Given the events of the last 24 hours, I think it is fair to say that Phillip Fulmer is tired of lawyers. Despite the fact that I am a lawyer, I would oftentimes tend to agree with him.
Having now had a chance to look at the Complaint ( PDF) filed by Wendell Smith in his defamation lawsuit against the NCAA, it seems clear -- as if it wasn't already -- that Smith's claims are as ridiculous as they are inflammatory. Joel over at RTT (who happens to be a fellow lawyer) did a fine job of walking through the allegations of the Complaint earlier today, and I'm not going to rehash what he has already said with great clarity. If you haven't read his analysis of the complaint, you really should give it a look.
I do, however, have a few observations and thoughts that I'd like to add to Joel's impressions -- if for no other reason than to establish that like all attorneys I like to hear myself talk and sound like I know what I am talking about (sigh).
Fulmer Did Not Have to be Served While in the State of AlabamaAs I noted in a comment over at Rocky Top Talk, Fulmer never had to be served while in the state of Alabama -- any claims otherwise are absolutely false.
Under the Full, Faith and Credit Clause of the US Constitution (a clause which contributed heavily to some annoyingly intractable disputes over states refusing to honor the laws of another state which ended in a small conflict known as the Civil War) along with the Comity doctrines, each state has to honor and enforce the subpoenas of other states, including having them served.
I have personally had out-of-state subpoenas commissioned on numerous occasions for deponents in other states. I will say this -- it is a royal pain-in-the-butt to do, but any lawyer can do it if they take the time to consult the Rules of Civil Procedure for their state and the home state of a deponent (or just call the clerk of court in each location).
There is a very well established system for accomplishing this sort of thing, which any lawyer worth his or her salt is aware of (or could become aware of with little effort). So any claims by Smith’s attorneys that they had to serve Fulmer while he was in the state is an outright, baldface, lie. Period, it is not even open to discussion.
As an attorney who has represented a lot of healthcare providers, businesses, contractors, and so forth over the years in highly contentious cases, there is only one reason that a party pulls a stunt like what occurred yesterday -- to prove a point or gain publicity. It is gamesmanship, it is unprofessional, and irrespective of Coach Fulmer’s involvement it is the sort of tactic a slimeball attorney (a/k/a the kind that generally gives the legal profession a bad name) pulls.
I honestly could care less whether the suit is about Alabama or whether Coach Fulmer was involved at all -- it’s pure “Bush-League” lawyering, and it is reprehensible.
I’ve got no problem with Alabama or it’s fans - heck, I’ve been posting nice things about them for the last few weeks -- but this isn’t about Alabama at all. For me this is about a rogue booster and his dirtball lawyers. It is also about the “rules of engagement” when it comes to legal disputes.
Personally, I know judges who would sanction the attorneys in this case at the drop of a hat—and not a minor sanction either. While I agree it can be tough to prove, I agree with Joel that this situation is terribly suspect and Coach Fulmer's legal team should explore the possibility of pursuing an abuse of process claim against Smith's attorneys.
Coach Fulmer was Right in Referring to the Suit as "Crap"
Proving defamation is a difficult task under the best of circumstances. I cannot recount the number of times I have had a defendant I have represented ask whether they could file a counter-claim against a plaintiff for defamation due to allegations leveled against them. The reason I have never personally filed a defamation suit is because they are nearly impossible to prove. The reason for this is a little thing known as the First Amendment.
First of all, as Joel noted "truth" is a defense to a suit alleging defamation. That said, in most cases, what is said about an individual need not even be true to be protected. So long as the alleged defamer reasonably believed that what they were saying was true -- even if it was not -- then they are not liable for defamation.
Second, many types of statements are afforded complete protection depending upon the context in which they arise. Good examples of this are: papers filed with a Court, statements made in Court while under oath, debates in legislative bodies, and so on. One area where a healthy degree of protection is afforded is in the case of individuals speaking in a context where they themselves have a vested interest in the subject matter of the statements made. For example, if a businessman tells a potential client that his services are better than his competitor because his competitor is a mouth-breathing imbecile, well -- as a general rule -- he is allowed to do so. In this case, it seems likely that what the NCAA stated could potentially fall within these sorts of exceptions.
Third, as a general rule, opinion can not be the subject of a defamation action -- only statements asserted as being "facts." Thus, if Ghost of Neyland writes an article stating "Lawvol is a complete and utter moron. His mindless drivel is enough to make you want to bash your brains out..." ignoring the fact that this is, in fact true, it is simply an expression of opinion. If, however, MoonDog writes an article stating that "Lawvol has a bad case of the piles, and is a card-carrying member of Al Queda." well, he would have made a factual averment which could potentially be the subject of a defamation action.
In Smith's case, the allegations are, in my opinion, pled "minimally" -- in other words, I would have expected more. It seems to me that, while some of the statements Smith takes issue with could be taken as fact (especially those relating to his actually paying Kenny Smith), and thus could potentially be the subject of a defamation action -- but that only gets him to the courthouse door. In other words, if the statements are in fact untrue, the NCAA knew they were untrue, and the statements didn't fall into one of the exceptions discussed above (or one of a number of other exceptions) then Smith might have the right to try the case in front of a jury.
The public statement made by Smith's attorneys to the Birmingham News was that he had evidence that "The NCAA violated its own policies not once, but twice." My thoughts on that are simple:
The question is not whether the NCAA violated its own policies, but whether they defamed Smith -- the two are not the same. Furthermore, who cares? Smith's attorneys did not plead anything related to policy violations in their complaint so whether the NCAA violated it's policies is irrelevant.
In the end, Fulmer was dead-on. This case is about lawyer's trying to grab as much publicity as they can.
Where Does it all go From Here?
In the end, were I a betting man, my money would be on Fulmer not appearing for a deposition on the 25th of September. I am sure Fulmer's lawyers will be filing a Motion to Quash the subpoena -- as set forth in Rule 45 of the Alabama Rules of Civil Procedure -- in the coming days. That will lead to more piles of paper being filed, hearings, and general delays of the lawyerly sort. While he may end up giving a deposition in the case, I would be highly surprised if it occurs remotely close to the time set forth in the subpoena. That's the good news.
The bad news is that, regardless of what happens, Coach Fulmer will have to pay his lawyers to represent him in the matter, and probably pay them a considerable amount. That is unfortunate because now, without even having the rights of a party in the suit, Fulmer is getting hit in the pocket book for Wendell Smith's boneheaded desire to grind the axe. While I am sure Coach Fulmer can afford his legal fees, the fact is that he shouldn't have to have reason to call upon his attorneys in the first place.
Even more annoying, is the fact that despite the fact that it has been over six years since the NCAA handed down its infractions report against the Crimson Tide, here we are still being forced to rehash the whole thing again. Thus, no matter what we try to do, both Tide fans and Vol fans alike will have to put up with more shenanigans, more distractions, and more side shows throughout this football season.
I miss the days when the Third Saturday in October simply meant football, and not Court Orders. Hopefully, we will return to that sooner rather than later...
Disclaimer: Though a practicing attorney, the author of this article is not licensed to practice before the Unified Courts of the State of Alabama. The comments and observations offered in this post are intended as editorial commentary and are published solely for the sake of discussion. This article is not intended to render any legal opinions and/or legal advice, and should not be relied upon in any matters concerning legal rights, responsibilities, or obligations.
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