Perhaps because the adrenaline and endorphins flow during a courtroom battle, I become very thoughtful in the calm that follows. I won a small but satisfying court victory recently in an Internet defamation case, and it made me realize how much the process mirrors a scene from a movie.
The movie is Taken. Even if you haven’t seen the movie, you probably saw the scene to which I refer since it was shown in the trailers. The main character, who we come to learn is some sort of retired Über-spy, is on the phone with his teenage daughter when she is kidnapped. He hears the bad guy pick up the phone, and he calmly gives the following speech:
I don’t know who you are, and I don’t know what you want.
If you are looking for ransom, I can tell you I don’t have money.
But what I do have are a very particular set of skills;
skills I have acquired over a very long career.
Skills that make me a nightmare for people like you.
If you let my daughter go now, that will be the end of it.
But if you don’t, I will look for you, I will find you and I will kill you.
Most every Internet defamation case I handle starts with such a moment. Not nearly so dramatic, of course, and there are no deaths involved if the defendant doesn’t listen to me, but the concept of a choice is the same.
Most of my defamation clients aren’t seeking money initially; they just want the bad guy to stop defaming them. My marching orders are usually just to get the person to take down the false comments. So I write to the bad guy, explaining that this does not need to go any further. He strayed from the path and said and did some things he shouldn’t have, but if he just takes down the posts and walks away, “that will be the end of it.”
That is the moment in time. I am affording the prospective defendant the opportunity to avoid sending his life in a bad direction. I am less of an advocate and more of a caregiver, just trying to convince the patient to stop engaging in self-destructive behavior. But he makes the ultimate decision whether to accept that help, or to continue on his path.
In Taken, the kidnapper could not help himself and responded by saying, “good luck.” He did not take the skill set seriously enough, thinking he would be impossible to find. Today’s defendant also did not take the skill set seriously enough, thinking since he lived across the country we would never pursue him. He was one of a few on-line competitors with my client, and had engaged in some trash-talking that escalated into defamatory comments about my client’s business practices. All he had to do was take down the false statements and walk away and that would have been the end of it. He refused, and today a judge ordered him to take down the false statements, never to make the statements again, at risk of fines and imprisonment, and to pay my client over $200,000.
Pick your battles. I will defend to the death your right to post honest comments on the Internet. If you want to take on a plaintiff that you feel is trying to shake you down, then I’m with you one hundred percent. But don’t get into a court battle just to prove who has the bigger . . . lawyer. The defendant in this case had no moral high ground. He knew what he was saying about my client was untrue, so why on earth wouldn’t he take the opportunity to walk away? As a famous philosopher once sang, “You’ve got to know when to hold them, know when to fold them.”
I recently reported on a Twitter defamation case in Australia, and how strange things can get without a law the Communications Decency Act. Now comes a case out of India.
India has a police unit called the Cyber Crime Investigation Cell (CCIC). Although I don’t want to see defamation criminalized, because that then gives the government the power to silence unpopular speech, I do admit the thought of an agency you could turn these things over to is slightly appealing.
In the case in India, the CCIC is investigating a complaint filed by actor Pooja Bedi against an anonymous Twitterer (Tweeter?, One who Tweets?), for allegedly defaming her on Twitter. According to Bedi’s complaint to the cyber crime unit, someone has been trying to tarnish her image on Twitter. Bedi has also alleged someone was threatening violence and writing ill about her. “These things are serious in nature and need to be investigated,” said Bedi in her complaint.
However Bedi said after the police complaint was filed, the accused deleted her account and changed her Twitter ID to @missbollyB, even apologizing to Bedi through her posts. Cyber crime cell officers said they had registered a case of defamation based on Bedi’s complaint. The police have sent a request to US authorities to provide information necessary for the probe.
I am very selective with the cases I take, and will only represent the side of a case that should win if justice is done. Out of the many cases I turn down every week, I know that most of the rejected clients will continue to call other attorneys until they find an attorney with less stringent standards; an attorney who does not understand defamation law and/or simply does not care about the merits of the case, so long as he is paid. I then envision the horrible train wreck that is waiting at the end of that track.
Today I happened to come across a news story, reporting one of those train wrecks.
The case involved a scorned woman. She worked as a paralegal, and ended up dating her attorney boss. As is often the case when a supervisor dates a subordinate, the situation gets a little sticky when the employee is not doing her job, and the boss must discipline her. In this case, according to testimony at trial, the paralegal made a serious mistake, and after the attorney blasted her over the mistake, she became so belligerent that he sent her home for the day to cool off.
The paralegal would have none of that. She claimed that he had fired her, and sued for sexual harassment and wrongful termination, claiming that he terminated her because she would not continue a sexual relationship with him. He claimed that he never fired her, and that it was he that had broken up with her because she kept telling him he was fat. The attorney counter-sued the paralegal for defamation on the grounds that she was going around telling people that he was a sexual predator.
The result? The jury rejected all of the paralegal’s claims, but awarded the attorney $1.15 million in damages for the defamatory statements. As this is being written, the jury is in chambers, deciding how much to add to that figure for punitive damages.
Lesson to learn? Make sure you can back up your version of the facts before venturing into the legal process, especially if you are contemplating suing an attorney. I never would have taken this case because of the huge holes in the facts. You say you were fired? Can you please produce the termination documents one would normally expect to see in the case of a termination? Had you reported this alleged sexual harassment to anyone prior to the day he sent you home?
[Update] The jury came back and awarded $100,000 in punitive damages. Counsel for the paralegal filed a motion for new trial, with a rather novel theory. Her comments about the attorney being a sexual predator were made to other attorneys. Therefore, her counsel argued, the comments should be protected by the attorney-client privilege. Novel, but I doubt it will fly.