A defamation lawsuit filed by University of Mississippi basketball coach Andy Kennedy against witnesses in an assault case raises some troubling legal-ethics questions.
Kennedy sued Cincinnati cab driver Mohamed Jiddou, who said in a police report that Kennedy struck him. Kennedy also sued Michael Strother, an employee at a valet service who supported Jiddou's story in an interview with a Cincinnati television station.
Speaking about the lawsuit for the first time, Kennedy told the Jackson Clarion Ledger that he filed it to protect his credibility.
Phil Taliaferro, an attorney representing Strother, had a very different take in an interview with USA Today:
"I've been practicing for 46 years and I've never heard of a situation in which a witness has been sued within 24 hours for telling what he saw. Michael is a 22-year-old young man who had the courage to tell the police what he saw."
I don't pretend to be an expert on legal ethics, which puts me in company with about 98 percent of lawyers. But based on my research and experience, Kennedy appears to be acting out of desperation. And his lawsuit smacks of witness intimidation, not only of Jiddou and Strother but against other witnesses that might come forward.
A Cincinnati television station reported that police wanted to interview two bar patrons who reportedly had a confrontation with Kennedy and a limo driver who might have witnessed the alleged assault. Wonder if those folks will be anxious to come forward now?
The Kennedy lawsuit raises serious questions about attorney Richard Katz, who filed the lawsuit on Kennedy's behalf.
A few points to consider:
* A person filing a criminal complaint has a qualified privilege to do so, and that privilege would appear to protect Jiddou and Strother from a defamation claim. In making their statements, it seems that Jiddou and Strother simply described certain events as they saw them, and at the time of their accounts, it appears they did not even know who Andy Kennedy was. How can they defame Andy Kennedy's character when they did not know who he was at the time of the event?
* Most jurisdictions have a "Rule 11" requirement, stating that by signing a pleading or motion, the lawyer certifies that he has good grounds to support it. This generally requires that a lawyer conduct some investigation before filing a claim. It's hard to see what kind of investigation Katz could have conducted in the roughly 24 hours from the time of the incident until the lawsuit was filed;
* What if Jiddou and Strother are making up their stories? What if they did conspire to "get" Kennedy? The law has a provision to protect someone like Kennedy in that situation. It's called malicious prosecution, and it's been the subject of numerous posts here at Legal Schnauzer. (Two examples can be found here and here.) If Kennedy were to prevail in criminal court, and he can show that Jiddou and Strother had no "probable cause" to have him prosecuted, he could file a claim for malicious prosecution--and he should prevail;
* Here's the rub with malicious prosecution: Such a case could not be filed until the criminal case is over, with a finding in Kennedy's favor. Kennedy clearly does not want a criminal trial to happen at all, and that probably is why he filed the defamation case. In fact, his attorney pretty much admitted as much in one newspaper interview;
* I look for Jiddou and Strother to file motions to dismiss Kennedy's lawsuit. Such motions differ from motions for summary judgment, which come only after discovery has taken place. A motion to dismiss cuts a case off at the outset, and such motions are rarely granted. But if the Jiddou/Strother lawyers can show their clients engaged in privileged communication, a dismissal would be called for;
* Jiddou and Strother also should counter with an abuse of process claim against both Kennedy and his attorney. This tort involves the issuance of legal process (such as a lawsuit), with an ulterior motive. In this instance, the ulterior motive would be to intimidate the witnesses into dropping the criminal complaint;
* Jiddou and Strother also can come back with an assault and battery counterclaim. Assault is both a crime and a tort, so they can countersue for assault;
My guess is that Kennedy and his attorney want to get this problem into the civil arena, so they can offer Jiddou and Strother enough money to make the problem go away, protecting Kennedy's job--and those of his assistant coaches.
Here's a problem with that scenario: Even if Jiddou and Strother settle civilly and agree to drop the criminal charges, that can't be done without the OK of the Cincinnati prosecutor. After all, that case will be the People of Ohio vs. Andy Kennedy, and victims don't get to make the call on whether it will be dropped or not.
Chances are, Kennedy's attorney is well enough connected in the legal community that he will be able to get prosecutors to drop the criminal case if a civil agreement is reached. Kennedy's attorney also is likely to be well connected enough to avoid the Rule 11 sanctions that he probably should face. (Jiddou and Strother could play hard ball by immediately filing a bar complaint against Katz. If the Ohio bar is like the Alabama bar, nothing is likely to come of that.)
It's a dangerous game Kennedy is playing. Since he was on university business, a countersuit for assault and battery also could name the University of Mississippi as a defendant, along with its officers. Such an outcome is likely to make said officers most unhappy and make it more likely that Kennedy and his staff will lose their jobs.
My guess is that Kennedy wants a quick settlement that will save his career and keep the university out of the equation.
Kennedy might have fired the first shot in the civil battle over the downtown fracas. But I would say Jiddou and Strother still hold all of the good cards.
One of the fundamentals of American law is that someone who feels he has been wronged, either criminally or civilly, is to use the justice system without fear of a facing a lawsuit.
I know all about this principle, and how it doesn't necessarily protect crime victims. I was the victim of a criminal trespass, and because the accused was wrongly acquitted, I faced a lawsuit for malicious prosecution. Not only did I have probable cause for bringing the criminal complaint, I had actual cause; the perpetrator unwittingly admitted in court that he had trespassed.
I became a victim both of a crime and a lawsuit. By law, Alabama courts are not supposed to allow that to happen. But a few corrupt judges did allow it, and that's why I started this blog.
From where I sit, it appears that Jiddou and Strother are going through the same kind of double victimization.
Kennedy's lawyer should have known better than to file a defamation lawsuit in this situation. It just makes him and his client look desperate, and it heaps abuse upon some of the basic foundations of American law.