To Sarah Palin: 10 reasons why you shouldn't sue Joe McGinniss
A former attorney for The New Yorker tells Sarah Palin why she's better off ignoring Joe McGinniss and his unauthorized Palin bio.
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6. Understandably, and rightly (for the most part) media defendants resist discovery. They are not at all receptive to “requests” for all notes, internal memoranda, galley proofs, page proofs, tape recordings, transcripts of tape recordings, e-mails – any and all “memorializations” of interviews and conversations; fact-checking. Assuming damning “evidence” of McGinniss’s actual malice exists (ever existed, still exists), would it be worth months and months of effort to pursue such “evidence”? Assuming “evidence” of knowing falsehoods and reckless disregard of truth can somehow be obtained, wouldn’t such a crusade take a toll on your children?
7. In such litigation, the other side will persist in its “requests” for “discovery” – for document production; for depositions – withering interrogations of those who knew you and worked with you back when; questions designed and posed to create embarrassment; to give rise to intimations that you would rather not have intimated. Would you want to expose friends and former colleagues to such questioning? Isn’t it conceivable that detractors might be emboldened to become “sources” – seeing opportunity to be vindictive under the protection of defense lawyering?
8. The lawyer who has been quoted in the press threatening to sue on your behalf for a “series of lies and rumors” may well be an Alaska “super lawyer.” And, if I am not mistaken, he is a name partner in the Fairbanks law firm best known for its personal injury defense work in medical malpractice cases and products liability cases, and thus may have a keen sense of how personal injury claims are waged. And, cunningly, he may file in a court in Alaska, which would give you home-field advantage. However, there will be any number of media organizations that will feel compelled to rally to the defense table, even though these media organizations may be less than comfortable with McGinniss’s reporting and fact-checking. Might it be more astute to wage your claims, if at all, on the op-ed pages of the very publications that champion freedom of the press and the vibrant airing of views no matter how controversial?
9. As your lawyer knows better than most attorneys, libel lawsuits, like other kinds of personal injury lawsuits, have to survive motions to dismiss and motions for summary judgment. One side or the other will usually take appeals, so that the actual presentation of evidence and testimony may not come about (if at all) for years. Don’t you have better things to do?
10. Given your access to the media, along with your ability to parry and repel criticism and innuendo, wouldn’t your own well-aimed salvos and barbs be more effective – and winning – than anything that might be said in pages and pages of legal pleadings? Can a judge’s ruling or a jury’s verdict, ten years from now, count for more than a few zingers you can deftly deliver in the coming days?
Joseph H. Cooper was editorial counsel at The New Yorker from 1976 to 1996. He teaches Media Law and Ethics at Quinnipiac University’s Graduate School of Communications.
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