No, I Wasn’t Kidding About the Wisdom of Walking Away
Just two weeks ago I posted comments on the wisdom of taking a walk-away settlement when you are a defendant with no moral high ground in a defamation action. I told the story of how the defendant in the case I prosecuted was afforded the opportunity to take down the defamatory comments and walk away without paying any damages, rejected it, and now must pay over $200,000 to my client as a result of his hubris.
You’d think that might have at least given the defendant and his counsel in a different case a moment of pause in the trial that followed two weeks later. My client sued the defendant, who then filed a frivolous cross-complaint, apparently thinking that would give him some leverage. The parties had discussed settlement throughout the year-long litigation process, but the defendant had always insisted on money coming his way, and there was no way that was going to happen.
Come the day of trial, the judge conducted one final settlement conference, and my client, knowing the defendant doesn’t have much money anyway, graciously offered to just walk away. There it was; that same moment in time discussed in my last posting, where the defendant is afforded the opportunity to avoid sending his life, or at the very least his finances, in a bad direction. But the defendant refused and demanded payment of a ridiculous amount of money on his ridiculous claim. My client declined.
With no settlement, the case proceeded to trial and I called the defendant as my first witness in a trial that both sides had estimated would last three days. Two hours into my examination, the judge spontaneously announced that he had heard all he needed to hear, and unless defendant had some “miraculous evidence” he was going to find in favor of my client. In chambers, he said to defense counsel, “Mr. Morris is very methodically cutting your client to pieces.” He suggested the parties and attorneys talk settlement again. My client said fine, and said he would dismiss the action in exchange for defendant paying the same ridiculous amount defendant had been demanding. Defendant agreed, and we set up a ten year payment schedule, non-dischargeable in bankruptcy. Ouch.
If you got the tie-in between the photo above and the article, give yourself a prize. It’s from the movie The Road Warrior, and the gentleman in the photo is imploring the people at the oil refinery to “just walk away” and let him and his warriors take the gasoline. I think I may start dressing like that for settlement conferences.
Morris & Stone Victory — $200,000 from Defendant Who Failed to See Wisdom of Walking Away
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.”
P.S. I hadn’t noticed this point until I listened to the trailer for this article. He’s talking to his daughter, and she says, “Oh my God, they got Amanda.” He then gives the above speech to the bad guy. What I hadn’t focused on was the line, “If you let my daughter go now, that will be the end of it.” No mention of Amanda. He knew about Amanda, but apparently was willing to let the kidnappers keep her if they let his daughter go. Very dark.
Another Example of How Facebook Can Kill Your Lawsuit
In today’s cautionary tale, a woman, Nancy Nicolauo, was bitten by a tick, and later began suffering symptoms such as numbness, fatigue and lower back pain. Things got worse, and she eventually had problems walking and was confined to a wheelchair.
Given the tick bite, Lyme disease was suspected, but the results came back as negative. She went to a passel of doctors, and was eventually diagnosed with multiple sclerosis.
Nine years after the symptoms started, she got tested again for Lyme disease, and this time the results came back positive. Nicolaou decided to sue for medical malpractice, claiming her medical issue had been improperly diagnosed, causing her to suffer for all those years.
Now comes the key issue. Nicolaou received the results from the Lyme discease test in 2010, and filed her suit in 2012. She claimed she was within the two year statute of limitations (SOL) for a medical malpractice claim because she did not “discover” the misdiagnosis until she received the test results in 2010. But when a claim is based on discovery, the SOL runs from the date that the plaintiff “knew or should have known” of the negligence.
However, counsel for defendants had done a little snooping into Nicolaou’s Facebook postings. As argued by defense counsel, “As underscored by the trial court, on Feb. 14, 2010, Mrs. Nicolaou posted, ‘I had been telling everyone for years i thought it was lyme…,’ to which one of her Facebook friends responded, ‘[Y]ou DID say you had Lyme so many times!'”
