Peter Thiel vs. Gawker: Should I be glad about this, or worried?

[brickbacon]

@Bone

But where we depart is when the lawsuit by Chyna or by Hogan is funded by themselves or by a third party. That factor is not relevant in measuring the damages.

It is relevant if you think the plaintiff’s testimony and behavior were influenced in a meaningful way by the funding. You cannot make that assessment in either direction if you don’t know about the possibility. Again, this is why people look askance at politicians who take money from unsavory people. It’s because there tends to be a fine lines between harmless advocacy, paying for access and influence, and straightforward bribery. Even judges are expected to recuse themselves when there is a clear conflict of interest.

Is it clear it happened in this case? No. But there are so many strange actions taken by Hogan and his legal team that would typically be disadvantageous to him that you have to wonder who is actually pulling the strings. What if Thiel basically promised Hogan he’d hire him to a cushy job if he let Thiel call the shots? What if he asked Hogan to really play up the emotion damages he suffered in order to increase the damages owed?

@Bone

You kind of did, but if I misinterpreted it let me know. Here’s the context

I believe you did misinterpret. What preceded the first part of the quotes you mentioned was me saying:

Speaking to the specific point about anonymously funding lawsuits, the reason people need to know that is because it can obviously alter motivations, incentives, interests, and outcomes. Like when tobacco companies fund studies about lung cancer, or when political campaigns are anonymously funded by secret parties, it’s harder to accurately assess the merit of the study/politician given the possible conflicts of interest or unclean hands.

I thought we were restricting the conversation to norms surrounding the funding of political campaigns and scientific studies. When you responding talking about advocacy, I thought you were talking about funding political campaigns, something that has only be been easy to do directly and anonymously relatively recently. But even if we broaden it to the examples you listed, 1960 is still fairly recent. Either way, it’s not worth getting sidetracked on.

@Bone

Well I just completely disagree with this idea that there should be barriers to the court system over and above the cost to fund them.

Aren’t you the same guy that thinks healthcare costs should be borne by the users lest people will overuse it? First, cost is not a barrier set up by the state in any meaningful sense. It’s the reality of litigation. That reality is generally a good thing. Otherwise courts would be clogged with meaningless nonsense.

@Bone

I do not think that small claims courts have some fees to deter people from using the court system - do you have a cite for this claim?

Google, “costs of small claims court”. Raising the cost of almost anything will deter many of using or buying it. It completely changes the value proposition. Do you really need a cite for the basic idea that many people will not frivolously bring cases to small claims if they know it will cost $90 or so every time?

@Bone

My understanding is that fees are designed to cover administrative costs, not deter people from using the resource.

There is no single reason, but ask yourself why public schools are free and courts are generally not. It’s in part because we want people to go to school, so we cover the administrative costs. When we don’t cover the costs, we are clearly stating that we want you to have some skin in the game.

@Bone

True, and you’d have to do the same if the funding source was disclosed to both the judge and the jury. In other words, this disclosure doesn’t solve any problem related to prohibitive legal expense.

Disclosure isn’t the only step you need to take to solve the problem. It’s the first step to making all sides aware of the issue. I am not saying (and never have) disclosure prevents Thiel’s blueprint from working in and of itself. I think you need to make those who fund lawsuits party to the actual suit so that anti-SLAPP laws and other laws to prevent legal harassment apply. To do that though, you first need to mandate transparency. What would happen in that climate is that Gawker would be able to at least make a case that Thiel is conducting a pattern of harassment, and they would be able to sue him to recover damages and legal fees if a court thought they deserved them. Right now, they are fighting an invisible foe with bottomless resources.

[Measure_for_Measure]

@Bone

Even if Thiel did influence the way the case proceeded, so what? Did Thiel change the fact pattern of Gawker’s actions leading to the suit in the first place? If not, then it doesn’t matter.

It matters for Hogan. There is the possibility that Hogan’s lawyers weren’t acting in his best interest. That’s always a concern. And if Thiel is laying out legal strategy, perhaps he should be an explicit party to the case: maybe he should be subject to subpoena. As noted by brickbacon, underlying motives are apparently part of many civil cases.

I’m fine with anti-SLAPP laws, and fine with loser pays laws. But eliminating third party funding of civil litigation would have prevented many of the class action lawsuits that propelled the civil rights movement. See for example NAACP v. Button.

Well… we could have a ban on third party funding of cases where a media company is the defendant. That would permit most public interest litigation, as media companies are generally not defendants in such cases. Except I’m very uncomfortable with that. I know of nobody on the internet who is proposing such a thing and Professor Kontorovich seems to think that nobody is calling for the revival of champerty and maintenance. Informing judges of third party participation in contrast does have its advocates (Josh Marshall is one).

Volokh Conspiracy professor says no worries, sort of: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/05/26/peter-thiels-funding-of-hulk-hogan-gawker-litigation-should-not-raise-concerns/
Bone: Help me out. You seem to be arguing that informing the judge about Thiel’s sponsorship is pointless or nearly pointless. Ok. (IANAL) But does it have a downside? Informing juries has a downside: ad hominem issues might take their focus away from the substance of the case. But judges are suppose to be able to deal with that sort of thing, right?

One downside might be cost and hassle. Those are real. It’s just not clear to me whether there are others though.

One thing that would convince me is if a number of judges or legal scholars said that sharing information on third party payment of legal bills with the judge would serve no rational basis. But I haven’t come across such claims on the internet. Generally speaking, I think this issue deserves systematic treatment by legal scholars. So vis a vis the OP: worried! And a tiny bit glad!

[Richard_Parker]

This is easily the most substantive debate on the board right now. Bravo, participants. A pleasure to read.

@Measure_for_Measure

National anti-SLAPP laws would be a good thing. Possibly a sufficient thing. Because of forum shopping, the current patchwork is insufficient.

Good point. But, of course, forum shopping is a problem for any solution you propose here, since you have to get all 50 states to do it. And I think that spreading anti-SLAPP laws is probably easier than figuring out a way to stop bad third-party funding without impeding good third-party funding.

@Measure_for_Measure

Mother Jones fought a lawsuit in Idaho, which doesn’t have such protections. They won. But they and their insurer paid millions in legal fees. That’s not sustainable. The plaintiff then claimed he was setting up a $1 million fund to sue the liberal media.

