<p>Anyone can make a claim for anything - I didn’t say I think they had a case. Once the boys were charged with rape, I think they were not defamed by accusations from other people or institutions.</p>
<p>
There is a big difference between describing the players as “alleged rapists” and describing them as rapists. If the latter occured, there is liability. </p>
<p>There are many reasons why newspapers try to refer to defendants as “alleged”. One of those reasons is to avoid civil liable for defamation.</p>
<p>No, it makes the damages easier to prove - not the case. In a regular defamation case, actual damages have to be proven. In libel per se, the damages are presumed. That doesn’t mean that the other elements of the claim don’t have to be proven. For example, in most jurisdictions, the person uttering or publishing the defamatory remark would have to know or they should have known the remarks to be false.</p>
<p>Actually, razorsharp, I do have some, albeit limited, direct experience with jury verdicts in defamation cases. I have more experience as an appellate lawyer reviewing such cases after trial. Limited as my experience is, I’m willing to bet that it’s 100% more than you have. Real lawyers always have to advise their clients not to fall in love with their own case. Clients have a tendency to gloss over the countervailing arguments in a case because they are obsessively focussed on the righteousness of their case (a belief that’s easier to maintain if you ignore everyone else’s point of view.) A lawyer’s job is to assess the realistic outcome of a real case, warts and all, through the entire gamut of litigation.</p>
<p>As a neophyte lawyer decades ago I made the same mistake you do here - I’d find a legal theory which, on it’s face, seemed to mean my client wins!! It took years of experience to learn that I needed to look at the case first from the point of view of the opposition. You’d be surprised at how different the view is from over there.</p>
<p>I defended defamation cases years ago - not in North Carolina, however. Defamation law is a mess. Defamation per quod - defamation per se - public figures, malice, etc. I had a case that I lost but the jury awarded a few dollars because they thought the plaintiff was being silly - that was literally what I was told. Some jurors might think that these boys should just “get over it” and not be inclined to award big damages no matter what the proof. For example, somewhere along the way, I’m sure the accuser was called something that would add up to slander per se - do you think she would get damages?</p>
<p>
Your experience with civil law suits, juries, and defamation is neglible compared to mine but I won’t get into a pi**ing contest with you because you obviously have your mind made up. I will let you be the King Lawyer.</p>
<p>
Can you give an actual example, or is this just one more assumption, cartera45?</p>
<p>Duke is about as popular as a pulled pork BBQ at an Al Qada convention right now. No lawyer in his right mind would advise Duke not to settle. </p>
<p>Duke has the little problem of the 88 member lynch mob aka their lunatic fringe faculty to deal with and at least one extremely convincing and articulate plaintif who would be incredibly sympathetic in front of a jury. Then there is the deep pockets and heaven only knows what would come out during discovery. There is no way this one doesn’t make it to trial and that by itself would be a PR nightmare for the school.</p>
<p>I think Mike Savage, for one, referred to her as a drunken slut or whore or something along those lines. I believe worse was probably said. Calling someone a whore is pretty much the definition of defamation per se. Was she a public figure?</p>
<p>Here’s an interesting take on the Nifong disbarment.</p>
<p><a href=“http://www.slate.com/id/2168680/[/url]”>http://www.slate.com/id/2168680/</a></p>
<p>Nifong is not unique among prosecutors. In fact, he’s a “type,” the kind of prosecutor who thinks nothing of allowing an innocent indigent defendant to languish in jail for months awaiting trial, only to have the charges dropped at the 11th hour for lack of evidence. Nifong is unique only in that he’s being held accountable for what he did in one case. Other prosecutors like him – not a majority, but a large enough number – understand that Nifong’s fate does not await them.</p>
<p>“Calling someone a whore is pretty much the definition of defamation per se. Was she a public figure?”</p>
<p>Well except that she is. Isn’t the truth a defense? I mean she had enough semen in her tp float a boat and none of it was from Duke Lacrosse players.</p>
<p>Re Post 1188:</p>
