries to bully the queen (not seen as overly bright or willful). The queen, fortified by friends and allies, orders the priest to go join the kings at war. He refuses, and she tells him that he will leave willingly, he will leave in irons, or he will be beheaded.

    By the laws of the land, the high priest is independent of the crown. The crown cannot give such orders to the clergy. Everyone in the court knew that — EXCEPT THE QUEEN. She was giving such orders because no one told her she couldn’t, and no one dared correct her. The high priest left to join the kings. And when the king heard about what she’d done, he burst out laughing — he knew he could never have gotten away with it, but his queen could.

    Similarly, the counsels of record had to obey the rules of the court, or risk sanction — even, possibly, disbarment. But Ali had no such constraints. Oh, if he went too far, Kimberlin could object and the judge could stop him, but he could plausibly plead ignorance. Hell, he could plead ignorance more credibly than Kimberlin, he of over 100 pro se suits.

    It was risky as hell, and it was smart of him to coordinate his decision with those who kept their lawyers. But it didn’t fail (I don’t know enough to say if it succeeded), and it was a completely unexpected move to Kimberlin. It took away one of Kimberlin’s favorite moves, and left him floundering and completely baffled.

    Generally, representing oneself in court is a very bad move. This is one of the few times when it was a sound tactical move, and it appears to have worked.

    • I disagree. This did not work, as a “tactical move.” The defense never had to put on a case, thus, it never had the opportunity to make a true positive contribution because the case was decided on a failure by the plaintiff to prove his case by a preponderance of the evidence. This was not due to Ali’s decision but rather due to Kimberlin’s gross incompetence.

      I too, when I first read of Ali’s decision, contemplated the potential benefit of a maverick pro se to shake things up and play the “but your modern legal system frightens and confuses me angle” if he went out of line … but considering the risk he created to his co-defendants, that he personally could have alienated the jury and tainted the case of his co-defendants by making a boneheaded mistake. On the whole, this was a very, very bad decision that thankfully did not have the chance to hurt his co-defendants.

      Now, this is not to say that Ali could not have won the case and otherwise have turned the Jury in favor of the defendants… sure, why not, this could have happened… but frankly. I don’t believe that would have been the case. The only reasons to fire his lawyer at the last minute seem to be selfish reasons. Maybe to Ali they did not feel like selfish reasons, but from the outside looking in, they appear that way. Thank God it all worked out, but it was a bad decision.

      • Let me try again: I’m approaching this from a psychological aspect. Whether real or not, Kimberlin saw his pro se status as an advantage. Look at all the crap he pulled with interrogatories, service, motions, and what not; each time he pleaded pro se ignorance, and got away with it. Ali going pro se — and at the last minute — rattled the hell out of Kimberlin. There are reports that he objected to it quite strenuously, which shows how much he was invested in his “poor little me against the big mean lawyers” storyline.

        I won’t argue that it was risky. I won’t argue that it could have failed miserably. But in the end, it’s results that matter. In this case, Ali pulled his move, and his side won. One can argue about whether they won because of his move, with the help of his move, or despite his move, but he did it, and he won.

        There’s a fine line between boldness and recklessness, and I don’t think we can ever come to a conclusion on which side Ali’s move falls. But I like to think we can agree that there are good arguments on both sides.

      • I know the facts of the case. The commenter above does not. I’ve been in it for 11 months for every failed motion–for every unconstitutional ruling. I understand the concern, but its conclusion is unfounded. I know the evidence submitted on either side of the case. The commenter above does not. I understood the trial process and how to make objections and when to make them. I assisted in jury selection, in fact, I did the disqualifying of the jurors we didn’t want.

        I argued case law and my own directed verdict motion. I’m also the only defendant that didn’t have evidence submitted against him because I used the process. I had 70-80% of my objections sustain. The ones I lost were overruled–many to give Kimberlin leeway, which was fine.

        Patrick Ostronic is a friend and my lawyer. I didn’t go “maverick.” Or “cowboy” as another commenter suggested. Patrick and I have been discussing my wishes and this possibility for days. We were prepared and worked together in a strategic way to make sure we could do what we needed to do. We discussed where our cases might get too close to appearing to have conflicted, we smoothed them out.

        Had Patrick thought it was a bad idea, I would’ve not done it. Sure it added risk, on a very definitional level, nothing more. Detractors aren’t familiar with the case, the discovery, Kimberlin’s tactics. But I understand where some are coming from. Just with all due respect, they weren’t in the courtroom and are not familiar with me or level of my competency.

        It didn’t just “work out.” I understood the plaintiff didn’t have the case and took an opportunity. There are things in the record that would not be if I hadn’t gone pro se. This is a strategic advantage going forward.

        I did not cross Aaron. I asked questions of Hoge that dealt specifically with me and the National Bloggers Club. Kimberlin stumbled. I asked a dozen or two of Stacy. The biggest “risk.” Woooo. Kimberlin made a fool of himself and spent most of the time trying to convince the jury that Stacy was a racist, which made the jury laugh when they saw me. Kimberlin’s questioning of me was an epic mistake. I was able to object from the witness stand. He got no so-called evidence in. I objected much and Kimberlin got me off the stand quickly because he was visibly irritated.