I wouldn’t be so sure. The relevant question is what happened to their litigation insurance rates, isn’t it?

@brickbacon

None of those laws would apply since the billionaire in question was not the plaintiff, and was doing all of this in secret.

Incorrect. The applicability of SLAPP laws turns on the facts of the case, not the motivation of the funders.

@brickbacon

I’d argue they kinda did get screwed here. The judge in this case is the most reversed judge in her county. The jury also awarded Hogan more than he asked for. That’s some BS.

They are appealing. If they win the appeal, then this point is moot. If they lose, then it’s probably wrong.

[brickbacon]

@Richard_Parker

Incorrect. The applicability of SLAPP laws turns on the facts of the case, not the motivation of the funders.

Not incorrect. The issue is how do you stop people like Thiel, not one case he happened to fund. Yes, SLAPP laws would hypothetical prevent the named plaintiff in a singular case, but it would never attach to Thiel because he is anonymous. He would be free to fund dozens of lawsuits if he wanted to. Remember, it’s just by chance that we know Thiel was even involved here.

@Richard_Parker

They are appealing. If they win the appeal, then this point is moot. If they lose, then it’s probably wrong.

It’s not a point, it’s an opinion. I could obviously be wrong, but I think that is a risk in any case. That said, I am sure enough about this that I would be willing to bet on it if you want.

[Richard_Parker]

@brickbacon

Not incorrect. The issue is how do you stop people like Thiel, not one case he happened to fund. Yes, SLAPP laws would hypothetical prevent the named plaintiff in a singular case, but it would never attach to Thiel because he is anonymous. He would be free to fund dozens of lawsuits if he wanted to. Remember, it’s just by chance that we know Thiel was even involved here.

It doesn’t have to attach to Thiel. He can fund a thousand frivolous suits, never pay any fines, and SLAPP will still completely protect media companies from being bankrupted. You don’t have to deter Thiel (although you probably would, eventually). You just have to make sure that media companies can recoup the cost of their defense in frivolous suits.

@brickbacon

It’s not a point, it’s an opinion. I could obviously be wrong, but I think that is a risk in any case. That said, I am sure enough about this that I would be willing to bet on it if you want.

Huh? My point was that either this judge did something wrong, in which case it is likely to be overturned. Or he didn’t do anything wrong.

[Bone]

@brickbacon

It is relevant if you think the plaintiff’s testimony and behavior were influenced in a meaningful way by the funding.

You mean, if he lied? Unless this influence is able to change the underlying fact pattern, or it caused Hogan to lie, I don’t see how it’s relevant. Gawker offered $X to settle. Absent Thiel, Hogan may have settled at that amount, or taken a different strategy. In any of those scenario, those are acceptable actions that don’t impact the the damages inflicted by Gawker or Hogan’s credibility. Unless you’re saying there is a possibility that Hogan didn’t actually suffer damages as he alleges? Is that what you’re saying?

Either way, it’s not worth getting sidetracked on.

Okay.

Aren’t you the same guy that thinks healthcare costs should be borne by the users lest people will overuse it? First, cost is not a barrier set up by the state in any meaningful sense. It’s the reality of litigation. That reality is generally a good thing. Otherwise courts would be clogged with meaningless nonsense.

I’m not sure how healthcare is related - can you flesh that out a bit? I understand that costs create barriers. But that doesn’t speak to the purpose of a cost set up to create barriers. You seem to be saying that one of the purposes or intent of the cost of small claim courts is to act as a deterrent. I don’t think that’s true at all. Costs are a reality, and having the administrative cost borne in part by participants is a far cry from imposed costs to persuade people to not use the resource.

There is no single reason, but ask yourself why public schools are free and courts are generally not. It’s in part because we want people to go to school, so we cover the administrative costs. When we don’t cover the costs, we are clearly stating that we want you to have some skin in the game.

I’m not seeing how this is relevant. One way these are very different is that school is compulsory, and going to court is not. There’s others, but I just don’t think this is a good example to illustrate your point.

Disclosure isn’t the only step you need to take to solve the problem. It’s the first step to making all sides aware of the issue. I am not saying (and never have) disclosure prevents Thiel’s blueprint from working in and of itself. I think you need to make those who fund lawsuits party to the actual suit so that anti-SLAPP laws and other laws to prevent legal harassment apply. To do that though, you first need to mandate transparency. What would happen in that climate is that Gawker would be able to at least make a case that Thiel is conducting a pattern of harassment, and they would be able to sue him to recover damages and legal fees if a court thought they deserved them. Right now, they are fighting an invisible foe with bottomless resources.

And we’re back to the situation where Thiel’s presence is supposed to have an impact on the outcome, where I would rather the outcome of a case be based on the merits. I think this may be a fundamental disagreement. Forcing third parties who fund lawsuits to be parties to those lawsuits means that issues of standing would be more likely to be used to cast aside things like public interest litigation. I think on balance that’s a bad thing. Consider Thiel’s activity as analogous to public interest litigation. Gawker is perpetrating mass harm to people and he’s using the court system to penalize them for the actual damage they inflict. Not that dissimilar to a class action suit.

[Bone]

@Measure_for_Measure

It matters for Hogan. There is the possibility that Hogan’s lawyers weren’t acting in his best interest. That’s always a concern.

That’s between Hogan, his attorneys, and the legal ethics board that govern the action of his attorneys. He knows what he’s signing up for when he aligns with Thiel.

Bone: Help me out. You seem to be arguing that informing the judge about Thiel’s sponsorship is pointless or nearly pointless. Ok. (IANAL) But does it have a downside? Informing juries has a downside: ad hominem issues might take their focus away from the substance of the case. But judges are suppose to be able to deal with that sort of thing, right?

Informing the judge either has an impact or it doesn’t. If it doesn’t, then it’s pointless. If it does, then it’s an ad hominem. Even if there are ulterior motives, the facts of a case, actual damages inflicted, are what should determine the remedy. Judges aren’t magically immune from the same thing that could taint a jury.

Are you aware of the procedural mechanics of an anti-SLAPP action? It’s essentially informing the judge. That’s fine if that is the rule, but implementing something that informs the judge and doesn’t provide guidance on what to do with that information is asking for widely varied treatment that I think is mostly likely going to end up inequitably. If informing the judge, and having a pre-trial motion to determine merits is desired, then states should enact anti-SLAPP legislation. That is the appropriate avenue to do so. And that’s fine.

