19th April 2023
Almost all civil litigation ends before a trial takes place.
Civil litigation – where one party sues another person in respect of a legal wrong – is distinct from criminal litigation and much public law litigation where it is expected that some court hearing takes place.
In civil litigation, weak cases tend to be withdrawn at an early stage, while stronger cases tend to get settled.
Indeed, civil litigation is often a structured form of deal-making, providing a hard procedural framework for negotiations and compromise.
This is because of two things.
First, it is usually plain at an early stage if the claimant actually has any sound claim at law, or a defendant a sound defence.
Second, before any trial, it is also then usually plain how strong the evidence is – witness evidence, expert evidence, documentary evidence, exhibits – for both parties.
Of course, dramatic things can happen at a trial – some stunning exercise in cross-examination, or some unfortunate admission – that can make a difference to a case.
But usually, any competent litigator (or, in the United States, trial lawyer) will be able to advise weeks before any trial on the likelihood of success or failure.
Pre-trial stage is where the most significant litigation work takes place – not in the theatrical, rhetorical flourishes of counsel in the courtroom.
But in the methodical grunt-work of getting a case prepared for trial.
For the litigation paradox is this: you are more likely to get a satisfactory result before trial by preparing to go for trial.
And you are less likely to get a satisfactory result before trial if it is obvious you are not willing or able to go for trial.
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There are exceptions to the general rule that almost all civil litigation ends before a trial takes place.
Sometimes there is an area of law that is genuinely unclear, and so neither party can be sure which way a court will go, and so a judgment is needed.
Sometimes there is a need for a property or other legal right to be judicially and publicly determined.
Sometimes you have a party who simply wants their day in court, regardless of legal advice to settle.
And sometimes, a party may have got itself into such an awful legal costs tangle that it has to, in effect, bet on the outcome of a trial as the least bad outcome.
But these (and some other) exceptions aside: almost all civil litigation ends before a trial takes place.
The only questions are when and how the litigation ends.
And this may surprise some outsiders, for whom litigation is about what happens in a courtroom.
But like battles and wars which are won and lost before any confrontation takes place, so is most civil litigation.
This is, in a way, the art of law.
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None of the above will be news to long-term readers of this blog.
But the latest application of the truth that almost all civil litigation ends before a trial takes place is the settlement in the United States of the Dominion lawsuit against Fox.
The settlement was in the days before a trial was scheduled to take place.
On the face of it, this is not a case that should have got as far as it did.
In particular, it would appear that the evidence was strongly on the side of Dominion – especially the disclosures about those at Fox knowingly broadcasting untruths.
But.
The lateness of the settlement indicates two things.
First, either party – or both parties – were playing hard.
And this would not be a surprise given the amounts – and reputations – at stake.
Dominion, in particular, conveyed an impression that it wanted public vindication – and so would be committed to go to court if there was not a public apology.
As it happens, there seems not to have been a public apology – but Dominion’s demand for one no doubt led to Fox having to settle for a higher amount than it would have done otherwise.
Both sides knew that a public admission of wrongdoing was Fox’s weak point – in a way that, in the United Kingdom, News International has been careful not to admit whether certain newspapers were involved in phone hacking.
On the other hand, Dominion had its own weak point.
And this was possibly the second reason for the lateness of the settlement.
To win at court, Dominion had to go beyond showing that Fox were aware that it was broadcasting untruths.
Dominion had to show “malice” – which in the United States, as in England, is a high and difficult threshold to meet.
Malice is a state of mind, like dishonesty in a fraud case.
And short of an admission, malice has to be somehow shown by inference from the available evidence.
That is often not easy regardless of an abundance of evidence of wrongdoing – and thereby there is an element of uncertainty for both sides: will they, won’t they, etc.
And both sides knew about this uncertainty too.
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Fox and Dominion were in a litigation struggle.
Fox wanted to avoid any public acknowledgment of wrongdoing, but the courtroom clock was ticking louder and louder, and in turn Dominion realised their case was not an easy win because of the requirement to show malice.
But Dominion seemed to have convinced Fox that it was committed to getting public vindication.
And so Fox settled, for an extraordinarily high amount.
As such it has deprived some from the spectacle of a courtroom drama and possible public humiliation for individuals connected with Fox.
But for connoisseurs of civil litigation – who know trials are unlikely – the pre-trial litigation struggle was spectacle enough.
And it was well-played by Dominion.
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What is the nature of the settlement? Is there any admission of liability, so this is a settlement of quantum? Or is there no formal admission of liability?
I understand Fox has agreed to pay about $787m, about half what Dominion was claiming, which nonetheless feels like a substantial win by Dominion on quantum. Presumably each party has to pay its own costs on top, which I expect will be considerable.
A judge has already ruled that the statements that Fox aired were false. And the evidence shows that many people at Fox knew the claims were false (as I understand it, Murdoch himself described them as “really crazy”, and Tucker Carlson said they were “insane”).
Fox has acknowledged that judicial finding without accepting it or apologising. Does that matter?
