Insights into litigation, sports law, media and legal culture

Bill Cosby legal strategy might benefit from more of Clair Huxtable, and less of angry man

THE COSBY SHOW — “Clair’s Liberation” Episode 12 — Aired 12/06/1990 — Pictured: (l-r) Phylicia Rashad as Clair Hanks Huxtable, Bill Cosby as Dr. Heathcliff ‘Cliff’ Huxtable (Photo by Al Levine/NBC/NBCU Photo Bank via Getty Images)

For many high rating seasons, Cliff Huxtable (played by Bill Cosby), his wife Clair and their five children experienced scrapes and life lessons all capable of being resolved in each episode. As the Boston Globe said in 2005, the sitcom “gently” delivered the star’s positive portrayal of black family life.

Clair supplied much of the homespun philosophy. For example: “Theo, we never said become a doctor, become a lawyer, we say go to school, we say study, we say become something

Clair was the lawyer of the family.

I wonder what Clair would have thought of the recent legal correspondence sent on behalf of Bill Cosby to media around the world.

Over 20 women (at last count) have accused Mr Cosby of rape or sexual assault in relation to alleged incidents from 1965 to 2004. New life was breathed into these complaints by a misconceived request in early November 2014 from whoever was in charge of Mr Cosby’s Twitter account to: “Go ahead. Meme me! #cosbymeme”.

The result was an avalanche of memes referencing the rape allegations, which led to Mr Cosby’s original tweet being pulled from the Web. It also led to a sarcastic tweet about the effectiveness of the strategy:

Bill Cosby has been in damage control since then. Much of his approach has been criticized. It is hard though, to stand in the shoes of someone accused so publicly of dreadful crimes, and be in a position to judge how best to respond (whether or not the allegations are true).

Bill Cosby’s lawyer will be familiar to readers of this blog. Martin D. Singer recently wrote an excellent letter to Google on behalf of female celebrities analysed here.

Here are some excerpts of his recent correspondence concerning his client, Mr Cosby. In a 21 November 2014 media statement, Mr Singer said:

The new, never-before-heard claims from women who have come forward in the last two weeks with unsubstantiated, fantastical stories about things they say occurred 30, 40 or even 50 years ago have escalated past the point of absurdity”.

He then described the claims as “increasingly ridiculous”, stating: “…it is completely illogical that so many people would have said nothing, done nothing and made no reports to law enforcement or asserted civil claims if they thought they had been assaulted over a span of many years”.

Mr Singer then railed against the media’s breakneck rush to run stories without any corroboration or adherence to traditional journalistic standards. He described such conduct as “media vilification” of Mr Cosby.

Since then, Mr Singer’s correspondence has targeted the specific allegations of some of the women who have come forward.

In the case of Janice Dickinson, the former model and reality star who recently announced that she too was a victim, no punches were pulled. In a letter dated 18 November 2014 to the Chief Los Angeles Correspondent for Buzzfeed, Mr Singer claimed (amongst other things) that her rape claim was “outrageous”, a “fabrication” and an “outrageous defamatory lie”.

If I were to come up with my own meme to describe the tenor of Mr Singer’s recent correspondence, it would likely involve an image of Grumpy Cat with #fail, but with some sort of disclaimer like #reasonablemindsdiffer (I’m a lawyer after all).

American legal culture is not always consistent with the common law system Australia has inherited. Nevertheless, in my view the correspondence goes too far.

Here are some suggested tips for writing legal correspondence (whether offensive or defensive), based on a review of Bill Cosby’s legal approach.

  1. Pick your best argument

Martin Singer’s 21 November media statement was reported widely, as intended. There were essentially four points:

  • The women had unsubstantiated stories from 30, 40 or even 50 years ago.
  • It is illogical so many people would have said or done nothing until recently.
  • There has never been a shortage of lawyers to represent people with claims against rich, powerful men” so the lack of legal activity meant that recent claims should be treated with caution.
  • The media needed to test the claims before reporting them.

The need for the media to abide by journalistic integrity is a strong argument, and likely the best one. This is a universal truth.

The need to treat recent claims with caution also has merit. However, consider the tone. It is unlikely Clair Huxtable would imply that ‘people’ (aka women) are usually swift to bring (unsustainable) claims against “rich, powerful men”.   The tone, even though likely unintended, comes across as gendered and disrespectful.

As to why many of the alleged victims waited so long to complain, some of those who came forward said they were reluctant to talk earlier because they feared for their careers, their families or their own safety.

Former Playboy bunny Victoria Valentino reportedly explained her delay as follows: “Rape victims, sexual assault victims were victimized by the system. We didn’t believe in the system, because the system did not stand by us through things like this.”

Similarly, Jewel Allison, another alleged victim said: “For years I thought that I was the only one. I kept this as a secret…afraid no one is going to believe you, afraid society is going to victimize you.”

One reader of a news story reporting Mr Singer’s statement commented: “…Why would anyone have believed them when [Cosby] was famous for being “America’s Greatest TV Dad?” It would have been a thousand times worse for them to speak up when it actually happened and they knew that, especially back then. Men got away with sexual molestation and rape a lot more often 30 years ago… Victim blaming and shaming is the reason why so many women don’t speak up right away.”

If people do not believe your bad points, they are less likely to believe your good ones. Leave the bad points out.

