Archive for January 2012

Even Nuns Defame; Credibility Key to Any Trial

"Notre Dame des Anges" an 1889 painting by William-Adolphe Bouguereau. (Provided photo) / AL
The report of this defamation caught my eye because of the parties involved. There is a standard joke among attorneys, that if you find yourself suing widows, orphans or nuns, your practice has probably taken a bad turn. In this case, nuns were being sued for defamation.

It started when the nuns decided to sell an old painting they had laying around. The painting was in really bad shape, not even worth hanging, but it turned out to be by a well regarded artist, William-Adolphe Bouguereau. So the nuns had it appraised by an art dealer named Mark LaSalle. Based on his appraisal, the nuns agreed to sell the painting to Mark Zaplin for $450,000. Zaplin had the painting restored to its former glory, a fact that I think is crucial to this case, and turned around and sold it for $2.15 million, netting a tidy little profit.

The nuns sued LaSalle and Zaplin under a number of theories, claiming that Zaplin had been a straw buyer, and that LaSalle was working in concert with Zaplin and had conned the Daughters of Mary by intentionally under-appraising the painting in order to buy it at a bargain price. The two Marks counter-sued for defamation, because the nuns had made these same claims to the media. (In case you’re new here, you can never sue for defamation for things said in conjunction with a lawsuit, since those statements are privileged, but you can sue if the same statements are made to the media.)

Here is the part I find interesting and the main reason for this article. The nuns had a witness. An art dealer by the name of Paul Dumont claimed to know both LaSalle and Zaplin, and testified that LaSalle had told him that they could “make a handsome profit by giving the sisters a low appraisal value of between $350,000 and $450,000 and presenting a buyer who would pay the amount of our deliberate and intentionally inaccurate appraisal.” He claimed that LaSalle had asked him to find a “money man” who would act as a straw buyer.

Wow. Pretty strong stuff. So the nuns must have won, right? Actually, they went down in flames (can I say that about nuns?). A New York jury found against them on all of their claims, and instead awarded LaSalle $250,000 for defamation against Dumont and a church Bishop, and awarded Zaplin $75,000 against Dumont for defamation. LaSalle will also recover punitive damages.

But how can that happen with a witness who is specifically corroborating the story of the fraudulent appraisal and straw buyer? And therein lies the moral of this story. Read the rest of this entry »

Gloating Over $5,000 Settlement Costs Parents $234,011.87

Canadian Teacher, eh?
Some callers to my office, wanting to sue for defamation because someone said terrible, false and hurtful things about them, are disappointed to learn that they cannot seek legal action because the speech falls under a privilege. By definition, “privileged” speech can never be defamatory, and therefore cannot support a defamation action.

Examples? Speaking at a City Council meeting, testifying in court, or filing a police report – all privileged speech. (There are of course exceptions to every rule of law, but my New Year’s resolution was to write shorter articles.) So, if someone trashes you from the witness stand in court, there is nothing you can do about it from a defamation standpoint. (Although the person could be criminally liable for perjury. Sorry, couldn’t let that one go.)

“BUT,” I tell the caller, “if the person steps out of court and makes the same statements, you have them.”

I ran across this case out of Canada that so beautifully illustrates the point, eh. A teacher allegedly says terrible things about a student in front of the class. Parents sue. On the day of trial, parents agree to settle for $5,000 with no admission of wrongdoing by the teacher.

But then they felt compelled to gloat. The walked out to waiting media, and said: “She’s a marked lady and before she makes any more unprofessional moves, she’ll have to think twice.”

Wait a second parents, you just agreed that there was no admission of liability, so how is she marked or unprofessional?  Now it was the teacher’s turn to be miffed. The teacher sued, and a court awarded $234,011.87. The parents appealed, but the appeal court not only upheld the verdict, it added insult to injury by spotting an error in the trial court’s math, and added $552. Ouch.

The parents could have said the exact same thing INSIDE the courtroom, and the media could have reported those statements, and the parents would have been fine. But when they left the courtroom, they stepped out of the defamation immunity bubble and got nailed.

An Explanation of the Civil Litigation Process

Every profession has it’s own unique procedures and lexicon. If I went to a plumbers’ convention, I’m sure I wouldn’t know half of what they were talking about.

I have to remind myself of this periodically, because during a conversation with a prospective client I’ll use basic legal terms like “summons.” “complaint” and “answer,” assuming the person knows what I am talking about, only to realize as the conversation progresses that they are not familiar with even those terms.  I communicate like crazy with my clients,  following the method tell them what you are going to say, tell them, and then tell them what you said.  Indeed, I can’t imagine a more communicative lawyer.  Yet even well into a case, I occasionally find that a client has a fundamental misunderstanding of the litigation process.

As an example, I once represented a sophisticated businessman from New York on a defamation claim. A newspaper here in California had published a defamatory statement about the client. The action proceeded nicely for the better part of a year, and the judge finally assigned a trial date. I immediately notified the client of the pending trial date, and told him to notify me immediately if the date presented any problem.

The client called and said he had no intention of attending the trial. “That’s why I hired an attorney,” he said.

I was fascinated by the remark, and asked the client just how that would work. He was claiming what the newspaper published about him was false. How, exactly, was I going to prevail on the case if he did not take the stand to explain why the statement was false, and how it had impacted him?

At first blush this appears ludicrous, but consider all that goes on during litigation that does not involve the client. There had been multiple motions during the litigation, and the client had not been required to attend any of those. In the client’s mind, a trial should be handled in the same way. I would simply go to court, establish that the newspaper had made the statement in question, and present the law on why that was defamatory. The client’s version of the facts could be presented by declaration. The client simply did not understand the rules of evidence, and how the opposition must be permitted to cross-examine any witnesses.

Thankfully, the matter settled before I ever had to face the conundrum created by the client. The newspaper caved, and we obtained an amazing settlement. Perhaps the newspaper’s representatives had refused to attend trial as well.

Bottom line: Don’t assume your client knows anything.

The following video is by a San Francisco attorney. He provides a very basic description of the litigation process from beginning to end.  The video is simple but very well done, and is a great resource if you are looking for a broad overview of the litigation process.

Aaron Morris, Attorney
Aaron Morris
Morris & Stone, LLP

Orchard Technology Park
11 Orchard Road, Suite 106
Lake Forest, CA 92630

(714) 954-0700

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