Banning third party litigation funding is entirely different.

One downside might be cost and hassle. Those are real. It’s just not clear to me whether there are others though.

[Bone]

@brickbacon

Not incorrect. The issue is how do you stop people like Thiel, not one case he happened to fund. Yes, SLAPP laws would hypothetical prevent the named plaintiff in a singular case, but it would never attach to Thiel because he is anonymous. He would be free to fund dozens of lawsuits if he wanted to. Remember, it’s just by chance that we know Thiel was even involved here.

Is the goal to penalize Thiel, or to protect against harassment?

[brickbacon]

@Richard_Parker

It doesn’t have to attach to Thiel. He can fund a thousand frivolous suits, never pay any fines, and SLAPP will still completely protect media companies from being bankrupted. You don’t have to deter Thiel (although you probably would, eventually). You just have to make sure that media companies can recoup the cost of their defense in frivolous suits.

But the reality is that anti-SLAPP laws are not going to attach in every case even when the actual ulterior motive is something that would apply. Thiel was astute enough to not file (AFAWK) transparently frivolous lawsuits. This is the issue. Proving SLAPP is not that easy. To quote Wiki:

There is a difficulty in that plaintiffs do not present themselves to the Court admitting that their intent is to censor, intimidate or silence their critics. Hence, the difficulty in drafting SLAPP legislation, and in applying it, is to craft an approach which affords an early termination to invalid abusive suits, without denying a legitimate day in court to valid good faith claims. Thus, anti-SLAPP laws target tactics used by SLAPP plaintiffs. Common anti-SLAPP laws include measures such as penalties for plaintiffs who file lawsuits ruled frivolous and special procedures where a defendant may ask a judge to consider that a lawsuit is a SLAPP (and usually subsequently dismiss the suit).

So yes, you are correct in theory, but the in practice, this is never going to pan out. The point of having transparency is to strengthen the claim that SLAPP applies. For example, you would argue that a given borderline case is such not only based on the merits, but also the common backer of a dozen or so cases against us in an attempt to bankrupt our organization. Regardless, the point obtains that anti-SLAPP laws alone are not going to fix the issue here.

@Richard_Parker

Huh? My point was that either this judge did something wrong, in which case it is likely to be overturned. Or he didn’t do anything wrong.

She. Fair enough.

@Bone

You mean, if he lied? Unless this influence is able to change the underlying fact pattern, or it caused Hogan to lie, I don’t see how it’s relevant. Gawker offered $X to settle. Absent Thiel, Hogan may have settled at that amount, or taken a different strategy. In any of those scenario, those are acceptable actions that don’t impact the the damages inflicted by Gawker or Hogan’s credibility. Unless you’re saying there is a possibility that Hogan didn’t actually suffer damages as he alleges? Is that what you’re saying?

In my opinion, yes, I think Hogan is greatly exaggerating his claims and umbrage for either his own gain, or at Thiel’s direction.

@Bone

I’m not sure how healthcare is related - can you flesh that out a bit?

It’s related because it’s another area where cost barriers mitigate frivolity.

@Bone

I understand that costs create barriers. But that doesn’t speak to the purpose of a cost set up to create barriers. You seem to be saying that one of the purposes or intent of the cost of small claim courts is to act as a deterrent. I don’t think that’s true at all. Costs are a reality, and having the administrative cost borne in part by participants is a far cry from imposed costs to persuade people to not use the resource.

But every form of government has administrative costs. The places we choose to have those cost borne by users are typically those where the service is only of use to a select population, or where we want to set up minor barriers to entry to avoid overuse. Reasonable people can disagree on whether that is an explicit goal, but I think the foreseeability of that end makes it pretty clear that it was part of the initial calculus. There is a reason why courts typically aren’t free, and it’s not because the state couldn’t cover the admin costs if it chose to.

@Bone

And we’re back to the situation where Thiel’s presence is supposed to have an impact on the outcome, where I would rather the outcome of a case be based on the merits. I think this may be a fundamental disagreement.

Perhaps, but let’s look at this step by step. Do you agree broadly speaking that money can buy influence and in some cases can convince people to lie or mislead? Do you think a civil court jury is basing their damage assessment in part on the honesty and forthrightness of the plaintiff? If you think the later things can vary based on the influence of money, why shouldn’t a jury be aware of that potential corrupting force?

@Bone

Forcing third parties who fund lawsuits to be parties to those lawsuits means that issues of standing would be more likely to be used to cast aside things like public interest litigation.

Obviously the specific wording would have to address the issue of standing, but I don’t think that would be that hard to address with new legislation.

@Bone

Consider Thiel’s activity as analogous to public interest litigation.

But it’s not really public interest litigation in any real sense. It’s a guy using the courts to settle scores.

@Bone

Gawker is perpetrating mass harm to people and he’s using the court system to penalize them for the actual damage they inflict. Not that dissimilar to a class action suit.

Even if I bought that, the problem is that the Gawkers of the world are not going to be the only targets of this. Again, this basically happened with Mother Jones. MJ, AFAICT, wasn’t perpetrating mass harm to people; they were reporting what they thought to be a truth that was in the public’s interest.

Let’s look at another case where very similar issues of transparency and billionaires silencing the press occurred. Sheldon Adelson recently bought the LVRJ newspaper. However, he did this via a shell company, so his involvement wasn’t known for a while. What happened in short of course was that Adelson asked reporters to investigate his enemies, and to stop reporting on him.

The above anecdote was mostly to highlight how much of an existential threat anonymous money can be to press freedom. The can personally sue you for the things you say, they can sue you anonymously via countless proxies, or they can just buy the whole thing (something Thiel supposedly tried to do as well). The point being that if you are a reporter who has a story about a litigious, thin-skinned billionaire, would you even bother reporting it? Would you be allowed to?

@Bone

Is the goal to penalize Thiel, or to protect against harassment?

Ideally both in this particular case.

[Bone]

@brickbacon

In my opinion, yes, I think Hogan is greatly exaggerating his claims and umbrage for either his own gain, or at Thiel’s direction.

That’s for a jury to determine, as a trier of fact. Whether Hogan suffered actual damages and the extent of which is upon them to determine.

