Evil thrives on apathy and cannot survive without it.
Hannah Arendt
On Friday, July 28th, 2023 I officially became my own lawyer. The senior lawyer had sent me his delayed but expected refusal two days earlier. I had made no attempts to find other representation. Marc submitted his withdrawal to the court, and passed along his computer files related to the case. I traveled up to Seattle that weekend and did not get back until Tuesday, so I did not start digging into things until later in the week.
I saw for the first time the letter that Michael Fuller had sent Marc on July 6th, the one that almost caused him to withdraw on July 7th. Marc did not initially include the “attached email, currently designated confidential and attorney’s eyes only.” I emailed him back, and he finally sent me the email, confirming that it was from Terry Kang to Jennifer and Evans. It did not seem particularly earth-shattering to me. Terry had chosen her allegiance to Jennifer and Evans, and was now claiming that everything I had written in the blog that mentioned her and Stefan Rau (back when they were married) was a lie.
How this stupid email got Marc to panic and want to leave my case is mind-boggling. Mr. Fuller must have supplemented it with a bunch of cockamamie rhetoric and lies and totally pulled the wool over his eyes.
It was not clear from Marc’s disorganized records what had been filed and what had not. I learned that I had to go to the courthouse kiosk in order to see all the public filings from the case. So I spent an entire day there reading through them, and that was illuminating.
I learned that requests for production and their responses are not generally filed in the court, just served to the opposing counsel, but that most other things are filed in the court, including the requests for admission and their responses. I wrote out a timeline by hand that included all of the filings from both sides and what the attorneys had served to each other, as best as I could tell, by cross-referencing both the court’s records and the files I had from Marc. I found approximately ten documents that I didn’t have a copy of anywhere, neither in previous emails from Marc nor in the trove of files that he shared. I got a court clerk to send me electronic copies of them.
I spent the next day at home looking through the responses to requests for production to see what evidence had been served. Marc had sent over 400 pages of evidence, which he had tagged with Bates numbers. I cross-referenced it with the timeline I had produced in The Conspiracy and made a spreadsheet cataloging exactly which page of which document every Bates number referred to. What I quickly discovered was that Marc had labeled Bates numbers on documents in a haphazard order, including accidentally using the same number as the final page of one document and the starting page of another document, and that there were nearly twenty pages of documents that I had given him that he had never submitted as evidence.
Among the documents that Marc never submitted were my text conversations with Jason Idalski and Stefan Rau on September 21st, 2022, my Facebook messenger conversation with Eric Kinderman on September 25th, 2022, and the June 8th, 2023 email I had sent to both WESPA via Mina Le and ABSP via Wayne Kelly.
When Michael Fuller first accused me of withholding documents on June 16th, 2023, he specifically named Jason Idalski, Stefan Rau, Eric Kinderman, Mina Le, and Wayne Kelly as people whose communications we had not handed over.
As I already explained in The Smokescreen, as soon as Marc showed me that letter, I had specifically told him to submit the June 8th, 2023 email and all of the files that were in its attached zipfile. Guess what: all of those other missing documents were in that zipfile. And I told him twice, repeating myself on the phone, because he hadn’t followed my directions in the email. That was in mid-June. Marc was still my lawyer until July 28th, and he never submitted any of those documents. I only learned this in the first week of August, because while Marc was representing me he never shared with me most of the responses to requests for production that he made. (He also did not share with me the vast majority of other things he served and filed, but that is getting ahead of the story.)
In the last month and a half of Marc’s representation of me, he had contacted me a few times in a seeming panic, hounding me to give him any irrelevant text messages from some of these people, possibly believing accusations from Mr. Fuller that I was hiding things from him. I was baffled about why this was still an issue, as I of course had assumed that he had already sent along the documents I had twice told him to submit. Marc did not realize that the reason he kept getting protests from Mr. Fuller about documents was not because I was withholding anything relevant, but because of his own failure to follow directions.
If I had ever even been in one of those conversations between Marc and Mr. Fuller, we might have sorted that out. But they only talked behind my back, which I am sure is the way that Mr. Fuller preferred it.
After I had accounted for all the missing documents and sent them in a supplemental response to requests for production, I had a phone conversation with my now former lawyer Marc in which I briefly broached the subject of the gaps in discovery. I gathered from the call that he did not know what he had or had not submitted and was only interested in making excuses to cover his own ass.
It took me two days of diligent bookkeeping to get caught up on the case and to figure out where the gaps were and what I still needed to file and submit to discovery. Meanwhile, both Ms. Vaughn and Mr. Fuller had filed anti-SLAPP motions in that same week. Ms. Vaughn’s motion on behalf of Lola was not a surprise. This was something that she had communicated to us that she would do if we could not agree on a settlement. Mr. Fuller followed in her footsteps and filed motions on behalf of the Clinchys as well. I am not aware that he had any plans to do this beforehand, and I think he probably did it mostly because he smelled blood while I had no lawyer representing me. In those first couple days, I also read through both of their motions and got the gist of their arguments.
