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- Michael Avenatti and his client Stormy Daniels lost one of their defamation suits against President Trump and will now have to pay Trump's attorney's fees. Let's talk about why. (twinkly music) Hey Legal Eagles, let's think like a lawyer. Today we're gonna talk about defamation law and one of my favorite laws in California, the Anti-SLAPP statute. Yes, lawyers actually have favorite laws. Today we're gonna cover three things. First, what in the word is an Anti-SLAPP? Number two, why did Avenatti and Cliffords, AKA Stormy Daniels, lose this particular defamation lawsuit and number three, how much will Avenatti and Cliffords have to pay President Trump? As always, hit that bell and leave an objection if you disagree with me in the comments and let me know what legal topic I should cover next. And as usual, Stella, the legal beagle is reading all of your comments. So please keep things Stella-safe. Alright, so onto the the Anti-SLAPP statute. Anti-SLAPP statutes exist to protect and act in furtherance of someone's right to petition or free speech in connection with a public issue. The bottom line is that legislatures know that some people will use litigation as a sword instead of shield because they know that litigation is very, very expensive. A lawsuit can be used to censor certain people if used in the wrong hands. So for example, if you didn't like a Yelp review or someone's opinion, you might sue them and even if you lost that lawsuit, you might be able to inflict huge pain and force them to remove their speech by forcing them to incur huge legal fees. So in response, many states passed what are called Anti-SLAPP statutes. SLAPP stands for Strategic Lawsuit Against Public Participation. So, Anti-SLAPP, you wanna prevent people from stifling speech by using strategic lawsuits. California has one of the strongest. For complicated reasons I won't go into the court in this particular case used the Texas statute but most of the analysis remains the same. So an anti-SLAPP motion is presented as a special motion to strike. When you file an anti-SLAPP motion it stops the case, they force the plaintiff to show that the complaint is both legally sufficient and supported by prima facie evidence. Usually the plaintiff doesn't have that burden. They can simply file a lawsuit by showing that their claim has legal merit. Not that there is supporting evidence necessarily, that's what discovery is for. By the way links to all of these documents including Judge Otero's decision in this case will be down in the description below. As well as a lot of the relevant law. But, now here's where it gets particularly interesting from my perspective. If you file an anti-SLAPP motion and the court rules in your favor, it will both dismiss the plaintiff's case but it will also award the defendant attorney's fees and court costs. The court fees are mandatory and they are not discretionary. In the American system usually, regardless of who wins the case both the plaintiff and the defendant have to pay for their own fees but if you lose an anti-SLAPP motion which means the court says, you filed a strategic lawsuit for the purposes of stifling speech, then you as the plaintiff have to pay for the legal fees of the defendant. So that can be a great reason why as a defendant you would want to file one of these motions because you can get attorney's fees from the plaintiff. So let's dig in to the facts of this case. Now based on the procedural posture of this case, the court is assuming the plaintiff's facts to be true. Now that's only for this very discrete part of the case. It's testing to see if the facts as given by the plaintiff state a legal claim. If the case went forward, then Clifford, AKA Stormy Daniels would have to prove her allegations with facts but at the moment, the court is taking these allegations as true. So according to her complaint, Miss Clifford alleges that she began an intimate relationship with Mr. Trump in 2006. Five years later she claims that in May of 2011 she agreed to cooperate with In Touch Magazine to talk about her relationship with Donald Trump. She apparently agreed to speak to the magazine after her ex-boyfriend approached the magazine without her approval. Clifford alleges that a few weeks after she agreed to talk to In Touch Magazine, an unidentified man approached her and threatened her in Las Vegas. Clifford alleges that the man approached her, threatened her daughter and told her to quote, "Leave Trump alone and forget the story." Then, after Mr. Trump was elected President, Clifford worked with a sketch artist to provide a sketch of what she remembered the undisclosed man looked like and release that to the public. The day after Mr. Trump tweeted out from his Twitter account at @realDonaldTrump, stating quote "A sketch years later "about a nonexistent man. "A total con job, playing the Fake News Media "for Fools, but they know it." Exclamation point, Trump posted this Tweet in response to another Tweet which compared the sketch that Miss Clifford released to a photo of her ex-boyfriend side by side. According to Clifford's argument she claims that Trump meant to convey that she was a liar, that she could not be trusted and she was falsely complaining about crimes that never happened. On the basis of Trump's Tweet she contended that it was false, it constituted defamation and that it constituted defamation per se, because it charged her with committing a serious crime. Now all of this is pending in federal court in the Central District of California which is located partially in Los Angeles and this is before Federal Court Judge James Otero. Judge Otero is a smart, very capable judge. I actually externed on the 9th Circuit which is the court directly above the Central District of