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Wednesday, April 25, 2007


Posted By on Wed, Apr 25, 2007 at 10:28 PM

There are some rich and powerful people who love to use their lawyers to scare poor and powerless people into submission. Houston Nutt's lawyer has strongly hinted at legal action because a hog fan wrote a letter to some trustees. He included a 48 page summary of texts, emails and phone calls Nutt made to various people. I can't say it any better than McAfee's lawyer, Nate Coulter, said it:

Nutt is a public figure, he said, and the little guy has a right to question those in power. "They don't like that he said the emperor has no clothes," Coulter said. "You're not supposed to say a word about the Razorback coach. You're supposed to genuflect."

Ok, I don't even know what genuflect means.

Nutt's lawyer, a "tall building lawyer" responded in an interview, "Most people have something to do for a living rather than pore through 500 pages," He said. "This is not life or death. It's football. "If people took as much interest in their government, we'd be a lot better off." The irony is obvious here, coming from someone representing a college coach who makes nearly $1 million a year. Of course -- Nutt's hired gun has no proof that McAfee made the 48 page summary -- he is just making, dare I say, reckless allegations? Of course, McAfee was the one who asked for the records and admits he passed them on. Here are a few paragraphs of the letter that Nutt's lawyers says is not a threat:

I am writing to address the malicious and defamatory statements in your email dated thursday, Mach 15, 2007, to members of the Board of Trustees of the University of Arkansas, President Alan Sugg, Chancellor John White, and members of the media. We do not typically respond to these types of false accusations, but feel it is appropraite in this instance. ( i.e., we don't have anything better to do to with our time but respond ) After a review of your email dated March 15, 2007, it appears that you have intentionally made defamatory statements about Coach Nutt with the intent to harm his reputation with the public and the Board of Trustees. Coach Nutt realizes that his coaching performance is fair game for any fan or citizen of the State. However, when you intentionally make false statements about to persons that you have never met and have no first-hand knowledge of their relationship or activities, you have crossed the line from legally permissible criticism to defamation. In addition, we are of the opinion that your actions constitute an illegal attempt to interfere with Coach Nutt's contract with the University. There is no other reason for you to send such a letter to the Board of Trustees of the University of Arkansas, the President, the Chancellor, and the media, except to harm Coach Nutt's employment relationship with the University and other associated contractual relationships. Please have your attorney contact me as soon as possible. I would like to set up a meetin g with you and your attorney so that we can discuss the defamatory statements you have made about my client. Coach Nutt and I prefer to do business face to face so that there is no misunderstanding about the facts, your intentions, and any future actions which we may take on behalf of Coach Nutt. We consider this to be a very serious matter and hope that you will respond appropraitely.

Best Regards,

Tall Building Laywer ( you can see the whole article here: )
Face to face is always better -- can't record the conversation - no paper trail -- can always use plausible denial later if someone claims someone made (another) veiled threat. Tall building lawyer followed up demanding that McAfee save his text messages and email postings from message boards. How do you do that?

Do you know who else loves to threaten defamation suits? Al Sharpton, but thats a different issue. As I said in my last post - this unseemly threat of legal action has totally backfired. It has drawn more attention to the matter. Objectively speaking - did writing this letter increase or decrease Nutt's reputation? I have some great advice - if you don't want to dignify something with a response - just don't respond - don't make some lame claim about "illegal attempts" to interfere with contracts. I don't think Nutt was having an affair - and I'm sure all of the explanations his lawyer gives are true. Of course they only cover about 10% of the oddly timed calls - but I agree - who cares? Of course, the answer is - lots of people care.

Since this is, in theory, a legal blog, not a sports blog, I'm going to ramble on a while about defamation. Don't confuse defamation with libel, which is reserved for the press.

Each state views defamation slightly differently. In Arkansas, "Defamation" means making, publishing, disseminating, or circulating, directly or indirectly, or aiding, abetting, or encouraging the making, publishing, disseminating, or circulating of any oral or written statement or of any pamphlet, circular, article, or literature that is false or maliciously critical of or derogatory to the financial condition of any person and that is calculated to injure that person;

But - that is too simple. You have to do more than spread false information. The plaintiff has to prove in court that not only has his reputation been damaged - but that he suffered economically because of his loss.

The U.S. Supreme Court ruled in  1964 in  New York Times v. Sullivan, that where a public official was defamed, the plaintiff had to prove not just that an untruthful statement was made, but also that it was made with "actual malice" - that is, with knowledge of falsity or with reckless disregard for the truth. This is practically the same as the standard for punitive damages  Punitive damages are to be a penalty for conduct that is malicious or done with the deliberate intent to injure another.

Nutt's attorney, even though he claims he wasn't threatening legal action, by coincidence uses all the legal buzzwords. Nutt's attorney says there is no other reason for McAfee to send such a letter" ..."except to harm Coach Nutt's employment relationship." No other reason? None?

Lets say a commoner, who is a state employee, sends 1000 emails and numerous text messages to a female who is not his co-worker or his wife, some at 2am. Someone finds my phone records and sends them  to my boss and says they are concerned about this. Can you imagine me threatening legal action because - I know I spent a wad of taxpayer cash on text messages and late night phone calls - but the only possible reason for my boss to be told was to hurt my character. Not only that -- He would have to prove that whatever McAfee was alleging was false. That would mean a trial of course.

What is interesting is that Nutt's lawyer throws around all these scary words "defamation"  "illegal attempt to interfere"  "crossed the line from legally permissible criticism" but he leaves out a key ingredient.  Where are the damages? How much money has he lost because of this allegation? Maybe a fundraiser is in order. Remember the defamation can't be from merely from the act of passing along taxpayer funded phone calls - there has to be a separate and knowingly false - statement made AND actual harm. Assuming Nutt soon gets his raise - it would be hard to say he was doing worse after the emails were sent than before. I could be mistaken, but is no legal action for ineffective defamation -- usually thats just called being a loudmouth.

Similarly, to prove tortious interference with a contract - there must obviously be a contract, the interfering party must know of the relationship formed by the contract, and there must be an intentional interference inducing or terminating that relationship. Again,  there is no "attempted interference with contract."

Most people have something better to do for a living than write baseless threatening letters claiming in painful detail why a unhappy sports fan is not only wrong -- but maliciously wrong - and inferring the possibility of future actions they may take. What else would these future actions be except a lawsuit? 



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