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Throughout his career representing famous individuals, attorney Marty Singer has battled media outlets saying the darndest things about his clients. Perhaps what has saved these media outlets from more legal trouble is high First Amendment standards under which public figures must demonstrate actual malice in order to prevail on defamation claims. Singer now finds himself the beneficiary of those same standards.
For the second time, Singer has survived a defamation lawsuit brought by Janice Dickinson.
The former supermodel alleges being drugged and raped by Bill Cosby in the 1980s. When she made the allegation in 2014, she was among many women coming out against Cosby. In reaction to reporters following up on Dickinson’s allegations, Singer sent out a press statement calling Dickson’s story “fabricated” and “an outrageous defamatory lie.” He further wrote that the “alleged rape never happened,” and later, “People coming out of nowhere with this sort of inane yarn is what happens in a media-driven feeding frenzy… We’ve reached the point of absurdity. The stories are getting more ridiculous.”
When Dickinson originally sued Cosby for defamation over these statements, Singer wasn’t a co-defendant. The model attempted to add the attorney in an amended complaint, but the trial judge wouldn’t allow the addition at the time because Cosby had already filed an anti-SLAPP motion aimed at defeating the lawsuit.
Last November, a California appeals court ruled this was an error — that Dickinson should have been allowed to add claims against Singer. And so Dickinson did.
Now back at the trial court, Los Angeles Superior Court Judge Randolph Hammock examines a new anti-SLAPP motion. Under the second prong of California’s special law deterring frivolous cases targeting First Amendment activity, the plaintiff must demonstrate a probability of prevailing before claims move forward. The big question is whether Dickinson, as a public figure, can prove by clear and convincing evidence that Singer made alleged defamatory statements with actual malice, that is, which knowledge of falsity or reckless disregard of truth.
“Here, Defendant Singer has presented evidence that he researched documents pertaining to Plaintiff’s credibility regarding her rape allegations, and he also had his own beliefs about her credibility based on his previous client’s experiences with Plaintiff,” notes Hammock in the ruling (read in full here).
The judge adds that Singer discussed Dickinson’s allegations directly with Cosby and that it’s Singer’s general practice to have clients confirm the veracity of correspondence before issuing press statements. Singer gave a sworn declaration that he didn’t entertain subjective doubts about his conclusion that Dickinson’s story was a “lie,” but the judge says that doesn’t foreclose a finding of actual malice if there is otherwise clear and convincing evidence.
“However, the wrinkle in this case is as follows,” continues Hammock. “The only way Plaintiff could prove by clear and convincing evidence that Singer and/or Cosby acted with the requisite malice against Plaintiff (as a public figure) would be to show that Singer knew or acted in reckless disregard of whether the rape actually occurred, because the gist of his defamatory statements is that Plaintiff is lying about a rape that never happened. Because Singer was not present during the alleged rape, the only way he could know would be that Cosby communicated to Singer that he did in fact rape Dickinson as she claims. However, evidence of this communication from Cosby to Singer comes within the attorney-client privilege… and any documents reflecting Singer’s conclusions about Cosby’s innocence come within the absolute attorney work product doctrine… Thus, Dickinson cannot obtain this information in discovery and there is no good cause to lift the stay on discovery regarding the issue of malice.”
The judge is also unwilling to let Cosby’s jokes about drugging women nor accusations from other women against the entertainer bend the determination. To do so, he writes, “imposes an objective reasonableness test, when the law requires that Singer have subjectively doubted the truth of his statements.”
And so, no matter what Dickinson and other witnesses allege occurred, what matters most is the attorney-client communication, which the plaintiff can’t access. Hammock notes that the opinion from the California appeals court doesn’t foreclose this conclusion as it didn’t take up the issue of malice.
Singer again is out of the Dickinson lawsuit — and this time as a prevailing defendant on a SLAPP motion, he collects attorney fees from the model.
It wasn’t a total loss for Dickinson, though, because she is able to at least fend off the full brunt of Cosby’s own anti-SLAPP motion.
Hammock looks at Singer’s statements, and in deciding Cosby’s liability, says Dickinson will be able to demonstrate they were “of and concerning” her. Hammock does see some statements (e.g. “We’ve reached the point of absurdity”) as non-actionable opinion, but other statements (e.g. “The new, never-before-heard claims from women who have come forward in the past two weeks with unsubstantiated, fantastical stories…”) as being more than opinion.
Cosby will continue to face Dickinson’s lawsuit. However, the embattled entertainer is currently asking the U.S. Supreme Court to weigh in with a review of the Dickinson case and wants the high court to take another shot at distinguishing opinion from fact.
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