Above The Law refers us to Newsday’s coverage of the ugly mess that has become of the Martin Garbus, Esquire vs. Samantha Ronson vs. Perez Hilton suits, which now stand a good chance of becoming far more embarrassing for Lindsay Lohan than the blog post which prompted the original defamation suit.
Here are the facts in the underlying dismissed Ronson vs. Perez suit:
At the bottom of the failed libel suit and the pending malpractice action is a one-car crash: Lohan’s Mercedes-Benz versus some shrubs in Beverly Hills on May 26, 2007. Police reported finding a small amount of cocaine in her car. The actress eventually entered rehab and pleaded guilty to driving under the influence.
About a week later, according to the libel suit, Hilton, whose real name is Mario Lavandeira, posted an item on his blog linking to a juicy story on an another blog called Celebrity Babylon. Citing unnamed sources, Celebrity Babylon reported the cocaine belonged to Ronson. Additionally, according to the suit, the story said Ronson "has accumulated a substantial side income taking her pal in front of paparazzi cameras for money."
"With friends like Samantha Ronson, Lindsay doesn’t need enemies," Hilton blogged. Two weeks later, he posted a picture of himself on perezhilton.com wearing a sweatshirt emblazoned with "Blame Samantha" and referred to her as a "lezbot dj", according to the libel suit.
There’s fodder there for a defamation suit, but not much. Hilton didn’t post the original defamatory facts, he linked to them with some of his own comments. As a journalist — and Hilton absolutely is a journalist, he reports more than full-time with substantial resources for investigation — Hilton has some duties to assess in his own mind the likely veracity of the story, but he doesn’t have to confirm it’s entirely true unless he gives the story’s facts his own stamp of approval. As far as I can tell, he didn’t, he linked to it. (In an affidavit, he asserted his own good faith in linking to the story based upon dozens of reports he had received of Ronson’s drug use).
"Blame Samantha" sure is obnoxious, but it’s hard to see what defamatory facts are implied there given the context of Hilton publishing the story as coming from a separate source.
First, a word on the unusual and apparently excessive fees here. I typically represent defamation plaintiffs on a contingent fee basis; doing so presents a substantial risk of losing money given the nature of defamation cases (more on that later), but it’s also par for course. Ronson hired Garbus at $750 an hour. Based on the little bit that comes through the article, Garbus seems to have billed her at least $142,000 without even getting to the anti-SLAPP hearing (part of California’s preemptive strike against wrongful use of civil proceedings) or taking Perez Hilton’s deposition.
Which is to say, Garbus charged her a boatload for nothing, as he did not even get past the very first hurdle in the case, the anti-SLAPP hearing, the equivalent of a motion to dismiss in other state courts.
Garbus also allegedly promised the whole case would cost $75,000; I suppose that’s possible at $750 an hour (i.e., 250 hours once you consider that an associate at half the price will be doing two-thirds of the time) if you streamline the process and the other side doesn’t go crazy with motions or discovery. Given the parties and issues here, I don’t see how that would have been possible. Obviously, Hilton’s lawyers are going to go straight to the drug use and will do their best to dig into Ronson and Lohan’s personal lives (as Garbus himself is now doing). For comparison, Hilton’s attorneys made it up to $85,000, or at least that’s how much Ronson was ordered to pay for Hilton’s attorneys’ fees.
Second, what did Garbus and Ronson, respectively, expect to happen? Perez Hilton did not originate the story, Celebrity Babylon did, and Ronson was arguably at least a limited-purpose public figure (and/or Lohan was with regard to the source of the cocaine found in her car), making it much harder to prove the requisite intent ("malice") to get by First Amendment protections.
So it was a tough case from the start, which Garbus should have known and should have told Ronson. Given Hilton’s hearsay repetition of the actual defamatory facts, odds were high he’d get out on anti-SLAPP, which Garbus should have told Ronson. Moreover, Ronson should have been told that, even if she had "won," she could have "lost" once Hilton started digging into her personal life and, perhaps worse, Lohan’s personal life.
Maybe Garbus did tell her all of that. Yet, in the article, Hilton’s lawyer is quoted as saying that Garbus’ anti-SLAPP motion response was garbage. There are also references to Garbus not "worrying" about Ronson’s case until Hilton’s lawyers filed their motions. If true, those cast doubt on Garbus’ whole story, since he should have recognized the anti-SLAPP problems from the start and should have been preparing for that from the start. If I had pursued Ronson’s case here in Pennsylvania, from day one I would have been working on my First Amendment arguments.
But let’s give Garbus the benefit of the doubt and assume that the truth lies somewhere in the middle between Garbus and Ronson’s allegations. If so, there still seems to be a fundamental problem that Ronson, no matter what she was told, did not recognize just how tenuous the case against Hilton was. Nothing else explains her conduct, even if she was at times out of touch or hard to reach.
Which brings me to the main point here: defamation cases present a unique problem in client relations for trial lawyers, as they are among the hardest cases to win and usually involve the most emotionally-invested clients.
Defamation cases frequently lose. Indeed, sometimes even when they win, they lose, in the form of lost privacy or nominal jury verdicts.
Did Ronson know that? Regardless of what Garbus told her, the facts strongly suggest that she didn’t get it, and that this whole mess could have been avoided if she had a better understanding of the issues and the case from the start. That presents a lesson for all of us trial lawyers — do your clients really get what’s going on?