California. Literally next door to Judge Otero's chambers. So I used to know Judge Otero's clerks very, very well. So let's talk about Judge Otero's analysis in this particular case. There is a two-part analysis that the court must go over. First, is to determine whether the defamation suit that Miss Clifford filed is related to President Trump's free speech and public participation?. Here, the court had no problem determining that it was in fact related to Trump's free speech. No surprise there, this is quintessential free speech, Twitter is quickly becoming this generation's public square. So it's no surprise that the court found not only free speech but public participation, almost anything that relates to the President should probably be considered public participation for the purposes of an anti-SLAPP suit. So, that takes us to the second question. Did Cliffords establish a prima facie case of defamation and the court said she did not. So the court agreed with President Trump's argument that the Tweet in question constituted rhetorical hyperbole and rhetorical hyperbole, normally associated with politics and public discourse is one of those things that cannot constitute defamation. The First Amendment often protects opinion and rhetorical flourishes and extravagant exaggeration used for rhetorical effect. And the court found that President Trump's Tweet was exactly that kind of rhetorical language. A published statement that is pointed or exaggerated or heavily-laden with emotional rhetoric or moral outrage cannot generally constitute a defamatory statement. Now the context particularly matters. In filings before the court and in a public setting, Miss Clifford challenged the legitimacy of President Trump's victory in 2016. Now you can agree with those statements or not but it's pretty clear that she presented herself as an adversary to the President and the court found, I think correctly, that Trump's Tweet served as a public rejoinder, a contradiction of the claims that Clifford was making against the President. To me, and I think a lot of First Amendment lawyers, this seems like the right outcome. You might agree or disagree with the President but it's important to have a marketplace of ideas and opinions and as Judge Otero pointed out in his decision quote, "If this court were to prevent Mr. Trump "from engaging in this type of rhetorical hyperbole "against a political adversary, "it would significantly hamper the office of the President. "Any strongly-worded response by a President "to another politician or public figure, "could constitute an action for defamation. "This would deprive the country of discourse "common to the political process." I think that's right. The next political opinion to be silenced could be your own. The point of the anti-SLAPP statute is to prevent lawsuits from silencing the little guy and while Trump obviously doesn't fit the definition of the little guy, for many people legal fees can be crushing. So you may not like certain political rhetoric, but on balance, we're better off with more speech and not less and we certainly don't want to bankrupt people for their political opinions. So I think that's why this was a relatively easy decision for Judge Otero. This is a pretty clear case of political rhetoric and rhetorical hyperbole. This is one of those rare defamation wins for President Trump who often threatens to file his own defamation suits but seldom actually does. And although he usually rails against defamation and libel laws in this country, he was actually able to use those against the plaintiff in this particular case. Now moments before I started filing this President Trump tweeted out quote, "Federal judge throws out Stormy Daniels," misspelled, "lawsuit versus Trump. "Trump is entitled to full legal fees." End quote, "@FoxNews, great, now I can go after "Horseface and her third-rate lawyer "in the great state of Texas. "She will confirm the letter she signed. "She knows nothing about me, a total con." You know, it's statements like this that make it really hard to defend political speech but I still think the court got it right in this particular case but I should point out that Trump's tweet is not correct. This ruling has nothing to do with the sister litigation over the Michael Cohen non-disclosure agreement or the other cases involving Michael Cohen, President Trump, Stormy Daniels and Michael Avenatti. This was just the discrete case of defamation over the 2018 Tweet which implied that Stormy Daniels was a liar and a quote, total con job. It also has nothing to do with how much Cliffords does or does not know about the President or whether she engaged in a sexual relationship which I think at this point is a matter of public knowledge. So even in victory, the President gets a lot of the legal aspects of this wrong. That's not surprising, this is complicated stuff. Okay, so that takes us to point number three. How much is this going to cost Stormy Daniels? Here, the fees are mandatory and Trump's lawyers are expensive. The court will generally pay for reasonable attorney's fees but 9 times out of 10 the court will generally look to the fees that the defendant actually incurred and will order the plaintiff to pay those. But again, this ruling only applies to this specific defamation case and not the three to six other Cohen, Trump, Clifford matters that are before Judge Otero and are still pending. So even through this case was stopped in the very early early stages it still required lots of different attorneys on both sides, lots of legal briefing and a ton of argument. Thus Trump's lawyers are likely to ask for and get, somewhere between 50 and $100,000 from Stephanie Clifford. So do you agree? Please leave your objections in the comments below and until next time, I'll see you in court.