Reasonable people can disagree on whether that is an explicit goal, but I think the foreseeability of that end makes it pretty clear that it was part of the initial calculus. There is a reason why courts typically aren’t free, and it’s not because the state couldn’t cover the admin costs if it chose to.

I don’t think you’ve met the burden to demonstrate that acting as a deterrent is a goal of court fees. You’ve stated it a few times in different ways, but nothing has risen to the level of evidence. Cost may act as a deterrent, but that’s a far cry from cost being imposed with the intent of being a deterrent.

Perhaps, but let’s look at this step by step. Do you agree broadly speaking that money can buy influence and in some cases can convince people to lie or mislead? Do you think a civil court jury is basing their damage assessment in part on the honesty and forthrightness of the plaintiff? If you think the later things can vary based on the influence of money, why shouldn’t a jury be aware of that potential corrupting force?

Because that’s the fallacy of association. People may make these kind of evaluations but in my mind they should not do so. I agree that money can buy influence in some cases and people can be persuaded to lie for money or other motivations. I do agree that a civil jury is basing their damage assessment in part on the credibility of the plaintiff. I think in weighing the harms, forcing knowledge of third party funding does more harm than good and the probative value is outweighed by the prejudicial impact.

But it’s not really public interest litigation in any real sense. It’s a guy using the courts to settle scores.

I think that’s a content based position. Whether something is public interest litigation or ambulance chasing litigation depends on a subjective evaluation. I’m sure there were slam dunk bona fide public interest litigation where opposed parties believed similarly - that the people agitating for desegregation were just out to overturn a way of life, to get back at the white man, etc.

The above anecdote was mostly to highlight how much of an existential threat anonymous money can be to press freedom. The can personally sue you for the things you say, they can sue you anonymously via countless proxies, or they can just buy the whole thing (something Thiel supposedly tried to do as well). The point being that if you are a reporter who has a story about a litigious, thin-skinned billionaire, would you even bother reporting it? Would you be allowed to?

I think in today’s media, the reporting can’t be contained. I appreciate there could be negative outcomes as you identified. I’m satisfied that the protections afforded journalists today in this country are sufficient that such reporting can occur. This isn’t the NY Times reporting on an election - it’s Gawker being salacious.

Ideally both in this particular case.

What did Thiel do that rises to the level meriting penalty? That’s the part where we deviate - protecting against harassment is perfectly fine and is what anti-SLAPP and loser pays rules are supposed to do. Forced disclosure of funding sources is not designed to protect against harassment - it’s meant to influence the judge and jury through ad hominem. That’s bad.

[Ravenman]

@Bone

That’s for a jury to determine, as a trier of fact. Whether Hogan suffered actual damages and the extent of which is upon them to determine.

Exactly. And we who are not the judge or jury can hold an opinion of whether a lawsuit is generally worthy of being heard or would seem to be frivolous, not for the purposes of producing a binding judgment on someone, but for the general public policy issue of whether our court system is being abused and whether the rules of the courtroom should be changed in some way.

I don’t think you’ve met the burden to demonstrate that acting as a deterrent is a goal of court fees. You’ve stated it a few times in different ways, but nothing has risen to the level of evidence. Cost may act as a deterrent, but that’s a far cry from cost being imposed with the intent of being a deterrent.

As I’ve cited before, the idea of establishing government-sanctioned barriers to the courtroom (as opposed to the practical barrier of lawyers being expensive) runs contrary to the text and spirit of the Seventh Amendment, in which people are guaranteed access to a jury trial in civil cases when the stakes are high enough. Increasing barriers to have civil cases heard is a risky thing in terms of the basic civil rights of this country.

What did Thiel do that rises to the level meriting penalty? That’s the part where we deviate - protecting against harassment is perfectly fine and is what anti-SLAPP and loser pays rules are supposed to do. Forced disclosure of funding sources is not designed to protect against harassment - it’s meant to influence the judge and jury through ad hominem. That’s bad.

Exactly. Just like if a flawed research study is funded by the tobacco industry, the proper response is to point out why the science is flawed – not to point out that it was funded by the tobacco industry. It doesn’t matter whether a research paper with a particular conclusion is funded by the tobacco industry, the American Medical Association, the U.S. Postal Service, or the Knights Templar: if the study is sound, it is sound; if it is wrong on the facts, it is a bad study.

I cannot help but think that brickbackon simply doesn’t have an appreciation for why ad hominem arguments are not substantive. Forget Thiel’s involvement: let’s say Hulk Hogan was not a popular figure in wrestling, let’s say the case was brought by someone truly awful with no redeeming qualities whatsoever, but the facts of the case remained the same.

I’m willing to say that if the exact same case was brought by someone who is generally acknowledged to be an awful person (e.g, Nick Denton, Jose Canseco, Martin Shkreli, Gordon Ramsay) or by someone who is generally awesome (e.g., Vin Diesel, Kanye West, Moe Howard, Ty Cobb), the verdict ought to be the same. I’m not saying it WILL be the same, but it OUGHT to be the same.

[Bone]

@Ravenman

I’m willing to say that if the exact same case was brought by someone who is generally acknowledged to be an awful person (e.g, Nick Denton, Jose Canseco, Martin Shkreli, Gordon Ramsay) or by someone who is generally awesome (e.g., Vin Diesel, Kanye West, Moe Howard, Ty Cobb), the verdict ought to be the same. I’m not saying it WILL be the same, but it OUGHT to be the same.

(my bold)

I think we may need to have words here - you seem to have switched a couple names around.

[Ravenman]

(I did mean for the list of awful people to actually be awful – but the awesome people list is a little tongue in cheek. Ty Cobb? Srsly?)

[brickbacon]

@Bone

That’s for a jury to determine, as a trier of fact. Whether Hogan suffered actual damages and the extent of which is upon them to determine.

But a jury cannot make an appropriate determination without knowing the facts. Let’s say hypothetically that Hogan didn’t care at all that Gawker did what they did, but Thiel offers Hogan a high paying job if he agrees to sue Gawker and to act as if he was damaged by their actions. And let’s further say that Hogan’s years as a pro wrestler made him a good actor. Wouldn’t a jury be in a better position if they knew Thiel was involved, and if the defense could compel him to testify about his role?

@Bone

I don’t think you’ve met the burden to demonstrate that acting as a deterrent is a goal of court fees. You’ve stated it a few times in different ways, but nothing has risen to the level of evidence. Cost may act as a deterrent, but that’s a far cry from cost being imposed with the intent of being a deterrent.

