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Tuesday, February 21, 2006

NSA Litigation Guide

Updated 21 Feb 2006 [More content coming soon!]

This is not legal advice. This is intended for a general public audience for information only.

Please contact a licensed attorney who can assist you.


This is a place to start, it is not intended to have all the answers. The NSA litigation has three prongs: Civil litigation, criminal litigation, and government reform.

Time Management

Litigation can be exhaustive, time consuming, and confusing. But things can be understood. You job is to manage your time. This means sticking to some sort of schedule that allows you to stay focused on what you need to take care of: Yourself, your family, your income, and your assets. A very consuming litigation can distract your attention from your family and job, and result in you losing your job and family. Don't let this happen.

Make smart choices at the beginning and manage your time. Get plenty of sleep, exercise, and eat smart. This is going to be a long process, so pace yourself and manage your time. Your job is to balance your personal goals with the potentially all-consuming litigation. Enter fully prepared, knowing which choices you are making on your time and priorities.

This Guide

This guide is intended to assist the public -- plaintiffs in understanding the civil litigation issues. Again, this is not legal advice. This information is intended to simply point you to information that may be of assistance, or issues you may wish to discuss with counsel.

Legal Malpractice

The number one loyalty the attorney actually has is to them. Their oath and professional conduct says their loyalty is to you, but don't be fooled. Counsel does lie to clients in order to avoid detection of legal malpractice: Failing to property do something that should be done -- consider issues, review options, or do something -- that results in you losing a case when you should have won.

Remember, legal malpractice is very common. Most cases are privately settled. Your goal is to keep on top of the attorney and don't let them give you non-sense. Although they may be the expert, you may soon find that you have to know the legal issues and facts better than they do. They have other things that they are more interested in: Not you. Your job is to make them realize who you are -- You, and you can make them lose a legal malpractice case.

Just because someone engages in legal malpractice doesn't mean that they are disbarred. They may have public accolades, but have privately settled malpractice claims. You may live in one state, and your attorney may work in another. Know the rules which apply to your attorney.

The people you are dealing with are called litigators. They investigate and take cases to court for litigation. They do use their litigation skills -- manipulation, abuse, and non-sense -- in order to intimidate clients. Don't let this concern you. Lawyers are paid to be jerks; you can be a jerk back to them as well. They like clients who are stupid. Be smart: Know the issues, and realize that the attorneys will lie to you in order to avoid spending needed time on legal issues.

Anything that can go wrong, will go wrong. Your job is to talk to a separate attorney about legal malpractice, and what can be done to mitigate these risks in your case.

Your NSA litigators may or may not care about you or your individual case. Rather, if they are litigating a class action, their loyalty is to the "generic class." Your individual situation may or may not be consistent with the class goals.

Your individual situation may or may not be consistent with the class action objectives. Discuss this possibility with your private counsel before you decide to enter a class action, accept the class action terms, settle, or opt out of the class action settlement. Talk to your attorney about your individual situation and make an informed judgment about whether you should or should not settle.

Class Action Plaintiff Attorney Award

This is a list of criteria the court will use to decide how much of the financial award your attorney will get.

Your job is to know these criteria at the beginning of the process. This will mean you can monitor your attorney, take notes, and make an informed input to the court when they ask for award fee inputs.

Your case

This is your case. You decide whether you do or do not want to settle.

What you can do

1. Manage your time.

2. Contact a trusted, licensed legal advisor who can assist you with our issue.

3. Read the complaints, and understand the statutes listed.

4. Review the class action attorney award fee plan criteria. Take notes about what you are learning from your attorney, and how they are or are not meeting the requirements in the attorney award fee plan.

5. Know how to contact the attorneys handling the litigation.

6. Monitor the lead plaintiff, and communication between the lead plaintiff and lead plaintiff counsel.

7. Stay on top of the legal issues.

8. Know the court the case is filed, the case number, the name of the judge handing your case, how to contact the court in writing with concerns with counsel, and how to write a letter to the judge overseeing your case.

9. Share what you are learning about the NSA telephone companies, media, and government.

10. Learn lessons from the 9-11 families and Enron plaintiffs: What did or did not work for them in the class action, what they wish they had or had not done to better manage the litigation and stay on top of things.

11. Share what you are learning with others.

12. Contact others in the class action to compare notes on what they are learning, hearing, and how they are interacting with the lead plaintiff and plaintiff counsel. Share your concerns and observations with others in the class.