By the time I had reviewed Marc’s materials and learned how to do my own electronic filings in the case, it was Friday, August 4th, and the defense attorneys had already succeeded in getting a hearing for the anti-SLAPP motions scheduled for August 16th at 2:00 PM. So I had twelve days to prepare for it. I am not a lawyer, and it might seem like a ridiculously bad move to try to handle this hearing myself, especially considering that if the defendants succeeded in their motion, not only would all the charges be dropped, but also there would be a mandatory award of the defendants’ legal fees.
However, I do not think I had a better option. I had already failed to get an experienced lawyer to work with me, and the idea of dropping a big sum of money for another retainer to someone else was nerve-racking anyway. Furthermore, I knew this case and all the documents better than anyone, for sure better than my own previous lawyer to whom I had already paid a boatload of money. If I had spent time over the next week or two scrambling to find another lawyer, who knows if I would have been able to find anyone good, and even if I had, how much would they be able to get up to speed on what was going on in the case?
And what if I did put a bunch of time and effort into trying to find a lawyer and did not come up with anything? As things turned out, it took me almost all the time I had before the hearing to get everything filed that I wanted to. I never would have been able to get it all done if my attention had been divided between doing the lawyerly things and trying to find someone else to take over for me.
After doing my two days of reading up on things, I felt like I already had a good idea of what I wanted to file in the court and of the arguments I would make of why this case should go to trial. Also, it was fun. I had not had a job in more than two years, and the way I was able to jump into the deep end of a set of documents and figure out what was going on was reminiscent for me of a lot of work projects where I had jumped into a chaotic and poorly managed code base and turned it into something much better.
I was not planning to represent myself all the way through trial. This was a single hearing, scheduled for an hour, simply to decide whether the charges should be struck down by the anti-SLAPP motions. I am no expert in law, but on the surface it did not seem to me likely that the motions should succeed.
SLAPP stands for “Strategic Lawsuits Against Public Participation” and refers to frivolous lawsuits that are made to chill free speech. For example, someone says something you do not like, and you threaten them with a scary sounding defamation lawsuit. Even though they have the First Amendment right to say what they said, they might be too intimidated by the prospect of an expensive lawsuit and back down. The purpose of anti-SLAPP motions is to be able to knock those kind of lawsuits out of the courts quickly and make sure that they cost the plaintiffs money, to discourage them from being filed in the first place.
However, there was nothing frivolous about my lawsuit. I have a ton of evidence that the defendants did commit defamation, that it damaged my standing in the Scrabble community, and that it did result in me being diagnosed with PTSD. Furthermore, the defendants were not “publicly participating” by saying the things about me they did. They were doing just the opposite, bad-mouthing me to a cabal of corrupt Scrabble leaders in order to oust me from the game, while trying to keep what they were doing as out of the public eye as possible. I have been the one this entire time trying to blow the whistle and make what they are doing visible to the world.
I thought that if I succeeded in dismissing their motions that would buy me more time to find a lawyer. It might also incentivize the defendants to want to settle sooner, since I would show the opposing counsels that I could not be bullied even while I was representing myself.
When I read the parts of their motions that quoted prior legal decisions and discussed this or that precedent, I did not know what to make of them, and I did not have time to learn the intricacies of the law or to do my own research on previous legal cases and write something lawyerly along those lines.
The defense lawyers wrote many things in their motions about how my former attorney had not followed proper procedures in delivering the complaints and summonses, which I believe was quite possibly true, because he was absolutely clueless, had no previous trial experience, and was a one-man law firm with no experienced people helping him, not even a paralegal.
The defense lawyers also wrote things about how some of the claims my lawyer wrote in the complaint were not supported by Oregon law, and again I had no idea if their arguments were true. However, I definitely was not going to make the mistake that Marc made of just uncritically accepting whatever the opposing counsels told me.
Without time to educate myself about Oregon law, I decided to just focus on what I did know, which was the truth of my story. I figured I would just show in as plainspoken a way as I could what the defendants had done to me, and dismantle all of the lies and deception in what the defense lawyers had written.
What the defense had written was full of lies, because it had to be. Because the truth is on my side. Because the only way that the Clinchys and Lola and their lawyers could try to justify their behavior was by pouring more dishonesty on top of the massive amount of dishonesty they had already written. Because in reality there is no justification for their disgustingly abusive behavior.
So I got to work. The first thing I had to do was respond to a bunch of requests for admission that Mr. Fuller had filed on July 7th about the non-existent tampering story, so it was just a simple “deny, deny, deny…” down the line. Back when Marc was not willing to tell me about the letter from Terry, he had showed me these requests for admission, as if they somehow explained what this whole hubbub was about. Because he was so gullible that he believed all the inanity that the opposing counsel Mr. Fuller threw at him instead of believing his own client.
I was about to hit the 30 day deadline to respond to them, and so my first filing in the case was on August 4th, 2023, denying all of these spurious requests for admission.
