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Fox Wox

To the surprise of probably no one with a diversified portfolio of news sources, Fox lost its game of chicken against Dominion and settled.

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(Photo by Kevin Hagen/Getty Images)

Why am I not surprised that Dominion v. Fox settled? Are you?

You shouldn’t be. The jury was empaneled and probably looked daggers at everyone for being chosen. It almost never fails that selecting a jury can do what all the arm-wrestling, arm-twisting, and extra-legal methods cannot do: convince the clients that settling is in their best interest, thereby avoiding trial, the inevitable appeals, and the whopping attorney fees that accompany all the aspects of a jury trial, including the adverse publicity and reputational risk. So much for the old maxim “million for defense, not a penny for tribute.” Dominion gets a ton of money, but Fox doesn’t say it’s sorry. Who won and who lost?

One multiple-defendant jury trial that I prosecuted refused to accept, in those days, a reasonable settlement offer. So, we went to trial. After jury selection, and after looking at the peeps on the panel, one of the defense attorneys asked pleadingly if the pretrial offer was still open. Amazing how often that happens.

Another time, I was on a prospective jury panel (I hadn’t ascended to the jury box yet). Counsel for the various parties looked at who was in the box about to be voir dired and who remained in the audience as possible jury members. They scrutinized us all visually and then the entire group of jurors was excused. Guess what? That case settled forthwith. What a surprise.

Leading up to the settlement were several adverse Fox rulings. Did Fox outfox itself?

One of the many things I learned early when I appeared in court all day every day was to never, ever piss off the judge. All I had was my reputation before the court and if I misrepresented, omitted, let alone lied to the court, my reputation was in the dumper. Just as lawyers gossip about judges, judges gossip about lawyers, and once a lawyer’s reputation is sullied, it’s tough going from that point. You no longer have even one shred of credibility and that’s all we have.

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The court determined that Fox had withheld evidence and whacked Fox with sanctions. It seems to me (although I am a dinosaur lawyer and graduated from a law school now shuttered) that one question could have been answered with a simple yes or no. Was Rupert Murdoch an officer of Fox News? How complicated is that question? Well, apparently not that complicated, at least not since Fox has thrown itself on the mercy of the Delaware judge and copped to the fact that Murdoch was indeed an executive officer of Fox News. The reluctance to disclose an unprivileged fact has sullied the reputation of counsel and Fox News, which had a steam shovel digging an ever-bigger hole for itself in this case..

Is an apology from Fox counsel worth the paper it’s written on? Even though the case has settled, I wonder whether Fox’s lawyers will be welcome in this judge’s courtroom anytime soon. Can you see the Fox lawyers scurrying (as well they should) to try to undo the damage done by inaccurate representations to the court? Are there enough “mea culpas” in the world? Do they have any credibility left? There may well be a fair amount of falling on swords both at Fox corporate legal and the outside law firm(s). Lawyers, start your engines, the finger-pointing blame game will begin shortly.

Disclosing bad and unpleasant facts is unpalatable, distasteful, and downright dreadful. However, it is how our system works. No case is perfect, but sandbagging the truth deserves sanctions. Bad facts prompt resolutions (duh).

Every pundit and nonpundit alike will speculate (because that’s all it is) about why Fox caved, oops, settled. There are as many reasons for that decision as there are pundits so I might as well jump in. Let’s take a few:

  • A wise business decision. Yes, settlement is expensive, but Fox can afford it.
  • No more bad facts will come out. And who knows what other damaging emails, texts, and the like might have been lurking in the Fox discovery closet. No more juicy and cringe-worthy details.
  • No need for the Murdochs or any of the Fox News personalities and personnel to testify and be subjected to what I would suggest would be withering cross-examination based on the documents already produced. If this case doesn’t re-emphasize the discoverability of emails, texts, and the like, what case will? Will there be any lessons learned? What do you think?
  • No need to continue to shell out money for attorneys fees and related expenses.
  • Adverse pretrial rulings for Fox. “This judge hates this case (and us).”
  • As every trial lawyer will tell you, you never know what a jury is going to do. It’s the ultimate wild card in the legal system. Yes, jury consultants can and do help in jury selection, but trial is always a gamble. Don’t let anyone ever tell you otherwise. You win the ones you thought were losers, and you lose the ones that you thought were dead-bang winners.
  • Finality, blessed finality, at least as to this lawsuit.

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The legal system is not done with Fox yet. Now, on to Smartmatic. Might as well ready that steam shovel.

old lady lawyer elderly woman grandmother grandma laptop computerJill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at [email protected].

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