  1. Do not overstate your client’s position

The 21 November statement on behalf of Bill Cosby was careful not to mention the 2005 civil litigation brought by Andrea Constand (see court documents here). Her lawyers said they found 13 witnesses with similar stories. However, the lawsuit was settled in November 2006 and the witnesses were never called. Terms have not been disclosed.

The media statement was also careful not to mention Barbara Bowman, one of the 13 witnesses in that case who told her story to the Washington Post the week before. Only after her story was published did other women come forward.

To describe these women’s stories as “unsubstantiated” ignores the fact that Bill Cosby himself chose to avoid his day in court.

To describe the claims as “fantastical” is an inflammatory choice of words in light of this unspoken litigation history. To describe them as “ridiculous” and “illogical” is alienating. And to suggest that these women said and did nothing when some of them may have been witnesses for Ms Constand had the matter gone to trial, is potentially misleading and untrue.

An overstatement, once discovered, has the capacity to undermine the entire message.

  1. Lead readers to water: don’t make them drink

Present the evidence in a coherent, reasonable and methodical way.   Suggest the answer. But allow the reader to decide.

Martin Singer’s 18 November letter to Buzzfeed contains the logical argument said to justify why Ms Dickinson’s tale is a recent invention.

But in addition to the reasoning there is this assertion:

“…it appears that she is seeking publicity to bolster her fading career.”

If you, like me, have found yourself arguing the opposite of what you believe because someone has tried to force an idea down your throat in a manner which is potentially unfair, you will understand why the ‘blunt trauma’ approach to legal argument should be avoided at all costs.

Yes you may want to write that extra sentence. But don’t!

  1. The lawyer is a representative not a key player

For an Australian lawyer the most surprising thing about Mr Singer’s correspondence was:

  • His failure to state he was writing on the client’s instructions;
  • His assumption that his client was speaking the truth; and
  • His lack of “wriggle room” by stating unequivocally, for example, that Buzzfeed was liable, when it might well not be (always use ‘may’ or ‘might’, not ‘will’).

These things matter because the lawyer is an objective advocate for the client. If the lawyer becomes part of the story, his or her ability to offer objective advice can be compromised.

As one person has commented about Martin Singer: “He will taint his own reputation handling this stinker of a mess. Half of the US population is female. I’m betting more than half of those women are not lovin’ Singer’s stonewalling on behalf of BC”.

It is in fact highly unlikely that Mr Singer’s stellar reputation for acting for the Hollywood “A” List will be impacted by this case at all. I also strongly disagree with any suggestion that Mr Singer should not be handling this case.  Being a lawyer is not a popularity contest about the cases we run. But the comment illustrates the reputational risk any lawyer faces when acting for a client in a case involving controversial facts.

Standing apart from your client’s allegations is very important to help protect yourself.

  1. Don’t be predictable

Another person has commented about Martin Singer’s 21 November statement: “If [Bill Cosby] is innocent, he should be outraged and he should sue these individuals for defamation of character”.

Yet there is no defamation litigation on foot. The Janice Dickinson letter threatened defamation. However, it did not have the hallmarks of, say, Martin Singer’s letter to Google on behalf of female celebrities recently.

There was no list of demands. There was no exhortation to retain all documents for pending litigation.

Instead, the most serious threat was: “You proceed at your peril”. Hmm…

In other words, if your opponent’s letters are typically aggressive but not all the ingredients are there in a particular case, you may be entitled to draw an inference about the client’s legal intent.

Keeping your opponent off guard with a flexible and adaptable approach is therefore recommended. Sometimes be subtle and nuanced. Sometimes be forceful and aggressive. They will not know what to expect!

  1. If your practice is to go public, try not to keep your letter a secret

Bill Cosby’s lawyer is not afraid to issue media statements himself. He did so in this case on 21 November 2014.

That is why it is a little surprising to see this sentence conclude his letter to Buzzfeed about Janice Dickinson: “This letter is a confidential legal communication and is not for publication.”

Does it surprise that the letter is now on the Internet? If you do not know what the “Streisand effect ” is, use your favourite search engine to find out.

Conclusion

Imagine now that Clair Huxtable was representing Bill Cosby.

Her gender could have been a plus given the facts at issue. Her respectful tone as she represented her client might well have been persuasive. Her observations about the complainants, delivered in an objective and reasonable way, might have carried a sense of moral authority. Her dispassionate approach would highlight that she is her own person, and that she is doing her very best to represent a person entitled to innocence until proven guilty.

Clair’s wisdom has much to teach us.

 

 

3 Responses to “Bill Cosby legal strategy might benefit from more of Clair Huxtable, and less of angry man”

  1. juice

    Ah, Natalie, I applaud you for delivering the line “The lawyer is a representative not a key player” with a straight face, given the lawyer involved and the context in which the story was written.

    Reply
    • Natalie Hickey

      I suspect geography plays some small part in the different cultural approach. For instance, we knew little about the lawyers in the Rolf Harris case in the UK. Although I remember reading that junior counsel for the Defence had to do closing submissions because senior counsel was ill. Quite a terrifying challenge!

      Reply
      • juice

        No doubt at all, agreed. It’s like getting Julian Burnside involved, ala James Hird – you aren’t just after a lawyer, you’re after a lawyer who becomes a player, and who takes some of the spotlight off you because of his antics.

        TBH, I don’t blame senior counsel being crook in a surefire loser like that case 🙂 And, let’s face it, it’s good experience for a junior counsel in a case where you know you’re not going to win, so a reduction in pressure (like resting your players when facing the Demons 🙂

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