Agreed. A few smallish observations. Three-quarters of a billion dollars to a single plaintiff is – still – a lot of money. Even for News Corp. Also, it has now been demonstrated that in the US a news entity can be liable for damages for lying about a matter of public concern. This will have, as the lawyers say, a “chilling effect” on those thinking about doing something similar the next time. And, while Fox has, it seems, avoided a direct on-air apology, publicizing the settlement amount (not a common private-party practice) will quite neatly demonstrate – in a manner impossible to refute – the price of a lie.
Or merely of a “cost of business”.
The risk for Fox is that this settlement will reinforce the view that, for them, the price of lying and the price of doing business are the same thing.
Absolutely, even leaving aside what proportion might be claimed as a loss for tax purposes. But while it’s only my unenlightened inference, I think the award will smart because this is money that could have been used for something else, or just trousered, and News Corp isn’t (for instance) an English water company, where, it appears, fines are merely an annoyance. I think it safe to say that for a media operation this is not a normal cost of doing business, though News Corp. will undoubtedly say it is, for all eternity.
Each side has their own audience. Dominion should have done enough to satisfy their customers that the allegations were without foundation. The Fox audience will remain in place given that an on screen apology is absent and most of the world has moved on. It will be interesting how they deal with the elephant in the room and his continued allegations.
Having read the papers I was (eagerly) awaiting this.
Thank you.
Oh but would it not have been good to read a court report of Rupert and Lachlan and their dreadful crew lining up to confirm that the Big Lie was indeed that. This still allows the MAGA crew to believe.
But the money is a fair substitute, up to a point.
Another day, another courtroom.
I wonder whether the Smartmatic people, who are also after Fox for significant damages, will do as well – or better?
And then I understand that there are 2 more cases pending, one from a former staff member & one from a shareholder.
How long before even the Murdoch fortune starts to look like not enough?
Indeed, and Smartmatic is reportedly asking for something like $2.7 billion, AND it starts by having the benefit of all the Dominion discovery.
Dominion, on the other hand, is not finished: it still has suits pending against Sidney Powell and Rudy Giuliani. Neither has the sort of money that Fox has, so no big recovery for Dominion there. However, neither Sidney nor Rudy have any reason to love Fox any more, if they ever did, after hearing what the Fox talking heads were saying about them behind their backs.
More fireworks yet to come.
“Sometimes there is a need for a property or other legal right to be judicially and publicly determined.”
I’ve been advocating reforms aimed at improving the coherence and integrity of the law for ten years or so; including a mechanism for recognising when established law is inadequate, so that disputes can be heard at public expense.
“almost all civil litigation ends before a trial takes place.”
There’s a societal cost in that, that I think is generally overlooked. As I say in that paper: “Perversely, if a dispute is necessary to get a flawed point of law changed through the courts, the only ones which can be changed that way are the ones which are in fact disputable. The more clearly derelict a law is, when properly scrutinised, the less chance there is that it will actually come before a court: if one party demonstrates, in preliminary exchanges, that it will clearly be overturned, the dispute will evaporate; the law will then remain unchanged and anybody who does not see the flaws in it will still be bound by it.”
Very true. I feel some cases should be referable to a ‘public I terest’ review or something. Otherwise people who can’t afford to bring their cases to trial have to put up with unfair laws whereas people who can afford to settle out of court…
As always, an informative and interesting blog post.
Though there could perhaps have been a little clarification at the end, in the discussion of ‘malice’? I believe the precise US legal term here is ‘actual malice’, and this doesn’t relate to the everyday use of this term, meaning a malicious intent. In the context of this US defamation legislation, my understanding is that it means Dominion had to prove one of two things to show ‘actual malice’ – either that Fox knowingly perpetrated the falsehoods, or at the least showed a reckless disregard for the truth. (And I think Dominion had strong evidence for both of these, hence the high settlement figure). However deliberate lying or reckless disregard for the truth would not normally be considered ‘malice’ in the everyday use of the term, so I just thought this clarification was worth adding.
Given the settlement and the judgement of falsity in the broadcasts by Fox, it will be interesting to see whether Dominion pursue more widely the people associated with propagating the falsehoods that were given airtime by Fox.
Do you think that in this case there was an additional factor in the willingness of Fox to settle – the possibility that senior Fox executives – and possibly the owner – would have had to give evidence if the case had gone to trial, and the likely unpleasantness of the experience and the impact that cross-examination might have had on their reputations irrespective of the outcome of the case?
In fact, Dominion needed to show “actual malice” to win the defamation suit, which is a different and weaker test than “malice” as understood at common law. There is no need to demonstrate a state of mind to demonstrate “actual malice”, rather it is capable of being deduced from a course of conduct. Showing that the defendant knowingly publishing falsehoods that could evidently damage the subject would typically suffice to demonstrate “actual malice”.
Teri Kanfield, the American legal commentator who shares many of DAG’s virtues from across the Atlantic has posted a detailed and readable analysis. She addresses the many comments of those disappointed by the settlement e.g. “Dominion didn’t sue Fox to save the future of truthful journalism. Dominion sued Fox to recover the damages and financial losses they suffered when Fox lied about them.” https://terikanefield.com/the-dominon-fox-settlement-and-the-hunger-for-justice/