Category: HealthLaw Blog

“Please Tell Me you Didn’t. . . How to Keep Client’s Out of the Jailhouse, Poorhouse and Lawyers Out of the Nuthouse” -Blog

Last week, I found myself in day “one” of a trial, defending a sort of healthcare civil fraud case in small town just north of “Nowhere, Texas.” At the first break, my client was absolutely freaking out. “I can’t believe they are saying such bad things about me! All lies! This is awful! We are going to lose!”

I looked at him calmly and replied, “Yes, it’s war.” I assured him, “they are shooting at us and they are trying to win.” I then leaned in and whispered, “you can either panic, sorta like you are doing now, or suck it up and help me shoot down the next thing they send over the ridge. That’s how we deal with it.”

I would like to say this advice helped. (It didn’t.) But it did occur to me, that I have tried maybe 600 healthcare cases, and I forget that I am used to it. Not everyone is. Maybe I can help other lawyers who are in a similar situation, and are experiencing fear of a courtroom.

Competence vs. Smoothness, or “the zone.” “Competence,” in my way of thinking, refers to the technical ability to get through a hearing or trial. I and do mean, “get through it.” If you are brand new to courtroom work, the rules of civil procedure and evidence are like learning a foreign language.

I remember the first time I asked an Italian person, “Come ti chiami?” And she told me her name. I couldn’t believe it actually worked, since I don’t speak Italian, at least, not until then.

Same with rules of court. There are five steps, for example, when using a writing to refresh recollection, then, getting the writing admitted, when the witness still can’t remember. It’s just a rule, and it does work. Some of the fear of a courtroom, I think, is simply the kind of fear that comes from not believing any of this is actually going to work– that the judge might give you what you want. (They will).

“Smoothness,” or getting in “the zone” on the other hand, is “competence,” plus, being “chilled out” enough to think clearly, free of fear of your own incompetence. Athletes call this being “in the zone.” This is the point where you can reflexively handle anything that gets thrown at you. You aren’t thinking about screwing it up, you are thinking, “I’ve got this.” It is a wonderful place to be.

Exposure therapy.

Here is the thing I think most lawyers don’t realize about “smoothness” or “the zone” in court. It usually doesn’t arrive until day two of a trial. Day one, is more for “ancillary” issues, such as “are we going to settle,” or “is the trial really going to take place at all?” And my all-time favorite, “have I left my trial notebook back at the hotel?”

It usually isn’t until “day two,” that you get “locked in,” that fear melts away and you get in “the zone.” This a problem if all you ever do is 30-minute hearings, or maybe single-day temporary injunctions cases. You might come to believe that “smoothness” or “the zone,” isn’t part of your abilities. When it just might be that you have not had a chance for “smoothness” or “the zone” to arrive for you. You aren’t getting the benefit of “exposure therapy,” because all you ever get is the “day one” jitters, when there simply isn’t a “day two” in a one-day hearing.

“Scary,” “really scary” and “not scary at all.” I used to have the same problem with email which might help you with day-one trial jitters. Every day, there are 50 to 100 emails in my inbox. And I used to dread them. Then, while watching the Stephen King movie “It,” there was a scene where the ghost had three doors, marked “scary,” “really scary” and “not scary at all.” Which was a joke for “comic relief.”

So, one day, I took a yellow notepad, and made three columns for my emails, marked “scary,” “really scary” and “not scary at all.” As I went through my emails for one week, I made a mark in each column to keep up with each type of email (the kind of mark where you make four vertical lines and one diagonal to make “five.” Then you count up the groups of five to see how many you’ve got in total.)

And you know what, at the end of the week, there weren’t any “really scary” and practically no “scary” emails at all. Almost all of them were marked, “not scary at all.” You could do the same thing with “competence.” Make a chart of things that scare you, and keep track of whether or not you could or could not, “handle it with ease,” “handle with difficulty,” or “it was a complete disaster.” My point being, maybe, it isn’t just “exposure” to something, (I was clearly “exposed” to my email inbox) but instead, the trick is in realizing, that your fear is completely unfounded.

Good name in man and woman . . .is the immediate jewel of their souls. Who steals my purse
steals trash . ..’twas mine, now ‘tis his, but he that steals my good name, robs me of that which
enriches him not, and makes me poor indeed. –OTHELLO ACT 3, SCENE 3, 155–161

“Good name in man and woman . . .is the immediate jewel of their souls. Who steals my purse steals trash . ..’twas mine, now ‘tis his, but he that steals my good name, robs me of that which enriches him not, and makes me poor indeed.” –OTHELLO ACT 3, SCENE 3, 155–161

I sure miss high school English class, which harkens me back to a day when entertainment had more . . .“class.”

