tag:blogger.com,1999:blog-1522121129844880066.post3873984677516872977..comments2023-10-24T11:23:31.580-04:00Comments on Le·gal In·sur·rec·tion: Dissecting Shirley Sherrod's Complaint Against Andrew BreitbartWilliam A. Jacobsonhttp://www.blogger.com/profile/16433685588536441422noreply@blogger.comBlogger14125tag:blogger.com,1999:blog-1522121129844880066.post-7270004532890275342011-02-16T11:20:27.615-05:002011-02-16T11:20:27.615-05:00Two things that (I believe) have not yet been addr...Two things that (I believe) have not yet been addressed in this thread:<br /><br />(1) I'm not all that familiar with federal jury selection, but I believe that jurors must live within the district. That would make it likely that Breitbart's jury would be mostly African-American. If I were his attorney, I would advise him that his best bet would be to win via summary judgment or have the case dismissed by pre-trial motion.<br /><br />(2) The first amendment issues (Breitbart's backbone) have a federal standard, but the other aspects of the tort claims (i.e., whether <br />Breitbart's behavior was sufficiently "outrageous") should have a state standard applied, and we don't know which state the federal court will select as a choice of law.Unknownhttps://www.blogger.com/profile/01469118036279058071noreply@blogger.comtag:blogger.com,1999:blog-1522121129844880066.post-72910962008856619922011-02-16T08:30:03.362-05:002011-02-16T08:30:03.362-05:00If I were his lawyer I would advise against a moti...If I were his lawyer I would advise against a motion to dismiss. I know this is radical for the entrenched civil litigation types because they always follow the same script. They actually fear to stray and so it goes answer, motion to dismiss (or motion to dismiss and then answer for some variety), written discovery and finally two months before discovery cutoff a frenzy of depositions. Here I would fear that the motion to dismiss would be granted. So, if money spent to defend the lawsuit is not a factor and a degree of retribution for its filing is the goal of the client...I say forgo the motion to dismiss and go hell bent into discovery. I have found that career civil lawyers as opposed to true trial lawyers (those who actually try cases) are ill equipped for a trial strategy that is not motivated by the business interests of settlement.Pamhttps://www.blogger.com/profile/07273819027819165739noreply@blogger.comtag:blogger.com,1999:blog-1522121129844880066.post-91551286045441392652011-02-15T23:32:17.471-05:002011-02-15T23:32:17.471-05:00Professor,
you claim:
"it is not clear that...Professor, <br /> you claim:<br />"it is not clear that "discriminates" excludes prior discrimination..."<br /><br />The complaint alleges that Breitbart said:<br />it is clear that his claims are <br />"Mrs. Sherrod admits that in her federally appointed position, overseeing over a billion dollars ... She discriminates against people due to their race."<br /><br />In this case limited to her time as a federal employee, which began in 2009. The complaint states that in the video, Sherrod was talking about events that happened 22 years before she worked for the federal government. In this case, there is no way that his claim excluded prior discrimination. His claim was entirely false since the video did not include any admission that Sherrod had used racial discrimination in her federal duties. <br /><br />You also state:<br />"Regardless of the caption and the <br />interpretation of the word "discriminates," the facts were revealed to the viewer, rendering the characterization of "discriminates" or "racism" being matters of opinion, and hence not actionable in a defamation case."