Cain’s Defamation Lawyer Won’t File Suit

I recently saw an article that discussed whether Herman Cain would file a lawsuit for defamation. Cain has apparently hired a defamation specialist to advise and monitor the situation for him, particularly the proposed joint conference by Cain’s accusers.

If the question is whether Cain will file a lawsuit for defamation, slander, or libel, whatever you want to call it, the answer is: it’s very unlikely. Cain is a public figure. This means that he’d need to show that the accusers made the alleged false and defamatory statements with knowing falsity or a reckless disregard for the truth by clear and convincing evidence. This is a heavy burden to meet, one that very few public figure plaintiffs have been able to satisfy.

Another reason not to sue is the potential application of an anti-SLAPP statute. Depending on the state in which he elects to file suit, his complaint could be subject to speedy dismissal. In about half the states, if a plaintiff files a lawsuit which is based on defendant’s free speech or petitioning activity, the defendant can file a motion seeking the dismissal of plaintiff’s claims. If the plaintiff cannot show a reasonable probability of prevailing on the merits, the case is dismissed, and in many states, plaintiff is ordered to pay the defendant’s attorney’s fees. If his suit were to be dismissed, the public would view it as a vindication of Cain’s accusers. So it’s a big risk.

Finally, filing a lawsuit would put the alleged sexual conduct in issue. In other words, defense counsel would be entitled to dig even deeper into Cain’s personal life. Discovery is very broad in civil suits and you can bet that whatever is discovered would be leaked to the media.

I would be very surprised if Cain elects to file suit. I don’t see any upside to doing it.

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