Your civil litigation attorney may tell you: don’t talk about your civil claims — or defenses — with anyone, except your lawyer.
But why?
For one thing, anything you say can be used against you in court, just like they say on television. In fact, anything that you say anywhere to anyone can serve as an admission against you in any litigation where you are a party. This also means, you can “innocently” drag your friends and family into your litigation as witnesses. How? By simply talking to them about your case.
But there’s another, even more important reason to refrain from talking about your case with anyone but your lawyer.
Liability for Defamation
Any time you speak about anyone in particular, you risk being sued by that person for defamation. You might win the defamation case, but you still can be sued and dragged through seemingly endless litigation.
This includes statements you make to a third party about the strength of your case (or defense) in court in a separate matter. For example, speaking to the media about your pending civil litigation case carries a huge risk of you getting sued separately for defamation by the opposing party in your litigation.
But why? Aren’t you always allowed to tell the truth?
Free Speech Has Limits
Yes, you’re free to speak the truth, per the First Amendment to the Constitution. But the First Amendment only applies to governmental activity. In other words, it’s only the government that’s restricted from limiting your free speech. For example, you may speak “truth to power” and call a police officer a “fascist jerk.” The police department will have no rights against you.
But when it comes to statements you make about a private individual, it’s different. In fact, a private individual can sue you for making an allegedly false statement that allegedly “harmed his reputation.”
Even if it’s all “allegedly.”
For that person, bringing a defamation action, the “truth” could mean anything. For example, let’s say “John” is Harvard educated. At Harvard, all of John’s professors repeatedly told him some version of: “Donald Trump is obviously a racist homophobe.” (It’s Harvard, how could all the professors be wrong? — he thinks.) John then leaves Harvard thinking he knows the “truth,” and further believes that any person who voted for Donald Trump must be a racist homophobe — regardless of the truth.
Only John’s “truth” might not be the truth for millions of voters. And the same applies to how we see, interpret, and comment on one another.
Multiple Versions of “Truth”
Law schools — possibly even Harvard — teach law students there are at least four different sides to every story. There’s the plaintiff’s version, the defendant’s version, the witnesses’ version, and the truth. So any time you make a statement that creates a dispute as to the “truth” — in a manner that makes another believe you harmed his reputation — you’re setting yourself up as a party to defamation litigation.
But wait a minute, you might think: “What if I’m right and the party I’m suing for breach of contract is not only wrong, but totally full of crap? After all, I’m saying he breached the contract. I’m right. He’s wrong. If he denies it in court that he breached the contract (calling me a liar) — and I win in court — can I then sue him for telling lies about me in court? Or, if I lose that case in court, can the Defendant sue me for defamation for bringing a “false” claim on the public docket that harmed his reputation?
The answer to both is: no.
Statements Made During Litigation
The law carves an exception to defamation law, to allow parties to speak freely during litigation, either in your written lawsuit or at a deposition or at trial. In litigation of any matter, you shouldn’t live in fear of being sued for defamation when the case ends. It’s called the “judicial privilege.”
Thus, a party has a privilege to speak openly in court papers and testimony during the litigation of any case for breach of contract, negligence, or other civil matter. Thus, in your civil litigation complaint, filed on the public docket, you can say just about anything about a person or corporation, as long it’s not wholly unrelated to the case or known by you to be false.
Without the judicial privilege, there could be nearly endless litigation of every dispute in court. Think about it. In nearly every lawsuit, a judge or jury finds that one party was more credible than the other. One is a liar, in other words. With this, the winning party could claim the other party “lied” and “harmed his reputation” by testifying falsely in court.
But the statements you make in court lack protection in one key manner.
Key Exception to the Judicial Privilege
Let’s say you bought a used Chevy Tahoe that turned out to be junk. You either live in the geographic area of the dealership, or you live out-of-state from the dealer so you hired local counsel to sue in the jurisdiction where the Chevrolet dealer exists.
Either way, you find a lawyer who files a lawsuit, alleging that the Chevy dealership — and the salesperson — in particular — “willfully made false statements” to you about how the Chevy Tahoe runs, falsely claiming it “runs like a Swiss watch,” when they knew it t to be a piece of junk.