What evidence would exist either way? Some common sense should be employed here. The admin costs for small claims courts are almost certainly exceeded by the fees paid by litigants. Fees deter some people, and that fact alone is foreseeable. If they didn’t want to deter people, there would not be fees.

@Bone

Because that’s the fallacy of association.

No, it’s not. It could be, but it doesn’t mean it is. Again, it’s about the level of scrutiny one is subject to. If before the SC ruled on gay marriage, we found out that half the justices who voted eventually voted for it were paid $1mm each in speaking fees by a pro-marriage group, would you think that was no big deal? Of course that alone doesn’t mean they were influenced to rule on one side vs. another, but it certainly means their votes and opinions should be looked at with a lot more scrutiny. In fact, most people would expect those judges to recuse themselves if the association were strong enough.

Even looking at this case. Imagine if we found out the judge or a few of the jurors were best pals with Thiel. Would you think that was no big deal, or would you want to delve deeper into the association.

@Bone

I think in weighing the harms, forcing knowledge of third party funding does more harm than good and the probative value is outweighed by the prejudicial impact.

Why? Why do you assume typical third party funding is viewed poorly by juries or litigants? It might be, as it should be, when the funder is a vindictive billionaire. But that’s a pretty extreme example.

@Bone

I think that’s a content based position.

Yes, of course it is. Why wouldn’t it be? You were talking specifically about Thiel’s actions.

@Bone

I think in today’s media, the reporting can’t be contained.

What makes you think that? Yes, the barriers of entry to journalism are low if not non-existent, but the cost of reporting accurately and thoroughly is high. Especially when it comes to litigious rich people.

@Bone

What did Thiel do that rises to the level meriting penalty?

We don’t know. We may never know. That is the issue. Right now, we only know what Thiel has decided to tell us. That’s the problem.

@Bone

That’s the part where we deviate - protecting against harassment is perfectly fine and is what anti-SLAPP and loser pays rules are supposed to do. Forced disclosure of funding sources is not designed to protect against harassment - it’s meant to influence the judge and jury through ad hominem. That’s bad.

But vowing to put a company in perpetual litigation alone can be a form of harassment. Kinda like if the police just followed you 24/7 because the Chief decided you were a jerk. Even if they only stopped you lawfully, or when you were supposedly breaking a law, the fact that you being followed and targeted can be harassment. Your response seems to be akin to arguing that if you didn’t do anything wrong, it doesn’t matter if someone powerful is targeting you for revenge.

@Ravenman

I cannot help but think that brickbackon simply doesn’t have an appreciation for why ad hominem arguments are not substantive. Forget Thiel’s involvement: let’s say Hulk Hogan was not a popular figure in wrestling, let’s say the case was brought by someone truly awful with no redeeming qualities whatsoever, but the facts of the case remained the same.

But we are not talking about someone of ill repute, we are talking about someone who may be induced to lie or exaggerate their substantive claims in order to exact revenge. It’s not ad hominem for that reason.

[Bone]

@brickbacon

But a jury cannot make an appropriate determination without knowing the facts. Let’s say hypothetically that Hogan didn’t care at all that Gawker did what they did, but Thiel offers Hogan a high paying job if he agrees to sue Gawker and to act as if he was damaged by their actions. And let’s further say that Hogan’s years as a pro wrestler made him a good actor. Wouldn’t a jury be in a better position if they knew Thiel was involved, and if the defense could compel him to testify about his role?

Nothing Thiel can do can impact what has already happened to Hogan before the trial. If Hogan didn’t care at all about Gawker’s actions, then he wouldn’t agree to be party to the suit - he is not being compelled in some illegal way to pursue the suit. Lots of public interest litigation seeks out plaintiffs to be the front of test cases. We may be at an impasse because I can’t see how Thiel’s involvement is material to the damages inflicted by Gawker.

What evidence would exist either way? Some common sense should be employed here. The admin costs for small claims courts are almost certainly exceeded by the fees paid by litigants. Fees deter some people, and that fact alone is foreseeable. If they didn’t want to deter people, there would not be fees.

Evidence? Perhaps something that describes fees being used to create a deterrent? If I want to obtain a permit to hold a protest, demonstration, or other political activity, I need to pay a fee. Would it be fair to say the fee is imposed to deter people from engaging in political activity? I don’t think so. The fee may deter people, but that’s not the purpose. Here is evidence that fees can be imposed as a deterrent:

Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.

And this can be used arguably:

The court in exceptional cases may award reasonable attorney fees to the prevailing party.

Those are deterrents. They are specific fees based on conduct - to deter conduct. What you are describing is fees charged in general to all comers to deter the general use of the court system. There is no evidence this was part of the intent of the fees imposed.

@brickbacon

If before the SC ruled on gay marriage, we found out that half the justices who voted eventually voted for it were paid $1mm each in speaking fees by a pro-marriage group, would you think that was no big deal? Of course that alone doesn’t mean they were influenced to rule on one side vs. another, but it certainly means their votes and opinions should be looked at with a lot more scrutiny. In fact, most people would expect those judges to recuse themselves if the association were strong enough.

Even looking at this case. Imagine if we found out the judge or a few of the jurors were best pals with Thiel. Would you think that was no big deal, or would you want to delve deeper into the association.

I think those instances could raise ethical issues that are separate from the subject of this thread.

Why? Why do you assume typical third party funding is viewed poorly by juries or litigants? It might be, as it should be, when the funder is a vindictive billionaire. But that’s a pretty extreme example.

It’s not just instances when third party funding is viewed poorly - it could be viewed favorably. The ACLU supports a case, so they receive sympathetic treatment. That is bad too for the exact same reasons. Financial support of litigants isn’t responsive to the underlying facts of a case, unless that financial support is used to suborn lying or some other misrepresentations. If the facts of an underlying action are known, the funding of a lawsuit after the fact is irrelevant.

Yes, of course it is. Why wouldn’t it be? You were talking specifically about Thiel’s actions.

I’m saying, you don’t believe that Thiel is engaging in public interest litigation. Thiel does. Who is right?

But whether you view this kind of litigation as public-spirited or vexatious will often depend on your politics. After all, Thiel portrays his campaign against Gawker as a kind of public interest litigation.

