THREAD: Did the Covington Kid just score millions of dollars?

People won't stop asking me about this headline, bullying me into writing this long explanation of why it's obvious the suit against the Washington Post was settled for peanuts. So here goes. https://twitter.com/nypost/status/1286702979060510726

It’s important to note that I wouldn’t even have to write something like this if mainstream media news desks even bothered to do halfway decent legal analysis. But here we are.

So a lot of people seem to think Sandmann won a meaningful amount of money, but every part of this, from the procedural history, the timing, the announcement, the relevant law, all of it confirms Sandmann was paid mere nuisance value.

First, let’s look at the announcement:

Right off the bat, it’s clear this isn’t the kind of the statement you would make if you just scored a big pay-day off the Post. This is a statement trying to justify why Sandmann bowed out. And notice the reference to the correction. That will be important later.

So dial back the clock a few months ago. At first, the judge in the case dismissed all 33 of Sandman’s claims against the Post, finding no possibility of prevailing. Sandman’s counsel made a plea for reconsideration.

In a second order, the judge agreed to restore three of Sandman’s claims because it was still theoretically possible he could prevail if certain evidence was discovered. Those three claims involve statements about blocking Phillips:

The problem with those three claims is that they are based on statements Nathan Phillips made to the Post, which reported his words. That’s why discovery is needed on the context. Because absent something really weird, newspapers can generally report what third-parties say.

Sandmann would have to find evidence that at the time of the initial video, no newspaper would have published Philip’s account. In other words, Sandman had to disprove the Post’s “good faith reliance” on a third-party’s account. As the Post argued:

Under this defense, a newspaper can report what a third-party said unless it knew the third-party was lying or if the newspaper knew the third-party was so chronically unreliable that nobody would ever believe them about anything.

As the judge noted, it was technically possible for Sandmann to prevail if he could prove the Post knew Nathan Phillips was lying, or if the Post knew Nathan Phillips was a known liar:

So assume for a moment Sandmann could prove that what Phillips said wasn’t “substantially true” in the legal sense – i.e., his path of travel wasn’t blocked. He would still have to prove the Post knew Phillips was lying about being blocked by the teens.

Alternatively, Sandmann must prove the Post knew Phillips was “chronically unreliable,” which is nearly impossible, especially considering Phillips was unknown to the Post at the time of the reporting.

You have to show the publisher possessed information showing multiple documented lies in a recognizable pattern. And you have to show the Post ACTUALLY possessed information about Phillips, not that it SHOULD have possessed it.

So this is functionally impossible with Phillips because a history of past crimes or bad acts won’t do it, only repeated documented lies on similar matters. And it’s also obvious the Post knew nothing about Phillip’s past at all on the day this happened anyway.

A weird feature of defamation law is that it frequently rewards willful ignorance and a failure to investigate, at least on these kind of subjective knowledge questions. I don’t think it’s the way the law should be, but it is. You must prove the Post knew.

But let’s assume Sandmann could clear this series of increasingly impossible hurdles. The problem is the Post’s correction that Sandmann’s attorney mentioned. Why is that important? https://www.washingtonpost.com/nation/2019/03/01/editors-note-related-lincoln-memorial-incident/

Because like most states, Kentucky (where the suit was filed) has a law prohibiting any punitive or exemplary damages when a newspaper publishes a correction in response to a person’s demand for retraction.

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=17757

Technically, you could still recover punitive or exemplary damages if you prove The Post committed actual malice, but it’s well understood that actual malice is the kiss of death for a lawsuit, especially in breaking new stories. Zero chance of malice here.

So even assuming Sandmann could clear each impossible hurdle, he would only be able to recover actual damages. And discovery would likely prove Sandmann had little to none. By all indications, he is doing ok, and in fact has become a beloved micro-celebrity in MAGA world.

So when Sandmann was given the chance to make document requests and take testimony from the Post and submit himself for testimony, he chose not to go forward.

The Washington Post is insured by a commercial insurance carrier, and I have sued commercial carriers my entire career. They are not settling a case for any significant amount of money without a deposition of the plaintiff.

There’s many reasons for this, most notably that you can’t accurately gauge your exposure until you understand the plaintiff and what their damages are. Not to mention that when a lawsuit collapses into dust, 90% of the time it happens in the plaintiff’s deposition.

Here, that collapse had already happened. Who cares what admissions you can secure in a plaintiff’s deposition when his case has been rendered worthless and he’s willing to exit for nuisance value?

