Oh, what lawyer shall sue CBS on Burkett's behalf?

Tucked away on page A8 of today's WaPo is an article by Michael Dobbs entitled "Source for Rather Seeks New Lawyer, Might Sue CBS." 

Mr. Dobbs reports that CBS News' Ra^thergate source Bill Burkett is no longer being represented by attorney David Van Os, who "bowed out because he was involved in the initial negotiations with CBS and feels a conflict of interest."  Leaving aside any arguable appearance of impropriety from Mr. Van Os' heavy involvement in Texas Democratic Party politics and current candidacy for the Texas Supreme Court, Mr. Van Os certainly made the right decision if only based on the likelihood that he would be a material fact witness in any defamation case brought by Mr. Burkett (albeit one whose testimony might in significant part be shielded by his continuing attorney-client privilege obligations to his former client).

As for Mr. Burkett's current counsel,

[Gabe] Quintanilla said he is suffering from severe back problems and cannot handle the deluge of calls and messages in an incident that, he said, has generated more conspiracy theories than the "grassy knoll" did in the assassination of President John F. Kennedy.

A third lawyer, Lin Wood of Atlanta, who represented former Olympic Games security guard Richard Jewell in a successful defamation suit against several news organizations, said yesterday that he had declined a request from Quintanilla to take the Burkett case. Wood pleaded "time constraints" as well as his "high regard for CBS News."

"It appears highly questionable that he has a legitimate defamation claim" against CBS, said Wood, noting that his opinion was based on news reports about the case rather than privileged information. 

Texas, of course, is home to hundreds and hundreds of lawyers, including some of the most high-profile contingent-fee lawyers in the country, and it seems likely that Mr. Burkett may seek counsel who'd undertake his representation on that basis.  Although their terms are variable and subject to negotiation, such fee arrangements oftentimes include provisions under which the lawyer not only invests his time, but also the out-of-pocket expenses of litigation, with the hope of being repaid for either only out of whatever money is eventually recovered by way of judgment or settlement.  In contemplating the possibility of undertaking Mr. Burkett's representation, a prudent lawyer would assume that the case will require heavy investments of both time and money. 

Moreover, regardless of the results of CBS News' pending self-investigation, CBS News can be expected to defend itself tenaciously against any claim that it has harmed Mr. Burkett or his reputation.  That CBS News' performance in this debacle may have made it a journalistic disgrace and a national laughingstock does not make it an easy mark for a defamation case from one in Mr. Burkett's position.

And Mr. Burkett, intentionally or not, has made himself into a "public figure" at least since his allegations last spring about the purported systematic destruction of President Bush's military records from the Texas Air National Guard — meaning that to prevail against CBS News, he and his counsel would have to overcome the formidable "actual malice" hurdle imposed by New York Times Co. v. Sullivan. 

I think that a very strong case could be made by another potential defamation plaintiff — George W. Bush — that with respect to him, CBS News acted with both subjective malice and objectively reckless disregard for the falsity of its statements about him in particular.  For a variety of reasons, however, the principal target of CBS News' broadcasts is the least likely person to sue.  (Expert witnesses Linda James and Emily Will, retired Col. Buck Staudt, or other supporting members of the dramatis personae in CBS News' tragic comedy of errors are differently situated, and might have more attractive claims than Mr. Burkett.)

But from what's in the public domain now, I see little basis for supposing that a plausible case of "actual malice" could be made for CBS News' statements about Mr. Burkett.  Nor is it immediately obvious what, if anything, that CBS News has said about Mr. Burkett is false, and his reputation was hardly unsullied even before this fall's scandal regarding the forged Killian documents.  And Mr. Burkett's other possible claims besides those sounding in defamation law (and its offshoots, like "false light depiction") — invasion of privacy? breach of contract? — look no more promising to me than his potential defamation claims.

Mr. Burkett does have, of course, the alternative of retaining counsel on a regular hourly-rate plus expenses basis.  But those costs are likely to run into the tens and even hundreds of thousands of dollars in fairly short order in a case like this one.  Moreover, any legal team representing Mr. Burkett would be wise to include among its members someone with substantial expertise in criminal law — and such lawyers don't typically work on a contingent fee basis.

Representing Mr. Burkett would certainly confer collateral publicity on whatever lawyer undertook to represent him.  One must wonder, however, whether that publicity would be positive or negative.  And the bridges between Mr. Burkett and his former political soulmates on the Democratic side of the aisle seem to have been fairly crisply burnt by this point — with the fires having been lit from both sides roughly simultaneously.  The prospects of Mr. Burkett finding counsel to represent him on a pro bono publico basis seem remote.

Perhaps some prominent, clever, and entrepreneurial lawyer will see an angle that I'm missing and step forward as Mr. Burkett's champion.  But it's not hard to see why lawyers aren't swarming his porch with contingent fee contracts in hand at the moment.  Both opponents and supporters of the contingent fee system agree that it is driven, for better and sometimes for worse, by simple market economics as those principles intersect with the lawyer-participants' assessment of potentially valuable claims.  If it turns out that Mr. Burkett can't find counsel, that may reflect nothing more than a consensus among knowledgeable lawyer profit-maximizers that his claim is ultimately not worth filing.