My next priority was meeting the 30 day deadline to responding to the additional requests for production that Mr. Fuller had sent on July 9th, as a follow up to his accusations on July 6th and 7th. Mostly this was just a matter of filling in the gaps of documents that Marc had failed to submit. I downloaded PDF editing software that allowed me to add Bates numbers. I numbered all of the evidence I had, for which Marc had not already done so, and I updated my spreadsheet to include all of these documents to the catalog. I then served a supplemental response to the requests for production on August 8th.
I learned from Ms. Vaughn’s assistant that Marc had not sent most of the previous responses to requests for production to her after she joined the case late, so I also served electronic copies of them to her.
Now that I had met the pressing deadlines, I could finally start taking the initiative. Mr. Fuller had made many accusations against me of bad faith litigation conduct both in his nasty letters and in his anti-SLAPP motion. That was rich. I had done nothing wrong, while he had repeatedly lied and manipulated my former lawyer behind my back. I was going to make sure the real story of who actually behaved unethically was filed in the court record, which would also have the secondary benefit of documenting Marc’s failures to represent me competently, which could be helpful if I had to sue him for malpractice down the line.
So on August 10th, I filed the unassumingly named “Declaration of David Koenig,” in which I spilled all the tea about how Marc had failed to submit many pages of evidence and I showed the proof that I had sent him those documents.
I then explained all of the falsehoods in Mr. Fuller’s threatening letters, including the email from Terry Kang. I gave the screenshot of the real three message conversation that Terry and I had, and I also gave her previous communications with me about the situation with Jennifer and Evans going back to 2020, showing the complete inconsistency of her new position. I even included a quick email from Stefan Rau confirming that I was telling the truth about the stories that Terry had suddenly claimed I was lying about.
I followed that up with the story of how Marc, Mr. Fuller, and the judge had all signed the protective order while I was kept in the dark about its existence. Next was a laundry list of all the ways that Marc had represented me incompetently, and I made clear that these were the reasons that we had stopped working together, not because of anything to do with nonexistent witness tampering.
Finally, I said that I was reporting both Marc and Mr. Fuller to the Oregon State Bar to investigate potential ethics violations, and that I was including this declaration in the report. Indeed, I submitted complaints about both lawyers to the bar immediately after filing the declaration.
That declaration was the main thing I wanted to get done that day, but I ended up having enough time and energy to file a couple more things that called out Jennifer’s dishonesty and bad faith litigation conduct.
The Clinchys had avoided answering many of the requests for admission with ridiculous and frivolous excuses, including complaining that we had not defined terms adequately because we had not cited a particular source dictionary. Marc had made motions requesting a hearing to determine the insufficiency of their responses, but he had never followed up with the court staff to actually schedule that hearing. He also never told me about that motion nor shared many of the relevant documents with me. I only learned most of the details of this after I had started represented myself, while I stood at a court kiosk reading through all the public filings.
It was immediately obvious to me what Jennifer had done when she evaded answering our request for admission number 9: “Prior to 2022, you had never contacted law enforcement in any way regarding Plaintiff.” She first claimed that the term “law enforcement” was vague, and when later pressed into more explanation, she wrote a disingenuous excuse that said law enforcement could mean “federal officials,” not just “a local police department.” She said she had contacted federal officials about me, trying to get the reader to infer that she had complained to the FBI about me, or some boloney like that. I knew exactly what she was talking about. She had talked to federal officials to get strings pulled at the White House to do nice things for me on dates. Fortunately, I still had lots of physical evidence from several of those dates.
So on August 10th I also filed the “Plaintiff’s Declaration in Support of Plaintiff’s Motion To Determine the Sufficiency of Jennifer Clinchy’s Responses and Objections to Requests for Admission,” in which I spelled out exactly the dishonesty that Jennifer had used in that answer and included photos of the exact things that Jennifer had arranged when she “contacted federal officials regarding plaintiff.” I also accompanied it with a few more tightly worded requests for admission, to get her nailed down to saying something in the legal record revealing her dishonesty and bad faith litigation conduct in her earlier answer.
Months earlier, Marc had asked me to do an accounting of how much money I had made playing tournament Scrabble and an estimate of how much financial damage was done to me by the defendants interfering with my ability to play in tournaments. However, Marc had gotten so distracted by all of the sand that Mr. Fuller was throwing in his eyes, and I had mostly focused on my appeal and the continuing communications with the Scrabble associations, so it had gotten put aside. On Friday, August 11th, I finally finished it up and filed the “Plaintiff’s Declaration of Estimated Scrabble Prize Winnings,” which I figured was important, because one of the claims that we would be discussing in the anti-SLAPP hearing was for Intentional Interference with Economic Relations.
That was as far as I got in the first week and a half of being my own lawyer, and I thought I had made pretty good progress in starting to straighten out my case and prep for the hearing on the following Wednesday. But I came up against another obstacle. From Sunday, August 13th to Wednesday, August 16th, the high temperature was at least 100º every day, and I had no air conditioning at home. For most of those days, I got up at 4:00 or 5:00 in the morning so that I could get a full day of work done before it got too hot out. I also worked from the library in the courthouse a few times.