        No one should try a full defamation case pro se by themselves. That’s not what happened here. The sky is not falling and my co-defendants and our counsel did not ever feel I put their case in jeopardy. If any of them had said I shouldn’t do this–I wouldn’t have. Or any party could’ve moved for a separate trial. It’s really that simple.

        There was never a case against me. I was the lowest risk defendant, according to everyone on the defense team.

        I’m sure the judge’s compliments in my trying of the case was simply courtesy, but it’d be hard to believe that Aaron’s dad, wife is spontaneously hugged me after my questioning, the lawyer, two of the clerks, and Patrick’s compliments were all for naught.

        I prayed about this. I felt called to do it. It wasn’t only spiritually the right thing to do, I am proud I did a sane thing as well.

      • Ali, I meant no disrespect to you, sir. My phrasing was to establish the minimum agreed-upon facts: you went it solo, and you won. I don’t know a damned thing about what happened in that courtroom apart from what I’ve read here and at McCain’s site, and my opinion on things is so limited.

        My personal opinion is that your move was risky, but it paid off handsomely. And I respect you both for taking that risk, and for pulling it off.

        I was on tenterhooks over this. You were on the right side, but that’s no guarantee of victory. Congratulations, and please, keep up the good fight.

  6. I agree with Esodia. While the urge to take on the little punk individually was perhaps overpowering, I believe that a united front of aggrieved defendants works wonders on a jury such as this one. It was not the proper time for a ‘Cowboy’ moment.

  7. There are several reasons why I made (admittedly small) donations to Mr. Hoge, not to a collective. Although I appreciate the bravery of every member of that collective, I was not always convinced that they all showed the wisdom and restraint of Mr. Hoge.

  8. I said it yesterday morning and on twitter smacking the Kimberlinden in the face, Ali – it was a brilliant move especially – if the jury got it.

    perfect move, long winded outraged lawyers – their assets were not on the line.

    Ken’s comments were well advised for the 99% – Ali wasn’t one of those

  9. Aside from the tactical and strategic points mentioned, Ali said that God gave him the sign.

    Popehat is a fine lawyer. But he does not outrank God.

    Ali stepped in faith.

    God is good.

    • At the end of the day, I need to keep that in mind. This was a God thing. I even tried resisting it. It was endorsed by my lawyer. I shouldn’t worry about defending truth to people who are willing to ignore the facts. No harm, no foul. They’re wrong, but they’re not malicious (maybe careless with my reputation, but not malicious).

      God is in control. And I remain faithful in the high and lows of His service.

      • Ali, you are a very opinionated and public man, which brings to the fore that you think some things that I disagree with and others that I agree with. It’s the nature of what you do that will bring both the disagreements and the agreements to the fore.

        However, when it comes to Kimberlin, all that is set aside and the overriding concern is that it pains me to watch while Kimberlin victimizes anyone for any reason. So I want you to know, that any time you say or do something I agree or disagree with, REGARDLESS, I have your back forever when it comes to Brett Kimberlin. I mean this. You can count on me when it comes to this. It reflects very well on you now that you fight him.

  10. Ali is an excellent writer, and expresses himself very well verbally. I too have represented myself, in federal court, because I had run out of money and could no longer afford a lawyer. My plaintiff opponent was trying to grind me down, and at a certain point I fired my lawyer, or she fired me, for not being able to give her a $7,000 retainer.

    I wrote my own interrogatories, subpoenaed my own witnesses, did my own legal research in a free legal library in downtown San Jose, California. At trial, at the federal court in Oakland, I examined and cross-examined witnesses, raised objections and presented exhibits. The trial lasted three days, and I won. Frankly, my opponent’s attorney was a blowhard.

    Sometimes, necessity dictates that you go pro se (only we call in In Propria Persona, or Pro Per for short, in these whereabouts). My opponent appealed to the U.S. District Court, where I again beat him. He then appealed to the United States Court of Appeals in San Francisco, the 9th Circuit.. I can’t tell you the great relief I felt, catching BART from downtown San Francisco after the last trial.

    My opponent was out to ruin me, and I decided he would not. Ali, on the other hand, had an excellent Pro Bono attorney, and I would have allowed him to represent me. The price was right.

    In my case, my opponent and his blowhard attorney wound up suing each other over the former’s unpaid legal fees. God is good.

    Someday I will write the story of my legal saga and post it. I can say this, it was the most harrowing, worrisome and anxiety-inducing experience of my life.

    • Oh, I forgot to mention, the $7,000 retainer was in addtion to $12,000 in legal fees that I already had paid. I also won in the final court, the 9th Circuit Court of Appeals.

  11. Pingback: Got Butthurt? | Batshit Crazy News

  12. Speaking of attorney’s fees, does Maryland have a prevailing party fee award rule. I’m sure Mr. Ostronic billed some significant hours, albeit pro bono. Courts here in Alaska make such awards when pro bono lawyers are involved fairly frequently. Be nice to see Citizen K on the hook for a 20 or 30 grand fee award.

    • Indeed it would..
      it would also (one hopes) help keep the midget terrorist from continuing lawfare against innocent people..


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