Thus, as evidenced by her own Facebook postings, Nicolaou had suspected “for years” that she was suffering from Lyme disease. Therefore, she “knew or SHOULD HAVE KNOWN” that the doctors had misdiagnosed her condition years earlier. The court did not agree that the clock did not start ticking on the SOL until she had actual confirmation from the lab test. She was under a reasonable duty to investigate her suspicions.
The trial court dismissed her claims on a motion for summary judgment, and that decision was upheld by the appellate court.
Posting on Facebook is a little like playing poker with all your cards face up on the table. It can be done, but the other side knows exactly what you have.
How to Stop Defamation When You Can’t Afford an Attorney
Is there a way to stop defamation when you have limited funds to hire an attorney?
Here’s a call I get a few times a week. Someone somewhere has managed to upset someone else, usually over a miscommunication. Alternatively, it will be an ex-boyfriend, girlfriend or spouse that feels they were done wrong. The offended party responds to the perceived offense by going onto various social networking sites and posting false, defamatory statements; Facebook is a popular choice for the vitriol. The victim of these accusations wants my assistance in getting the statements taken down.
I can do that, but at a cost. And while I sometimes take a case on a contingency basis (receiving a percentage of the amount recovered), most of the time such an arrangement is not workable since the primary goal of the action is to remove the defamatory materials, not for damages. An attorney cannot take a case on a contingency basis if there are no damages or if the defendant has no ability to pay. Indeed, in many instances an attorney should not take a defamation case on a contingency basis since that will then make the case about money instead of being about solutions.
Is there a solution for those who can’t afford representation?
Can a Court Order Someone Not to Defame You?
I get many calls from victims of Internet defamation who want me to go to court and get an order to stop the defamation. In other words, they want a court order that stops someone from speaking or publishing statements that the victims deems to be defamatory. Is that possible?
Like most legal questions, the answer is, “it depends.”
California law is very clear that after a trial has determined that the statements being made are defamatory, the court can order the defendant to stop making those statements. The reason is that defamatory speech is not protected, so once it has been found to be defamatory, the court can order the defendant not to repeat the defamatory statements. Once the court has issued such an order, it can be enforced just like any other court order, with the court assessing sanctions and even jail time if the defendant refuses to comply.
The much tougher challenge is getting a court to order a defendant to stop defaming the victim before there has been a trial. Typically, it takes at least a year to take a matter to trial, and that may be far too long for the victim. A temporary injunction can be obtained in a matter of days, so that affords a much faster remedy if it is available.
But there is a problem. An injunction is usually issued with little or no time for the defendant to oppose it. The procedure is that the plaintiff files an ex parte application with just 24 hours notice to the other side. The plaintiff’s attorney may have taken weeks to prepare a carefully crafted application supported by any number of declarations from witnesses, but the defendant gets just 24 hours to put together an opposition. Indeed, it’s far worse, because notice must be given 24 hours in advance, but the application may not be served until just four hours before the hearing, depending on the procedure followed by a particular court. If good cause can be shown, the ex parte application can be sought with no notice to the other side. A defendant could be ordered to stop speaking before the judge has ever heard his side of the story. Is that fair? Continue reading
Defamation is Bad, but it Doesn’t Justify Chilling Free Speech
Our neighbors to the North are very American-like, until you get to issues of free speech. Most view Canada as the “least protective of free speech in the English-speaking world.” Reasonable minds can differ on some of Canada’s laws, such as prohibiting the media from identifying criminals until they have been convicted, but most of the law is still based on policies designed to prevent any criticism of the government. Canadians can be held liable by English-Canadian courts for comments on public affairs, about public figures, which are factually true, and which are broadly believed.
A recent parody video posted on You Tube illustrates just how lacking the concept of free speech is in Canada. The video is a fake cable company ad posted by Extremely Decent Films. It does not mention any cable company by name, and indeed it is specifically directed at American cable companies. Nonetheless, someone lodged a complaint in Canada, and that was sufficient to scare You Tube into removing the video, given the vagaries of Canada’s libel laws (although the video has since been reposted in response to articles such as this one).