There was one more preliminary document I needed to serve the defendants before I made my arguments in response to the motions. One of the arguments that Ms. Vaughn had made in her motion was that the plaintiff had only alleged that two or three sentences in Lola’s statements had constituted defamation. That was ridiculous. Lola lied over and over again throughout those documents. I thought the problem was that when Marc had been representing me and he had been asked in responses to requests for production to “produce any statement by [defendant] which, according to plaintiff, constitutes libel per se” and to “produce any statements to third parties by [defendant] which, according to plaintiff, [defendant] knew were false,” he had given a short list.
This is something I had argued with Marc about a number of times. He only wanted to focus on a few sentences of the most egregious reputation-killing things they had said about me. But I protested that many of the most provable falsehoods in what they wrote were in the details of other sentences. And the cumulative effect of all of those big and little lies was to defame my character and to get the Scrabble associations to ban me. So I took out my highlighter and combed over the defamatory statements. Then I updated his incomplete responses with a much more thorough list of all of the instances of libel per se and of knowingly false statements. On Monday, August 14th, I served that as the “Plaintiff’s Fourth Supplemental Response to Jennifer Clinchy’s requests for production.”1 (Duplicated with Evans’s name on it too, of course.)
Meanwhile on Monday there had been some emails between the lawyers and the court staff about preparation for Wednesday’s hearing. The last one sent on Monday was from the judge’s assistant saying, “Please note, all motions and subsequent filings must be sent to the Judge in hard copy form.” Damn, I thought, I guess I will need to run to a copy shop on Tuesday.
Interspersed with that email chain were some emails from Mr. Fuller to me, sometimes copying only the other lawyers, sometimes copying the court staff too. Mr. Fuller was, of course, irate about the ways I had exposed his wrongdoing and reported him to the Oregon State Bar. He threatened to get me held in contempt of court for including the Terry Kang email, which he had labeled “Confidential – Attorney’s Eyes Only,” in my public filing of August 10th. In his typical fashion, he also made up a cockamamie story that I had put malware on one of the documents I filed, because he or someone in his office had had trouble downloading and opening it properly.
I am not a lawyer, even though I played one for a couple weeks, but I do not think I did anything illegal by including the Terry Kang email in my public filing. If anyone did anything illegal, it was potentially Marc Mohan, by giving me the email when he was no longer involved in the case and I had not signed the protective order myself. I also figured the judge and the Oregon State Bar would rather know about the way Mr. Fuller had used the protective order to undermine my relationship with Marc, and that getting that truth out there was more important than whatever slap on the wrists someone might get from technically disseminating this short email improperly. I did not worry about Mr. Fuller’s empty threats, and no one else in the email chain paid him any heed for his attempts to intimidate me.
I finally got the whole response to the anti-SLAPP motions finished on Tuesday, August 15th. The main response is 22 pages, with about 200 pages of exhibits, which are mostly things you would have already seen if you have read through The Conspiracy, though I did add highlighting of a few key passages in some of the exhibits. Then, there is a supplemental response to the Clinchys’ motions to strike, which is 7 pages plus exhibits. The supplemental response completely dismantles all of their arguments about my supposed bad faith litigation conduct and shows that the only people who committed bad faith litigation conduct in this case are the Clinchys and Mr. Fuller.
It is my opinion that the main response to the motions also completely dismantles their arguments in the motions, maybe not in a legal sense, but in a layman’s sense of logic and justice. I did not quote any other cases or respond to their legal analysis that did so. I did not defend any of the procedural mistakes that Marc had made in representing me and simply apologized for them. But I believe I clearly and conclusively showed that the stories the defendants and their lawyers wrote in their motions were not good faith representations of what actually happened, that there was ample evidence for this to go to trial, and that in the big picture general sense of what anti-SLAPP motions were supposed to be about, it was unsuitable to use them to remove this case from the court, because I was not doing anything to chill the defendants’ free speech. In fact, they had been trying very hard to chill my free speech and criticizing me for exercising it.
It was just past midday when I got the responses to the motions to strike filed. I called a bunch of copy shops until I found one that was able to print color copies of all the documents that I needed in a hurry. I needed to print both the main and supplemental responses of the motions to strike, the August 10th declaration, and the August 11th declaration of Scrabble prize winnings. The whole thing was 310 pages, and I got two sets of copies made, one for me and one for the judge.
I rushed to the copy shop on a 102º afternoon to pick them up and discovered that the printout hadn’t been done properly, so that the “Exhibit 1”, “Exhibit 2”, etc. stuff didn’t show up on the pages, nor did most of the highlighting that I had added. I didn’t have time to sort it out with the printers and get them to print out a better batch, so I took out a pen and highlighter in the copy shop and labeled the first page of each exhibit with what number exhibit it was, and I went through by hand, adding all the highlighting I could remember, just on the judge’s copies.
