Patterico's Pontifications

12/18/2006

Judith Regan’s ‘Mel Gibson’ Moment

Filed under: Buffoons,General — Justin Levine @ 5:52 pm



[published by Justin Levine – not Patterico] 

Memo to Super Lawyer Bert Fields:

If you threaten to file a defamation lawsuit against somebody, you had better be real sure that you have the goods on the defendant. Otherwise, it is likely to do your client even more PR damage than if you had just kept your mouth shut.

I would have figured that somebody like Fields would have figured this out by now. But I guess not.

[published by Justin Levine]

11 Responses to “Judith Regan’s ‘Mel Gibson’ Moment”

  1. Billable hours.

    What more could be said?

    ThomasD (9714e1)

  2. so far as i am aware, the truth of the allegedly defamatory material stated is an affirmative defense in a defamation suit, placing the burden on the defendant to prove by a preponderance of the evidence that the statement in question is true, i.e., that ms. regan actually did make anti-semitic statements.
    i would have advised harpercollins, the company that fired her, not to go public with this allegation. what could possibly be gained by it? apparently it was at at-will employment contract, so she’s gone for good…
    but now she has bert fields. uh-oh.

    assistant devil's advocate (8b250e)

  3. Allred’s involved now. Ready the Cash Cannon, Mr. Murdoch.

    mojo (8096f2)

  4. Sorry Assistant Devil’s Advocate – but you are mistaken. It is an essential threshhold element of a defamation claim to first prove falsity. Therefore, the burden of proof is on Regan in this instance in order to show a viable claim. Only once that threshhold has been reached does truth become an “affirmative defense” to be rebutted with even more evidence.

    If the allegation is in fact true – Why on earth would you advise a client not to go public with it? Most people greatly resent it when lawyers essentially tell them to shut up without having good reason to do so. Threats of a frivolous libel suit don’t qualify in my book, but perhaps we simply disagree on that point.

    Justin Levine (90291a)

  5. ThomasD – Good point.

    Justin Levine (90291a)

  6. you acknowledge that the ultimate burden relating to the truth or falsity of the statements at issue rests with the defendant who made them, and that’s how the jury will be instructed. the preliminary burden of “showing a viable claim” will take 10-15 seconds…
    mr. fields: ms. regan, did you make any anti-semitic remarks in your phone conversation with the harpercollins lawyer?
    ms. regan: of course not. many of my closest friends are jews…

    and that’s all it takes, right there. since the conversation apparently wasn’t recorded, it’ll be he said, she said, and if the jury finds the evidence on the point to be in precise equipoise, 50-50, ms. regan wins the case.

    assistant devil's advocate (da41c4)

  7. Assistant Devil’s Advocate – Sorry to disagree, but “he said-she said” will NOT win a libel case for a plaintiff (or any other kind of case for that matter). You need more than that. Most successful libel cases involve “he said-no response”. “He said-she said” will equal failure for the plaintiff. It is rare to have a libel case where there is direct witness testimony as to the actions of the plaintiff. But this seems to be one of them.

    The question won’t be “did she make anti-semetic” comments. The question will be, did she specifically say the words that are alleged (“Jews”, “cabal”, etc.) Whether or not such statements rise to the level of anti-Semetism is a matter of opinion – and outside the perview of a libel claim. I can’t think of a case where somebody successfully sued for libel after being called a “racist”. Most courts don’t consider that to be a statement of “fact”. Same thing with “anti-Semitism”.

    But as to the specifics of Regan’s “proof” in this matter, after Regan denies saying these things, the defense will then call to the stand the person who spoke with her on the phone.

    “Did she in fact make these statements?”

    “Yes.”

    “Do these notes that you made during the phone conversation accurately reflect your recollection of what was said.”

    “Yes.”

    “Defense asks that these notes be marked as Exhibit A…”

    Trust me, she has no shot at a libel claim here. She’s a public figure. It will quickly be tossed on an anti-SLAPP motion. Fields is a fool if he pursues such a claim.

    Justin Levine (90291a)

  8. you’re correct on one point, otherwise, you’re exhibiting risible naivete.
    i acknowledge that an allegation that somebody is “racist” or “anti-semitic” by itself is not actionable defamation, it’s just opinion. the innuendo in this case is a lot more than an opinionated characterization, it’s specific, extremely unseemly words which can kill a publishing career if they are successfully attributed to the speaker.
    there is no direct witness testimony as to the words of the plaintiff here, other than the self-serving testimony of the party defendant who made the defamatory innuendo. the written notes add nothing; i’m sure mr. fields can plant the notion during his cross that they were ginned up after the fact.
    you’re conflating the concept of “public figure” with “strategic lawsuit against public participation”, aka “slapp”. i agree that ms. regan is a public figure now, but the anti-slapp statute doesn’t apply here.
    you’re also confused on trial procedure. you don’t have something “be marked as exhibit ‘a'”. you get the clerk to mark it as next in order for identification first, then you get the witness to authenticate it, then you offer it into evidence to the court as an exhibit.
    i don’t think bert fields is a super lawyer, but i don’t think he’s a fool either.

    assistant devil's advocate (6559db)

  9. […] Allegations of anti-Semetism continue to be leveled at the insane would-be O.J. book publisher Judith Regan. […]

    Patterico’s Pontifications » Judith Regan Update (421107)

  10. ADA: The “exhibit a” banter was simply shorthand of course – not an accuarate prediction of an actual trial transcript. Apologies if my use of the blog comments medium makes people infer otherwise. But I stick to my declaration that the defense does not have the burden of proof here (and also point out the fact that the plaintiff’s testimony denying that she said the remarks in question are just as self-serving as any potential testimony from the plaintiff).

    As to the question of “truth” being an “affirmative defense” versus a “threshhold requirement” of the claim – that is a subject that can devolve into a triviality at this point, so I’ll be content to let it go.

    I do have to question you on one more matter though – Why do you conclude that the anti-SLAPP statute would not apply here? I’m not conflating the public figure/SLAPP issue. I’m merely pointing out that BECAUSE she is a public figure, she would likely end up losing on a SLAPP motion (even if she could somehow ‘prove’ that the allegations are false). The issue clearly revolves around free speech on a public issue, so it seems to me to be a no-brainer that the SLAPP statute would apply. Are we talking about the same SLAPP statute that exists in California? Or did you have another one in mind?

    Justin Levine (f524fe)


Powered by WordPress.

Page loaded in: 0.0942 secs.