“I can defend myself,” Thiel told the Times on Wednesday. “Most of the people they attack are not people in my category. They usually attack less prominent, far less wealthy people that simply can’t defend themselves.” Thiel added that “even someone like Terry Bollea who is a millionaire and famous and a successful person didn’t quite have the resources to do this alone.”

@brickbacon

But vowing to put a company in perpetual litigation alone can be a form of harassment. Kinda like if the police just followed you 24/7 because the Chief decided you were a jerk. Even if they only stopped you lawfully, or when you were supposedly breaking a law, the fact that you being followed and targeted can be harassment. Your response seems to be akin to arguing that if you didn’t do anything wrong, it doesn’t matter if someone powerful is targeting you for revenge.

That only works if the company is perpetually engaging in tortious behavior. When you talk about police, you’re moving on to criminal investigations and activities of the state. I think that introduces additional nuance that makes the comparison not apt. I think of it more like this: I hate Comcast. If I had unlimited resources, I may put up some of those resources to facilitate people’s class action lawsuits against Comcast for their shitty business practices. I may not even be able to identify specific business practices that are disallowed. To resolve this, I could invite people to apply by showing they have a good case, and then only financially back good cases. This should be allowed.

But we are not talking about someone of ill repute, we are talking about someone who may be induced to lie or exaggerate their substantive claims in order to exact revenge. It’s not ad hominem for that reason.

Attempting to influence the jury or taint their judgment based on a funding source is an ad hominem. It introduces doubt simply by existing, without any connection to the underlying damages inflicted.

[brickbacon]

@Bone

Nothing Thiel can do can impact what has already happened to Hogan before the trial.

But the outcome of a trial is not solely based on factual elements that happened before the trial. You are right in that Thiel’s money didn’t coax Gawker into publishing Hogan’s sex tape. However, the trial is about more than just that.

@Bone

If Hogan didn’t care at all about Gawker’s actions, then he wouldn’t agree to be party to the suit - he is not being compelled in some illegal way to pursue the suit.

How do you know that? What if he is accepting a job or some other enrichment in order to participate? How would we ever know that?

@Bone

Evidence? Perhaps something that describes fees being used to create a deterrent?

My point was that there is little explicit evidence of why a given fee was created or by whom. That’s what you asked for. Suffice it to say that it clearly functions as a deterrent, such an effect was foreseeable, and removing them would almost certainly increase the number of frivolous lawsuits.

@Bone

Would it be fair to say the fee is imposed to deter people from engaging in political activity? I don’t think so. The fee may deter people, but that’s not the purpose.

You are changing the issue. Court fees don’t necessarily discourage litigation, they specifically discourage frivolous litigation. I would say fees for permits discourage people who are not serious from getting permits for legitimate political activity. That said, I think it’s less of an issue in that area.

@Bone

I think those instances could raise ethical issues that are separate from the subject of this thread.

It’s the same exact issue: the possibility that money is a corrupting influence.

@Bone

It’s not just instances when third party funding is viewed poorly - it could be viewed favorably.

And so could the named plaintiff himself. Why is this an issue for one party and not another?

@Bone

Financial support of litigants isn’t responsive to the underlying facts of a case, unless that financial support is used to suborn lying or some other misrepresentations. If the facts of an underlying action are known, the funding of a lawsuit after the fact is irrelevant.

Hello? That can’t be known if we have no idea that the financial support exists. You are assuming we’d just independently figure out the plaintiff was lying or misrepresenting facts, but that is not always the case.

@Bone

I’m saying, you don’t believe that Thiel is engaging in public interest litigation. Thiel does. Who is right?

Yes, that’s why it’s clearly my opinion.

@Bone

That only works if the company is perpetually engaging in tortious behavior.

Clearly that is not true as the MJ example shows us. Your argument is like saying you will never be arrested if you don’t do anything wrong.

@Bone

When you talk about police, you’re moving on to criminal investigations and activities of the state. I think that introduces additional nuance that makes the comparison not apt.

How so? Again, if you are not doing anything wrong, why would you have a problem with the police following you all the time? If your issue is the state doing it explicitly, feel free to substitute a cadre of some billionaire’s private security officers who call the cops anytime they think they see you violating the law. Would you be okay with that?

I

@Bone

think of it more like this: I hate Comcast. If I had unlimited resources, I may put up some of those resources to facilitate people’s class action lawsuits against Comcast for their shitty business practices. I may not even be able to identify specific business practices that are disallowed. To resolve this, I could invite people to apply by showing they have a good case, and then only financially back good cases. This should be allowed.

Comcast is a huge corporation who can fight back. Most small media companies are not.

@Bone

Attempting to influence the jury or taint their judgment based on a funding source is an ad hominem. It introduces doubt simply by existing, without any connection to the underlying damages inflicted.

Why do you think prosecutors are required to disclose during the discovery process any promises, inducements, or rewards that have been given to a witness? Surely a defense attorney bringing up such an arrangement in court would be an ad hominem by your logic, right?

[Bone]

@brickbacon

But the outcome of a trial is not solely based on factual elements that happened before the trial. You are right in that Thiel’s money didn’t coax Gawker into publishing Hogan’s sex tape. However, the trial is about more than just that.

I think you would need to establish just what those allegations are, rather than a nebulous unknown. So far, folks have speculated Hogan’s choices may have been influenced by Thiel’s backing, that he may have accepted a settlement in a different way, etc. Even if all of that were to be true, I wouldn’t want it to impact the outcome. The only thing thus far that I think would be relevant is if Hogan lied. Of course, this would be important absent Thiel and a jury is charged with making that determination already. As I stated before, I think the potential impact to a jury causes more harm than the potential benefit gained by giving them potentially superfluous information.

How do you know that? What if he is accepting a job or some other enrichment in order to participate? How would we ever know that?

To me, this falls under the same umbrella as above. I’m okay with that - just like I’m okay with contingent fee litigation.

My point was that there is little explicit evidence of why a given fee was created or by whom. That’s what you asked for. Suffice it to say that it clearly functions as a deterrent, such an effect was foreseeable, and removing them would almost certainly increase the number of frivolous lawsuits.

I agree that there is little if any evidence of why a given fee was created or by whom. That’s my point - I think you extend the claim too far when you say that part of the reason the fee exists is to act as a deterrent. There is no evidence of that. I agree that the practical impact of a fee is to act in part as a deterrent, but again, that’s not its purpose.

