BY: D.T. COLEN / FASP FOUNDER
Last Updated: Monday, September 4, 2017
In a matter of months, a jury will be impaneled at the Broward County courthouse to decide whether a publisher with a degree from one of the
country's most prestigious J‑Schools, 29‑plus years of experience working for media titans like NBC, FOX, ESPN, and CBS SportsLine, and an unblemished track record for total accuracy after having interviewed folks like Barack Obama, Mitt Romney, Jack Kemp, Michael Jordan, Jimmy Gandolfini, Jon Voight, and Will Smith, among hundreds of others, took it upon himself to print, for no good reason, more than a dozen libelous statements about a local veterinarian.
That publisher is me, and of course, the lawsuit is the biggest pile of stinking horseshit ever to be docketed by a clerk of courts.
It not only alleges defamation and defamation per se, but also three other bizarre things ‑‑ tortious interference with an advantageous business relationship,
public disclosure of private facts, and intentional infliction of emotional distress. It was filed by the middle son of the veterinarian, an attorney who, in his illustrious ten minutes out of law school, has never handled a single defamation case and has never been to trial.
If I were a betting man, I'd plunk down every last dollar I own that he will never be hired for another defamation matter for the rest of his life.
The lawsuit is morally repugnant. It's a display of both unmitigated contempt and antipathy for Free Speech, the U.S. Constitution overall,
and everything for which a democracy stands. It's a classic example of the pathetic maxim, "I don't like it, so you can't say it."
Not only were none of the challenged statements made by me, but no fewer than seven separate pieces of physical evidence, including digital audio and video files containing the
voices of the veterinarian himself, as well as his second‑in‑command at the animal hospital where I was ripped off, corroborate the truthfulness of every
challenged statement. That the veterinarian is a stone‑cold thief. A hustler. A poor‑man's Bernie Madoff.
As such, all the plaintiffs and their attorney are doing is wasting public resources,
setting themselves up for a malicious prosecution lawsuit, and, most strikingly and ironically, drawing attention to the fact that the veterinarian stole.
Now, I'm acutely aware that many little kids are extremely eager to show their parents just how grown up they are.
So I implore all of the postpubescent, pimple‑faced attorneys out there to heed this counsel:
If your father steals, encourage him to apologize and make restitution; do not
jeopardize your freshly minted law license by filing a phony defamation lawsuit to suppress publicity of his indiscretion.
Below are ten more guidelines I hope will be carefully considered by every wannabe defamation
litigator. I hate to single out the glaring mistakes made by one novice, know‑nothing attorney, but doing so is the best
and perhaps only way possible to make these critical points.
1. Expressions Of Pure Opinion Are Never Actionable.
Libel requires publication of an untrue statement, something that can be disproven by an objective core of evidence. So when an attorney (like the one who is suing me)
alleges that name‑calling constitutes actionable defamation, invoking in his complaint words like "greedy" and "sneaky" as being false, he's succeeding only at
displaying his own ignorance. It can't help but call to mind Dan Kaffee's drunken zinger to Joanne Galloway
about being sick the day law was taught at law school.
2. Corporations Don't Have Feelings.
Mine very well could have been the lowest score ever recorded in LSAT history and even I know that
corporations cannot sue for intentional infliction of emotional distress.
So I have no clue what the attorney who is suing me was thinking when he alleged IIED on behalf of the animal hospital. Not only did he try it once, but even after being granted
leave‑of‑court by a tough‑as‑nails judge, and 30 days to remove the allegation, he included IIED on behalf of a
corporation for a second time. That, of course, resulted in an order of partial summary judgment being awarded in my favor.
3. Gain A Basic Understanding Of The Law.
Birth dates just ain't private facts. Here are examples of when some notable Floridians
were born. Jennifer Lopez was born on July 24, 1969. Papa Hemingway was born on July 21, 1899. Dwayne Johnson was born on May 25, 1972. Think I'm worried
the attorney for any of them is gonna seek damages from me? Leave it to the Einstein who is suing me to contend publication of his father's date
of birth constitutes a violation of Florida law. That, of course, resulted in another order of partial summary judgment being awarded in my favor.
4. It's Not A Class‑Action. Don't Sign Up Random New Plaintiffs.
Rather than concede defeat in an utterly unwinnable lawsuit, the attorney who is suing me took it upon himself to submit a fifth
version of his complaint, adding as a
plaintiff someone I've never met, spoken to, or heard of in my entire life, a woman by the name of
Margo Land. I cannot make this any more clear or convey this any more strenuously ‑‑ I have no earthly idea who this person is.
To borrow a line from fellow College Park alumnus Norman Chad, "I wouldn't be able to pick her out of a police lineup of one."
As far as I know, Margo Land never worked at the animal hospital and has no connection to the online review at the heart of this silly case. All I know
about Margo Land is that which is contained in public records, like this
felony arrest report
, and this
of her DUI bust (which further reveals Margo Land confuses left from right,
has trouble counting to nine, and, inexplicably, believes dance moves are part of the Tampa PD's field sobriety exercises).
5. Be Prepared To Respond To Discovery Requests.
Engaging a defendant in a lawsuit entitles him to propound discovery requests on you, just the way you surely will on him. So unless your client
runs a squeaky clean business and has absolutely nothing to hide, it's wise to avoid litigation. The
attorney who is suing me did his best to obstruct, delay, and
obfuscate when it came to discovery, but after three orders to compel, he was forced to produce invoices that show his father pays mere pennies for pain medication that was sold to me
for more than $71. (That's not going to sit well with any jurors who are pet‑owners).
