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The “LITIGATION PRIVILEGE”; How Exposing a Defendant’s Disgraceful Misconduct in a Detailed Complaint can Motivate Settlement

Introduction

Filing a lawsuit is usually a last resort in resolving a dispute, or seeking redress when someone has cheated or harmed you.  When it comes to that, it is time to play hardball, which begins with drafting and filing a strong, persuasive Complaint.  A good litigation lawyer knows how important the Complaint can be, and how to draft the Complaint for maximum effect.

The Complaint sets the stage for the lawsuit.  It includes the plaintiff’s statement of facts and legal theories of liability; it is the first chance for a plaintiff to “tell [his or her] story” to the Court and to the public. A Complaint may be “verified”, which means the factual allegations are made under penalty of perjury, or the Complaint may be unverified.  If it is verified, the defendant, when answering, must also answer under penalty of perjury. In such cases, the attorneys representing the parties must take care not to allege facts that cannot be established by competent evidence.

However, most Complaints are not verified. In such cases, a plaintiff’s attorney may take much greater license and liberality in “telling the client’s story”, and pleading the facts that plaintiff believes to be true, and hopes to prove. In so doing, plaintiff’s attorney can take full advantage of the so-called “Litigation Privilege” to describe the defendant’s alleged wrongdoing in salacious detail, without undue concern that some of those details may later remain unproved. It is a legal method for airing defendants’ “dirty laundry” in a public forum, for all the world to see, without having to worry about defendants prevailing in a lawsuit for defamation.

The Litigation Privilege as Codified in California

A lawsuit is a “judicial proceeding”, and a Complaint filed in a lawsuit is a “privileged publication” as the term is used in California Civil Code Section 47, which codifies California’s Litigation Privilege, and provides, in pertinent part, as follows:

A privileged publication or broadcast is one made:
(a) In the proper discharge of an official duty.
(b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law…
[emphasis added].

In California, as in other states, privileges may be either absolute or qualified.  As set forth in the leading case of Aronson v. Kinsella (1997) 58 Cal.App.4th 254, 261-268, Caifornia’s “Litigation Privilege” is absolute. This means that, as a plaintiff, even if your Complaint alleges untrue facts against your adversary, and even if you knew those facts were untrue when you filed the Complaint, and even if you were motivated by malice in making those false allegations, as long as they bore a reasonable relation to your legal claims, they remain privileged, and do not support a claim for defamation.   (False, harmful statements unrelated to the legal claims, however, may not be afforded protection).  “The usual formulation of the Litigation Privilege is that it applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.” Nguyen v. Proton Technology Corp., (1999) 69 Cal.App.4th 140 at 147).

In contrast, the Litigation Privilege will NOT protect a pleading party from liability for the tort of “malicious prosecution”. If you lose your lawsuit and it can then be proved that you never had any good reason for believing you might prevail, then you may be subject to liability for malicious prosecution, abuse of process, and possibly other claims. The Litigation Privilege protects your right to make false and malicious statements in the course of litigation, but does not protect your right to bring malicious, meritless lawsuits. I is a critical distinction to make to ensure protection from unwanted liability.

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The experienced business litigation lawyers at the Gehres Law Group would never recommend alleging untrue facts in a Complaint, (and it would be unethical to do so); and we would never file a lawsuit lacking legal merit. However, where our client has a righteous claim, we will not be timid in describing a defendant’s wrongdoing. To the contrary, we are going to draft a strong, hard-hitting, impactful Complaint, and we may use lurid and even scandalous detail, if we think we can prove it, and if we think making it public may encourage a prompt settlement.  We know the Complaint is the first document a Judge will read and a dramatic description of the defendant’s wrongdoing can help focus the Judge’s attention on the plaintiff’s viewpoint.

We also know that by filing a powerful, detailed Complaint, we are letting defendants know that their misconduct will be subject to public scrutiny, and possible significant publicity. It may even go viral, as did the recent case involving Hulk Hogan and Gawker!!! That is, of course, an extreme example, but many individuals and businesses are concerned about their reputation and image on a local level, as well, and potential exposure and negative publicity can be a strong incentive to settlement. At the Gehres Law Group, we know how to draft strong Complaints to influence a Judge and to encourage defendants to settle. If you are involved in a legal dispute, contact our trusted and aggressive business litigation attorneys today for a free evaluation.

By | 2016-12-14T11:27:25+00:00 April 13th, 2016|Business Litigation, Civil Litigation, Commercial Ligitation|Comments Off on The “LITIGATION PRIVILEGE”; How Exposing a Defendant’s Disgraceful Misconduct in a Detailed Complaint can Motivate Settlement