You are changing the issue. Court fees don’t necessarily discourage litigation, they specifically discourage frivolous litigation. I would say fees for permits discourage people who are not serious from getting permits for legitimate political activity. That said, I think it’s less of an issue in that area.

I think it’s fine to focus on a subset of the total activity as you have done here, but it’s not accurate to say that court fees don’t necessarily discourage litigation - as you stated up thread, increasing the cost of something will reduce demand, generally. I think the deterrent effect applies to all cases, frivolous and meritorious. The marginal impact of that deterrent may be different among those sets.

It’s the same exact issue: the possibility that money is a corrupting influence.

It’s not really the same issue in an apples to apples kind of way. Yes money is involved, but the way you framed your examples was direct involvement. A judges being paid or jurors with a relationship to the parties of the lawsuit. Judges and juries are supposed to be impartial so their relationships are important, and there are specific ethical guidelines in that area. Parties to the lawsuit are not supposed to be impartial.

And so could the named plaintiff himself. Why is this an issue for one party and not another?

I feel like we’re rehashing a bit. It’s because the harm caused to a plaintiff is material to evaluating the magnitude of damages, if any. Your Chyna vs. Hogan example. But the funding of a lawsuit doesn’t impact the damages inflicted. Person A injures Person B. Does the fact that Person B works for a tobacco company matter? If several members of the jury had loved ones who died as a result of tobacco related medical issues, would it be relevant to inform the jury that Person B was a reviled tobacco employee? I don’t think informing would be bad in all cases - but on balance I think it would be a net negative.

Hello? That can’t be known if we have no idea that the financial support exists. You are assuming we’d just independently figure out the plaintiff was lying or misrepresenting facts, but that is not always the case.

I agree. Jurors are charged with being triers of fact. They may not always arrive at a correct decision.

Clearly that is not true as the MJ example shows us. Your argument is like saying you will never be arrested if you don’t do anything wrong.

Well, the MJ example worked out favorably in the end, no? That’s the whole purpose of the insurance they had. And with the Streisand effect I think those types of tactics will not often be successful. I believe there will be situations where it doesn’t work out, sure. But these types of harassment litigation, much like ADA trolls, patent trolls, etc. we can protect against these with anti-SLAPP legislation. We can implement loser pays. But sometimes innocents do get arrested. And there should exist protections that provide outs for those that are innocently embroiled in stupid litigation. Disclosure or prohibition of third party funding doesn’t do that. All the harms caused would still be caused - in other words, it’s not preventative.

How so? Again, if you are not doing anything wrong, why would you have a problem with the police following you all the time? If your issue is the state doing it explicitly, feel free to substitute a cadre of some billionaire’s private security officers who call the cops anytime they think they see you violating the law. Would you be okay with that?

Again, I think police example is sufficiently different. Police have powers that even billionaires don’t have. I think if a nefarious private individual attempted to co-opt police and public resources in the way you suggest they would not be successful.

Comcast is a huge corporation who can fight back. Most small media companies are not.

Does that change the calculus for you? Hogan couldn’t fight back. Would it be okay to harass through litigation those large enough to fight back? I don’t think so.

Why do you think prosecutors are required to disclose during the discovery process any promises, inducements, or rewards that have been given to a witness? Surely a defense attorney bringing up such an arrangement in court would be an ad hominem by your logic, right?

I think this is a good example. I need to think about this one.

[Ravenman]

@brickbacon

Why do you think prosecutors are required to disclose during the discovery process any promises, inducements, or rewards that have been given to a witness? Surely a defense attorney bringing up such an arrangement in court would be an ad hominem by your logic, right?

Because when prosecutors bring a criminal case against someone, the defense is entitled to know all the evidence relating to his case because his freedom – not just his money – is at stake. If the state had the option of burying exculpatory evidence, then we are allowing the state to reverse the presumption of innocence.

This standard should not apply to civil cases. The defendant in a civil case does not have his freedom at stake, nor is there an element of a need to constrain state power. The plaintiff in a civil case need not lay his whole life bare on the odd chance that the defendant in a civil case might find some hook to make vague insinuations about the motivations of the plaintiff.

As I understand it, the discovery in a civil case pertains more to examining the facts of the case, and each side requesting the other side to produce relevant documents, testimony, evidence, and so on. It isn’t a fishing expedition in which Gawker can compel Hulk Hogan’s attorneys to disclose a list of their other clients, for example, just so Gawker can claim that Hogan’s attorneys can’t be trusted because they once represented Enron (or whatever).

[brickbacon]

@Bone

I think you would need to establish just what those allegations are, rather than a nebulous unknown.

They are not allegations, it’s the basics of how a trial works. If a civil trial were solely based on just the base facts of the tort that happened pre-trial, then the funding wouldn’t be an issue.

@Bone

Even if all of that were to be true, I wouldn’t want it to impact the outcome.

If money motivated Hoagn to exacerbate his claims, you wouldn’t want it to affect the outcome?

@Bone

The only thing thus far that I think would be relevant is if Hogan lied. Of course, this would be important absent Thiel and a jury is charged with making that determination already.

But you cannot make that determination without all of the facts. Yes, a jury is changes with doing that, but they are doing so without all the relevant info. This is why the defense, and the jury subsequently, are told when a witness in a criminal trial accepts a deal to testify.

@Bone

To me, this falls under the same umbrella as above. I’m okay with that - just like I’m okay with contingent fee litigation.

Are you joking? You are fine with someone essentially being paid to be a plaintiff in a lawsuit for which they otherwise would not have brought? Really?

@Bone

I agree that there is little if any evidence of why a given fee was created or by whom. That’s my point - I think you extend the claim too far when you say that part of the reason the fee exists is to act as a deterrent.

And I disagree. The evidence for my claim is that foreseeability of the effect and the absence of a need to have the fees in the first place. You disagree. Fine, let’s move on.

@Bone

I think the deterrent effect applies to all cases, frivolous and meritorious. The marginal impact of that deterrent may be different among those sets.

If the plaintiff thinks the case has merit, they know they can get their fees back when they win. There is essentially no downside short of them not having $30 or whatever the fee is.

