The “Dead Man’s Statute” isn’t Johnny Depp’s latest “Pirates of the Caribbean” movie

The “Dead Man’s Statute” isn’t Johnny Depp’s latest “Pirates of the Caribbean” movie

By:  Todd Cunningham, The Recorder
May 19, 2017

It’s a rule of evidence—adopted in many states, including New York—that could help 21st Century Fox attorneys mount an effective defense in the raft of sexual harassment suits it’s facing, despite the death earlier this week of Roger Ailes. The Fox News founder, who paid $20 million to end a suit brought by former anchor Gretchen Carlson, was accused in several of the disputes that followed her explosive allegations.

The principle underlying the dead man’s statute dates back to the 19th century and is used today mainly in probate cases. Designed to prevent perjury, it prohibits a party with an interest in civil litigation from testifying against a dead party about communications with the deceased.

It would apply only in cases where Ailes, accused of making unwanted advances toward several female Fox News anchors and guests, was named as a defendant.

Jack Schaedel, part of the labor and employment group in the Los Angeles office of Dykema Gossett, said the Ailes scenario illustrates the reason for the rule.

“Harassment cases like these often involve ‘she said/he said’ situations,” Schaedel said, adding, “What’s to stop the plaintiff from saying that Ailes promised her $10 million for sex? If he’s not there to rebut it, does that mean she can say it and she wins?”

If there was any doubt that attorney Douglas Wigdor, the New York attorney who represents 21 plaintiffs who have sued Fox, would attempt to exploit defense weaknesses caused by the death of the 77-year-old conservative icon, it didn’t last long.

“The sudden passing of Roger Ailes will make it difficult for Fox News to refute the allegations against him as his testimony was not secured by sworn testimony to date,” he said in a statement released hours after the news of Ailes’ death broke.

He then cited accusations made in a pending Southern District of New York complaint by Fox reporter Lidija Ujkic. Ujkic, who does not name Ailes as a defendant in the suit, claims that he asked her to turn around so he could see her from behind and commented that he liked what he saw, and also called her ex-boyfriend to ask whether she “put out” and “how’s the sex?”

A suit filed in New York state court last month by Fox News contributor Julie Roginsky does name Ailes as a defendant. Roginsky claims Ailes made repeated unwanted sexual advances and that she was denied on-air opportunities for refusing him.

Even with the dead man’s statute, there are ways of getting the testimony in, said Ann Fromholz, an employment attorney who founded the Pasadena, California-based Fromholz Firm.

“He may have recounted one of the incidents to someone, or sent emails giving his side of the story, and that would be admissible as an exception to the hearsay rule,” said Fromholz, who suggested the absence of Ailes could present other challenges for Fox.

“It is going to complicate the discovery process, because they won’t have his take on some of the events in question. They will only have the accusations. He can’t help his own lawyers,” she said, noting that Ailes’ death will also affect who’s liable.

“We haven’t seen all the suits, but typically the estate would be responsible for any damages or monetary awards against the defendant,” Fromholz said.

Quinn Emanuel Urquhart & Sullivan partner Susan Estrich, who represented Ailes, did not return a call seeking comment. A call to Fox’s corporate headquarters was also not returned.

“Roger Ailes has left behind a grieving widow and teenage child. They did nothing wrong and surely deserve our sympathy,” Judd Burstein, a New York-based attorney representing former Fox News anchor Andrea Tantaros in a sexual harassment suit, said Thursday. His team is appealing a New York Supreme Court ruling which found that the dispute should be handled in arbitration. Burstein declined to comment on his team’s legal strategy, saying it would be “unseemly and heartless.”

“It seems odd to say,” said Schaedel, “but at some point a sympathy factor could kick in. Generally, juries tend not to want to criticize someone who’s dead, and his widow could testify, for example, that he was a wonderful husband, and took great pride in his helping young journalists make their way.”

Schaedel said there could also be a backlash if the jury perceives there is an element of “me too” in some of these suits, and thinks some of the plaintiffs are trying to cash in. Fox News has already paid out more than $45 million to settle suits involving Ailes, according to a recent U.S. Securities and Exchange Commission filing.

“Fox could make the point that these filings can be contagious, and suggest that with all the reports of these payouts, some of them may be treating Fox News like an ATM,” he said.

Ailes’ absence could also make it more difficult for Fox to defend itself against charges that its leadership should have done more once it became aware of the problems, leaving itself vulnerable to significant punitive damage awards.

“Typically, it’s the obligation of the top leadership of the company to see that there was a problem and take steps to correct it and prevent it from happening again,” Fromholz said. “In these cases, the top leadership of the company are the ones accused of creating the problem, and Ailes won’t be around to explain what happened.”