Even with the discount they gave me for screwing things up, I still paid about $200 for all the copies. At least they were nice enough to do a smaller last minute job the next day for free.
I hustled over to the courthouse and delivered a box with all of the copies to the judge’s chambers, finally meeting the judge’s assistant in person. I do not think the judge was in that day, so she probably would not get the hard copies until the next morning, which was the day of the hearing, though she had gotten all the electronic copies. The assistant explained to me that by law all filings were supposed to be submitted to the court electronically and in print. Some judges made exceptions and allowed filings to only be done electronically, but this particular judge liked to have hard copies of everything and they were the primary ones she tended to read. It would have been nice to know this all sooner, but I had no training program. I had just jumped into the deep end of the pool representing myself pro se for the last two weeks.
That evening I organized all my sections of my paper copies of the responses, declarations, and exhibits into separately paper-clipped sections. In retrospect, it would have been nice to deliver the judge’s copies in that form. I also added all the highlighting and exhibit numbers that didn’t show up properly on the copies.
On the morning of August 16th, Mr. Fuller sent me another nasty letter, escalating his empty threats against me for failing to put the Terry Kang letter under seal. I fired back a quick letter of my own explaining that I had done nothing wrong, to which he responded with another letter distorting what I had written.
As I reviewed all the documents that morning to prepare for the hearing, I suddenly noticed a gap. As medical evidence of the emotional and physical distress that the defendants had inflicted on my life, I included summaries of visits to three different medical professionals: a psychiatrist, an otolaryngologist (ENT doctor), and a speech-language pathologist (SLP). One of my exhibits, the ENT summary, only included the first page, even though it was a three page document with the doctor’s diagnosis on the second page. I looked back at Marc’s responses to the requests for production and he had also included only the first page of the ENT visit summary. I had copied the Bates-number-tagged pages of the medical notes directly from those responses, so I had inadvertently repeated his error of using an incomplete document.
I had also noticed a day or two earlier that Marc had never previously submitted the psychiatrist summary as evidence, which forced me to assign it new Bates numbers and add it to the evidence list when I was writing up the responses to the anti-SLAPP motions. I had distinctly remembered emailing Marc the summaries of all three medical visits together.
These irregularities got me to examine the email I had sent to Marc with these doctor visit notes more carefully and to understand what had happened. Gmail’s preview functionality did not work properly on the psychiatrist and ENT attachments, so if Marc only clicked on the attachments and did not actually download them, he never would have seen beyond the first page. This explained why he never included the psychiatrist summary (because there was nothing useful on the first page) and why he only included the first page of the ENT summary, while he still included the entirety of the SLP summary, since Gmail’s preview functionality had no problems with the last one.
In short, the problem was that Marc could not figure out how to fully download the attachments that I gave him. Now, I understand that Marc was dealing with a lot of paperwork and emails in this case. I can sympathize with anyone in the heat of the moment making a mistake and not noticing that he had accidentally truncated a three page document to one. Plus, the SLP visit note reconfirmed the dysphonia diagnosis, so missing the ENT diagnosis was not that big a deal.
But imagine for a moment that you were a lawyer representing a client who was suing people for defamation and intentional infliction of emotional distress. Imagine then that your client gave you a note from a psychiatrist that included his PTSD diagnosis. Do you think that you would perhaps consider this an important piece of evidence, or maybe even the most important piece of evidence in the entire case? And if you clicked on the preview of the PDF and did not see the explanation of the PTSD that you were looking for, do you think you might have tried downloading the entire attachment to see if you were missing something? Or if you could not figure out how to download it and thought the diagnosis was not there, do you think you would have said something to your client, like, “hey the attachment does not appear to be there” instead of just omitting it from evidence?
What kind of moron not only cannot figure out how to download attachments properly, but also does not even bother to follow up with his client when the attachment does not appear to be complete? Apparently the kind who bills me over $14,000 for his legal work.
I quickly wrote up an additional declaration pertaining to medical records, which I filed just two and a half hours before the hearing. Then I got dressed up in my nicest suit and picked up printouts at the copy shop on the way to the courthouse.
I got to the courthouse a bit early and hand wrote out my main talking points from the response to the motion in my notebook while I waited. After the judge wrapped up a previous hearing and retired briefly to her chambers, I set up at the prosecution-side table, laying all my paper-clipped sections of my documents and exhibits in front of me, and plugging in and opening up my laptop, just in case I needed to search for anything else on it.
We were technically supposed to have the brief hearing about whether to grant Jennifer a protective order to answer the one request for admission before the main hearing about the anti-SLAPP motions, but it never happened. Instead we briefly talked about the existing protective order that Mr. Fuller had tried to criticize me for breaking. He said something to the judge about how I had taken the confidential letter and published it widely. I clarified that the only way I had published it was putting it in the court filing and reporting it to the Oregon State Bar. I also explained that Mr. Fuller and my former attorney Mr. Mohan had agreed to that protective order behind my back and that I never knew about it.
