Legal Commentary

NY appellate court throws Gunga Dan vs. CBS lawsuit out of court in its entirety

By Beldar

Just before last Christmas, in my most recent post about Dan Rather's much-publicized lawsuit against CBS, I explained that CBS' lead lawyer ? my former law partner Jim Quinn ? was operating under an unfortunate set of circumstances, as a result of which it was virtually certain that the case wouldn't shed any further or more definitive light on the Ra^thergate saga:

The problem ... ? as I noted at length when Rather first filed his case, here ["The complaint that Sonnenschein's New York office has filed on Dan Rather's behalf ... is a nicely buffed and polished piece of garbage"] and here ["individual decision-makers within CBS may have overwhelming vested interests in ensuring that the facts are not thoroughly probed in court"] ? is that Quinn's hands are effectively tied by the fact that his client was spectacularly gutless in its dealings with the psychotic prima donna who for so long occupied its anchor chair. Quinn's defense for CBS News won't be that Rather and Mapes and their entire team were incompetent, biased frauds who committed the worst kind of journalistic malpractice to change the outcome of a presidential election and then, when caught, tried to cover it up. CBS had ample, compelling, even glorious "good cause" to fire Rather no matter what time term remained on his contract or what other terms it contained to guarantee his preeminence at the network.

But CBS didn't do that. Instead, it convened the Thornburgh-Boccardi Panel, whose ultimate report was far from a bare-knuckled or clear-eyed assessment of the culpability of Rather and CBS News' top brass. CBS News eased Rather out, rather than immediately throwing his sorry butt on the street.

And now, instead of defending itself against Rather by using the awesome mechanisms of the law to prove, once and for all, the essential truths of Ra^thergate ? including the indisputable fact that the Killian memos were pathetically obvious forgeries ? CBS News' defense is not that Rather is a crazed scoundrel and a national disgrace, but that CBS fully performed its contractual obligations to Rather.

When I wrote that, Quinn had already persuaded the trial judge in New York state court to throw out major portions of Rather's claims without letting them go to a jury trial. New York procedural law permitted Rather to appeal that partial victory by CBS, and for CBS to cross-appeal the trial judge's refusal to throw out the rest of the case. Today, the intermediate New York appellate court, known as the Appellate Division (First Department), turned the trial judge's knockdown into an outright knockout ? agreeing with Quinn (and Weil Gotshal & Manges partner Mindy J. Spector and associate Yehudah L. Buchweitz) that all of Rather's claims must be thrown out without a trial.

The 19-page opinion is dry and dull, which I'm sure is exactly what CBS and its lawyers preferred. After its introductory paragraphs, it contains essentially nothing about Bush, the Killian Memos, or the Ra^thergate controversy. Instead, the appellate court systematically demolished each of Rather's contract and tort claims, one after another, on what appear to be solid if unexciting grounds compelled by prior New York state-law precedents. At bottom, the appellate court concluded that it is indisputable that CBS lived up to its contractual obligations, and likewise indisputable that Rather couldn't show any damages of a sort recognized by New York law.

(Prof. Reynolds again justified his net moniker when he linked Volokh conspirator Jim Lindgren's post on the ruling with the summary "Loser Loses Again." Yes, that's it, in exactly three words.)

Rather's lawyers will doubtless seek rehearing in the Appellate Division, and when that is refused, they'll seek further review by the top appellate court in the New York state-court system, the New York Court of Appeals. I haven't read all of the briefing that led up to today's decision, and the briefs attacking and defending it haven't been drafted yet, but my educated guess at this point is that today's ruling will almost certainly hold up.

Thus (probably) ends the only lawsuit that could, under different circumstances (i.e., if CBS hadn't been so gutless), have given Dan Rather the thorough-going and definitive public crucifixion that he so richly deserved. I'm certainly not displeased to see my former colleagues so decisively win this case even before it went to trial, and I'm happier still that Rather undoubtedly spent a decent-sized fortune on paying his own lawyers. But as with the near-contemporaneous SwiftVets controversy from 2004, I'll always wish there had been an opportunity for the underlying facts to have been thoroughly and methodically probed through the civil justice system ? by well-resourced and highly motivated parties, well-represented by superb counsel, each armed with the power to compel the production of documents and testimony, all under oath and in the harsh disinfecting glare of open court proceedings. John Kerry never made good on his or his surrogates' threats of litigation, and the target of Rather's malice, President Bush, would never have sued Rather, Mapes, or CBS even if their conspiracy had succeeded in tipping the election.

Sound arguments can be made that ? my appetite for courtroom combat notwithstanding, and my belief that the civil justice system could have produced numerous significant "Perry Mason moments" in both ? it's for the best that these two national controversies largely remained political, rather than spilling over into the courts. In any event, as the current publicity over Roman Polanski's re-arrest and possible extradition proves to all who have any moral compass whatsoever, there's a portion of the American public, mainly on the American left, who will essentially ignore even a sworn in-court confession by a monster who drugged and then raped (vaginally and anally) a child. Similarly, not even Rather or Kerry 'fessing up under oath could have persuaded some, or perhaps most, of the Bush-haters, because they long since had stopped being amenable to any evidence or any rational argument.

Full post as published by BeldarBlog on September 29, 2009 (boomark / email).