<br /><br />Breitbart's accusations of racism go well beyond opinion. He stated that the video included an admission by Sherrod that she discriminates as part of her federal job. That is an assertion of fact, though it was entirely untrue. <br /><br />In addition,you point out that mere accusations of racism do not make for actionable defamation cases. But that ignores again, the issue that Breitbart claimed that Sherrod was discriminating in the course of her federal job. That goes beyond mere racism to suggest that she is acting in a way that would get her fired, and possibly even breaking the law. I haven't checked the entire complaint to see how this issue plays out, but this is not merely about her being called a racist. It is about her getting fired. <br /><br />Look a little closer at the allegations. the problems that you see in general don't seem to be that troubling when applied to the specific claims in the complaint.GGhttps://www.blogger.com/profile/16121740398521291108noreply@blogger.comtag:blogger.com,1999:blog-1522121129844880066.post-90347038883474912862011-02-15T22:51:18.433-05:002011-02-15T22:51:18.433-05:00Herein lies the problem with Big Government in gen...Herein lies the problem with Big Government in general: unelected, unaccountable nomenklatura arbitrarily making decisions that can have substantial effect on your livelihood, wealth, and even your life expectancy, as they rent-seek and attempt to appropriate "residuals". Seeking redress is nearly impossible. I think this is the real take-away from the Sherrod saga.Borfhttps://www.blogger.com/profile/01648579535173672965noreply@blogger.comtag:blogger.com,1999:blog-1522121129844880066.post-31448349104406670132011-02-15T15:24:52.633-05:002011-02-15T15:24:52.633-05:00Shirley Sherrod should be fairly affluent. Her att...Shirley Sherrod should be fairly affluent. Her attorneys are unlikely working pro bono or on a contingency fee basis. They demanded money up front to before agreeing to represent her.Unknownhttps://www.blogger.com/profile/05099931858912750018noreply@blogger.comtag:blogger.com,1999:blog-1522121129844880066.post-62259481815146665482011-02-15T15:18:11.857-05:002011-02-15T15:18:11.857-05:00And good luck with that claim for "intentiona...And good luck with that claim for "intentional infliction of emeotional distress," Ms. Sherrod. As any lawyer who works at a high-fallutin' firm like Kirkland & Ellis should know, the standard for that tort requires that the conduct be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." I'd give you a cite for that quote if there weren't literally thousands of decisons from which to choose. If she brought that claim in federal court, I'd bet she'd be sanctioned for frivolity.Jim Ohttps://www.blogger.com/profile/01912710881278409532noreply@blogger.comtag:blogger.com,1999:blog-1522121129844880066.post-84607955170824103972011-02-15T15:02:20.898-05:002011-02-15T15:02:20.898-05:00There's another problem with the past vs. pres...There's another problem with the past vs. present tense stuff. When we report the actions of someones in the past, we often resort to the present:<br /><br />"He goes to the bedroom with his knife in hand."<br /><br />"She says that a rose is a rose is a rose."<br /><br />I think that it will be a rather simple thing for Breitbart's lawyers to find examples of their opponents doing precisely the same thing, perhaps even in the document you've just read, William.Dan Collinshttps://www.blogger.com/profile/18003419431016626023noreply@blogger.comtag:blogger.com,1999:blog-1522121129844880066.post-76350406066774472342011-02-15T14:57:06.443-05:002011-02-15T14:57:06.443-05:00Uhh, correct me if I'm wrong but doesn't S...Uhh, correct me if I'm wrong but doesn't Shirley Sherrod openly admit she still discriminates? Instead of skin color she has chosen to use some arbitrary threshold for wealth to determine who is worth her help and who is not.Rialbyhttps://www.blogger.com/profile/16448720771565399312noreply@blogger.comtag:blogger.com,1999:blog-1522121129844880066.post-40125023617263482352011-02-15T14:56:22.629-05:002011-02-15T14:56:22.629-05:00If I was Breibart I would not ask for a dismissal ...If I was Breibart I would not ask for a dismissal on any grounds. I'd go for discovery and take my chances with a court or a jury.<br /><br />The discovery alone would be worth it to his journalist enterprise.M. Simonhttps://www.blogger.com/profile/09508934110558197375noreply@blogger.comtag:blogger.com,1999:blog-1522121129844880066.post-79967770519551073452011-02-15T14:06:55.795-05:002011-02-15T14:06:55.795-05:00Everyone seems to be so focused on this part of th...Everyone seems to be so focused on this part of the tape that they miss the part where she admits using her Federal position to discriminate against a white land buyer.