I’m an attorney, my dad was an attorney, my grandfather was an attorney. I’m pretty immune to attorney bashing, and I recognize a lot of it is overblown.
But damn…
Yeah, that is one hell of a hill to die on …
Good job, AA, way to cover your ass and blame the victim!
Yeah, that is one hell of a hill to die on …
Good job, AA, way to cover your ass and blame the victim!
And a 9 year old victim at that…
I thought that was the Onion, not the Virginia Pilot. The guy was an AA flight attendant. AA is liable on at least a couple of different levels. This is just doubling down on stupid and making sure the plaintiff gets the max award.
Now we know where synthetic works. The girl must have done something egregious to get recorded.
Now we know where synthetic works. The girl must have done something egregious to get recorded.
Hah I was just thinking the same thing. She probably stole some peanuts from the cart.
I had to read this like four times to make sure I somehow wasn’t missing something.
Don’t the defense statements look like standard affirmative defenses that are included in every answer to the complaint at the very outset of litigation?
Answers are filed prior to any formal discovery and affirmative defenses are waived unless raised, so out of an abundance of caution every possible defense is alleged.
This looks like a PR attack by plaintiff’s counsel. Trials are supposed to take place in courtrooms where evidence, like the photo in the story, is properly submitted and authenticated.
Don’t the defense statements look like standard affirmative defenses that are included in every answer to the complaint at the very outset of litigation?
Answers are filed prior to any formal discovery and affirmative defenses are waived unless raised, so out of an abundance of caution every possible defense is alleged.
This looks like a PR attack by plaintiff’s counsel. Trials are supposed to take place in courtrooms where evidence, like the photo in the story, is properly submitted and authenticated.
Yes, it’s an effective PR attack.
Don’t the defense statements look like standard affirmative defenses that are included in every answer to the complaint at the very outset of litigation?
Answers are filed prior to any formal discovery and affirmative defenses are waived unless raised, so out of an abundance of caution every possible defense is alleged.
This looks like a PR attack by plaintiff’s counsel. Trials are supposed to take place in courtrooms where evidence, like the photo in the story, is properly submitted and authenticated.
Yes, it’s an effective PR attack.
Effective because it’s true!
“An abundance of caution of every possible defense”… The fact that they didn’t drop this possible defense means they believe it might be true and/or effective. Is there any world in which you can picture that this defense should be used? Give us any possible hypothetical situation in which a 9 year old girl should know she’s being recorded …
Don’t the defense statements look like standard affirmative defenses that are included in every answer to the complaint at the very outset of litigation?
Answers are filed prior to any formal discovery and affirmative defenses are waived unless raised, so out of an abundance of caution every possible defense is alleged.
This looks like a PR attack by plaintiff’s counsel. Trials are supposed to take place in courtrooms where evidence, like the photo in the story, is properly submitted and authenticated.
Yes, it’s an effective PR attack.
Effective because it’s true!
“An abundance of caution of every possible defense”… The fact that they didn’t drop this possible defense means they believe it might be true and/or effective. Is there any world in which you can picture that this defense should be used? Give us any possible hypothetical situation in which a 9 year old girl should know she’s being recorded …
If the 9 year old posted a video to TikTok showing that she knew there was a camera in the bathroom *prior to *her using the toilet, then we would have proof that she knew about it. During the defense of this case, her tik tok videos may be discovered.
The newspaper article doesn’t say what court filings contained the statements. The statements look like affirmative defenses which one finds in answers to complaints.
Keep in mind that a case commences when a complaint is filed & served. The defendant has 30 days (in my jurisdiction) to file responsive pleadings, like an answer containing the affirmative defenses. Until the defendant files responsive pleadings, they cannot conduct formal discovery. They can informally interview witnesses and ask for documents, but there is no mechanism to force anyone to provide information. An attorney cannot subpoena information for the case prior to the initial appearance & responsive pleadings.
So, because the case is at its very beginning and the attorney has no mechanism to ascertain the veracity of the allegations, it is entirely reasonable to preserve all affirmative defenses. Preserving the defenses does not mean they will be claimed at trial.
The law requires that every single fact necessary to support a cause of action must be proven by the plaintiff in order to succeed. Why would anyone concede a fact before it is verified? That would be malpractice.
If the 9 year old posted a video to TikTok showing that she knew there was a camera in the bathroom *prior to *her using the toilet, then we would have proof that she knew about it. During the defense of this case, her tik tok videos may be discovered.
I still would not consider that “fault and negligence” on her part. I don’t expect 9 year olds to fully understand the possible rationales for there being cameras in a bathroom, and the likely malicious intent.
That said, yes, I realize the legal profession seems to involve saying and writing utterly nonsensical, ridiculous crap that after context and legal history are explained, I grudgingly admit have some rational purpose. Sometimes.
Thank you for the thoughtful reply and hypothetical. I would still wonder if even if she did know she was being recorded if that would matter. Would it? I would think a 9 year old has no ability to consent to a stranger recording them in the bathroom even if they did know it was occuring. I’m clearly out of my knowledge here. It is just so hard to picture a situation in which this defense would hold up. Near zero chance it’s even true. And if true, it’s hard to picture how that actually would be a good argument anyway.
