A Case Study in Why Litigation Can Be So Expensive
In February of last year I wrote about the case of Paul Anka versus Anna Anka. Paul was suing his estranged wife Anna for defamation, claiming that Anna had defamed him by stating that she had never signed a prenuptual agreement, and that any agreement he could produce would be forged. I happened to think of that article today, and wondered what had occurred in the litigation. A Google search revealed no updates on the matter, so I went to the court’s website to look at the docket.
As it turns out, the case was dismissed in July 2010. Since it was filed in February, the action lasted less than seven months. But during those seven months, 87 entries were made onto the docket. As I went through the entries, I could see that nothing ever really happened on the case, except for fights over service, discovery, amendments to the pleadings, etc. In other words, nothing substantive ever occurred, and ultimately Paul’s complaint and Anna’s cross-complaint were both dismissed with prejudice.
Normally, if a plaintiff loses his desire to continue with a case and dismisses it, the case is dismissed WITHOUT prejudice, meaning that if the plaintiff changes his mind, he can file the case again (assuming the statute of limitations has not passed). When a case is dismissed WITH prejudice, that means it cannot be refiled, and is almost always an indication that the parties entered into a settlement agreement that required the action to be dismissed with prejudice. I surmise that the parties agreed to dismiss their actions against one another as part of a divorce settlement.
I am often asked by potential clients what it will cost to prosecute a defamation action. In response, I always apologize for having to sound like an attorney, but the answer is, “it depends on what the other side does.” If the other side does nothing but appear in the action, then we can decide how much time we want to devote on the case. Theoretically, you could file an action, conduct no discovery, and show up on the first day of trial to present your case. But it seldom works that way. As the Anka case demonstrates, a great deal of time and energy was expended on this case, just trying to get it past the pleading stage, because everything turned into a fight.
I sometimes hear the question, “how can the other side get away with this?” The answer is, I don’t let the other side get away with anything, but ultimately it is the court that must make them behave. For example, in the Anka docket (see link below), there was a fight over taking a deposition. The way a deposition is supposed to work is the plaintiff sends out a notice of the time and place, and the defendant shows up at that time and place. But what if the defendant fails to appear, or appears and fails to properly answer the questions? Only the court can force the defendant to behave, so the plaintiff must bring the wrongdoing to the court’s attention by bringing a motion to compel the defendant to appear and answer the questions.
Thirty days later, the motion is heard, and the court orders the defendant to appear, awarding sanctions to plaintiff which seldom equal the actual cost of bringing the motion. The deposition is set ten days later, and this time the defendant appears, but refuses to allow the deposition to be videotaped even though the notice stated that the depo would be taped. So it’s back to court for an order compelling the defendant to go forward with the video taped deposition. And so it goes.
Some judges finally get fed up, and will order that a discovery referee sit in on the deposition and make any necessary orders, but that is very expensive. Alternatively, the judge will eventually strike the answer of the defendant and enter her default, but since that is such an extreme result, judges will usually require repeated violations of the court’s orders before proceeding in that manner.
Privileged Statements Become Defamatory Outside Court
Thinking about yesterday’s post, I thought I should add one more point to the discussion of how false statements made in conjunction with a court action cannot form the basis for a defamation lawsuit.
I explained that under California Civil Code Section 47, and similar code sections in probably every other State, declarations made as part of a legal action are privileged, and therefore do not constitute defamation, since by definition defamation must consist of a false, unprivileged statement.
And the definition of a “legal action” is very broad, and can include statements made in anticipation of litigation. For example, Joe Client goes to an attorney and falsely tells him that Jane Defendant embezzled money from the company. The attorney sends a nasty letter to Jane, setting forth the lie about the embezzlement and stating that if she does not return the money in ten days, he will be filing a lawsuit against her.
Can Jane sue for defamation? After all, Joe Client just told a lie about her to a third party, the attorney. The answer is no. The statements to the attorney were made in anticipation of litigation, and are therefore privileged. (But whether a statement was made in anticipation of litigation can be a hotly contested issue, so be sure to run it past an attorney.)
But it is often the case that someone who lies in conjunction with litigation, will not confine himself to telling those lies only in conjunction with that litigation. As an example, I offer the current divorce case of singer Paul Anka versus his wife, Anna Anka. Paul claims they had a prenuptial agreement, Anna says they did not. She claims that if he produces a signed prenuptial agreement, that will mean he forged her signature because she never signed such a document. (I have no idea who is telling the truth, and offer the case only as an illustrative fact pattern.)
Falsely accusing someone of forgery is defamation, but not if it is said in court. So, she can sign court declarations all day, and testify on the stand, that Paul is a forger, and there would be nothing he could do in terms of defamation.
But Paul is suing for defamation, because he claims she made the statement, or at least implied it, to reporters. Such a statement, if she made it and if it is false, is pure defamation that enjoys no immunity since it was made outside the litigation context.
When clients call to say they want to sue because of lies contained in a court document, I explain why that is not possible, but tell them to be on the look out for the statement being made outside of the litigation. It is often the case that the person will have told the same lies to friends or neighbors, posted them on a blog, or published them via Facebook.
