Tuesday, December 20, 2016

Defense lawyers claim a blogger (me) has more notoriety than a U of Alabama football coach in an effort to make me a "public figure" in defamation case

Ronnie Cottrell
(From tiderinsider.com)
If you ever are a plaintiff in a federal lawsuit, how might a defense attorney concoct a bogus Motion to Dismiss that could deny you even a chance for justice? It is much easier for the defense to pull off such a scam, in the post "Iqbal" and "Twombly" world that has turned pleading standards on their heads in the past 10 years or so. The two U.S. Supreme Court findings are so confusing and poorly reasoned that many plaintiffs' lawyers have no idea what they mean, and you can bet their clients are stumbling in the dark, too.

Defense lawyers in our ongoing "House Case" are so prone to chicanery they argue, in essence, that I have more notoriety, because of my blog, than a University of Alabama football coach -- and an equal amount of notoriety to another UA coach. No kidding. And that is supposed to help bolster their case. I will explain how in a moment. First, let's consider this:

In the courtroom world, confusion usually benefits the defense -- certainly in a criminal case, and even in a civil case. Here is an instance where defense lawyers try to create confusion in an effort to get their clients (likely corporate, institutional, or moneyed types) off the hook without having to face discovery that could reveal their misconduct. This example comes straight from our own recent experience in a case styled Shuler, et al v. Garrison, et al, which we call "The House Case" because it deals with the wrongful foreclosure on our home of 25 years in Birmingham (plus associated issues, such as defamation) and to distinguish it from a second pending case, Shuler, et al v. Duke, et al ("The Jail Case"), which largely involves my wrongful incarceration for five months in Shelby County.

"The House Case" provides a classic example of how desperate defendants are to avoid discovery and the possibility it might unmask their unlawful acts and expose their liability. The case shows that defense lawyers are trying, without any discovery or facts to support their claim, to have me declared a public figure -- or at the very least, a limited-purpose public figure -- which raises the plaintiff's bar in a defamation case to proving "actual malice." That standard, in essence, means the publisher knew the article was false -- or had reckless disregard for the truth -- and it's much more difficult to prove than the standard for a private person.

So, it's important for defendants to make a flimsy effort at showing I am at least a limited-purpose public figure. In the process, they prove that they are con artists -- and lazy con artists at that.

In a reply brief to her Motion to Dismiss (Document 107 for those with access to PACER), al.com reporter Leada Gore uses 2 1/2 pages of an eight-page document in an attempt to show that I'm a public figure. (Our response to Doc. 107 and related matters is embedded at the end of this post.)

Gore cites 13 cases, and every one of them involves a case that went to summary judgment (involving discovery) or a trial on the merits (which involves both discovery and evidence presented at trial). Bottom line: Gore, and her lawyers from the Birmingham firm Lightfoot Franklin and White try to show I'm a public figure at the Motion Dismiss stage by citing more than a dozen cases that had nothing to do with Motions to Dismiss. In every case that Gore cites, discovery was required to determine the plaintiff's public-figure status. But she wants that status affixed to me, without any discovery at all.

Leada Gore
(From al.com)
In essence, she wants a judge to guess at it -- in hopes she will get lucky, while citing no law that shows it's supposed to be done that way. As a side benefit for Gore, if the scam works, she would not have to answer pesky questions under oath or turn over documents related to her reporting on the Garrison case.

Her lawyers more or less admit they are engaging in con artistry. On page one of their document, they cite Cottrell v. NCAA, 975 So. 2d 306 (Ala., 2007) for its holding that "two University of Alabama assistant football coaches were, in fact, limited-purpose public figures." That, not surprisingly, isn't true. One of the Alabama coaches, Ronnie Cottrell, was found to be a limited-purpose public figure; the other coach, Ivy Williams, was not.

The flimflammery from Gore's lawyers does not stop with that "mistake." They write: "Although the legal determination in that case (Cottrell) was rendered on a full record, here, Plaintiff's own allegations are enough to determine that Mr. Shuler is at least a limited-purpose public figure."

