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Saturday, September 25, 2004

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' Rathergate 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.

Posted by Beldar at 07:35 PM in Mainstream Media, Politics (2006 & earlier) | Permalink


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(1) Jimmy's Attack Rabbit made the following comment | Sep 25, 2004 9:54:35 PM | Permalink

......"fairly crisply burnt by this point"...... Priceless!

The Texas Attorney General doesn't have standing?

(2) David Morrison made the following comment | Sep 25, 2004 10:06:09 PM | Permalink

Beldar, do you think Mr. Burkett might have a shot at recovering on an action against CBS or Dan Rather or others at CBS for intentional infliction of serious emotional distress?

I haven't briefed it recently, but the traditional standard has been: "One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm." Restatement of the Law 2d, Torts (1965) 71, Section 46(1). Four elements must be proved: 1) that the actor either intended to cause emotional distress or knew or should have known that actions taken would result in serious emotional distress to the plaintiff; 2) that the actor's conduct was so extreme and outrageous as to go "beyond all possible bounds of decency" and was such that it can be considered as "utterly intolerable in a civilized community," Restatement of Torts 2d (1965) 73, Section 46, comment d; 3) that the actor's actions were the proximate cause of plaintiff's psychic injury; and 4) that the mental anguish suffered by plaintiff is serious and of a nature that "no reasonable man could be expected to endure it," Restatement of Torts 2d 77, Section 46, comment j. Showing bodily injury or any physical impact is unnecessary.

The conduct of Dan Rather and others at CBS in the Rathergate affair was and continues to be outrageous, as you proved in your posts demandings that Mr. Rather and others be fired. Given what their own experts and the Killian family had told them, they acted with either actual knowledge that the memos were forged or with a reckless disregard for the truth. And they did so, using CBS's standing as an "elite" news agency, to defeat a sitting President of the United States.

After the forgeries were made public and it became clear that the story wouldn't blow over, they claimed that Mr. Burkett had misled them, though they surely knew all along that he was not an "unimpeachable source," and that they had no reason to be confident in the "chain of custody." Blaming Mr. Burkett for their own misconduct might well have been their fall-back plan all along.

If they knew about Mr. Burkett's evident mental illness, then they knew or should have known that broadcasting their accusations against President Bush and then humiliating Mr. Burkett was likely to cause him serious emotional distress. And those actions evidently did cause him emotional distress, although it would require an expert's opinion to determine how serious it is.

Here in Ohio, at least, the defamation defenses as such don't apply to intentional infliction of serious emotional distress (or didn't when I last looked it up). So proving that their public statements about him were true, or that he had already harmed his own reputation, wouldn't establish an affirmative defense -- though any such evidence would probably be material to mitigate the "extreme and outrageous" element.

(3) Xrlq made the following comment | Sep 25, 2004 10:15:29 PM | Permalink

Ah, but Rather defamed Burkett by telling the whole country he was an "unimpeachable" source, knowing full well that he was nuttier than a Chinese chicken salad.

(4) Roundguy made the following comment | Sep 26, 2004 5:10:34 AM | Permalink

The ACLU could do a pro boner for him! Sue CBS under the ADA laws!

(5) MaDr made the following comment | Sep 26, 2004 11:56:02 AM | Permalink

Why does he need a lawyer willing to work on a contingency fee? I recall some in the MSM promoting what a wonderful neighbor, friend, and staunch, well thought of Democrat Burkett is. With this legion behind him, couldn't they just chip in for his suit?

(6) Beldar made the following comment | Sep 26, 2004 1:52:26 PM | Permalink

Mr. Morrison, IIED is a catch-all tort that looks good on paper, but of which I'm pretty dubious in practice. In my personal experience, it's usually been a tag-along claim tacked onto lawsuits that either were capable of standing on their independent merits, or else generally collapsed despite this one. Texas judges, in my experience, have been fairly aggressive in interpreting the tort narrowly lest it turn into a jury-based popularity contest. Lots of the appellate opinions I've read on the tort haven't particularly been models of principled clarity; instead, they've typically said, "Well, we've looked at the small handful of cases where the defendant's conduct was deemed 'outrageous enough,' and this case doesn't look like one of those to us."