<br /><br />Look at the part of the speech beginning at about 33:40. Sherrod openly talks about how she used government lawyers "recently" -- her own word -- to try and obstruct a land sale from the black heirs of a deceased farmer and woman to a white land buyer, for no other reason that the color of the skin of the seller and buyer:<br /><br />"You know, I was helping a family here recently: 515 acres of land, never had a drop of debt on it since the grandfather bought it years ago and he -- he died in 1974. And two cousins up in the North, guess what they decided? They tried to force a sale of every acre of it. And they wanted that. One of their aunts spent all of her life on the land. She was 93 years old when she died. And she died after those "For Sale" signs went up out there on that farm -- auction sign went up on the farm. She was in the hospital. The next month she was dead. That was January -- she was dead by October.<br /><br />But we kept working at it. [racist asides about black vs white lawyers removed]<br /><br />But they were trying to force a sale of all of it. They'll eventually get 62 acres of the 515. And guess what? They have a white man already lined up to buy it. And this is the land on the creek, which is what he wanted."<br /><br />A couple of things ...<br /><br />The land was "saved"? From what?<br /><br />"and guess what -- they already have a white man lined up to buy it. Watch how she contemptuously rolls her eyes on the video as she says it. That one sentence revealed everything you need to know about her real character.<br /><br />Finally, since when are USDA officials permitted to use government lawyers and resources to pick and choose whether people are allowed to buy and sell land based on whether they are black or white?<br /><br />I think that her land sale anecdote is more than enough evidence to show not only her racism, but constitutes abuse of power as well, and is probably in violation of the civil rights act as well. The abuse of power described in that one anecdote alone should be more than enough to justify terminating Ms. Sherrod.<br /><br />I certainly hope that Breitbart is able to spend some effort in discovery finding out more information about this shocking racist abuse of power on the part of Ms Sherrod.jmshttps://www.blogger.com/profile/04874776420064635278noreply@blogger.comtag:blogger.com,1999:blog-1522121129844880066.post-39905336131890258892011-02-15T13:59:05.639-05:002011-02-15T13:59:05.639-05:00Professor,
This is an example of why many people ...Professor,<br /><br />This is an example of why many people find the legal profession, distasteful. Though many may use stonier words than that. Where is the line drawn that in reviewing a clients case you as a member of a profession deem a case lacking in merit? Why aren't such reviews considered? Or is the chase of the all mighty dollar so strong that the legal profession has no scruples?Tucanae Serviceshttps://www.blogger.com/profile/11935170696138248693noreply@blogger.comtag:blogger.com,1999:blog-1522121129844880066.post-79424974073092424942011-02-15T13:40:52.552-05:002011-02-15T13:40:52.552-05:00this is all about Pigford ... the discovery will ...this is all about Pigford ... the discovery will be interesting because now Brietbart gets research her recent work and look for recent discrimination ... he most likely won't find any but then again Sherrod is a "justified" racist in her own eyes so who knows ...The Ghosthttps://www.blogger.com/profile/09554055593581812426noreply@blogger.comtag:blogger.com,1999:blog-1522121129844880066.post-81985999199755939672011-02-15T13:23:26.578-05:002011-02-15T13:23:26.578-05:00"I assume Sherrod's counsel has researche..."I assume Sherrod's counsel has researched this area of law..."<br /><br />Why? The intent of this suit is to scare Breitbart off the Pigford story; it doesn't have to have merit, just be costly and annoying.Rob Crawfordhttps://www.blogger.com/profile/03010767328260010949noreply@blogger.comtag:blogger.com,1999:blog-1522121129844880066.post-32946030592193875012011-02-15T13:19:22.697-05:002011-02-15T13:19:22.697-05:00Is the next step the "shopping for a friendly...Is the next step the "shopping for a friendly judge phase", or is that all over?49erDweethttps://www.blogger.com/profile/09386245801517422226noreply@blogger.com