Beginning litigation with all the knobs cranked up to eleven
Beldar Blog
One lawsuit war story that I can't tell in any more detail than this involved my representing a defendant in a defamation case in which the plaintiff's complaint claimed — in exquisite detail — that my client had said some very unfortunate things. Confronted bluntly and forcefully in my first private conversation with him, my client absolutely, emphatically, and repeatedly denied that he'd said any of those things, and that's what he continued to insist when he gave his oral deposition on videotape. He seemed to me to be a pretty credible fellow, and the plaintiff seemed to me to be (and in fact was) something of a kook.
But there was much wailing and gnashing of teeth among the defense team when, immediately after my client's deposition, the plaintiff's counsel produced an audiotape with exactly the quotes contained in the complaint that my client had just, under oath, denied having made. Through extraordinary, expensive, and desperate efforts — basically involving the civil-law equivalent to a temporary insanity plea — we managed to scratch and claw our way back to a posture from which the case was settled on pretty reasonable terms, all things considered. But it was hard, embarrasing, ugly work, and taught me some lessons I shan't forget.
Accordingly, if, hypothetically, I were defense counsel in this case, I'd muzzle my clients, refuse any but the most bland and generic comments to the press, and generally keep a very low profile until I got the plaintiff's response to my first request for production, which would ask for any and all audio- and/or videorecordings of my clients, and my first interrogatory, which would ask for the identities of any corroborating witnesses other than the plaintiff herself.
Indeed, if (as seems to have been the situation here) I'd seen the plaintiff's draft complaint before it was filed, then even if the plaintiff had made what my clients believed to be an outrageous and unwarranted presuit settlement demand, I still think that if my clients absolutely insisted that I file an preemptive lawsuit claiming extortion before I had seen the plaintiff's the response to my first request for production and first interrogatory, I'd suggest that my clients find other counsel.
Of course, some of these exact same defendants have ignored my well-meaning, unsolicited legal advice in the past, and I got to say toldja so as a result.
The Volokh Conspiracy's Jim Lindgren, who knows whereof he speaks about criminal extortion matters, has a fine post up about that aspect of the case. Of course, it may turn out that the preemptive extortion claim is factually justified, and that the young woman's sexual harassment claim isn't. In any event, however, this looks like litigation in which both sides have started with all the volume knobs cranked up to eleven — and it's awfully hard to back off from those positions as the case develops. |
