Why would Rudy Giuliani concede the elements of a defamation claim against him?

Last Tuesday Rudy Giuliani filed a two-page stipulation in a long-running defamation lawsuit by two Georgia election workers stating that he “does not contest” that his statements about the plaintiffs were “false” and “carry meaning that is defamatory.”  According to the reporting, Giuliani’s attorney added that Giuliani was not in fact “admitting” to the plaintiffs’ allegations against him but making a decision to stop contesting them, which he says should end the plaintiffs’ effort to seek further factual evidence – emails, text messages and other communications – from Giuliani.

Unfortunately, for Giuliani, that’s not how anything works.

First of all, trying to make a distinction between conceding the allegations and not contesting them is nonsense.  You can’t have it both ways.  In the document, Giuliani conceded that he made the statements alleged in the complaint, that the statements were false and that they were defamatory per se.  That means he conceded all the elements of the cause of action. Period, end of story.  All Giuliani has left after that is arguing affirmative defenses.  And which ones are there?  I don’t see any.  

He apparently claims that either the statements were statements of opinion or that they were constitutionally protected.  Both arguments are wrong.  

Once he admits that the statements he made were “false” he has admitted they were not opinions.  By definition opinions can’t be true or false – that’s what distinguishes them from statements of fact.  But Giuliani has conceded they were statements of fact.  So that argument is out - he defeated it himself!  

The other possible argument – that the statements were constitutionally protected, is also flawed.  First, the notion of defamation is based on the doctrine that not all speech is protected and that if it is not protected, it can result in possible liability.  That’s what defamation law is all about.  So the question becomes whether the plaintiff can meet the standard needed to show that the speech is not protected and, therefore, should subject the defendant to liability.

On that, the doctrine has created different standards for different categories of plaintiffs.  If the plaintiff is a public official or a public figure, the plaintiff has to meet a higher standard because speech about them is more protected.  But the plaintiffs in this case were neither.  They were private persons performing a volunteer job as election officials.  I could be wrong about this, but I don’t think they were elected officials for that job, and they were not known celebrities before the elections and before Giuliani and others started accusing them of misconduct.  If I am correct in those assumptions, the plaintiffs in this case do not have to show actual malice on the part of the defendant and will have an easier time defeating the argument that the statements were constitutionally protected.   

Second, Giuliani can’t just say that he wants to end discovery because he does not want to disclose more information.  Discovery exists to allow the parties access to information and, as everyone knows, discovery is not limited to evidence that can be used at trial.  You can use discovery to get access to evidence that will likely lead to evidence that can be used at trial.  

The fact Giuliani says he is conceding the element of the claim to end the plaintiffs’ effort to seek further factual evidence just makes me wonder what he has that wants to hide so badly. 

And, further, defamation was not the only claim in this case.  The plaintiffs’ also sued for emotional distress which is a separate cause of action and they should have the right to continue discovery in order to get evidence related to that claim, which should include the evidence that Giuliani apparently does not want them to get access to.

For these reasons, it seems to me the decision to concede the elements of the cause of action was not a very smart one.  It defeats one of his defenses, makes it easier for the plaintiffs to support their claim and should not stop discovery.

Finally, as an aside, I also can't imagine that publicly admitting that he lied in a way that caused so much injury to private individuals is going to help Giuliani's chances to avoid discipline in the various disciplinary proceedings he is facing.

For coverage of Giuliani's confession see Politico, NPR, MSNBC, The Guardian, The Hill, The Conversation and Above the Law.

UPDATE: 8/9/23:  As expected, the judge did not buy it.  See here.

UPDATE: 9/3/23:   The story continues here.

With all this talk about "AI", where does Tort law fit in?

Christopher Robertson (Boston University) has published a very good short piece in The Hill explaining how Tort Law is, and will continue to be, relevant as "AI" becomes more prevalent and may (or may not) lead to injuries.   The article is called "A simple solution to regulate AI" and you can find it here.

Here is the gist:

[Executives from the leading artificial intelligence (AI) companies] . . . may be genuinely concerned about the profound dangers of AI. But as a law professor, I have seen this dynamic before, and I worry that these executives may write laws that actually leave us less safe. . . . 

. . .  I am reminded of the industrial-age transition from horses to trains and then automobiles, a revolution that also changed the way the law manages risk at an industrial scale. . . . 

. . . Courts developed a flexible set of laws that require everyone who creates risks to take reasonable precautions to protect against foreseeable harms. . . . 

. . . . 

The beauty of negligence law is its flexibility; it puts the onus on companies to recognize those risks and to fix them, long before anyone is injured. In contrast, given the almost limitless number of ways that AI could cause harm, I worry that legislators or regulators will be slow and unimaginative.