Your lawyer also puts in the lawsuit: the Defendant “effectively stole” your money. The statements in your lawsuit arguably constitute defamation, if false, about the salesperson, especially your little gem about the salesman: “Plaintiff learned how to tell when the salesman is lying: it’s when you see his lips moving.”
But you otherwise remain silent about the case, aside from the searing comments in your lawsuit.
Next, the defendants file a response to your lawsuit, denying your allegations. Only, the media picks up the story and asks you to give an interview. Your lawyer advises you: “No! Don’t talk to anyone about the case, except me. We’ve said some horrible things in our lawsuit!”
But then you think: Wait, that’s right. We did say some horrible things. All true. Plus the allegations in my lawsuit are not defamation. I have the judicial privilege. So I’ll just send a copy of my lawsuit to the local newspaper. All good, right?
Wrong.
Any statement you make outside of court — including forwarding copies of court papers — to any third party outside of the case falls outside of the judicial privilege.
But what if you just give a press release, commenting on the suit, saying: I will be vindicated and the truth will come out.
Then what?
Enter the Parties in Vivian v. St. Luke’s Hospital
An attorney, John Vivian Jr., had represented the estates of two decedents in wrongful death actions against St. Luke’s Hospital that were ultimately dismissed. The Hospital, represented by Blank Rome, then sued Vivian and others for the alleged wrongful use of civil proceedings under the Dragonetti Act.
St. Luke Hospital then issued a written press release, upon filing its Dragonetti lawsuits, asserting that the Hospital wants “a full public accounting of the defendants’ alleged inappropriate actions.” The Press Release allegedly included the following quote from Richard A. Anderson, St. Luke’s President and Chief Executive Officer (“CEO”):
“At St. Luke’s, we believe it is our responsibility to respond to frivolous lawsuits which represent an inappropriate and unconscionable attempt to divert precious health care resources for personal financial gain. We believe the actions of these individuals and their attorneys are reprehensible and should not go unaddressed,” says Richard A. Anderson, President & CEO, St. Luke’s Hospital & Health Network. “St. Luke’s has a strong culture and belief system that guides us to do what is right. We measure all our decisions, all our actions, by this standard. Our patients, the communities we serve, our physicians and our staff deserve nothing less.”
Did St. Luke’s press release constitute defamation of Vivian, for effectively calling his prior lawsuit “frivolous” in the press – outside of a pleading filed in court? Isn’t that “defamatory” of Vivian? Or was St. Luke’s press release protected within the judicial privilege, somehow, even though the statements were not made in court?
The Trial Judge’s Decision
In the Vivian action, claiming the above press release “defamed” him, the trial judge agreed. The judge further decided whether the judicial privilege would apply. The court found that, because the press release contained statements made outside of court, the judicial privilege did not apply.
But it wasn’t over. The Hospital appealed, likely thinking it had a duty to its employee and/or shareholders in the company to issue a press release, saying in general what the litigation was about, and also stating the hoped for outcome.
The Superior Court Weighs In
Hearing the case on appeal, the Superior court regarded the above press release. The appellate court also noted one more thing: the Hospital had provided to the press the docket number of its claim on Vivian could be found. This allowed the media to effectively re-publish the “salacious” content of a court filing — outside of court.
So it didn’t look good for the Hospital.
All that said, the superior court overruled the trial court’s decision, finding that the judicial privilege did apply. “Missing from this case is an affirmative act by any of defendants to forward the complaint or the contents of the complaint to a third party unconnected with the litigation,” the court ruled in its opinion, written by Senior Judge James Gardner Colins, as reported by the Legal Intelligencer. “Defendants did not send the actual complaints to members of the press, and … defendants did not repeat the ‘salacious allegations’ of the complaints.”
Understanding Defamation
The Vivian litigation makes one thing clear: every case is unpredictable. “Conventional wisdom” would say: the press statement at issue crossed a line. Moreover, in Vivian, it remains unknown how Pennsylvania’s Supreme Court would view the case — or another like it. As such, any party making a statement outside of court about anyone should think very carefully before doing so.
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