The judge did not seem to care about that particular letter, but she was insistent on me understanding that the protective order did apply to me going forward. Just as the associate lawyer had done on the phone with me a few weeks ago, she normalized the protective order as something that happens in these kinds of cases all the time. She also had no sympathy or patience for me separating what my former attorney had done and what I had done. If there were ethics issues about either of the lawyers, that was not the business of this courtroom. I did not argue and confirmed that I understood what the judge said about the protective order applying to me. Mr. Fuller never brought up a new protective order for the response to the request for admission, and I certainly was not going to bring it up for him, so we moved on.
Before we gave any oral arguments about the anti-SLAPP motions, the judge explained that she had read the entirety of the defendants motions and that she thought they were very well written. She had only skimmed my response, because it was very long and I had only gotten it to her the day before. Then she said that she was inclined to approve the motions. So much for objective justice.
Since the judge was more familiar with their arguments than mine, she let me go first. She quickly made clear that she had no stomach for any arguments about bad faith litigation conduct by either side, and I said that is no problem, that is why I put those arguments in the supplemental response. We can just focus on the ones in the main response.
I ended up taking the floor for somewhere between 30 and 45 minutes. I was the most calm, cool, and collected I have ever been in my life while talking about this story. For the last many years, it has been an enormous problem for me to explain the story of what the Clinchys have done to me without getting angry and raising my voice, even to close friends whom I know are on my side. The last time I had talked about some of these things, less than a week earlier to a friend on the phone, my friend had expressed concerns about how I was going to come across in the courtroom. But I mentioned to my friend that I can do better if I plan a script of what to say ahead of time and stay on that script. Plus, I knew that I absolutely had to do better. Losing my cool in front of the judge would have been the death knell for my case, and now the judge had already told me she was inclined to decide against me before I even started. If I was going to pull off a miracle comeback, I was going to need to be nearly perfect. Fortunately, I thrive under pressure.
I walked through my talking points one-by-one. I spoke slowly, clearly, and assertively yet gently, while they all listened quietly and attentively. My speech essentially went in order through the main ideas of each of the sections of the main response to the motions to strike.
I first dismissed the defendants repeated claim that my writings were a “manifesto,” pointing out that they contained plenty of evidence and lots of communications and points of view of other people. I explained why the charges were all filed within the statute of limitations, and why I thought anti-SLAPP was unsuitable, since it was the defendants who were trying to chill my free speech, not the other way around.
I talked about all of the claims against the defendants: why there was plenty of defamation, a repeated pattern of infliction of emotional distress, interference with my demonstrated pattern of making money with Scrabble winnings over many years, and evidence of conspiracy not only between the defendants but also with Steven Pellinen and possibly other Scrabble leaders. I mentioned that the only reason Steven was not a defendant was because he was eighty years old and had Parkinson’s and brain cancer and probably less than a year left to live.
After addressing all the claims, I then went through all my arguments that dismantled the criticisms the defendants had made in their background and introductory sections: how NASPA’s statement that it decided I had violated the code of conduct based on my own submissions was not plausible, given their later communications and behavior; how—contrary to the defendants’ claim that I had an “already-tanked reputation” based on one quote from one fifteen year old article—there was plenty of evidence that I had a positive reputation as a Scrabble player in the media; how the Darrell Day incident was not just irrelevant to my relationship with the defendants, but also how Lola’s increasing use of it in her later statements showed clear malicious intent against me; and how despite the cries of bad faith litigation conduct from the other side, I had already served 460 pages of evidence to them in discovery, and they had served zero.
When I was done, the first words out of the judge’s mouth were, “you just said a lot,” and I knew I was done for. All that time and energy and all that perfect presentation did not make a lick of difference. The main takeaway of the judge was essentially, “that’s a lot of words, and I am not even going to bother to process all of them.” She gave the defendants’ counsels time to respond, but they did not make very long arguments. They knew they did not need to, as it was clear the judge’s mind was already made up.
There were a few things that came out of the discussion afterward that made clear to me the fatal flaws in my case. It seems to me that the most crucial ones all related to the writing of the complaint itself, something that was only done by my former lawyer Marc Mohan.
The biggest by far is that civil conspiracy is not a claim in Oregon law. There is criminal conspiracy in Oregon, and there is civil conspiracy in some other states. My former lawyer had literally written a complaint that had invalid claims, and even though he had amended it twice, he never fixed this issue. The judge even acknowledged that there might very well have been a conspiracy against me in the Scrabble world, but that it was not a valid legal claim in civil court in Oregon.
I still have not gotten my head around where Ms. Vaughn got the idea that the claim for defamation rested on only two or three sentences in Lola’s statement. I thought I was properly addressing that by my supplemental response to requests for production that gave a laundry list of defamatory statements, which I also included as Exhibit 15 in the main response to the motions. (p. 186-198) But the judge told me that what mattered was what was in the complaint itself, not the requests for production.
