Tuesday, April 11, 2006

Free Legal Advice

I want to be done with Capri Cafaro. I honestly do. But she keeps waving these big red capes in my face.

From Ohio 13 we get a link to the actual threat to sue letter and to the Lorain Morning Journal article about how this whole thing started. Apparently Gary Kucinich runs a newspaper primarly about . . . Gary Kucinich. Per LMJ:

Strongsville Democrat Gary Kucinich, also a candidate for the seat, posted
a column in the April edition of the Ohio Community News that says Cafaro should
make public the reason why she was granted immunity from federal prosecutors.

In the column, Kucinich states, ''Ms. Cafaro has repeatedly denied
wrongdoing but why did she receive immunity if she didn't do anything wrong? ...
Democrats cannot afford to nominate anyone that is concealing

Cafaro's lawyer, one David Betras threatens to sue Kucinich if he "hands out one more of those." Kucinich replies essentially "As if," so odds are this little rumble will generate at least one more news cycle before the last man is standing.

God only knows how much Cafaro has paid to Betras. She might have saved her money and done a Google search. She would have found this handy article on defamation on ExpertLaw or this one from West. She would have learned that defamation requires "a false and defamatory statement concerning another."

I'm hard pressed to find a false statement in Kucinich's piece. The only statement of fact is the last one: That the Democrats can't afford to nominate a candidate who is (can't speak for his word choice) concealing something. True enough. Aside from that, he's calling on her to account for the deal and asking rhetorically how she could get the deal if she did nothing wrong.

To the extent you can find a factual assertion in the statement it's inextricably bound up in opinion. In popular legal mythology, you can say anything you damn well please as long as you end it with "In my opinion," or, a la Kathy Griffin, "Allegedly." Not exactly, but close. The excessively lawyerly West article explains it best:
A published opinion is not defamatory unless it conveys to the recipient a
provably false assertion of a fact or facts. Whether such an interpretation was
conveyed is a question of fact. If such an interpretation was not conveyed, the
expression or statement, though published, does not constitute defamation.
Now the worst words a defense attorney can find in legal research are "it is a question of fact." That means it usually goes to the jury, or at least the the case gets past summary judgement and you have to try it. But first you have to get the fact testimony on the record. That is, you have to bring in people who will testify that they actually believed that Kucinich was telling them Cafaro is dirty. Again, I'm hard pressed to find any opinion other than that maybe she's dirty and she should come clean so we know. It would be hard for Cafaro to put on the credible fact testimony she needs for this lawsuit to fly.

The most important free advice Cafaro passed up was this from ExpertLaw:
While people who are targeted by lies may well be angry enough to file a
lawsuit, there are some very good reasons why actions for defamation may not be
a good idea.

The publicity that results from a defamation lawsuit can create
a greater audience for the false statements than they previously enjoyed. For
example, if a newspaper or news show picks up the story of the lawsuit, false
accusations that were previously known to only a small number of people may
suddenly become known to the entire community, nation, or even to the world. As
the media is much more apt to cover a lawsuit than to cover its ultimate
resolution, the net effect may be that large numbers of people hear the false
allegations, but never learn how the litigation was resolved.

Another big issue is that defamation cases tend to be difficult to win, and damage awards tend to be small. As a result, it is unusual for attorneys to be willing to take defamation cases on a contingent fee basis, and the fees expended in litigating
even a successful defamation action can exceed the total recovery.

Another significant concern is that, even where the statements made by the defendant are entirely false, it may not be possible for a plaintiff to prove all of the
elements of defamation. Most people will respond to news that a plaintiff lost a
defamation lawsuit by concluding that the allegations were true.
Hard to find a better summary of the damage Cafaro has done her campaign with this move. Kucinich's statement was little different than the puffball question she answered from Chancellor. Not much worse than the planted questions in the Cafaromercials. But it comes from an opponent and she goes all Al Davis on his ass.

As I've said, I think the sort of handwringing Kucinich engaged in is crap. I think her attorney negotiated an immunity deal because that's how high-priced suits justify their high prices and she got the immunity deal because she was either completely clean or so tangentially involved as to not be worth the effort. If I was OK with a district-shopping candidate touting a sackful of bad ideas, the immunity deal wouldn't be a problem for me.

But dropping the lawsuit bomb over a statement as innocuous as this shows such a lack of understanding of fundmental political strategy that does give me one more reason to vote against her.


Anonymous said...

No body cares or listens to your crap or her crap anyway dork.

Applehead said...

Well, I don't agree with you 95% of the time, but I still have your blog bookmarked and check it frequently. The previous commenter doesn't have a clue and is an idiot. You can't just throw up comments that don't have any back up and throw in personal attacks. that's dumb.

FamineHorse said...

And of course anonymous is anonymous. Give us at least a psuedonym pinhead. Oh, & I guess you do care since you visited this site & commented, dumbass.

Pho, as usual, you nailed it with this post. Nice job.

Tim Russo said...

totally nailed it. if he sues, betras will make kucinich a congressman.

Anonymous said...

Here is my pseudonym... "You all are a bunch of nerds"

Pho said...

Applehead, that may well be the nicest comment I've ever gotten. Thank you.

Anon2, assuming you are the same as Anon1, I hope you don't think "nerd" hurts my feelings. Policy Nerd is a badge I wear proudly.

Anonymous said...

Wow. I found this link and it appears another man has a little nubbie. We will call him "mini nub."

Anonymous said...

Actually, to be accurate, isn't it the first statement "Ms. Cafaro has repeatedly denied wrongdoing" that is the statement of fact? The second "why did she receive immunity if she didn't do anything wrong?" is merely an open question, and the third "Democrats cannot afford to nominate anyone that is concealing wrongdoing" actually IS an opinion, but since it is talking in general and doesn't explicitly name Ms. Cafaro, it can't be used by her as evidence of an attack of her.

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