 The Clarinet BBoard
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Author: Ken Shaw ★2017
Date: 2005-11-13 14:30
As a lawyer, I think that a defamation claim, at least as described in the story, is frivolous. Any lawsuit would be quickly dismissed.
However, the writer and the people who run the bulletin board will have to hire lawyers and spend several thousand dollars to defend themselves.
In New York, the plaintiff's lawyer must swear that s/he has made a reasonable investigation of the facts and law and believes in good faith that they support a tenable claim. A court may impose penalties for violation of this obligation.
However, this conflicts with the lawyer's ethical obligation to zealously represent the client's interests, and courts are therefore reluctant to require the plaintiff or lawyer to award substantial amounts. Also, the penalty is usually paid to the court, not the defendant.
The upshot is that the defendant's right to speak is, as lawyers say, "chilled."
On the other hand, the preschool owner may lose a lot of business and may even have to shut down, based on what may be a false accusation. We've heard only one side of the story.
As a practical matter, there will probably be no lawsuit. It will go away after an exchange of nasty lawyers' letters. This is particularly so because the defendants also the New York Times interested enough to write a story, which is a tremendous advantage.
A lawsuit is an unsatisfactory way of resolving disputes. You have to force your claim into legal formats that are only approximately what you're really concerned with, and the suit can get you only money, rather than satisfaction. Even if the plaintiff in the Times story wins against the bulletin board, his/her lawyer's fees will eat up a huge chunk of the award.
The social purpose of lawsuits is to put an end to a quarrel that has gotten out of hand. The decision says "X wins and Y loses. Now shut up and go away." That's very far from what the parties want, which is vindication.
Ken Shaw
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Author: Mark Charette
Date: 2005-11-13 14:46
One of the (many) reasons this operation is under control of a corporation (Woodwind.Org, Inc.) rather than a person ... as long as I exercise due diligence, the only things someone could win in a lawsuit is a rack full of equipment, some short-term debt, and a headache ... 
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Author: BobD
Date: 2005-11-13 14:50
"The social purpose of lawsuits is to put an end to a quarrel that has gotten out .......from what the parties want, which is vindication."
Thanks Ken...now I'll be trying to relate that to malpractice questions.
Bob Draznik
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Author: hans
Date: 2005-11-13 15:39
How there could be a threat to sue over defamation when the statement was true? I understand that in Canada the truth of a statement (or an honest belief in its accuracy) is a complete defence in a defamation suit.
Is that not the case in the U.S.?
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Author: Mark Charette
Date: 2005-11-13 16:09
hans wrote:
> I understand that in Canada the truth of a
> statement (or an honest belief in its accuracy) is a complete
> defence in a defamation suit.
Which, of course, has nothing to do with the filing of a defamation lawsuit. While it might be thrown out (with concomitant penalties) it still involves mounting a defense.
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Author: Alseg
Date: 2005-11-13 17:19
It was nice that the BB in question obtained the pro bono services of an attorney who is involved in internet law.
While his statements indicate that the moderators were protected, I wager that the individual poster is not.
Comments?
Former creator of CUSTOM CLARINET TUNING BARRELS by DR. ALLAN SEGAL
-Where the Sound Matters Most(tm)-
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Author: Ken Shaw ★2017
Date: 2005-11-13 20:38
Hans -
The courthouse door is always open, and the clerk will accept lawsuit papers from anyone who pays the fees. Anyone can sue anyone else, even if the claim is obviously crazy.
You may recall the recent case in which an astrologer sued NASA because it had crashed a rocket into an asteroid. This, she claimed, unbalanced the solar system, made her readings inaccurate and interfered with her way of earning a living. The case was immediately dismissed, but there was no way to stop her from filing it in the first place.
Truth is a complete defense to a defamation action, but if the writer is sued, he or she will need to pay a lawyer to get the case dismissed. In the U.S., there's no way to recover the cost of defense from the person who sued you.
Ken Shaw
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Author: tictactux ★2017
Date: 2005-11-13 20:47
> Truth is a complete defense to a defamation action, but if the writer is sued,
> he or she will need to pay a lawyer to get the case dismissed. In the U.S.,
> there's no way to recover the cost of defense from the person who sued
> you.
So the only party who always wins are the lawyers...
--
Ben
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Author: Bob A
Date: 2005-11-13 21:02
Yep "So the only party who always wins are the lawyers..."
Brush up on your Shakespere. Why did he write , ".....first, kill all the lawyers...."
Bob A
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Author: Mark Charette
Date: 2005-11-13 21:09
tictactux wrote:
> So the only party who always wins are the lawyers...
Not always. Too many frivolous lawsuits from any one lawyer and the lawyer gets in trouble ...
But there are so many lawyers ...
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Author: tictactux ★2017
Date: 2005-11-13 21:20
...but as either side needs a lawyer, one of them always wins...
Here's one for Sunday evening:
Satan comes up from Hades to the office of a rich, powerful lawyer. Satan says, "Look, Bub, I can guarantee you a win in any case, any time, for any price. What do you say?" The lawyer looks at Satan and asks, "What's it going to cost me?" Satan says, "Your immortal soul." The lawyer ponders this for a second and says, "I don't get it. Where's the catch?"
--
Ben
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Author: DavidBlumberg
Date: 2005-11-14 19:16
"You may recall the recent case in which an astrologer sued NASA because it had crashed a rocket into an asteroid. This, she claimed, unbalanced the solar system, made her readings inaccurate and interfered with her way of earning a living. The case was immediately dismissed, but there was no way to stop her from filing it in the first place."
------------------
Maybe she should have sued on behalf of the innocent Asteroid...... 
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Author: archer1960
Date: 2005-11-15 15:46
Ken said:
> Truth is a complete defense to a defamation action, but if the writer is sued,
> he or she will need to pay a lawyer to get the case dismissed. In the U.S.,
> there's no way to recover the cost of defense from the person who sued
> you.
I believe if the judge rules it frivolous (sp?), you can recover legal costs, but not otherwise.
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Author: Ken Shaw ★2017
Date: 2005-11-15 17:54
archer1960 -
At least in New York, when a judge rules an action frivolous, the insult is to the court, not to the defendant. Thus any penalty is almost always paid to the court and is much smaller than the cost of defending the action.
The "American Rule" is that unless there is a special statute permitting a defendant to recover legal fees and other expenses, there is ordinarily no remedy.
The rule is the opposite in England.
You may have heard of the scholar Lionel Sawkins, who prepared a performing edition of music by Michel-Richard de Lalande, an 18th century composer whose music is, of course, long out of copyright.
Hyperion Records used this edition for a recording, refusing to pay Dr. Sawkins. The court found (correctly, I think), that Lalande's manuscripts were not usable for performances, but instead required extensive editing, including the more or less mechanical composition of a missing voice line.
The court found that Sawkins's work was copyrightable and that Hyperion had violated his rights when they refused to pay for using his edition.
Hyperion could easily pay a fair fee for the use of the edition. However, the court also awarded Sawkins his attorneys' fees of over a million pounds, which may put Hyperion out of business.
As far as I know, Sawkins, his lawyers and Hyperion are still negotiating.
The point is that there are socially undesirable consequences on both sides, and there is little likelihood that the American Rule will change.
There are many sub-rules and complications, but I think they should be discussed off the board.
Ken Shaw
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