6. Defamation Lawsuits Serve Only To Attract More Attention To Any Challenged Statement.
The aforementioned online review was written by a freelance programmer who never worked for me. It was
published on a homemade website and read by about three people. Four, tops. With much colorful language and no shortage of insults, the review conveyed what I've
told thousands of people by now, that I was ripped off at a sleazy local animal hospital. But now you're reading that the
sleazy animal hospital, which is called Vetfield, ripped me off, and anyone who saw on WPLG last year Jacey Birch's report
about this laughable case knows that Vetfield ripped me off, and anyone who's seen the pleadings in the case knows that Vetfield ripped me off.
7. You Don't Like The Challenged Statements? Well, How About ...
Even if you prevail at trial, which the attorney who is suing me has zero chance to do,
defendants are still free and clear to publish any public records they so choose. Like this
filed by the State Of Florida's DBPR Board of Veterinary Medicine, this
filed by the State Of Florida's DBPR Board of Veterinary Medicine, and this
filed by the State Of Florida's DBPR Board of Veterinary Medicine.
8. Know Who You're Suing. Don't Guess.
The first version of the lawsuit that was filed against me named three
specific defendants over one
online review. Revised iterations contend one of those defendants, Jon Black,
doesn't actually exist; that is, despite the fact Mr. Black specifically was identified as a "Maryland resident" and
despite the fact exhibits show a working e‑mail address for, and correspondence from the plaintiffs' young attorney addressed to, Mr. Black. It would not
strike me as a juror that any actual work was put into this lawsuit.
If an attorney is unsure who wrote something, he is permitted to file his complaint against "John Doe"
and then obtain subpoenas addressed to the appropriate domain registrars, Internet Service Providers, and social media companies seeking the publisher's identity.
Once that identity is known, the attorney could amend his complaint by replacing "John Doe" with the name of the author of any challenged statement.
The attorney who is suing me did not choose that approach. Rather, he drew a conclusion first before gathering any evidence and now is trying to find facts to match
a flawed narrative. In doing so, he looks extraordinarily foolish as every subpoena response has come back, and not a single one contains my name, my e‑mail address, my IP
address, or my physical address. For that matter, none of the statements in question was
even published in the same city or state in which I live. In short, every document produced in response to every subpoena
corroborates the fact that I played absolutely no role in the publication of anything in this inane case.
9. Apologize Rather Than Publish Your Own Defamatory Statements.
The lawsuit against me is entirely frivolous and everyone knows it. The defamation counts are neither supported by required pre‑suit notice nor required proof of a false statement.
And the tortious interference count is neither supported by required names of people with whom there was interference nor required proof of damages. As for the
IIED and public disclosure counts, they've already been disposed of at summary judgment. So what are the plaintiffs and their attorney up to? Begging for forgiveness?
Yeah, right. They're e‑mailing out links to their own demonstrably
defamatory websites about me.
Not smart, as I've already forwarded to the FBI's cybercrimes division the IP address (188.8.131.52)
from the Tampa‑area location where the sites were built.
10. Know What You're Getting Yourself Into.
The first time I ever was accused of defamation was in January, 1994, after penning one of my bi‑weekly columns for the student newspaper at the University Of Maryland.
From a distance of approximately three feet,
I witnessed a sports agent by the name of Len Elmore as he sneaked into the basketball team's locker room following a home win over Clemson.
For the next morning's edition of The Diamondback
, I wrote that Elmore should stay away from the
UM players, especially freshman phenom Joe Smith. My contention was that guys like Smith don't need sports agents encouraging them to
leave school early for pro contracts. Elmore drafted a letter‑to‑the‑editor, complaining I was
reckless and irresponsible and he had no interest or intention, whatsoever, in repping Smith in the NBA, especially as an underclassman leaving school early.
The following year, Elmore announced his firm's newest client, unanimous All‑America forward and top pick in the 1995 NBA Draft, UM sophomore Joe Smith.
The third time I ever was accused of defamation was in July, 2011, after exposing as a thief the property manager, Evelyn Perl,
at my condo complex on the Intracoastal Waterway in Aventura. My exact words might have been "fucking thief." It was so long ago that I can't
remember for sure. But, boy, was she a piece of work. The lawsuit was dismissed in a matter of minutes
by Miami‑Dade County Judge Abby Cinnamon and my comments remain online to this day. The following year, Mystic Pointe Tower 100 announced it had
fired (and for good measure, escorted off the grounds) the property manager, Evelyn Perl, for stealing. Then it promptly canned the law firm
that filed the frivolous defamation action against me ‑‑ Frank Weinberg & Black.
(In the interest of full disclosure, the second time I ever was accused of defamation, I did a favor for the plaintiff's attorney, who also ostensibly was trying to help a
family member, his father‑in‑law, and we agreed to a confidential settlement which I'm forever bound to honor.
But, for the record, I will say that everyone
who ever has sued me for defamation, and there only have been two previously, in nearly
30 years of publishing for the mass media, has been ordered to send me money, not the other way around).
The point of this very long but necessary section is that when a rookie attorney assails the credibility of someone who has an untarnished, three‑decades‑long
history as a responsible, ethical, and trustworthy journalist, well, it's inevitable
that that attorney is not going to get very far, either with his lawsuit, or, quite sadly, in life.