Another problem with the complaint is that my lawyer asked for attorney’s fees, and this is not the kind of case where you can do that. The associate lawyer I had spoken to a month earlier had mentioned something like that on the phone. As best as I understand, the anti-SLAPP motion that was about to be granted was the only way that a case like this could result in an awarding of attorney’s fees. If it had not been approved and this had gone to trial, neither side would have been awarded any attorney’s fees, regardless of the verdict.
It seemed to me that the only way that I could have avoided the case being struck down was to make another amendment to the complaint that fixed all the problems with the first three versions,2 and gotten it and new summonses delivered to the defendants in the two weeks between them making their motions and us having the hearing. Notwithstanding the fact that I still do not have the legal knowledge to write the complaint correctly, even if I had done that I do not know if it would have saved the case. Mr. Fuller had already written protests in his anti-SLAPP motion that the number of amendments to the original complaint was evidence of my attorney exercising bad faith litigation conduct. If I had scrapped the old complaints and written a new one at this point, four months into the case and after the defendants had written their motions specifically tailored to the way the old one was written, it would have looked unprofessional to the judge, especially because she did not care to distinguish what came from my previous lawyer and from me representing myself pro se.
In short, the complaint was written so badly that my case was DOA. The truth of my story and the falseness of the defendants’ stories did not matter. The oral arguments I gave in the courtroom did not matter. There was nothing I could have done, because Marc had screwed the pooch so badly. For that matter, even if I had dropped another big retainer to get another lawyer to take over the case for the last few weeks, it is unlikely that they would have been able to overcome Marc’s mistakes enough to keep this case going. I am glad that I represented myself for the last two weeks, because if I had just handed it off to another lawyer, I likely would have lost even more money, and I never would have known about a large amount of Marc’s incompetence and malpractice.
I could see the way the wind was blowing and that there was no point in putting up much resistance in the rest of the hearing. There were a few little things in the remaining discussion that annoyed me. At one point Mr. Fuller tried to use the litany of nasty, dishonest letters that he had sent me and my former attorney as “evidence” of our wrongdoing. This guy’s entire playbook was obvious to me. Practically every word he put in writing was false and accusatory, making ridiculous assumptions and interpretations of things that have no basis in reality and are just fabricating a bad story about his opponents, but his way of speaking was nothing like his writing. He spoke in a gentle, nice-sounding voice, and weak-minded people like Marc Mohan, who judge others based on emotional affect rather than the veracity of their statements, fall for his lies.
Right near the end of the hearing, I even saw Mr. Fuller flat out lie to the judge’s face, but I was too resigned to even complain about it. The judge had already said her decision at that point, and I knew that my pointing out the lie would not help me in any way. The lie was exactly what he had written to me in his second letter that morning, that I had said that I do not intend to comply with the Judge’s protective order. I simply said that I had not signed the order. I made no statement about my future intentions.
Mr. Fuller also tipped his hand to me a couple of times during the hearing. I am telling you right here and now what I believe he is going to do. He will try to get my August 10th “Declaration of David Koenig” put under seal, by arguing that it needs to be, because of the “confidential” letter from Terry Kang. And he will try to get my other declaration filed that day removed from the court record by arguing that the photo of me and Jennifer in it is an inappropriate invasion of privacy. His real motivation is removing as many things from the public records as possible that show his own bad faith litigation conduct.
I am somewhat optimistic that the attention I have drawn to this case by the complaints I made to the Oregon State Bar have meant that enough people in the state legal community will have already seen these filings that Mr. Fuller will not mitigate the damage much, even if he succeeds in getting these documents hidden. Furthermore, it is possible that attempting to hide the documents now might just make him look worse. But just in case, I am going to keep a copy of these documents up on my website, so that Mr. Fuller cannot escape scrutiny for his actions.
I have almost no bones to pick with Lola’s counsel, Ms. Vaughn. She was completely professional in all of her dealings with me, and her correspondence was polite, even though we were not able to agree on a settlement. Her representation of Lola in the courtroom gave me no cause to complain, except for one thing she said. She remarked that she saw a clear pattern in me of blaming other people: the defendants, the leaders of the Scrabble organizations, and even my own former lawyer.
Come on, Ms. Vaughn, you already knew you were going to get your motion granted and did not need to say that. And you know it was dishonest. I am sure that you came into the courtroom much more prepared than the judge did, having actually read all of my statements and all of the evidence I presented. You know your client and the other defendants lied over and over again about me, and you know that every word I have said is true, even though it is your job never to admit those things. You know that I have thoroughly demonstrated both an absurd amount of corruption by the Scrabble leaders and an absurd amount of incompetence by my former attorney. When you read the stories about my former attorney, you were probably horrified at the thought of anyone who was representing you in a legal matter ever doing their job that badly.
I get that it is your job to get the judge to go against me emotionally, but again this was not even necessary. Congratulations on finding a way to send a personal insult to the one person who has behaved morally better than anyone else in this story.
