By Michael McAllister
Yesterday, news broke that the defamation lawsuit against Jim Boeheim and Syracuse University was dismissed by Judge Brian DeJoseph. Gloria Allred also announced she and her clients, Bobby Davis and Mike Lang, were going to appeal that decision. We wanted to gain a further understanding of the legality surrounding the dismissal, the appeal, and the case as a whole. Therefore, we enlisted the help of attorney John Brennan, who also writes for the Orange 44 Blog (the first Syracuse blog ever created).
Nation of Orange: Talk about defamation suits in general, how difficult they are to prove, and what they're about from a legal standpoint.
John Brennan: From a generic standpoint, a defamation suit is predicated on the idea that somebody has said something untrue about somebody else that's been published or disseminated either to certain people or the general public that's caused some sort of damage to that person. In this case it was the statements that Jim Boeheim made in terms of Bobby Davis and Mike Lang being liars and were in it for the money. They are saying that damaged them.
Nation of Orange: Part of the lawsuit was that Boeheim's comments damaged Davis and Lang in hindering their ability to gain employment. Given that Davis stated in one of his ESPN interviews that he's been a stay at home dad for several years and hasn't looked for employment, how does that play into this case?
John Brennan: When you're assessing the merits on whether or not to bring a suit, you want to look at exactly what sort of damages the client may have suffered due to the defamation. Obviously if you can't really prove any damages you're not going to go forward with the case. Gloria Allred, for whatever reason, must have thought that she could prove enough damages to Bobby and Mike to go forward to get some sort of money judgement out of the University or out of Boeheim. Not only to make Bobby Davis and Mike Lang whole again, but they can also go after punitive damages which could far exceed the actual damages. The intent behind punitive damages is to punish the person for their conduct and to prevent them from doing it again. For somebody who has deep pockets like Syracuse University or Jim Boeheim, the punitive damages could have been in the hundreds of thousands of dollars if not the millions of dollars.
Nation of Orange: When the lawsuit was first filed, what was your reaction as a lawyer?
John Brennan: I thought it didn't have much of a basis as far as I was concerned. When I heard Jim Boeheim's statements, I knew it was just him spouting off at the mouth. I knew that it was him speaking his opinion. So for Gloria Allred's legal team to go ahead and say he was not stating opinion but was stating these things as fact, and that he was defaming the name and accusations of Bobby Davis and Mike Lang. I just thought that was such a stretch. Then of course knowing how difficult it is from a legal standpoint to prove defamation, I never really thought that this case had much merit. And then of course knowing that Gloria Allred was the driving force behind this, you automatically think she's just trying to grab headlines. That this is the headline of the week and she's just putting her name out there. Whether that gives the case credibility or just gives her the publicity that she wants, you can figure out what is. But I never saw any merit to this.
Nation of Orange: The ruling comes down from Judge DeJoseph. You read his full 30 page decision. What are your thoughts on the dismissal and the legal grounds he used to make his decision?
John Brennan: I thought it was a very well reasoned decision. He certainly took a look at the arguments on both sides and considered what he believed the law to say. I think he reached the right decision. A lot of what his reasoning was hinged on the context in which Jim Boeheim made his statements. It was in the context of the Penn State scandal just breaking a few weeks before. Then these allegations come to light that he had known about back in 2005 when the University investigated it. And he was somewhat implicated in these accusations by Bobby Davis stating that Jim Boeheim had seen him in Bernie Fine's hotel room. So he automatically went on the defensive saying, 'I know he's lying about this, he's probably lying about this other stuff.' It's weird given the timing of all this that these accusations that were investigated in 2005 were found to be without merit, are now coming back in light of what's going with Penn State. And then his relative comes out with similar accusations after he had denied them previously. That's the context in which he made those statements. And that really struck a chord with Judge DeJoseph. You can't ignore the context in which a statement is made. The context gives the meaning to the statement. That's really what the decision hinged on.
Nation of Orange: Gloria Allred announced they will be appealing the decision. Talk about the legality of the appeal, what she has to do in order to get the decision overturned and what are the chances it will be overturned?
John Brennan: In order to be successful on her appeal, Gloria Allred is going to have to approve that Judge DeJoseph did not properly apply the law. We've got the backdrop that this same appellate court just ruling on a defamation case, ruling that it was properly dismissed. Judge DeJoseph in his decision cited directly to that case. I think it's highly unlikely that the appeals court is going to backtrack on something it just ruled on and say Judge DeJoseph got it wrong here which means we got it wrong in a case two weeks ago too. I'll be interested to see exactly what legal arguments the Allred legal team use in their appellate brief to argue that DeJoseph got it wrong. I just don't see it.