Defendants have a broad right to defend themselves. This right includes raising affirmative defenses that are unlikely or that are inconsistent with each other. For instance, in the answer the defendant can deny making a statement as one affirmative defense and then say the statement was privileged in a different affirmative defense. Clearly you’re not going to do that at trial (unless you’re MAGA), but the defendant gets to do that in their answer.
I’m glad to see he’s been arrested and charged. The article focuses on the civil case, but I’m more interested in the criminal side.
He’s being charged with child porn charges related to a 14 YO, so no charges yet for the 9 YO. Lock him up.
Defendants have a broad right to defend themselves. This right includes raising affirmative defenses that are unlikely or that are inconsistent with each other. For instance, in the answer the defendant can deny making a statement as one affirmative defense and then say the statement was privileged in a different affirmative defense. Clearly you’re not going to do that at trial (unless you’re MAGA), but the defendant gets to do that in their answer.
What I don’t understand is how attorneys will advise someone to settle rather than go to trial, for lots of practical reasons, for example being cheaper. But they don’t go, “maybe we shouldn’t raise this defense because it would be terrible PR.â€
Shouldn’t the PR cost be an equal consideration to monetary cost?
Defendants have a broad right to defend themselves. This right includes raising affirmative defenses that are unlikely or that are inconsistent with each other. For instance, in the answer the defendant can deny making a statement as one affirmative defense and then say the statement was privileged in a different affirmative defense. Clearly you’re not going to do that at trial (unless you’re MAGA), but the defendant gets to do that in their answer.
What I don’t understand is how attorneys will advise someone to settle rather than go to trial, for lots of practical reasons, for example being cheaper. But they don’t go, “maybe we shouldn’t raise this defense because it would be terrible PR.â€
Shouldn’t the PR cost be an equal consideration to monetary cost?
You’re right that PR costs should be taken into consideration. But often, they are not. I understand that my legal advice and the legal risks associated with a course of action are often just one of many factors that a client must consider. I’ve had plenty of clients tell me in one way or another, “I understand, but I’m going to do it anyway.” And the client may have a very good reason for ignoring me.
But to your point, I don’t think attorneys need to be PR experts, they don’t need to lay out all the non-legal factors that a client might consider, but if they’re recommending a course of action, they should be aware that it may be accompanied by certain non-legal costs. If a case is likely to be tried in part in the media, it would make sense to run certain pleadings or at least the main points by a PR consultant, especially if your client has deep enough pockets to afford one.
I suspect B&P is right, that this was just a few in a long list of standard affirmative defenses. And since they’re standard and routine, it wouldn’t surprise me that the PR impacts weren’t fully considered. Probably a lesson for lawyers.
I also doubt that any negative PR costs will be long term. This will be quickly forgotten. I don’t think “they blamed the victim in a legal matter” is really something that many people will consider when deciding between American and United.
Assorted thoughts from a corporate litigator.
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PR costs are often a big factor in litigation strategy, it depends on the case and client. Clients often consider other negatives of litigation, such as the diversion of executive time and the exposure of corporate confidential information.
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In the AA case, I wonder if the law firm’s real client was the insurance company. Of course, the lawyers are supposed to be representing AA, but if they were picked by the insurer and paid by the insurer, they may be less sensitive to AA’s PR issues and more concerned about the $$ exposure.
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The idea that you just throw in the kitchen sink of affirmative defenses is old school. We used to do that. Then, to use some legalese, the courts held that Twombly applies to affirmative defenses. In short, that meant that affirmative defenses were subject to the same standard as the allegations in the complaint – you need to have a good faith basis in fact/law for your assertions. So, the plaintiff could challenge your basis for some dubious affirmative defense and the court might strike it. You don’t want to begin your defense of a case by having the court think you make assertions without any valid basis for them.
Thoughts from an insurance defense attorney:
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PR doesn’t play an outsized role in insurance defense litigation due to the existence of an insurance company fulfilling its obligations to an insured by retaining a law firm to defend the insured and the availability of policy limits. We consider how the facts of the case will appear to the trier of fact, and we consider what reasonable defenses might be raised. PR is an issue anyone should consider in any litigation.
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There is never any doubt about the identity of the client. To fail to properly represent the client is unethical and would expose one to malpractice liability. To fail to properly represent the client would lead to a poor result and that would tarnish the reputation of the firm.
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Our professional responsibilities require that we act in good faith throughout every moment of our representation, from beginning to end. Our duty of candor means we cannot make unwarranted claims.
Given that answers are filed within a very short time of the commencement of an action and frequently only the most basic information about the case is known, it is entirely prudent to assert available affirmative defenses.
I think it’s good and healthy for people to have an accurate understanding about what happens in litigation. Knowing how evidence is discovered and how the case progresses is important.
We try cases under special conditions in court— we do not try cases in the media. Due process requires that defendants have every available defense and a fair opportunity to defend themselves. If people are going to get fired up about affirmative defenses in cases, we will need to harness the energy of the sun to fuel that outrage. I don’t know what it would achieve. The discovery process pretty much solves any issue with affirmative defenses.
Actions have consequences, even for law firms.
American Airlines has disavowed a response from its lawyers that blamed a 9-year-old girl for using an airplane bathroom with an active recording device, allegedly placed there by a former employee.
The airline said that what it described as “outside legal counsel retained with our insurance company†made an error in filing a legal argument Monday responding to a lawsuit filed by the girl’s family. American has fired that law firm and replaced it on the case, the company confirmed.