17 February 2009

A Goodie from Mollie

Here's a good post from Mollie over at Brothers of John the Steadfast:

To threaten or not to threaten

I don’t know if you’ve ever been in a situation where you’re recieving threatening letters from lawyers but it’s most unpleasant. As any of you who have been following the latest with Issues, Etc. know, LCMS, Inc.’s lawyers sent a threatening letter to Pastor Todd Wilken and Jeff Schwarz.

Or did they?

Some of you have written to the LCMS Board of Directors and to LCMS CAO, Ron Schultz, inquiring about the LCMS BOD’s opposition to the “Issues, Etc.” trademark application AND their threat of legal action against Wilken and Schwarz.

Some of you may have also received a curious reply from Ron Schultz saying something like,

“The LCMS has not filed any legal action against Rev. Wilken or Mr. Schwarz. Further, contrary to what you may have heard, nor has the LCMS threatened to sue them. Apparently, Rev. Wilken has been telling people that the LCMS has threatened to sue him by referring to a letter our attorney wrote to his attorney encouraging them to negotiate in good faith. Rev. Wilken has taken part of the letter out of context and mischaracterized it as a threat by the LCMS.”

Has the LCMS threaten legal action against Pastor Wilken and Jeff Schwarz, or not? Is this a case of “he said, he said”? Has Pastor Wilken taken part of the letter out of context, or mischaracterized it?
Well, judge for yourself.

Here’s the section of the actual December 16 letter from the LCMS laywer that Pastor Wilken and Jeff Schwarz say threatens legal action against them. Judge for yourself:

“Unless your client is willing to negotiate in good faith to finalize a mutually acceptable agreement in the near future, along the lines that were discussed last summer, we will be left with no alternative but to recommend that The Lutheran Church-Missouri Synod prosecute the opposition against Madsen’s application and take action against your clients to enforce its rights to the trademark.”

Does that sound like a threat of legal action to you? I always think threats of legal action sound like threats of legal action and I’m unsure how Schultz & Co. could say otherwise.

Remember that the LCMS has already made good on the first threat to “prosecute the opposition against Madsen’s application.” The LCMS is, in fact, actively opposing Harry Madsen’s trademark application for the Issues, Etc. name.

So, what reason is there to believe that the LCMS won’t make good on the second part, “to… take action against your clients to enforce its rights to the trademark”?

If you received a letter like this from a corporate lawyer, would you consider it a threat?

Ron Schultz says it isn’t a threat, Pastor Wilken and Jeff Schwarz say it is.

Judge for yourself.


  1. Anonymous,

    About your first point, on the LCMS not making threats (yet), that may be true in a very technical, even legal, sense. Though as I understand it, this quote comes from a letter sent by the LCMS legal counsel to the attorney representing Wilken and Schwarz. Hence, there is at least some official action/communication happening here on the part of the attorneys representing their respective clients.

    I would also look at it this way. For whom does the LCMS legal counsel speak? LCMS, Inc., of course. So, even if they (LCMS counsel) are only "recommending" that the LCMS take legal action against Wilken and Schwarz, and even if that action has not yet been approved or taken, they (LCMS counsel) are still speaking for the LCMS. Hence, LCMS, Inc. is indirectly threatening Wilken and Schwarz.

    So instead of denying that they are threatening Wilken and Schwarz, perhaps the folks at LCMS, Inc. should instead straighten out their legal counsel and instruct them not to send letters that even hint at threats of legal action.

    On your second point, about the LCMS prosecuting themselves: no, that's not what that sentence says. It says, "prosecute the opposition against Madsen's application." Remember that "legalese" loves to keep much of the original Latin from which its words come. "Prosecute" simply means "follow forth," or "continue with" (as in "prosecute the war," that is, carry out the war). So, in that quoted statement LCMS legal counsel is simply saying that it recommends that LCMS, Inc. follow through on, or carry out (in the prescribed legal steps and procedures), its opposition to Madsen's trademark application.

    Hope that helps. (Aint legalese fun? :-)

  2. Legalese is NOT fun, is it?
    Nor is it helpful (meaning, clear).
    It only 'helps' by putting the recipient of legalese into a cycle of lawyering, because only another lawyer can possibly parse what one lawyer has said. It's a language graveyard.
    Pretty much helps one to understand why Luther abandoned the pursuit of a career in the law.