. . . .  

Read the full article here. 

Court of Appeals for the Fourth Circuit finds that TSA screeners are subject to liability under the Federal Torts Claims Act

 As reported in the TortsProf blog:  The Fourth Circuit has now joined the Third and Eighth Circuits in holding that TSA screeners are subject to suit pursuant to the Federal Tort Claims Act.  Osmon v. United States, 66 F.4th 144, 147 (4th Cir. 2023) (“[T]he FTCA permits people who allege they were assaulted by TSA screeners to sue the federal government.”).

OpenAI Sued For Defamation Over Statements Created by ChatGPT

It has finally happened: someone has sued ChatGPT maker OpenAI over an AI “hallucination” (i.e., confidently spewing out something that is blatantly wrong). The complaint, filed by Mark Walters, in state court in Georgia, argues that OpenAI made up false and defamatory claims about himself.   TechDirt has the full story here.

Federal Court denies motion to dismiss, allowing claim for emotional distress based on pre-impact terror to move forward

As reported in Day on Torts:

A federal judge in Chicago has agreed to allow a jury to consider whether airplane crash victims experience preimpact terror before their deaths.  Faced with no Illinois law directly on point, the federal court determined that the reasoning in  Haley v. Pan American World Airways, Inc., 746 F.2d 311, 314-15 (5th Cir. 1984), was persuasive.  The Haley court found the courts of Louisiana would permit recovery for emotional distress “during a negligently produced ordeal”

From the opinion:

A jury could reasonably infer from the evidence that will be presented at trial that the passengers on ET 302 perceived that they were going to crash, horrifically, to their certain death. Boeing has not demonstrated that Illinois authority bars plaintiffs from recovering for the preimpact emotional distress they suffered as a result, and the Court concludes that the Illinois Supreme Court likely would permit recovery of such damages.

The Court also concluded that there was sufficient evidence of emotional distress to create a jury question given the anticipated testimony about the movements of the plane before the crash.

You can read the opinion here.

More coverage of Tort reform in Florida

I recently posted a note about Tort Reform in Florida.  See here. The TortsProf blog has more coverage and links here.

Illinois considers eliminating ban on punitive damages in death cases

I have never been able to figure out the public policy reasons behind the principle of Illinois law that holds that the right to seek punitive damages for personal injuries does not survive the death of the injured party.  This means that punitive damages are not recoverable in actions brought pursuant to the Illinois Wrongful Death Act and the Survival Act.  I first wrote about this anomaly back in 2011.  See here.

I call this Illinois rule an anomaly because I don't know of any other jurisdiction that recognizes the right to seek punitive damages in some cases but not in death cases.  

I also call it wrong because the policy results in a perverse incentive to cause more harm rather than to deter wrongful conduct, which is one of the main goals of tort law.   

Thankfully, after all these years, it is possible this wrongheaded policy might be partially abandoned.  

The Illinois General Assembly is currently considering a bill that would allow plaintiffs to seek punitive damages in cases for Wrongful Death and in cases filed under the survival statute.  You can read the bill here.

Unfortunately, the bill does not go far enough because it still recognizes an exception for medical and legal malpractice cases.  This means that plaintiffs who seek to recover for the death of a decedent will not have access to punitive damages regardless of the degree of negligence or reprehensibility of the conduct of the defendant.  

This should change too.  But we are moving in the right direction, even if we are doing it one slow step at a time.  (The bill also recognizes an exception for claims against the state, but that is not unusual.  The Federal Torts Claim Act, as well as typical state versions, do not recognize a right to punitive damages in claims against the state.)

Not surprisingly, organizations dedicated to advocating for the interests of those whose conduct puts others at risk and causes injury, and their insurers, are not happy about this development.  Lacking sound policy arguments, as usual, they resort to using insults and exaggerations, calling the proposal a “calamity,” and a “shameless attack on businesses” and referring to the state a “judicial hellhole.”  See this post by the American Tort Reform Foundation, for example.  

I do agree with the ATRF that the exception for medical and legal malpractice cases does not make sense, but the solution to that disparity is not to reject the proposal altogether, thus depriving the plaintiffs of all access to recovery, but rather to eliminate the exception and thus to provide access to justice to those who deserve it.  After all, punitive damages are awarded in a very small minority of cases anyway.

UPDATE August 15, 2023:

Illinois statute eliminates ban on punitive damages in death cases

Florida overhauls litigation rules to adopt "tort reform" to make it more difficult for plaintiffs to recover for injuries

Last week, in a closed-door ceremony shut out to reporters, Florida Governor Ron DeSantis signed into law one of the most sweeping tort reform bills in the state’s history, targeting attorney fees, medical reimbursement and liability in negligence cases.