<p>Are you referring to the epithet, “the Durham dirt-bag?” (I believe that’s what she was called.)</p>
<p>Higherlead said: "Duke is about as popular as a pulled pork BBQ at an Al Qada convention right now. "</p>
<p>I think Duke is still very popular with potential applicants! The Duke “Scandal” will soon be a thing of the past. Thank Goodness! :rolleyes:</p>
<p>From Duke Chronicle 6/14/07:</p>
<p>“To the contrary, a total of 21 percent of the 19,206 high school seniors who applied to Duke were accepted this spring-the lowest “admit percentage” and second-highest number of applicants in Duke’s history. Add to this the fact that yield has improved and the diversity of the Class of '11 is better than ever before, and all signs seem to point to the fact that Duke may actually grow back stronger from this whole ordeal, to steal the (translated) motto adopted by the 2006-2007 men’s lacrosse team when they returned to the field this year.”</p>
<p>
I’m ith Ms. Evans on this one … messing with my kids is the wrong place to go. I’ve been thinking about the last few pages of entries in this string and what I might do if I’m in the shoes of these families … and I thinking off something like this.</p>
<p>The 3togo family is suing Mr. Nifong for his words and actions in his attempt to prosecute our son. We are suing for the amount of his retirement payments and any other financial gain he will gain in the future from his position as a prosescutor as we find the thought of his deriving financial gain from his time in the position he abused and ultimately led to his disbarment as unconscienable.</p>
<p>We are not, in any way, seeking to gain financially from this action. Any damages awarded to the 3togo family (minus lawyer fees and taxes) will be donated to the “3togo NC Fund for the Wrongly Accused/Convicted” which will aid ANY North Carolina families who need assistance in fights similar to the one our son faced. </p>
<p>Our son faced an ordeal no child or adult should have to face and we want Mr. Nifong to pay for his actions and, at the same time, have Mr. Nifong’s penance help others in a similar situations.</p>
<p>“If the case can get past summary judgment before the court (which it would)”</p>
<p>How do you know that it would?</p>
<p>…because razorsharp has “experience with civil law suits, juries, and defamation” which renders that of a mere 32 year veteran of civil trial law “negligible”, that’s why. 
</p>
<p>And yet, why am I unable to shake the distinct impression that he’s not an actual trial lawyer?</p>
<p>
Dunno about razorsharp, but I <em>do</em> know that you’ve had quite a few “distinct impressions” about me that were about as far off as they could possibly be…</p>
<p>
Kluge, you dug your own hole; now you are try to dig out of it. </p>
<p>You seem to think your background makes your opinions somehow better than those of everyone else. The merits of opinions are not based on ones background, they are based on the logic of the opinion. All you have to do is read some of the opinions issued by the US Supreme Court and you can figure that out. Those opinions often mention the “penumbras” of the Constitution. Despite the fact these justices are among the most brilliant people in the world, they opinions regarding the constitution are flawed and based on their personal preferences. Congratulations on your successful career, but you have yet to offer any argument with merit that opposes my opinion</p>
<p>So, like I said, you’re not actually a trial lawyer, are you? You’ve just decided that your interpretation of defamation law means that in the real world these plaintiffs would recover “millions” in damages if they sued, just as your understanding of constitutional law is superior to that of the Supreme Court, correct?</p>
<p>All I know kluge is Duke has plenty of good lawyers both in the Law School and on retainer and those lawyers evidently told the Duke administration to settle this thing and make it go away. That doesn’t sound to me like they were counting heavily on a judge tossing it with a summary judgement. That may happen to your suits on a regular basis but the lawyers these families have retained look to be a little sharper than the last oaf to fall off the cabbage truck.</p>
<p>Higherlead, I’ve never lost a summary judgment motion. It helps to know the law before you file suit. We don’t know the terms of the settlement - except that it’s sectret. With good lawyers on both sides you can craft a swift and fair settlement - but in this case, as I noted, the potential judgment against Duke in the event of a suit is unlikely to be the driving factor behind the settlement. The case has a lot of PR cost to Duke which is minimized by putting it to rest as soon as possible.</p>