Brauer at MinnPost has an informative post, and promises more:
The award left media lawyers flabbergasted because, as Faegre & Benson's John Borger puts it, "If the statement was true, there should be no recovery. There is caselaw in Minnesota that the providing of truthful information is not a basis for tortious interference."
Hoff's lawyer, Paul Godfread, says "we will file any post-verdict motions that are appropriate." Two common ones: filing for judgment based on a matter of law, and a motion for a new trial. The former wouldn't challenge the jury's fact-finding, instead arguing there is only one proper legal conclusion — no monetary damages.
Judge Denise Reilly, who heard the case, would rule on those motions. Depending on her decision, either side could go to the Minnesota Court of Appeals and ultimately, the state Supreme Court. Moore's lawyer, Jill Clark, was not available for comment.
Media lawyers such as Borger (who represents the Star Tribune and MinnPost, among other clients) and Paul Hannah (Pioneer Press) say Hoff's blog post alone isn't enough. The coming motion and appeal may turn on whether Clark and Moore established some other Hoff action that justified the damage award.
I'm still talking to lawyers and hope to have a deeper analysis sometime this week.
Brauer links to Daily Planet reporting, this link. Earlier Brauer coverage during the trial, here. [UPDATE: Regan, the Daily Planet reporter covering the Moore v. Hoff trial had earlier published about Hoff and Moore's witness, Don Allen, here, and readers are encouraged to read that for a better informed background view of the give-and-take of blogging thought and opinion.]
Madeleine Baran, for MPR wrote in part:
Jill Clark, Moore's attorney, did not immediately return a call for comment.
Jane Kirtley, a University of Minnesota media law professor, said she was surprised to see the case advance this far. Most similar cases get settled or thrown out before trial, she said.
"This is one of these types of cases that media lawyers like me refer to as a trash tort case," Kirtley said. "And what we mean by that is where an individual is unhappy about something that somebody else published about them, and they don't have a viable libel suit, then they try to bring some other kind of legal claim."
She added, "It is really an attempt to sort of throw the jellyfish at the wall and see what might stick in the mind of a juror."
Wow.
Does that mean I can now begin calling Jill Clark, "The Jellyfish Lawyer?"
Or will I be sued for libel, and if so could I use Kirtley as an expert witness, truth being an absolute defense?
And, the underlying comment, it was Kirkley's not mine. So, might she be a co-defendant?
The entire thing is, so far, a miscarriage of justice and Judge Reilly should correct it in post-verdict motions hearings, granting a dismissal judgment notwithstanding the verdict.
One comment on the latest Brauer-MinnPost item, does anyone have a copy of the actual jury special verdict form and how it was returned?
Certainly, Hoff could get a copy and post it at the Johnny Northside blog. It would be one further step in his informing us what happened with this runaway jury's handling of consistent things so inconsistently. Right now, it is puzzling, and Brauer's and Baran's reporting indicates that the jury verdict has media law experts across the spectrum saying, "Huh?"
Volokh Conspiracy says, "Huh?" With 50 comments.
Technorati Blogging, here. Latest from Strib, here.
Google News.
Kos. (That's not "outside" coverage, rather Dan Burns, a regular posting partner at Minnesota Progressive Project.)
My hope is Brauer will delve further into things, and with legal expert advice he may give citations to the cases that the Faegre media lawyer says are definitive, in Minnesota, that a non-defamatory publishing cannot be basis for sustaining a tortious interference claim.
Jill Clark and Jerry Moore should not count their chickens until fully hatched, and should not try to spend Hoff's money prematurely. Indeed, one sane thing Judge Reilly could do, if not overriding the jury verdict, would be to stay enforcement of any judgment pending appeal without any bond requirement. The verdict is so strange that either she should throw it out and enter a dismissal judgment, or stay things until the judiciary defines things in terms of a final judgment after exhaustion of appeal. Whatever that might be.
___________UPDATE___________
I doubt anyone reading it would have taken my "Jellyfish Lawyer" comment about Jill Clark seriously, but it's worth noting - I have no direct beef with her.
I searched online docket entries, criminal and civil, and she has had a range of clients and reportedly is a quite capable lawyer. She got the jury's sympathy in this instance, and it's what Clark's job was once she took Jerry Moore as her client, and my guess is she competently gained jury passion and sympathy over reason, as in her client's best interest, and while not being there for the trial or closing argument my guess is she crossed no bounds of propriety in doing so.
Judge Reilly was there, and would likely have declared a mistrial had Clark overstepped any boundary in vigorously representing her client's best interests.
As history -- In 2008 Clark ran for a Minnesota Supreme Court seat held by present Chief Justice Lorie Gildea, a Pawlenty appointee. Also running was Judge Deborah Hedlund. If there were other candidates I do not recall.
I supported and voted for Clark, but Hedlund and Gildea were the two top vote-getters in the primary; after which I voted for Gildea in the general election; who since that time wrote the dissent favoring the Pawlenty unallotment effort after which she was appointe, by Pawlenty, to be Chief Justice.
I am glad I supported and voted for Clark, and would likely do so again, in a heartbeat against Hedlund. But between Clark and Gildea I would dwell on the decision a bit longer than previously.
That is because I oppose very, very strongly in my head, my heart, and my gut, Clark's effort to undermine blog free speech.
She is misguided and I would prefer she had not done so.
But in taking Jerry Moore as a client, she took that on as part of the job of representing her client to the best of her ability. (Taking Moore as a client is the decision I fault, but it's her decision to make, as she sees fit.)
So, I think less of Clark now for her having opposed free speech and that will never be undone.
However, again, in any contest against Hedlund or Gildea, Clark again would more likely than not get my bottom line support and vote. Against Gildea, and most certainly so, against Hedlund.
But, again, now I would not be so unequivocal in voting Clark over Gildea. My guess is that if on the bench, and having free speech as an issue before her, Clark would decide right. However, in the instance of representing Jerry Moore she litigated against the First Amendment rights of me, Strib, and all people in the US wanting and expecting to be able to express public opinions freely without harassment or lawyers trying to chill free speech.
Clark did oppose free speech. That's now a major part of her candidate portfolio, next time, if ever, that she runs for office.
As to mortgage fraud, Clark did represent clients charged with multiple counts of mortgage fraud "theft by swindle," but it was under circumstances unrelated to the Maxwell situation that Hoff published about, where his associating Moore with the morgtage fraud Maxwell was convicted of having engaged in, was found by the jury to be truthful, and hence non-defamatory.
See here, here, and here.
I note that in the interest of full disclosure, but I do not fault Clark for that representation. It was defending a firm and person against the power of the State. It was without Clark undermining anyone's speech rights in taking on that attorney-client contract.
A victim of mortgage fraud might feel unhappy with lawyers representing defendants charged with such a crime, but the legal system is set up so that the accused have a Constitutional right to assistance of counsel.
While I have no knowledge of fee arrangements between Moore and Clark, (whether a contingency arrangement exists so that she gets a piece of the action), representing a private action against the free speech of others, to me is a world away from defending some person against the full power of the State to severely punish persons.