Social Media Defamation

The default rule is that civil and criminal cases proceed at the same time. However, forcing a defendant to fight a civil lawsuit while under criminal indictment is fundamentally unfair. We aggressively move to stay the civil proceedings.

We argue that the defendant’s Fifth Amendment rights will be eviscerated if the civil case goes forward. If the judge forces the civil case to proceed, the defendant is put in an impossible position: testify and incriminate themselves or remain silent and lose the civil case by default. We leverage the inherent power of the court to control its docket to pause the civil litigation until the criminal matter is resolved. This freezes the private plaintiff’s attack and allows us to focus all resources on the primary threat of incarceration.

The Fifth Amendment protection against self-incrimination is absolute in criminal court but it is porous in civil court. In a criminal trial, your silence cannot be used against you. In a civil and criminal litigation context, a civil jury is permitted to draw an adverse inference from your silence.

This means if you refuse to answer questions in a civil deposition, the jury can assume the answer would have been "yes, I did it." We navigate this trap carefully. We often advise clients to assert the privilege selectively or we seek protective orders sealing the deposition so it cannot be shared with prosecutors. We aim to protect the client from criminal exposure while limiting the damage such silence causes in the civil liability phase.

In criminal court, the state must prove guilt beyond a reasonable doubt (a near-certainty). In civil court, the plaintiff needs only a preponderance of the evidence (more likely than not, or 51%).

We exploit this gap. In the criminal phase, we attack the investigation’s gaps to create reasonable doubt. In the civil phase, where doubt is not enough, we shift to an affirmative defense. We attack the causation element and the credibility of the victim. We argue that even if the conduct occurred, it did not cause the specific damages claimed. By bifurcating our strategy, we ensure that the defense is tailored to the specific evidentiary threshold of each tribunal.

While a criminal conviction is often admissible in a civil case as proof of liability (collateral estoppel), an acquittal is generally inadmissible. The civil jury is usually not told that the defendant was found not guilty.

However, we use the sworn testimony from the criminal trial to impeach witnesses in the civil case. Witnesses often embellish their stories in civil court where money is on the line. We use the transcripts from the criminal proceedings to catch them in contradictions. We argue that their story has evolved to fit their financial motives. This cross-examination technique allows us to use the rigor of the criminal trial to dismantle the civil plaintiff’s credibility.

A grand jury operates in secrecy while civil litigation is public. Prosecutors often subpoena the fruits of civil discovery. This means that documents you produce to a private litigant or a regulator can be subpoenaed by the grand jury.

We implement strict document control protocols. We fight to limit the scope of civil production to prevent the dumping of data that allows prosecutors to go on a fishing expedition. We also negotiate clawback agreements that allow us to retrieve privileged documents inadvertently produced. We ensure that the civil discovery process does not become a conduit for the government to bypass constitutional search and seizure protections.

The government uses criminal forfeiture to seize assets alleged to be proceeds of crime. Simultaneously, civil victims seek restitution and treble damages. This creates a race for the client’s remaining assets.

We litigate the forfeiture phase aggressively. We argue that the assets were acquired with legitimate funds and are not traceable to the alleged offense. We also negotiate global resolutions where a single payment satisfies both the criminal forfeiture and the civil restitution obligations. We prevent the government and the victims from "double dipping" into the client’s finances ensuring that you do not pay for the same alleged loss twice.

Plaintiff attorneys draft complaints with inflammatory language knowing that the media will quote them. These allegations are privileged, meaning they cannot be sued for defamation for what they say in court filings.

We counter this by filing motions to strike scandalous or immaterial matter from the pleadings. We urge the court to seal sensitive filings that are being used solely to embarrass the defendant or prejudice the criminal case. We also manage the release of information. We ensure that any public statement is legally scrubbed to prevent it from being used as an admission in the pending criminal matter.

The goal in many dual-track cases is a global settlement that resolves all liability at once. However, settling a civil case can look like an admission of guilt to a criminal prosecutor.

We structure settlements carefully. We utilize"no admission of liability clauses in civil agreements. We also attempt to negotiate with the prosecutor to include a "civil release" as part of any plea agreement or deferred prosecution agreement. We argue that the client’s willingness to make the victims whole through civil settlement should be a mitigating factor that reduces or eliminates criminal jail time.

A criminal conviction or a civil fraud judgment is often automatic grounds for license revocation. However, many boards have the discretion to suspend rather than revoke.

We appear before the licensing boards to argue for a stay of administrative action until the criminal case is resolved. If the board insists on proceeding, we present evidence of rehabilitation and lack of consumer harm. We argue that the alleged conduct was an isolated incident that does not reflect on the licensee’s professional competence. We aim to secure a probationary status that allows the client to keep their license while the main litigation is pending.

When a public company or its executives are indicted, the stock price drops. This triggers shareholder derivative lawsuits alleging breach of fiduciary duty. These suits claim that the executives failed to implement internal controls to prevent the criminal conduct.

We defend directors and officers against these claims. We rely on the "business judgment rule" and corporate charters that indemnify executives who acted in good faith. We argue that the criminal acts of a rogue employee cannot be imputed to the board. We fight to preserve the D&O insurance coverage which funds the defense of both the civil and criminal litigation preventing the individual executives from being drained by legal fees.