Misuse of Courts – There Must Be a Better Way

By Lanny Davis – January 10, 2015

Under current U.S. legal precedent, parties filing suit and their attorneys have virtually absolute immunity for any false charges made in court filings. And making matters worse, once the public court filings have been made, the media have virtual immunity to report them as “allegations” — a word often ignored when the headline is explosive and scandalous.

Once someone is subject to a headline — say, that he or she is a “child molester” or guilty of “sexual abuse” — the misinformation echo-chamber of Internet search engines can make the charges a lifelong perception, with tens of thousands of “hits” sometimes in minutes or hours, and too many people perceiving truth just because of multiple repetitions on the Internet. And attempts to correct or rebut are usually ineffective.

Take a notorious example of the dangers of reckless and false charges aired in the courts — this one a criminal case. Some years ago, a physical education teacher in Northern Virginia was falsely accused by a young girl and her accomplice of molestation. He was labeled a child molester in headlines. But a jury acquitted him after just 47 minutes of deliberation. Jurors said they were outraged by the lack of evidence, with one weeping in sympathy during closing arguments. Yet his life will never be the same — he lost his job and had to move his family, and a Web search still associates his name with child molestation.

A recent example of an apparent similar abuse of the court system, this time in a civil case, occurred in a court filing made on Dec. 30, 2014.

Several years ago, two anonymous underage girls filed suit against the federal government for agreeing to a guilty plea by billionaire investor Jeffrey Epstein without consulting with the two child victims, allegedly in violation of a victims’ rights law. Last week, two additional anonymous girls (#3 and #4) sought to be added to that lawsuit.

The two lawyers representing the four girls, a Florida lawyer named Brad Edwards and a Utah lawyer named Paul Cassell, chose to name in publicly filed papers (supporting their motion to add the girls to the case) several high-profile individuals with whom “Jane Doe” #3 claimed she had sex, including the renowned and brilliant Harvard Law School professor and author Alan Dershowitz and Britain’s Prince Andrew.

Dershowitz, who is a long-time friend of mine, publicly denied the charge immediately — following Crisis Management Rule 101 — stating: “It’s totally, unequivocally and completely false … totally made up and totally fabricated from beginning to end.” Prince Andrew denied the charge as well.

Dershowitz went further: He challenged the young woman and the two lawyers to “level those charges against me outside of the courtroom, so that I can sue them for defamation.” However, a Dec. 31 story in Politico reported that Cassell and Edwards did not respond to requests for comment, including an inquiry about their response to Dershowitz’s comments.

There is something wrong with this system. Currently the only accountability for attorneys and their clients for making false charges in legal pleadings is to lose the case, when the aggrieved parties can ask for attorney sanctions (which are rarely granted); or they must prove malice in a case of “malicious prosecution” (which is extremely difficult to win).

At least lawyers who falsely accuse parties who are not named defendants in a case should be liable for actual and perhaps punitive damages unless they can prove it was imperative for the names to be made public, rather than put under seal. And they should be subject to personal sanctions and disbarment if they recklessly neglect to check out the veracity of defamatory allegations.

I can give this warning to attorneys Edwards and Cassell in this case: If you think you can hide behind court filings and escape without adverse consequences after filing false charges, without checking the facts, needlessly making these names public, think again.

Dershowitz is famous for his great sense of justice and for a long history of successfully fighting against injustice — especially when he is the target and victim.

Stay tuned.

Davis served as special counsel to former President Clinton and is principal in the Washington, D.C. law firm of Lanny J. Davis & Associates, and is executive vice president of the strategic communications firm, Levick. He is the author of a recently published book, Crisis Tales: Five Rules for Coping with Crises in Business, Politics, and Life.

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