The Incivility of Civil Law

“The most revolutionary act one can engage in . . . is to tell the truth.” Howard Zinn, Marx on Soho: A Play on History

Americans know all too well: “Anyone can sue anyone.”

They may not win, but they can sue. And even the most baseless, frivolous suit- suits without any merit — get heard and can be financially and emotionally costly to defend. Frivolous litigation, may include claims which are:

• Far-fetched;
• Obviously untrue;
• Outlandish; or
• Involve a request for an exaggerated or over-inflated amount of monetary damages award, in the hope of scaring the defendant seeks a settlement of a lesser amount.

It’s the American way. A Texas man sued his date for the $17, the price of movie tickets because she texted throughout the movie! Burglars have sued homeowners after injuring themselves during a robbery. And, we’ve all heard about the infamous — and successful — spilled hot coffee lawsuit.

We collectively shake our heads and chuckle. But it’s not funny when it happens to you. What is not known until you are faced with it, as I have been, is that being sued — albeit with little to no basis — can upend your life and can take away everything you own.

New Zealand has precious few civil law suits. They have national accident insurance that covers all medical bills related to any accident — slip and fall or car accident — leaving little to sue for. How civil!

The U.S., however, has 80% of the world’s lawyers and more than 100,000 students in law school. A new lawsuit is filed every 30 seconds in America, on average (and yes, I’m one) and 96% of all lawsuits are filed in the U.S. The median damages award is $201,000. And, the FBI reports that a quarter million criminals make their living through lawsuits.

CRIMINAL VERSUS CIVIL LAW

Criminal cases are initiated by a District Attorney serving a municipal government charging an individual with committing a crime; breaking the law. Guilt must be proven — usually to a jury — beyond a reasonable doubt. Civil or non-criminal law deals with property damage and injury such as defamation, breach of contract, negligence resulting in injury or death. Civil suits, generally have a goal of financial compensation for a wrong. They are brought by one individual or entity against another and have a lower threshold than criminal cases. Criminal cases must be proven “beyond a reasonable doubt” whereas civil cases, require the plaintiff proves their case by a “preponderance of the evidence” — that it is more likely than not that the allegations occurred.

If you are charged with a crime, a misdemeanor or traffic violation, for instance, you have an opportunity to plead guilty, take your punishment and end the matter. If charged with a more serious felony crime, you have the opportunity present a defense and prove your innocence and if indigent, a lawyer will be provided for you to defend your case.

But when you are sued civilly, you are not entitled to the same legal protections — such as legal aid — as are the criminally accused.

Once sued, you are in a legal Catch-22. It can cost you all you have to fight or you could not fight, and lose everything you have by default.

Here’s the way it goes:

If you don’t respond to a lawsuit within 30 days (in most states) after you’re served, your nemesis — the Plaintiff — can file a “Request for Default” and the Court can enter a judgment against you. The Plaintiff wins the case — uncontested — and can enforce a judgment against you in any amount. This can mean garnishing your paycheck or putting a lien on your house or car. And, a judgment against you will likely show up on your credit report.

Once sued, you are thus basically forced to hire an attorney, at the current going rate of $4–500 and up, per hour. In addition, as in my case, you may have to fly out of state to be deposed and for a trail, if it goes to trial. Cha-ching.

And, you don’t have to have done anything wrong! You may be sued by someone who is angry and wants some kind of revenge. If your accuser has deep pockets or a relative who’s an attorney, the cost to them for using the courts to harass you is irrelevant. And it’s all perfectly legal.

You can suggest mediation or offer to settle. But your adversary does not have to agree to either.

Some people thus use the courts, abusively filing frivolous lawsuits to intimidate and harass. And they can ruin your life. Whether you did anything wrong, or not.

My ex-husband did it to me for eight years from 2011 to 2019, going through three lawyers.

I was also served with another civil suit that hung over my head for many years. This lawsuit involved my avocation as an author and writer, and my passionate activism. I am a whistleblower of sorts. I specialize in exposing the underbelly of the corruption, coercion and exploitation in the child adoption industry. Not a very popular thing to do.

Richard Simon of Simon and Schuster, after reading my first book in the 1980s, said that my book proposal was well written and thoroughly researched, but . . .

“. . . . the public will not buy a book with a negative point of view about adoption. Those who adopt do so out of necessity, not choice, and though they suspect abuses in the system, they are inclined to overlook the problems because they have no alternative. Seeing the subject realistically might be too painful and unacceptable.”