Dominion Voting Systems v. Fox News. Late night talk shows exploded this week, over The Tucker Carlson Show’s depiction of the January 6th incursion into the Capitol. If you haven’t seen it, the show broadcast a highly-edited version of video taken inside the Capitol on January 6th , with Carlson’s narrative claiming the incursion was nothing more than a peaceful “tourism” trip. The question being raised by liberal hosts, like Stephen Colbert, is simply, “has Tucker Carlson gone insane?”

Short Answer: “I don’t think so.” I stay away politics, left or right, other than to register the opinion, “some sins carry their own penance.” But I am fascinated by the practice of law, and in particular, defamation cases, with their odd twists and turns. That said, let’s unpack this thing.

“Crazy like a Fox.” In order to make sense of what’s going on, first consider, Fox News is being sued for $1.6 billion by voting machine vendor, Dominion Voting Systems, which argues that Fox repeatedly aired allegations that the company helped rig the general election against former President Trump, despite many at the news organization privately believing the claims were false. Emails uncovered in the case seem to bear this out.

Fox Chairman, Rupert Murdoch, was among several at Fox to say privately they didn’t believe the claims made by Trump and his allies, that widespread fraud cost him reelection. In his deposition, Murdoch said he could have prevented guests who were spouting conspiracies from going on the air, but didn’t.

AP reporter, David Bauder described it this way in a March 6 article, “Eye-catching evidence has emerged from court filings in recent weeks revealing a split screen between what Fox was portraying to its viewers about the false claims of election fraud and what hosts and executives were saying about them behind the scenes. “Sydney Powell is lying,” Fox News host Tucker Carlson said in a text to a producer, referencing one of the attorneys pushing the claims for Trump.”

The fact that Fox News executives don’t believe their own stories would be, oddly enough, the most comforting thing I have heard in a long time. It would indicate that the folks at Fox News actually have good sense (maybe even don’t like our former President), but were playing along for higher ratings, because “money.” They aren’t really crazy. Fox’s stock price is directly related to their audience size.

It appears that while “Truth,” is an absolute defense to defamation, Fox executives’ text messages and emails make this claim a bit “dodgy.” Instead, Fox appears to be relying on the back up defense, “what we say is so absurd, no reasonable person would believe us.” Which might explain Carlson’s increasingly “silly” broadcasts. They are playing the “satire” card.

Why would I suspect the “satire” defense by Fox News? Two reasons. First, I have a nearly pathological need for things to make sense in the world. Second, because they have done it before. In a September 29, 2020, NPR news article, David Folkenflik reported on another federal slander case, “You Literally Can’t Believe The Facts Tucker Carlson Tells You. So Say Fox’s Lawyers.” And the federal judge agreed.

This was in the 2020 defamation case, Karen McDougal v. Fox News Network. McDougal had sued Fox News, because Carlson said she had engaged in an “extortion scheme,” when she demanded money from President Trump. Fox lawyers countered and U.S. District Judge Mary Kay Vyskocil agreed, in her 12(b)(6) dismissal opinion, holding that the “‘general tenor’ of the show should then inform a viewer that [Carlson] is not ‘stating actual facts’ about the topics he discusses and is instead engaging in ‘exaggeration’ and ‘non-literal commentary.'”

Trump’s Texas attorney, Sidney Powell, made the same argument in her motion to dismiss another $1.3 billion defamation lawsuit brought by Dominion Voting Systems, “No reasonable person would conclude that the statements were truly statements of fact.” Instead, she was making “Rhetorical hyperbole,” which, especially when made of a public figure about politics, is often claimed not to be a statement of “fact” and therefore, incapable of being defamatory.

Usually, when someone is joking, there is a “tell,” a slight smile, a raised eyebrow, or other signal that let’s us “in on it.” But “satire,” which is also protected by the First Amendment, doesn’t always have a tell.

According to the First Amendment Encyclopedia’s James Walker. “Satire is a literary form that humorously mocks, ridicules, and scorns individuals and political or social practices, is one of the most effective means of criticism. Since the time of the ancient Greeks, it has been used to lampoon the comfortable, the rich, the famous and, most important from a constitutional standpoint, the powerful.”

If you are trying to make sense out of all this litigation, “don’t.” (Because “it doesn’t.”) I feel like I am watching Steve Martin in the movie, The Jerk, describing carnival prizes on a shelf. “Somewhere, on a continuum, between uttering public criticism as hyperbole, and right there, next to a joke that is so absurd that no one would believe it,” sits a tiny little “sweet spot” where a person can be sued for defamation.” I just don’t know where it might be