I resolved a defamation claim at mediation last year. Our client received over $100,000 in the settlement, which is both a great result and highly unusual. This year (early 2017), I'm seeing an influx of inquiries with stories of false inflammatory statements. Not sure why, but it's happening.
Defamation cases are pretty rare, but since the phone is ringing, I thought a quick primer on the law of defamation in Washington State is in order. In Washington, a defamation plaintiff must establish four elements to recover monetary damages:
Contact Mark D. Walters Mediation is a tool that parties can use to resolve disputes. The sides jointly select an independent person, often a lawyer or a retired judge to serve as the mediator; they then meet on the same day with the mediator, and the mediator runs shuttle diplomacy between separate conference rooms to listen to the positions of the parties and their attorneys. Good mediators will point out the strengths and weakness of what they are hearing, and work to try to get the parties to understand how the risks, expense and stress of litigation might be avoided through a compromised resolution that the parties can control. Once a lawsuit is filed, control is lost.
In the legal profession, we say that a good mediator can get the parties to agree to a resolution that neither of them likes. Both sides leave unhappy because they had to compromise on something that is essential and important to them. Everyone knows there is a monetary price to pay for litigation. Filing fees, attorney fees, deposition costs, third-party copying expenses, court fees, etc., etc. Settlement and resolution also have a price or value, but the value of resolution is impossible to quantify because of the uncertainty of litigation. But, there is a value to resolution and avoiding litigation. Combatants pay this price in mediation through compromise. Finality and peace of mind that the dispute is done and over often times has a very high value, and a strong mediator can help parties see and understand this on a logical and emotional level. I am a big believer in mediation. I've seen it work countless times. I'm happy to sue and litigate as well when the stakes are high and litigation is the right business decision, but I try to use mediation as a step before litigation, and I write mandatory mediation clauses into most of the contracts I write. Contact Mark D. Walters Ever wonder how the news can publish and report on lawsuits that involve allegations and claims of defamation? How is the news is not held liable for re-publishing the false and defamatory coments?
The fair report privilege permits a person to publish a report of an official action or proceeding or of a public meeting that deals with a matter of public concern, even though the report contains what is known to be a false and defamatory statement. However, to fall under the fair report privilege, the report must be a substantially correct account of the proceeding. And, though it is not necessary that the report be exhaustive and complete report of the proceeding, it is required that nothing be omitted or misplaced in such a manner as to convey an erroneous impression to those who hear or read it. Contact Mark D. Walters Some clients want to file lawsuits to attempt to stop an adverse party from doing something, like opening a competing business or going to work for a competitor. Here's what you have to prove to obtain an injunction, and a short discussion of how this plays out in court:
A plaintiff seeking an injunction must establish three elements of proof: (1) it has a clear legal or equitable right; (2) that it has a well-grounded fear of immediate invasion of that right; and (3) that defendants’ actions are either resulting or will result in actual or substantial injury to the moving party. In deciding whether a party has a clear legal and equitable right, the relevant inquiry is whether the party is likely to prevail on the merits. Where the injury complained of may be compensated by monetary damages, a party has an adequate remedy at law, and is not entitled to injunctive relief. Since injunctions are within the equitable powers of the court, these criteria must also be examined in light of equity, including the balancing of the relative interests of the parties and the interests of the public, if appropriate. Contact Mark D. Walters Lawsuits require large investments of time and money. There are the legal fees that each side will incur, and then there are the "costs of litigation." This short post identifies the major "costs of litigation" items, and some understanding of how much this might add up to.
Superior Court or Federal Court Filing Fee - $350 to $400 Fees to have the lawsuit served on the defendants - $75 to $150 per party. Court Reporter Fees for Witness Depositions and official transcripts - $500 to $2500 per witness depending on the length of the deposition. In cases where medical issues are at stake, there will be charges from healthcare providers to provide copies of the medical records - around .50 cents to $1 per page. In addition, there are witness fees for expert and physician depositions - around $250 per hour or more, sometimes a whole lot more. There are also charges for outside copying and scanning services - 10 to 18 cents per page. This adds up fast. I've worked on several large cases where the copying costs exceeded $10,000.00. If the case goes to trial, office supplies for 3 ring binders and alpha/number tabs are needed - This can run $175 to $350 for these because there are multiple sets. The costs of litigation are a topic that you should discuss with your law firm early, preferably before the lawsuit is filed to help ensure you are making an informed business decision. Mark D. Walters In Washington State, where I practice law, the general rule is that each side must pay their own attorneys' fees unless one of the exceptions to the rule applies. And, there are only a few exceptions to this rule.