13. Learn about legal malpractice.

14. Learn the backgrounds of the attorney's handling your case, and whether they have any complaints filed with their state attorney discipline board. This is not the same as the state bar..

15. Learn the attorney code of professional conduct.

16. Know when it is the time to fire your attorney because they are not doing what they need to do.

17. Keep written notes of conversations you have with your attorney. Confirm in writing what you understand, the basis for the decisions, and what their understanding is of your situation. Keep these filed and share them with those you trust and examine whether the information you are getting is or is not addressing your concerns.

18. Keep in mind the defendants -- government, telephone companies, and potentially your own attorney -- have a media strategy to do one thing: Make you lose. These are some of the things that they will be doing:
(a) narrow issues to nothing

(b) get the case dismissed

(c) avoid responsibility

(d) exhaust litigation

(e) discourage plaintiffs

(f) dissuade action

(g) blame the public, client

(h) waste time and money, without getting hit with court sanctions

Issues to talk to your attorney about

  • A. Am I being encouraged to settle on matters without knowing all the facts?

  • B. Is the government/congress slow rolling resolutions to defeat statute of limitations and exhaust litigations?

  • C. Are there particulars about my status/situation that would make me want to op out of the class settlement

  • D. Am I aware of information about the attorney that would warrant a malpractice review or disbarment investigation?

  • E. What are signs of legal problems in this type of litigation: negligence, fraud, malpractice.

    Talk to others in class actions

    What type of evidence problems were there with the Enron case

    How did the 9-11 families get manipulated to buy into a solution prematurely without knowing all the facts

    What have litigators done to put themselves first

    What kinds of deception was done over the Iraq war crimes

    How did the Enron fraud issues provide lessons learned

    What lessons can we draw from the Enron, 9-11 and other class action efforts?

    Know the lead plaintiff

    Know how to get information from the lead plaintiff in the class action

    Monitor whether the lead plaintiff is or is not aware of the criteria and methods to oversee counsel

    Ask others in the class action how the lead plaintiff is or is not communicating with them on issues

    Encourage the lead plaintiff to establish a formal system of communication with the class. This system will update you and others in the class action on issues, developments, and the attorney oversight process.

    Ensure there is a plan in place to monitor the class action lead counsel. This plan needs to ensure:

  • A. Counsel are doing what they are supposed to be doing;

  • B. Everyone in the class action is aware of the award fee criteria;

  • C. The class is aware of problems, developments, and issues;

  • D. Your class is aware of the criteria used to fire and find new lead counsel; and

  • E. The lead plaintiff is communicating with the plaintiff class and court issues related to the progress, problems, and counsel suitability in litigating the case.

  • Learn the lessons from the Securities and Exchange Commission

    There are three prongs to the litigation: Civil, criminal, and the Congressional reforms. The SEC is an analogy for class actions. This is a government body that oversees government litigation against firms which commit securities fraud. The SEC are a useful analogy when understanding the US Attorney's office and the role the DoJ will play in prosecuting this case.

    There is a game that goes on between the government counsel and private litigators on the class action. They will point to each other as the "alternative" in case something gets screwed up. Lead counsel in the securities litigation may botch the case, not do adequate discovery, or hope to settle the matter because they have something else they want to do. They're basically lazy. The government lawyers prosecuting the criminal case are also under-supported. This is why the plaintiffs -- namely you, a member of the class action -- have to keep on top of the case. The attorneys can and do screw up cases.

    It is not unknown for class counsel to get fired, and have a new set of litigators brought in to finfish the case. This could occur. Just because a litigator was first to the court room with a complaint it doesn't mean they're the most qualified to litigate the case or assert your rights. This is why it important to learn about malpractice, and what can go wrong during class actions. Your job is to detect the problems early, communicate them to the court, and adjust -- not realize after the attorneys have screwed things up and you're stuck with a mess. It’s your case, and the attorneys can and do screw up your cases. Know when to fire them.


    You're going to learn alot about the third branch of government: The Judicial Branch. Remember to manage your time.

    Your goal is to assert your rights, and defend them from government encroachment. The sad truth is your attorney may fall down on the job, and you will have to intervene to reassert yourself. Do not be alarmed if this happens, simply work with others to reassert your rights.

    This NSA issue is not isolated. You are not alone. Speak about what you are concerned about. You will find others who share your concerns.

    Good luck.