Nation of Orange: It took DeJoseph about two weeks to make his decision. Is that standard time frame to evaluate a case like this? Or is that maybe shorter or longer than normal?
John Brennan: It varies from judge to judge and court to court. It has a lot to do with how complicated the issues are. Also on the case load a judge has because obviously he's hearing tens if not hundreds of cases. So how much time he can actually devote to doing the research and writing out what I think is a well reasoned opinion. He said after oral arguments two weeks ago he would reach a decision within two weeks. On the 14th day he had the decision issued. So I wasn't surprised that it came today. Given that the length and thought that went into this decision, I think two weeks was definitely appropriate for what he put into this.
Nation of Orange: When Gloria announced they were going to appeal, her statement included the following: "This decision sends the message that you can attack the alleged victim and call him a liar with impunity." Can you explain exactly what that means from a legal perspective?
John Brennan: What she's saying is that she thinks it had a very chilling effect on other victims and their attempts to possible come forward and get their allegations out there. She's trying to make the leap in logic that because Judge DeJoseph made this ruling today and let Jim Boeheim get away with it, this is going to prevent other victims from coming forward because they run the risk of being called liars in the press. So that this is really a step backwards in the fight against childhood sexual abuse. In terms of the legality of her saying that, she can say whatever she wants. This is a 1st amendment, freedom of speech kind of case. So I'm certainly not going to say she doesn't have the right to say that. I just think she's wrong. That's her opinion and I think she's wrong. She doesn't look at the fact that Jim Boeheim thought more about what he said after he said it. And after that Friday night Florida game back in December, he started that press conference with a very heartfelt apology and he kind of broke up a couple times. Because it meant so much to him. He described it was never his intent to have that kind of chilling effect on victims of abuse. He went on to describe some of the things he and Julie do with the center in Syracuse that help out victims of child abuse and provide services for them, and encourages them to come out and provide a safe environment in which to make their allegations known and get justice for their abusers. The fact that Jim Boeheim went and did that shortly after he made his statements that were so horrible according to Gloria Allred. I think that she should give a little weight to Jim Boeheim that he went and did that. It takes a man to say 'hey I did the wrong thing, and here's what I'm doing to correct it.' If she were to do that, that's not going to grab the headlines. It's her saying 'well I guess there's no case here.' So she has to do what she has to in order to demonize Jim Boehiem and try to make this a bigger deal than it is.
Nation of Orange: Is intent a factor at all here? In terms of Jim Boeheim knowing what he was saying was not factual or the intent behind what he was saying?
John Brennan: For purposes of the decision, the intent really wasn't the question. If this case had made it to a jury, his intent could have come into question. His intent could have been something the jury been swayed one way or another in making their ruling. For the purposes of this decision, intent just wasn't part of it. Just looking at the words and the context he used them in, does this amount to defamation or not. There was part of the decision that talked about whether or not the things that were stated could be proven as true or false. But that's not really an issue of intent. So, no, intent really doesn't have anything to do with it because defamation really has to do with the effect that it has on the audience and their reaction to the person that is alleged to be defamed.
Nation of Orange: Can you talk about the reputation Gloria Allred has in the legal profession and your opinion, as a lawyer, of what she does for your field?
John Brennan: Unfortunately there are some attorneys out there that like to grab headlines, and tend to make the case about them and not about the case. You look back at some of the cases Gloria Allred has taken, and she has taken on some very good causes and been on the right side of things. Obviously she's a good attorney because she's won a lot of cases. But it seems that she grabs the high profile cases. The ones that she knows she's going to get on the news, get in the newspaper, and get her name out there. She's fighting for some kind of cause every time she does one of these. She's represented some of the females who stated they had affairs with Herman Cain. She recently represented the Miss America contestant who was transgender. So she gets behind these causes, whether it's the right time for it or not, she does it and gets the headlines for it. My initial reaction when I heard she was the attorney representing Davis and Lang in this case was 'oh here we go.' That kind of discredited the case a lot to me just because she has that reputation. Does she give a black eye to the profession? I don't think so. There are a lot of attorneys who make the case about them and not about their client. It's that mentality that, I think, hurts the legal profession more than Gloria Allred herself or the causes that she fights for.
You can read more about John's opinion and delve more in-depth into the legalities in his piece for the Orange 44 blog here.