Finally, I have a few bones to pick with Judge Kelly Skye’s handling of this hearing. I have to admit that I was at the time fooled by Ms. Vaughn’s phrasing in her motion that the plaintiff had to “to establish a probability that he will prevail on every element of every claim.” I assumed because my complaint had invalid civil conspiracy claims that continuing to fight for the other claims was a lost cause. It was not until two months later, while I was writing this, that I realized this was a misinterpretation, possibly an intentional one by Ms. Vaughn. The statute never uses the phrase “every claim.” The way it is written seems to me to indicate that the anti-SLAPP motion applies to each claim in a complaint separately. In other words, the judge could and should have just struck down the civil conspiracy claims and allowed the case to proceed with the other three claims.
I wish I had been aware of that at the time and presented that argument to the judge, although I am doubtful that it would have made a difference. I think the fact that the judge had not thoroughly read my arguments against the motions on paper, because I was so late at getting them to her, doomed me. I did the best I could. I thought I did a helluva job for an inexperienced fake lawyer in writing up and filing everything that I did and getting it in the day before the hearing, but I only learned in the courtroom that for this judge that was not soon enough.
In my opinion, Judge Skye had already decided prior to our oral arguments that she wanted to knock this whole case out of court. She gave me some post hoc rationalizations of why the other claims would not have succeeded, and the most annoying thing she did was bring up qualified immunity, i.e., that because the defendants made their statements about me in a quasi-judicial context, “the Scrabble courts,” they were immune from defamation claims.
The defendants did not say a single thing about qualified immunity in any of their motions to strike or their oral arguments. I and my former attorney expected that the defendants might bring up qualified immunity in the trial, and there were good legal arguments to be made about why the defendants’ behavior should not be protected by that.3 But this case was not on trial yet and this was just a short hearing to address their anti-SLAPP motions. What was I supposed to do, bring up a new argument for them and then present my argument against it? But what the judge did was produce a new argument for the defendants’ side on her own, after we had all concluded our arguments. I saw a look of surprise on Mr. Fuller’s face when she mentioned it.
I thought that the judge might have thought she was being nice to me, by trying to present some reasons why I would not have won this case anyway, rather than just telling me the cold hard truth that the reasons why this case were being thrown out were procedural, because my former lawyer did not know how to write a valid complaint.
Along similar lines, she argued that all of my evidence that the defendants were lying about me was just hearsay. At the end, I told her that I accepted that there may have been procedural problems with how the complaint was written that made this decision inevitable, but I did not understand this hearsay criticism. I told her I had presented hundreds of text messages of Lola’s that showed she was lying about our entire relationship. I stunned the judge, and I could read it in her face. I am sure that she previously did not know what I had just told her, because she had never read my documents to NASPA demonstrating the defamation. She simply said, “your objection has been noted.”
That is the most tragic part of this whole thing. The facts of my case never got a fair trial, and instead the whole thing was booted out in a short hearing by an apathetic judge who did not read everything I gave her.
So I lost, and now I was on the hook for all of Mr. Fuller’s and Ms. Vaughn’s attorney fees too. It was the worst possible legal outcome for me. But after it was all said and done, when I packed up my box of 300 pages of documents and headed out of the court, I just had to laugh. It was the first time in the seven years of this horror show that I could laugh at the absurdity of it all.
I am proud of everything I have done. Of the dignified way I carried myself through this Scrabble community even while the Clinchys and Lola were gossiping and disparaging me for years, of how I told the story of what happened in as clear, objective, and fair a way as I did, of how I have now spent years diligently combing through documents and revealing every one of their lies, of how I did not succumb to panic and continued to represent myself strongly no matter how bad a hand I was dealt, of every word I wrote in my statements to NASPA, in the documents I filed in the court case, and in the posts on this blog, of how much complicity and corruption I have revealed in our Scrabble leadership.
But the result of it all to this point is that the people who told disgusting lies about me are not being punished at all by either our Scrabble community or the law, and I am being punished by both. I am banned from playing Scrabble, and—let us be clear—it is a lifetime ban, because I will never accommodate any of the insulting conditions that the Scrabble leaders have tried to put on me, least of all taking down this blog. I am about to owe more than all of my remaining savings to the lawyers who helped my abusers get away with it. I have still got PTSD, and I still have not worked in over two years. And all I wanted was to play a board game and be treated with the respect that I deserve.
Footnote
- Exhibit 15, pages 186-199 of main response to the anti-SLAPP motions ↩︎
- Mr. Mohan had amended the original complaint twice and still had not fixed the fundamental problems with it. What is worse is that he never told me about those amendments while he was working on them, only casually mentioning it once a month later when I was considering including the complaint in my public statements on this blog. He wrote in a June 14th email: “Instead of the initial complaint, you should attach the second amended complaint, which corrects a couple small factual errors and is the current operative complaint. I’m attaching a copy here.” ↩︎
- For one, Cesar del Solar told me that Lola read her statement from the incident report about me to the Woogles team. So the defendants were not solely using their defamatory statements about me in a quasi-judicial context. ↩︎