Digging Yourself A Giant Hole

Several years ago I wrote a simple summary of defamation law, including a discussion of why litigation isn't necessarily a good idea, concluding,

the plaintiff in a defamation action may be required to expend a considerable amount of money to bring the action, may experience significant negative publicity which repeats the false accusations, and if unsuccessful in the litigation may cement into the public consciousness the belief that the defamatory accusations were true. While many plaintiffs will be able to successfully prosecute defamation actions, the possible downside should be considered when deciding whether or not such litigation should be attempted.

The Internet now brings us a case study - Paul Deignan versus Professor Wally Hettle and Bitch, Ph.D..... (Ouch, Ouch.) While some blogs are sympathetic to Mr. Deignan, he gets little support for his belief that a defamation suit is wise, viable, or would result in the $500,000.00 award he guesstimates as the damage to his future earnings (although he has yet to complete his Ph.D. and enter the job market).

As a lawyer, the potential client who declares "I have a great defamation case" sets off an initial set of alarm bells - add dreams of a half-million dollar recovery and my instinct is to conclude the conversation and suggest that they seek counsel elsewhere. It's not that there aren't big money defamation cases - Mr. Deignan mentions Carol Burnett's suit against the Enquirer as an example - but few plaintiffs are Carol Burnett, few defendants are the National Enquirer, and few incidents of defamation are as reckless as that one. Not mentioned, Ariel Sharon's pyrrhic victory against Time Magazine, or Jerry Falwell's unsuccessful suit against Hustler. Or General Westmoreland's suit against CBS which, after costing the General an estimated $2 million, was dropped during the course of trial in exchange for an apology.

What now appears to be happening is that Mr. Deignan's indignation is becoming the focus of debate, as opposed to the offenses he deems worthy of a libel suit. Arguably, had he just let things go, the controversy would have revealed itself as a tempest in a teapot - a few snarky remarks in a weblog and a letter by Prof. Hettle to Mr. Deignan's university which would likely have had no impact on Mr. Deignan or his career, quickly fading from memory.

Instead, Mr. Deignan's placing himself in an awkward position. To maintain his credibility he needs to either find a lawyer willing to file a lawsuit, or state a plausible reason why he has not done so. (A third option, which might not be such a bad idea, would be to declare that he is no longer going to discuss the matter on advice of counsel, and never utter another public word on the dispute.) The more Mr. Deignan expounds on the virtues of his case and the riches he will ultimately recover, the more difficult it becomes for him to credibly say, "I've changed my mind and decided that I don't want to sue." (Am I being premature in my estimate that at the end of the day, no suit will be filed?)

Meanwhile, the attention that he is drawing to himeself and the controvery may have a more profound and lasting impact on his future career than anything that Professor Hettle or Dr. Bitch have said.