Yeah, right. Do lawyers the Lightfoot lawyers provide a single citation from Alabama state law or Eleventh Circuit federal law to support that claim? Nope. The law plainly shows that a determination regarding public-figure status must be made with the assistance of fact-finding, via discovery. But Leada Gore's lawyers don't want to go there.

The Lightfoot gang actually thinks that, because of what Jessica Garrison has called my "ridiculous little blog," I have more notoriety than one former member of the University of Alabama football coaching staff (Ivy Williams) and equal notoriety of a second former member (Ronnie Cottrell)? Maybe this should be called the Lighthead law firm.

This would be an interesting test: Send out notice that two UA football coaches will appear at a prominent spot in downtown Birmingham to take questions from the public -- and at the same time, in another prominent downtown location, the publisher of the Legal Schnauzer blog will be taking questions. See which one draws the bigger crowd.

Finally, the Lightfoot lawyers prove they are a lazy bunch. Most of the 13 cases they cite are drawn directly from a case styled San Antonio Exp. News v. Dracos, 922 SW 2d 242 - Tex: Court of Appeals, 4th Dist. 1996. The firm probably will bill Leada Gore or her employer (Alabama Media Group) several thousand dollars -- maybe $10,000 or more -- for preparing an eight-page document that largely was a cut-and-paste job. And it did not even involve accurate citations to law.

I probably am not a public figure, limited-purpose or otherwise, but I certainly do not become one just because of vague, conclusory statements from Leada Gore's lazy lawyers. That determination cannot be made without fact-finding -- and Gore's lawyers are desperate to avoid that.

(To be continued)


Anonymous said...

That's the best argument these clown lawyers can come up with? Pathetic.

Anonymous said...

Thanks for this report. It shows that many lawyers turn out sorry "work product" but still demand big fees.

Anonymous said...

Big Tide fan here. I remember the Cottrell case well. Those were the dark days when we actually used to lose a game every now and then.

Anonymous said...

Members of the University of Alabama coaching staff are the most famous people in the state, followed by their brethren at Auburn University. I'm sure more people know the coaches at their favorite school than their state rep. (or U.S. rep., for that matter.)

Anonymous said...

So, anybody who writes a blog is a public figure?

Anonymous said...

Well you are a public figure, at minimum a public figure for a limited purpose, which regards your incarceration which became a matter of public concern. You were written about in public fora including the New York Times, as you well know, among many other publications. But it really doesn't signify, as you have no reputation to lose, and you threw that away yourself.

COmpetent counsel makes every reasonable argument available, though, so it's natural that your public figure status would raise the bar for any claim of defamation.

Anonymous said...

Anyone can be a public figure for a limited purpose.
You don't have to be a major celebrity.

legalschnauzer said...

@2:15 -- I didn't say you had to be a major celebrity. But the defense has to prove that you pass a 3- or 4-prong test. I didn't cite that test here because it's fairly complicated, and the test seems to vary with different jurisdictions. Bottom line: I don't meet the standards, and that's why defense lawyers are trying to claim I have the same notoriety of a UA football coach. I assume even you don't agree with that -- and that is the point I'm making with this post.

legalschnauzer said...

@2:14 -- I don't have a problem with defense lawyers trying to make their case, but I do have a problem when they misstate the facts and the law and present arguments that are absurd on their face. You think I have the same "notoriety" as a U of Alabama football coach? I should have figured some clod-head would agree with that notion. I guess you are that guy.

You obviously know little or nothing about defamation law. The fact I've been incarcerated, written about in NY Times etc., is not part of multi-pronged test to determine public figure status.

legalschnauzer said...

@2:10 -- That is pretty much the defense argument. Specifically, they seem to be saying you are a private person if your blog sucks. But if your blog is good and attracts an audience, you become a public figure. There is zero law to support that, but that seems to be their claim.