How Roger Ailes’ Death Could Complicate Legal Claims Over His Fox News Tenure

How Roger Ailes’ Death Could Complicate Legal Claims Over His Fox News Tenure

While many in the media industry are mourning the passing of Fox News titan Roger Ailes, those in the legal industry are assessing how the federal investigation and pending civil lawsuits will move forward without a key witness.Ailes died Thursday, nearly a year after leaving the company he founded amid allegations of sexual harassment and retaliation. In the months that followed, a barrage of lawsuits were filed against Fox News, an internal investigation was launched by Paul, Weiss and federal prosecutors have been circling the issue of whether sexual harassment settlements were concealed from investors in 21st Century Fox, the network’s parent company.

The potential impact to the Fox News internal investigation is much more clear-cut, attorneys say — especially since the claims involve an alleged company-wide culture and not an individual’s isolated actions.

“Fox has an obligation to complete the investigation, with whatever witnesses are available to them, and reach a conclusion as to whether misconduct occurred and take corrective action to ensure that the conduct does not occur,” says attorney Ann Fromholz, who specializes in corporate investigations. She says it’s unclear whether Ailes was interviewed by investigators in the months following his resignation, but it’s unlikely to significantly affect the outcome.

“If the problem is bigger than one person then the unavailability of one person to be interviewed isn’t going to materially affect the investigation,” says Fromholz. “Other witnesses will be able to tell what happened and there will be corrective action that the company needs to take.”

As for the probe being handed by the U.S. Attorney’s Office in the Southern District of New York as well as civil lawsuits from Julie Roginsky and Andrea Tantaros (both of whom named Ailes as a co-defendant in their respective complaints), the absence of a central figure like Ailes could be problematic in a couple of ways. For whatever happened during Ailes’ tenure, those inside Fox News’ ranks now have a convenient fall guy to lay blame on. Secondly, there could be quite the disruption as parties begin fighting about what evidence is admissible and what’s constitutes hearsay. A court is likely to recognize that Ailes is no longer around to challenge statements he allegedly made.

This could swing things in different directions. If a judge decides to preclude evidence, that could potentially undercut claims from alleged victims. But what if the judge is lenient? “It might significantly weaken the defense if [Ailes] is not around to give an explanation,” says Fromholz.

Then again, the judge could allow all sorts of statements that Ailes made in his favor outside the court. Normally, these wouldn’t be allowed because there would be no opportunity for cross-examination, but an exception to the hearsay rule could theoretically be made because of his death.

“If I had a conversation with the defendant, I can say he told me this,” says Bryan Sullivan, an entertainment litigator at Early Sullivan. “That’s technically hearsay, but it’s outside of the hearsay rule. It gets really technical.”

Attorney Douglas Wigdor, who’s currently representing more than a dozen people in lawsuits against the company, made noise shortly after Ailes’ death by issuing a statement Thursday saying his passing will “make it difficult for Fox News to refute the allegations against him as his testimony was not secured by sworn testimony to date.” Specifically, Wigdor references a lawsuit filed against 21st Century Fox by Lidia Curanaj, who claims she was passed over for a network gig in 2011 because the CEO was told by her ex-boyfriend that she was a “nice girl” and he inferred that she wouldn’t “put out.”

But the problem there is that Ailes is not a co-defendant in the case, and Curanaj didn’t directly work for him. Her lawsuit centers on claims that she was repeatedly denied a full-time time job at New York affiliate Fox 5 because of her age. Fox attorney Linda Goldstein is currently asking the court to strike the comments about Ailes, along with others involving O’Reilly, because they’re irrelevant and prejudicial. “It is clear that the Ailes and O’Reilly Allegations are designed to ‘inflame the reader,'” writes Goldstein. “In fact, the O’Reilly allegations, which were added in the Amended Complaint, only highlight Plaintiff’s attempts to exploit complaints by other women who worked with Ailes or O’Reilly to her own ends. Their allegations, true or false, have no bearing on Plaintiff, who did not work with either Ailes or O’Reilly or even the other women.”

Prosecutors contemplating an indictment now have a decision on their hands about whether to move forward. In the civil lawsuits, plaintiffs and 21st Century Fox are meanwhile likely to re-evaluate the risks of continuing litigation.

Daniel Handman, a litigator at Hirschfeld Kraemer, believes that the absence of a key witness like Ailes could harm Fox because the company can no longer rely on a jury hearing his account of events. That said, Handman also wonders if this really incentivizes the parties to move on and strike settlements. He says, “Sometimes you don’t want to be seen as stepping on a dead man’s grave. How much more do you have to ruin his reputation after he’s dead?”