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Thursday, October 23, 2014

On Being Sued, 2

Man kills puppies, allegedly.

In life and in law, the word "allegedly" does a lot of heavy lifting. It conveys that something has yet to be proven, that it may in fact be wrong, that a search for truth will uncover what really went down. Allegations are a core part of legal practice, just as they are a core part of journalism, not to mention how we read and absorb news.

Catalanello v Kramer was a case about the word allegedly. Did my article use it enough? Did my article make clear that I was talking about a case at the pleadings stage? Can the word allege--in one form or another--turn a defamatory statement into a non-defamatory statement? Whoops, I meant to say an allegedly defamatory statement.

At oral argument, plantiff's counsel argued that my article blurred the line of fact and allegation. A reader would get the wrong impression, thinking that my discussion was about decided facts rather than allegations of fact. The judge even asked counsel if I should have used the word allegedly in every sentence. Counsel rejected that approach, preferring instead that I had, at the outset of the paper, said that the case was ongoing (which the paper clearly said), that the facts were contested, and that plaintiff denied the allegations in the underlying case.

The distinction between allegations and facts is fuzzy. We lawyers are used to it, but my sense is that most non-lawyers don't see the difference. This is where context comes into play. I wrote the paper for lawyers. I never imagined others would read the thing.

Which brings me to the point. The lesson of my brush with defamation law is that the walls of the ivory tower are porous, and our scholarship is going to leak out. You can't prevent others from reading your work and reacting to it. Sites like SSRN and Bepress provide easy access to our scholarship. Don't get me wrong. I think this is a great thing. I want my work out in the ether; I want people to hear what I have to say. But it means that we have to be careful about what we say and how we say it.

I stand by my paper. I don't think it was defamatory, and I'm glad the court dismissed the case--not just for me, but for the scholarly process in general. A world in which we can be held liable for talking about ongoing cases is a scary place in which to write.

While the case was ongoing, I read--more like devoured--Amy Gajda's book The Trials of Academe: The New Era of Campus Litigation. Gajda has a wonderful chapter on scholarship in an era of defamation suits.

More to come.

Posted by Zachary Kramer on October 23, 2014 at 12:47 AM in Employment and Labor Law, First Amendment, Life of Law Schools | Permalink


My bad -- Susan says "apparently" a lot.

One t.v. reference was enough for the comments.

Posted by: Joe | Oct 27, 2014 10:06:40 AM

Thanks for the comments, Michael and Joe. Scooped by Kathy Griffin, again. I was hard at work on a D-list professors series when she came out with her own show.

Posted by: Zachary Kramer | Oct 23, 2014 3:52:44 PM

I do think many think when something, e.g., is in the media that there is some perhaps "probable cause" that something is there. Hopefully, people as a whole are discerning consumers. I think one prime example of this is the case of the actress caught having some sort of public act in her car. The immediate thought was that it was a case of blatant racism how she was treated; in time, the facts looked a lot more hazy.

This doesn't mean "allegedly" is not enough, with apologies, to CYA here, but it something to be aware of in certain cases. Finally, the best use of "allegedly" is the character "Susan" on "Coupling."

Posted by: Joe | Oct 23, 2014 11:49:57 AM

"The distinction between allegations and facts is fuzzy. We lawyers are used to it, but my sense is that most non-lawyers don't see the difference."

Thanks for writing on this - I enjoyed your posts on this. I take issue with this one statement, though. In a world with tabloid journalism and crime dramas, I think most folks get the difference between allegations and truths. Kathy Griffin's whole shtick is based on this difference (she even had a TV special called "Allegedly."

My gut says that the issue for the non-lawyer world (and maybe also the lawyer world) is non-careful reading, such that disclaimers early get missed or lost or forgotten later. But that's just a hunch.

Posted by: Michael Risch | Oct 23, 2014 8:15:05 AM

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