Howard K. Stern has succeeded in creating a wider universe of people who have knowledge of the allegations made about him, as well as creating the vehicle that could lead to proof to support those claims.
By RICHARD MEEHAN
The Cool Justice Report
Oct. 4, 2007
EDITOR'S NOTE: This column is available for reprint courtesy of The Cool Justice Report, http://cooljustice.blogspot.com
Former Anna Nicole Smith confidant, lawyer and claimed paramour is back in the news again.
Howard K. Stern, who was thwarted in his efforts to claim paternity of Anna Nicole's baby, has filed a $60 million dollar libel suit against gravelly-voiced journalist Rita Cosby. The gist of Stern's claim is that Cosby's recently released book, Blonde Ambition, The Untold Story Behind Anna Nicole Smith's Death, has defamed him.
Cosby has claimed, among other things, that Stern was involved in a sexual encounter with Larry Birkhead, a former competitor in the now famous baby wars, and that he and Birkhead conspired together to manipulate the media in the Smith saga. Further, Stern claims that Cosby has accused him of illegal cocaine use and even conspiracy to murder Anna Nicole. Cosby is apparently not the first to suggest this.
Further, this is not Stern's only defamation lawsuit. Without a great deal of public fanfare, in April of this year, Stern had filed suit in West Palm Beach, Florida against John O'Quinn, the lawyer who represented Virgie Arthur in the battles over custody of Anna Nicole's remains and her daughter, DannieLynn. O'Quinn, nicknamed, "Texas" by new celebrity judge Larry Seidlin, had made the rounds of legal talk shows and was cavalier with his comments suggesting that Stern had complicity in the death of Anna Nicole and her late son, Daniel.
That case has quietly moved into the discovery phase, where lawyers take depositions of the parties and possible witnesses. In early August O'Quinn was questioned in a deposition by Stern's current lawyer. At issue are quips made by O'Quinn as he navigated the gauntlet of reporters outside Seidlin's courthouse, as well as comments he repeated to legal analyst, Greta Van Sustern. Some commentators have suggested that O'Quinn actually invited litigation with his claims in order to be availed of subpoena power to now pursue his own investigation of Anna Nicole's death. O'Quinn maintains that he was motivated by concern that Virgie was being defamed in the press, and was firing back to protect her.
Defamation of character is a legal claim that is not frequently advanced. There are two types of defamation actions: slander, where the defamatory comment was verbal; and, libel, where the comments are published. Most lawyers will discourage clients who want to pursue such claims. In the first instance, truth is a defense. In other words, you can say nasty things about someone provided what you are saying is true. Thus, for example, if Cosby or O'Quinn succeed in proving the truth of their claims, even though they accuse Stern of despicable conduct, there would be no actionable claim for damages. In addition, damages are often difficult to establish.
Each of these cases possesses a common theme for the defense. In 1964 the United States Supreme Court decided the landmark case of New York Times v. Sullivan. Sullivan was a City Commissioner in Montgomery, Alabama in 1960, when the Times ran a civil rights fundraising advertisement, "Heed Their Rising Voices" that contained some factual inaccuracies. Sullivan claimed that the ad was making reference to him in its criticisms of the oversight of the Montgomery Police department. In the ensuing libel action a jury awarded Sullivan damages of nearly one half million dollars. Eventually the award was overturned.
The Supreme Court determined that if an individual is a public figure or public official damages may not be recovered for a defamatory falsehood relating to his official conduct unless the official proves that the statement was made with actual malice. Public figures also include persons who have achieved fame and celebrity as well as persons who voluntarily assume a pivotal role in a public controversy.
The Court defined "actual malice" as knowledge that the statement was false or that it was made in reckless disregard of the truth. Thus, although comments in the ad were false and defamatory, they were not actionable in the absence of proof of malice. Libel suits brought by public officials would be seen as having a chilling effect on future criticism of government officials.
Thus, at the core of both of Stern's libel actions is the question of whether he assumed the status of a "public figure" in the role he played in the Smith case. If that is found to be true the burden he must satisfy in his libel actions will require him to prove that either Cosby or O'Quinn acted maliciously. Failing that, even if it is determined that their respective comments were false and defamatory, Stern will not be awarded damages.
In bringing these lawsuits he has succeeded in creating a wider universe of people who have knowledge of the allegations made about him, as well as creating the vehicle that could lead to proof to support those claims.
Bridgeport attorney Richard Meehan Jr. was the lead defense counsel for former Bridgeport Mayor Joseph Ganim's corruption trial. Meehan is certified as a criminal trial specialist by the National Board of Trial Advocacy since 1994 and serves on the organizations Board of Examiners. He is a Charter Fellow, Litigation Counsel of America -- Trial Lawyer Honorary Society. Meehan has also obtained multi-million dollar verdicts and settlements in complex medical and dental malpractice and personal injury litigation. He is a past president of the Greater Bridgeport Bar Association and appears regularly on Court TV. Website, www.meehanlaw.com