Contractual Attorneys' Fee Provision - If the written contract states that the prevailing party will be awarded attorneys' fees, the judge or arbitrator will award attorneys' fees. If the contract is silent on attorneys' fees, the judge or arbitrator will only award attorneys' fees if one of the other exceptions applies. But, judge and arbitrators will commonly award "reasonable attorneys' fees" and the amount awarded will often be less than the actual attorneys' fees incurred. Be sure to talk to your lawyer about this issue so you understand it at both the contract drafting stage and at the pre-litigation decision making stage. Statutory Attorneys Fees - There are quite a few statutes in Washington that allow for the recovery of attorneys' fees. For example, the Washington Law Against Discrimination allows the party claiming injury (not the defendant) the right to recover reasonable attorneys' fees. Similarly, the Washington Consumer Protection Act allows the consumer the non-reciprocal right to recover reasonable attorneys' fees. In addition, for lawsuits where the amount in dispute is less than $10,000.00, RCW 4.84.250, allows the judge to award reasonable attorneys fees. Court Rule Attorneys' Fees - There are a few court rules that authorize the court to award attorneys' fees during a lawsuit. For example, Rule 37 of the Washington Court Rules authorizes the court to award attorneys' fees to a party who is forced to bring a motion to compel their opponent to engage in discovery. This is a sanction that the obstinate party is forced to pay for not following the rules of discovery. Recognized Basis in Equity - In rare cases, a party can recover attorneys' fees from a party who engages in bad faith litigation conduct. There are three types of bad faith litigation conduct: 1) pre-litigation misconduct, where a party engages in bad faith conduct that wastes private and judicial resources and forces a legal action to enforce a clearly valid claim or right; (2) procedural misconduct, where a party engages in bad faith conduct during the course of the lawsuit; (3) substantive bad faith, where a party intentionally brings a frivolous clam, counterclaim or defense for an improper motive such as harassment. Common Fund - Another equitable basis for recovering attorneys' fees is where a party brings an action and creates or preserves a common fund for the benefit of others as well as the party bringing the action. So there you have it. These are the exceptions to the rule that each side must pay their own attorneys' fees in Washington State. Mark D. Walters | Copyright 2015 Contact Mark D. Walters People who know me, know that I once co-owned a litigation support company in Seattle, Washington. This company does litigation copying and scanning for law firms in the greater Seattle area. It’s a highly competitive business.
I had great people who ran and operated this company so it did not take much of my time or attention. Thanks to them once again! Even before the economy crashed, the company began marketing the ” Select Firm Program.” The concept was simple; use our company for all of your outsourced litigation copying and scanning work, and you will get the lowest prices in town. The same high quality work product for less money. The sales team presented this as a tool firms can use to demonstrate to their clients that they are working to deliver high value and help reduce litigation costs. One problem, and it’s a big one. Almost every law firm that our sales team pitched this cost savings proposal to respond that they did not care about price because their clients pay, not the firm. “We don’t care what it costs. Our clients pay.” Yes, you read that right. Ironically, and even more shocking, a few law firms that rejected the cost saving proposal with the “we don’t care, our clients pay” response, later asked for lower prices when they could not pass the bill through to their clients. This is just one example of how law firms look for cost savings and efficiencies to reduce overhead, but do not do the same to deliver greater value to their clients. The economic interests of the law firm, especially big law firms with large overhead, are not aligned with the economic interests of the law firm client. This is offensive. Law firms owe their clients a fiduciary duty, and surely this includes spending the clients' money wisely. If anyone offers our law firm a way to save our clients money, our ears are wide open. This is an integral part of our law firm culture. If it is not a part of your attorney’s law firm culture, get a new attorney. Mark D. Walters | Copyright 2009 Contact Mark D. Walters I'm not a huge fan of arbitration. I understand the benefits of having the dispute handled privately, but I have found that it can cost nearly as much as a court battle, and you cannot appeal an arbitration gone bad. These are serious issues that every business owner and executive should discuss with their attorney.
I'm also not a fan of court battles because they take so long and cost so much. If I filed a lawsuit today in the King County Superior Court, the Clerk of the Court will assign a trial date that is 18-months away. When it comes to the consumption legal services, time is money, and time is serious money when the trial date is 18 months away. Here's a suggestion to consider. You're not going to ever have a perfect lawsuit or a perfect arbitration. Things will go wrong no matter what. The goal should be to get it over with quickly so you can get on with your business. If you agree with this philosophy, you may want to consider including a rocket docket arbitration clause in your commercial contracts that: (a) appoints a named arbitrator to handle all disputes; (b) sets a hearing date deadline of 90 to 120 days from the date of the Demand for Arbitration; (c) sets the maximum number of days for the arbitration hearing; (d) requires the arbitrator to issue his or her decision promptly after the close of the arbitration hearing. Having the lawyers battle for 90 to 120 days will cost you far less than having the lawyers battle for 547 days (18 months). Win or lose, getting past the dispute as cost effectively as possible is often is the best thing that can happen for the business. Mark D. Walters | Copyright 2012 Originally Published 2012 Contact Mark D. Walters Some lawyers, especially lawyers who exclusively bill by the hour, sell their clients on filing a lawsuit. It's not hard to do. The client is upset because they have been wronged in someway, and the attorney can direct the client's frustration and anger into filing a lawsuit. Not all attorneys do this, but many do. After all, what could be better for the lawyer than a client who will pay the lawyer on an hourly basis to battle it out in court? And remember this - when it comes to most commercial litigation and pay by the hour lawyers, the lawyers take no risk because they get paid win, lose or draw.
Before filing suit, ask the hard questions and demand hard answers: How can a lawsuit benefit us? What will we accomplish with this lawsuit, what will the ROI likely be, and is there a better way to go? In addition, in many cases the business should consider hiring an independent and experienced litigator to coach them through the litigation decision-making process. Having an experienced lawyer who does not stand to gain from filing the lawsuit will often help you make a better decision. Mark D. Walters | Copyright 2010 Originally Published 2010 |