Morris & Stone Defamation Victory – Hair Transplant Doctor Stipulates to $150,000 Judgment
Our client in this case was Spencer Kobren, a well known Consumer/Patient Advocate, author and the Founder of The American Hair Loss Association. Besides hosting a weekly radio broadcast, Kobren also owns and operates the online message forum baldtruthtalk.com where hair loss consumers can discuss and share their experiences with product and service providers in the hair loss industry, as well as provide commentary and reviews of hair transplant surgeons in the field.
As most Internet savvy people now know, the Communications Decency Act (“CDA”) shields the operator of a website from any liability for comments posted on an open forum. When someone on Kobren’s forum posted critical comments about a Beverly Hills hair transplant surgeon, the doctor took exception. However, instead of contacting Mr. Kobren or his staff to ask for help in properly addressing negative comments posted by one of his former patients, the doctor decided to defame our client by posting completely fabricated reviews and comments on various blogs, review sites and social media sites, accusing Kobren of fraud, coercion, extortion, organized crime and the running of a criminal enterprise.
As an aside, some sites encourage negative comments, and have no concern as to whether or not they are true. Operators of these sites are also protected by the CDA, but knowingly allowing false and defamatory comments to be posted was not the intention of the CDA, and we will not represent a party who is using the CDA to that end. This was not that type of case. Spencer Kobren runs a very positive and useful board, and will intervene where appropriate when the content crosses the line.
Back to the story. Despite my repeated postings of articles about the wisdom of a walk-away, and even this one, which is almost identical to this case, some defamers feel they must show bravado, claiming they can prove the truth of all of their comments. It’s as though they never think it through until I serve the first set of discovery questions, which forces them for the first time to sit down and put in writing all the facts they are contending support the statements they made. I have this image in my mind of them sitting at their kitchen table, my discovery requests spread in front of them, and after about 45 minutes of trying to answer the questions and realizing that there is not one fact they can offer that would support the defamatory statements they made, saying to themselves, “Man, I am SCREWED!”
Such a moment must have occurred in this case. Defendant first did not even respond to the complaint, then he hired an attorney to undo the default, then he fired that attorney, and agreed to remove all the defamatory comments, never to speak ill of our client again, and to pay $150,000.
Britain’s ASA Announces that Restaurant Reviews May Not Be Trustworthy
I found this news squib interesting because it follows the precise example I often use to explain the difference between opinion and a statement of fact, and it shows how one country is dealing with reviews posted for extortionist purposes.
First, the example. If you eat at a restaurant and later post a review that says the food tasted like poison, you are probably safe from a claim for defamation. Most would agree that your statement is mere hyperbole; that you are offering your opinion that the food tasted bad, not that you actually meant it contained poison.
On the other hand, if you say that the food did, indeed, poison you, then you’d better be able to back it up with hard evidence. The first cannot be measured – what you think poison tastes like is your opinion. The second statement can be tested, because we can see if the food that day could have led to food poisoning.
Now to the real life application. It seems that one of the latest fads in Internet extortion is for a reviewer to post a review claiming that he suffered food poisoning at a restaurant. The extortionist then offers to accept, say, $5,000 for the pain and suffering of the poisoning and, oh, incidentally, offers to take down the terrible review as well. Other times the offer to remove the post never comes, because the false allegation of food poisoning is from a competitor.
This scam has become so rampant in Great Britain that the Advertising Standards Authority (ASA) has informed TripAdvisor that it can no longer claim or even imply that its restaurant reviews can be trusted. The news item added that it is not always the case that the reviewer knows he or she is publishing a falsehood. When one suffers legitimate food poisoning, they almost always blame the last place they ate, not realizing that the incubation period for a good case of food poisoning is usually one or two days, and can take as long as a week. In most cases, it is impossible to know which restaurant is responsible for the poisoning except by finding a common restaurant among a group of victims.