Nuisance value is determined by how much it would cost to defend the suit until dismissal. The Post knows it will win on this issue, but also knows Sandmann could cause it incur expenses by litigating until summary judgment happens.

In this situation, I’d estimate the legal fees incurred by the insurance company if they conduct discovery on this issue and then argue summary judgment is on the magnitude of $200,000.

So a settlement in that situation needs to be quite a bit below $200k for the carrier to be financially incentivized to provide Sandmann a graceful, confidential exit from the suit that saves face. $50k is a good guess.

And you also have to remember that Sandmann was represented by Lin Wood, who was a decent trial lawyer 20 years ago, but has since become an aging weirdo who promotes QAnon, as you see from his WWG1WGA bio:

A wealthy trial lawyer isn’t what we usually picture when we think of the sad world of QAnon, but the fastest growing adherents are rich boomers got sucked into this dumb Tom Clancy-esque roleplay nonsense after getting bored waiting for the Rapture.

You may remember Lin Wood for botching the Elon Musk defamation trial. He made bizarre choices, including making Musk his first witness. Instead of systematically making the jury dislike him over the course of the trial, he opened by letting the billionaire have the spotlight.

And like a lot of old weird trial lawyers, Wood rubbed the judge the wrong way. But at least we got the delightful “JustBalls dot com” exchange (and yet another time Elon came off as charming and made the jury laugh). https://twitter.com/RMac18/status/1202363221111271425

Wood got rich years ago off cases that were hard to lose: Richard Jewel, Natalee Holloway’s mom, etc. But these days he is a parody of a trial lawyer. The Washington Post’s insurance carrier is not afraid of a weird QAnon guy long past his prime.

So here is the most likely way this went down: The judge’s order restored three claims, but those claims are impossible to prove and can’t produce meaningful damages. So the insurance carrier’s lawyers send Wood a letter.

It says: “We both know you can’t prove these claims and will lose at summary judgment. And even if you could win, you’d lose at trial. And even if you could win there, there are no punitive damages. But you also know it will cost us $200k to defend this case, even more at trial.”

“So we’ll make you a deal. We’ll give you $50k on these worthless claims just to get you out of our hair. The amount stays confidential, so you get to save face in public and people will think you won something.”

“But when we announce this, if you say anything publicly that even implies that we paid a lot of money, the deal is off.” Which explains Sandmann’s attorney downplaying the Post’s level of fault in his announcement.

And because he knows other trial lawyers watching these events will know exactly what transpired, and they will know the Post paid nuisance value. So you have to explain yourself and save face there as well, from a professional reputation standpoint.

You also have to remember that Lin Wood gets 33%-40% of that in legal fees along with his expenses (and imagine what kind of expenses you get charged by the QAnon guy), making it likely Sandmann got next to nothing.

And while any high-profile plaintiff’s lawyer or corporate defense lawyer could tell you what happened here, major newsrooms long ago eliminated their capacity to do legal analysis on breaking news. Their budgets have been savaged. It’s 24 year old’s writing clickbait.

Which in turn results in ostensibly respectable liberal pundits like Bloomberg’s Noah Smith telling their audiences that the Covington kid scored a “big” settlement despite having no evidence to support that conclusion:

https://twitter.com/Noahpinion/status/1286712019404484608

I hope I don’t need to tell you that it’s journalistic garbage to estimate the value of a settlement based on the initial pie-in-the-sky numbers demanded by the kid’s QAnon lawyer. But I guess this is to be expected at this point.

After all, a lot of the media treads carefully on the subject of Sandmann now, who has approached martyrdom. And it’s weird because that video remains a good litmus test for our values. If the teens in that video didn’t creep you out, we don’t share values.

Sandmann’s whole lawsuit was some argument about whether Phillips was blocked, and all the while you still have a group of smug MAGA high schoolers doing heya-heya chants and tomahawk chops in a weird and deeply uncomfortable scene.

But the media doesn’t like to discuss the incident or Sandmann because they utterly capitulated to MAGA world grievances, and they don’t like to think about it.

Still, it’s disappointing none of the major outlets reached out to plaintiff’s lawyers for analysis. If you're that hard up, you could have asked me. I won’t charge you money to explain things.

The theme of this coverage should have been: “With his case hanging by a rapidly unraveling thread, the Covington kid decides to call it quits.” Instead, because media has been gutted, a huge portion of people think Sandmann is on his way to becoming a billionaire.