I suspect that an IIED claim by Mr. Burkett would be tossed out on a pretrial motion on grounds that CBS News' conduct, while quite arguably "beyond all possible bounds of [journalistic] decency," was still not directed primarily toward Mr. Burkett but toward the current resident of 1600 Pennsylvania Avenue. And I suspect that the same First Amendment concerns that prompted New York Times Co. v. Sullivan might be used to cut greater slack for press-IIEDers than ordinary defendants.

I'd agree with you at least that IIED is among the relatively more promising of Mr. Burkett's potential claims, perhaps along with the little-used "false light" variant of libel law (which doesn't require that what's been said about the plaintiff have been absolutely "untrue"). My informed intuition — very subjective, but something I've learned to trust in deciding what contingent fee matters I'd recommend that my own firm invest in — still tells me that representing Mr. Burkett would be a black hole into which hundreds of hours and tens of thousands of dollars would disappear with extremely remote prospects of an ultimate recovery. On the other hand, I'm pretty conservative in making such calls, which is probably why I'm not in the John Edwards-and-up income bracket.

(7) Todd made the following comment | Sep 26, 2004 3:04:00 PM | Permalink

I'll just add my two cents about IIED. In my experience, which involves perhaps 20 cases in which that has been pled (about half for the plaintiff and half for the defendant), it has never been successful. I practice in a state, Illinois, that is pretty liberal in its tort practice, but seldom has IIED (or another variant which could be tried here, negligent infliction of emotional distress) been the basis for a recovery in tort.

(8) jeff made the following comment | Sep 26, 2004 7:11:29 PM | Permalink

This is not an issue of a reporting mistake it is an issue of a political party coopting and using the airwaves against the people. Some of the laws vil\olated are the following.

In accordance with FCC regulation you are required to file the following as a complaint and maintain it on record at your station for further review.

CBS and Viacom should be denied it's station licenses on the following grounds.

1. For cooperating in a fraud against the the Federal Election Comission (FEC) through actions taken mutually with a political party (The Democratic Party)to contravene the laws embodied therein. Among other frauds would be that of causing corporate donations (of advertising time and other like kind donations)to be made and not accounted for.

2. For cooperating in a scheme to defraud the shareholders of Viacom Inc. by NOT charging market advertising fees for the broadcasting of considerable political advertising embodied in it's patently false political claims surrounding the forged documents regarding presidential candidate Bush. Had Advertising fees been collected, the shareholders would have realized the considerable financial benefit of these fees. Additionally, the considerable expenses incurred by Viacom to remedy the damages caused by it's knowing misconduct will accrue to the financial detriment of its shareholders. The situation is further exacerbated by the Viacom/CBS refusal to immediately reveal to it's shareholders all facts of the matters at hand in this matter.

3. In similar fashion to the claims of the RICO suit brought against tobacco involved companies, VIACOM, CBS Broadcasting and it's affiliates have cooperated in obscuring the facts regarding that product which it purveys. To wit, reporting the facts regarding matters which have a material effect upon the consumer of the broadcast. This pattern of misconduct has been demonstrated over time by many persons cooperating within the organization's named and is an ongoing practice.

(9) Stephen M. St. Onge made the following comment | Sep 27, 2004 6:10:57 PM | Permalink

      What interests me about this story is Van Os saying that there'd be "a conflict of interest" if he represented Burkett.

      To me, that suggests that Van Os was working for someone else.


(10) Ledger Man made the following comment | Jan 10, 2005 9:18:57 PM | Permalink

I just wonder who actually constructed the fraudulent documents? If was Burkett I would think that it would harm his case. But, if it was a DNC forger then Burkett would have a better shot at damages.

What would be the extract steps need to find out who actually constructed false docs. Could it be done in a civil suit?

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