This is what I am up against. Child adoption sits — untouchable, sacrosanct — atop a pedestal of altruism in our culture. No one wants to hear anything negative about it except when it harms them personally. Which is why the tagline on my webpage is this quote by Harry Truman.

“I never gave them hell. I just told the truth and they thought it was hell.”

As an activist my goal is to eliminate the abuses and child trafficking for adoption that exist and instead create more ethical adoption practices, including ending the secrecy and falsified birth certificates. As a writer, I also aim to educate the public by speaking truth to power and offer recognition to individuals who have been harmed by unethical adoption practices. People, mostly birth parents, who feel they were duped, coerced or defrauded in regards to the relinquishment of their parental rights and adoption of their child, seek me out in the hope that publicizing their contested adoption cases might help.

I have done what I can to help give a voice to both mothers and fathers in contested adoptions.

But no good deed goes unpunished. I was sued.

S.L.A.P.P.

SLAPP stands for strategic litigation against public participation, lawsuits intended to censor, intimidate, and silence outspoken critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. Twenty-six states have enacted Anti-SLAPP laws to protect the freedom of speech of activist writers such as myself, and whistle-blowers who expose ugly, unpopular truths, by protecting them from litigation that tries to silence them.

I had the misfortune of being sued for defamation in a jurisdiction that does not have Ant-SLAPP protections. I thus lived for years under a shadow of the possibility of losing everything — including my home — in a civil lawsuit. The rules vary state to state but in my home state my home — the roof over my head — is not protected from a civil lawsuit claim.

DEFAMATION

Defamation is a false statement of fact that injures a person’s reputation.

Over the past year, we’ve witnessed serval high profile defamation civil lawsuits:

- The Johnny Depp vs. Amber Heard case gave us salacious, graphic details into the couple’s tumultuous relationship, but the heart of the issue was Depp’s claims that Heard caused damage to his reputation and career by becoming a spokesperson against “sexual violence” and “domestic abuse,” implying — falsely, according to Depp — that he was abusive. Interestingly, a US jury found in Depp’s favor while a UK jury hearing almost an identical case found in favor of Heard.

- Dominion vs Fox News which involved false news reports about Dominion voting machines in the 2020 presidential election. The case ended with a $787.4 million-dollar settlement.

- E. Jean Carroll’s case against the former president involved her claim of battery (assault) and defamation for his calling her a liar, saying the case was a hoax, never happened and was done for publicity for her memoir and was also motivated by political dislike of the former president. The court found in Carroll’s favor in the amount of $5 million.

All three of these cases were based on communication of allegedly false statements about a person or company that injured their reputation. Defamation includes both libel (written statements) and slander (spoken statements).

There are specific criterion to prove defamation. The plaintiff must show four things:

1) a false statement was made purporting to be fact;

2) publication or communication of that statement to a third person occurred;

3) fault amounting to at least negligence; and

4) damages, or some harm caused to the reputation of the person or entity who is the subject of the statement.

It is the burden of the party bringing the suit to prove that what was said or written is a lie. Opinion is subjective and thus makes poor fodder for a defamation suit. A negative review of a book, movie, or show, for instance, or in today’s terms, saying an “influencer” gives bad hairdo, wardrobe or makeup advise is opinion, which is neither true or false. They are opinions. (You can avoid getting sued for critical/negative comments by adding: “In my opinion.”)

A defendant in a defamation case is found to be at “fault mounting to negligence” if they had ample means to validate or verify the fact or falsehood of what they said or published. Public figures have a higher burden of proof when bringing a defamation claim; they must show that the defendant acted with actual malice or reckless disregard for the truth — with intent to cause the plaintiff harm when they published a false statement.

Finally, the claimant needs to show concrete harm, generally in dollars and cents, that the lie caused to their reputation or business. In other words, it would be fool hearty to initiate a defamation suit simply because you didn’t like what was said about you and/or it caused you embarrassment or humiliation.

CONFLICT OF INTEREST

While the winner gets to add their legal costs to the amount they are suing for, in most cases, win or lose attorneys on both sides of civil lawsuits get paid, frivolous or not. As in litigated divorces, the longer attorneys can keep both sides fighting, the more they earn. It is not in the attorneys’ best interest to have the parties settle, which seems to be a conflict of interest between their profit and your loss. This is the American way.