Supporters of the new law have called it an antidote to frivolous lawsuits and rising insurance rates but what it really does (and what it was intended to do) is make it more difficult for victims of accidents to recover for their injuries, and, for those who do get to recover, to make it so that they recover less.  The idea is not to limit frivolous lawsuits, but to limit valid lawsuits in order to protect the insurance industry.

Courthouse News Service has more on the story.

New York Governor Vetoes Bill to Expand Wrongful Death Lawsuit Benefits

 New York Governor Vetoes Bill to Expand Wrongful Death Lawsuit Benefits. Read the story here.

Golf and how not to plead a defamation claim -- UPDATED

August 26, 2022

Long time readers of this blog know that over the years I have posted many stories about golf related torts.  Go here and scroll down to see them.  Most of them relate to cases in which a golfer's negligence results in damages to another golfer or to a nearby property owner.  So today I bring you a golf story of a different sort.

If you know anything about professional golf, you know that there is a huge to do about the fact that a new professional tour (funded by Saudi Arabia) has been created to compete directly against the American PGA tour.  When a good number of top, established, PGA pro players signed to play with the LIV tour, the PGA banned them from playing in PGA events and the debate about the new tour started to get heated.

The availability of the LIV tour now threatens the PGA's control of the pro tour and its players, and the reaction to the competition has been very fierce on both sides.  PGA faithful players and commentators have spoken publicly against the players who defected to the LIV tour.  Players who defected have accused the PGA of many things...  etc.... ...  Insults and accusations are being thrown in all directions. ... You get the idea.

Enter Patrick Reed, a pro golfer who recently decided to leave the PGA and join the LIV tour.  For this, one of the commentators of the Golf Channel criticized him (and others) strongly over a series of broadcasts and Reed has now filed a claim for defamation.

That was a long intro for me to get to my point today.  If you want to learn how NOT to draft (or argue) a defamation claim, read the complaint now.

Here are some of the problems I see with the complaint. First, because of his celebrity golfer status the plaintiff will likely be considered a public figure so he has to meet a higher burden of proof against the defendants, who are members of the press.  Second, the complaint is full of conclusory statements characterizing the statements upon which it is based as "defamatory" with weak explanations as to how that conclusion is supported.  This is a problem because as alleged it is easy to point out that the vast majority, if not all, of the statements in question are not actionable because they are either statements of opinion (as opposed to statements of fact), insults or permissible hyperbole.  

And then there is the chance that maybe the judge could be convinced that the plaintiff is actually "libel proof" since his reputation is, well, not the best among many.  You can read more about the case and about Reed and his reputation here.  (As the author of that article says "It was a chain of suspicious incidents involving Reed and his golf ball, however, that smudged his image with a mark no eraser can fully eradicate.")

The complaint does have some statements that could be considered statements of fact (I think the point is debatable but I can see a judge not dismissing them for now) all of which relate to incidents in 2019 and 2021... and about those I wonder if they are affected by a statute of limitations.  

I am very interested in this case and I would like to see if the defendants file a motion to dismiss.  I would, and I think most if not all of the claims should be dismissed.  

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UPDATE (11-27-22):  In my original post I commented on how poorly the complaint in this case was drafted.  Not surprisingly, the court agreed and dismissed it.  The dismissal is without prejudice, so it is possible the plaintiff's lawyer may be able to fix it, but we will have to wait and see.  Here is the dismissal order.

I found out about the dismissal in the Golf Dispute Resolution blog, which includes a short comment that starts as follows: 

I typically question the wisdom of a public person with a questionable past filing a suit for defamation. The essence of defamation is damage to reputation. Thus, by commencing such a claim, plaintiffs invite inquiry into all aspects of their past. The damage calculation in many respects is a gap analysis: what is the difference between the reputation with and without the allegedly defamatory statements. A defamation claim can be the legal system’s warning that those living in glass houses shouldn’t throw stones.

Thus, like many, I was puzzled with Patrick Reed elected to take on Golf Channel and its media talent, Brandel Chamblee and Damon Hack, with claims that they had defamed him. Certainly, Reed’s history–including longstanding stories about alienation from his parents, issues with teammates during his college career, more recent suggestions that his on course professional play has included incidents of cheating–paint a large target on his back for defense lawyers eager to challenge claims that the broadcasters have damaged Reed’s reputation.

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UPDATE #2:  October, 2023

After the original complaint was dismissed without prejudice, the plaintiff filed a new complaint to try again.  They should not have since the basis of the claim was flawed, but they did.  And predictably, the case was dismissed again.  Go here for the story.