Respectable Lawyer

It’s important to note that I wouldn’t even have to write something like this if mainstream media news desks even bothered to do halfway decent legal analysis. But here we are.

So a lot of people seem to think Sandmann won a meaningful amount of money, but every part of this, from the procedural history, the timing, the announcement, the relevant law, all of it confirms Sandmann was paid mere nuisance value.

Right off the bat, it’s clear this isn’t the kind of the statement you would make if you just scored a big pay-day off the Post. This is a statement trying to justify why Sandmann bowed out. And notice the reference to the correction. That will be important later.

So dial back the clock a few months ago. At first, the judge in the case dismissed all 33 of Sandman’s claims against the Post, finding no possibility of prevailing. Sandman’s counsel made a plea for reconsideration.

The problem with those three claims is that they are based on statements Nathan Phillips made to the Post, which reported his words. That’s why discovery is needed on the context. Because absent something really weird, newspapers can generally report what third-parties say.

Under this defense, a newspaper can report what a third-party said unless it knew the third-party was lying or if the newspaper knew the third-party was so chronically unreliable that nobody would ever believe them about anything.

So assume for a moment Sandmann could prove that what Phillips said wasn’t “substantially true” in the legal sense – i.e., his path of travel wasn’t blocked. He would still have to prove the Post knew Phillips was lying about being blocked by the teens.

Alternatively, Sandmann must prove the Post knew Phillips was “chronically unreliable,” which is nearly impossible, especially considering Phillips was unknown to the Post at the time of the reporting.

You have to show the publisher possessed information showing multiple documented lies in a recognizable pattern. And you have to show the Post ACTUALLY possessed information about Phillips, not that it SHOULD have possessed it.

So this is functionally impossible with Phillips because a history of past crimes or bad acts won’t do it, only repeated documented lies on similar matters. And it’s also obvious the Post knew nothing about Phillip’s past at all on the day this happened anyway.

A weird feature of defamation law is that it frequently rewards willful ignorance and a failure to investigate, at least on these kind of subjective knowledge questions. I don’t think it’s the way the law should be, but it is. You must prove the Post knew.

Because like most states, Kentucky (where the suit was filed) has a law prohibiting any punitive or exemplary damages when a newspaper publishes a correction in response to a person’s demand for retraction. https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=17757 …

Technically, you could still recover punitive or exemplary damages if you prove The Post committed actual malice, but it’s well understood that actual malice is the kiss of death for a lawsuit, especially in breaking new stories. Zero chance of malice here.

So even assuming Sandmann could clear each impossible hurdle, he would only be able to recover actual damages. And discovery would likely prove Sandmann had little to none. By all indications, he is doing ok, and in fact has become a beloved micro-celebrity in MAGA world.

So when Sandmann was given the chance to make document requests and take testimony from the Post and submit himself for testimony, he chose not to go forward.

The Washington Post is insured by a commercial insurance carrier, and I have sued commercial carriers my entire career. They are not settling a case for any significant amount of money without a deposition of the plaintiff.

There’s many reasons for this, most notably that you can’t accurately gauge your exposure until you understand the plaintiff and what their damages are. Not to mention that when a lawsuit collapses into dust, 90% of the time it happens in the plaintiff’s deposition.

Here, that collapse had already happened. Who cares what admissions you can secure in a plaintiff’s deposition when his case has been rendered worthless and he’s willing to exit for nuisance value?

Nuisance value is determined by how much it would cost to defend the suit until dismissal. The Post knows it will win on this issue, but also knows Sandmann could cause it incur expenses by litigating until summary judgment happens.

In this situation, I’d estimate the legal fees incurred by the insurance company if they conduct discovery on this issue and then argue summary judgment is on the magnitude of $200,000.

So a settlement in that situation needs to be quite a bit below $200k for the carrier to be financially incentivized to provide Sandmann a graceful, confidential exit from the suit that saves face. $50k is a good guess.

A wealthy trial lawyer isn’t what we usually picture when we think of the sad world of QAnon, but the fastest growing adherents are rich boomers got sucked into this dumb Tom Clancy-esque roleplay nonsense after getting bored waiting for the Rapture.

You may remember Lin Wood for botching the Elon Musk defamation trial. He made bizarre choices, including making Musk his first witness. Instead of systematically making the jury dislike him over the course of the trial, he opened by letting the billionaire have the spotlight.

And like a lot of old weird trial lawyers, Wood rubbed the judge the wrong way. But at least we got the delightful “JustBalls dot com” exchange (and yet another time Elon came off as charming and made the jury laugh).https://twitter.com/RMac18/status/1202363221111271425 …