@Bone

It’s not really the same issue in an apples to apples kind of way. Yes money is involved, but the way you framed your examples was direct involvement. A judges being paid or jurors with a relationship to the parties of the lawsuit. Judges and juries are supposed to be impartial so their relationships are important, and there are specific ethical guidelines in that area. Parties to the lawsuit are not supposed to be impartial.

You’re missing the point. You claim a monetary stake in the outcome or process should not affect one’s impartiality. You say Hogan potentially being paid doesn’t change the facts so there is no harm done. I `am sure a judge in that position would argue the money didn’t affect the way they judged the case, and that judge might be right. There is no guarantee that money will compromise a person; it just changes the likelihood. The ethics are EXACTLY the same.

@Bone

I feel like we’re rehashing a bit. It’s because the harm caused to a plaintiff is material to evaluating the magnitude of damages, if any. Your Chyna vs. Hogan example.

The issue is how prejudicial the presence of someone well known to the public can be based on the esteem they are held in. You argue the esteem these outside funder are held in will influence jurors. I countered that the same applies to plaintiffs as well. Would it make any sense, in order to promote impartiality, for the plaintiff to remain anonymous? Put aside the legal rules which complicate this.

@Bone

But the funding of a lawsuit doesn’t impact the damages inflicted.

It can in myriad ways. As noted before, the damages are largely arrived at when jury assesses the credibility and strength of the case based on testimony. Funding can change the testimony which can in turn impact the damages. It’s not the bloodless process you imply it is. If it were, Hogan could just present his medical bills, lost income, etc. and call it a day.

@Bone

Person A injures Person B. Does the fact that Person B works for a tobacco company matter?

Probably not, but ironically, you could probably bring such a thing up in most cases.

@Bone

Well, the MJ example worked out favorably in the end, no?

No, of course it didn’t. They almost assuredly pay more in insurance, and now know that there is clear blueprint out there for the crazy billionaire who sued them to continually do it anonymously. Even in the short run, it didn’t work out favorably.

@Bone

And with the Streisand effect I think those types of tactics will not often be successful.

The Stresiand effect almost certainly will not apply. There is no way to find out who is funding a lawsuit with any certainty. We only know about Thiel because he admitted it.

@Bone

But these types of harassment litigation, much like ADA trolls, patent trolls, etc. we can protect against these with anti-SLAPP legislation. We can implement loser pays.

None of that would prevent this scenario. We’ve gone over this multiple times. You keep assuming that it’s only unscrupulous organization that can be successfully sued. It’s not. The reason is that every news organisation makes tons of mistakes. The trust the wrong sources, or imply something libelous. That goes for the NYT on down. Just like a cop following you all day will find something to arrest even the most law-abiding person with, a litigious billionaire will find actionable torts to bring to court.

@Bone

But sometimes innocents do get arrested. And there should exist protections that provide outs for those that are innocently embroiled in stupid litigation. Disclosure or prohibition of third party funding doesn’t do that.

It does if the source of the harassment is one party. If you arrested for something you didn’t do, wouldn’t you want a jury to know that the police chief personally vowed to destroy you with all of his power?

@Bone

Again, I think police example is sufficiently different. Police have powers that even billionaires don’t have. I think if a nefarious private individual attempted to co-opt police and public resources in the way you suggest they would not be successful.

We are not arguing the plausibility of the hypo. Again, say Bill Gates hires the whole Redmond PD to protect him at night. You live in Redmond, and did something to piss off Gates. He hires his off-duty cop army to follow you all day, then call in to their buddies on duty whenever they see you make any mistakes. The on-duty cops then follow up on the tip. Thus, Gates is using his private resources to have a public system punish you for your wrong doings. Do you think Gates is doing anything wrong? Of course, if you just never ever come close to ever breaking any law, you have nothing to worry about, right?

@Bone

Does that change the calculus for you? Hogan couldn’t fight back. Would it be okay to harass through litigation those large enough to fight back? I don’t think so.

Hogan clearly can fight back. Contingency based litigation is almost always available to someone in his situation.

@Bone

I think this is a good example. I need to think about this one.

I appreciate you being open about this point at least. Let me know what you think.

@Ravenman

Because when prosecutors bring a criminal case against someone, the defense is entitled to know all the evidence relating to his case because his freedom – not just his money – is at stake.

The presence of a deal to testify is not evidence.

[Bone]

@brickbacon

They are not allegations, it’s the basics of how a trial works. If a civil trial were solely based on just the base facts of the tort that happened pre-trial, then the funding wouldn’t be an issue.

This is how I think it should be. I think the trial should if not solely, at least primarily be based on the facts of the tort that happened pre-trial. The damages inflicted are part of that.

If money motivated Hoagn to exacerbate his claims, you wouldn’t want it to affect the outcome?

Here I think exacerbate would be too far - it’s on the spectrum of exaggerate or lie. I don’t think Hogan should be able to exaggerate or make his claims worse (worse meaning more damages). I think if as alleged Thiel’s funding caused Hogan to drop the claim that Gawker’s insurance would cover were true, that is fine with me. Hogan’s goal may not have been purely monetary and ensuring that Gawker directly pay rather than their insurance is a worthwhile goal.

Are you joking? You are fine with someone essentially being paid to be a plaintiff in a lawsuit for which they otherwise would not have brought? Really?

No joke. This is the basis of public interest litigation. Let’s take me for example - I am somewhat of a gun rights advocate. Certain groups have inquired of their members and I have volunteered to be a plaintiff. In what you may ask? Anything. I’m glad to be a plaintiff if my fact pattern were to be such that I would be a good candidate for a strategic lawsuit. In return, I would be compensated at a minimum to the extent of the expenses I may incur. If I am not a good candidate for whatever reason, I’d be glad to support eventual candidates who are found when the time comes. I would not otherwise bring litigation on my own because it’s costly. This is similar to NAACP v. Button.

You’re missing the point. You claim a monetary stake in the outcome or process should not affect one’s impartiality. You say Hogan potentially being paid doesn’t change the facts so there is no harm done. I `am sure a judge in that position would argue the money didn’t affect the way they judged the case, and that judge might be right. There is no guarantee that money will compromise a person; it just changes the likelihood. The ethics are EXACTLY the same.

…

The issue is how prejudicial the presence of someone well known to the public can be based on the esteem they are held in. You argue the esteem these outside funder are held in will influence jurors. I countered that the same applies to plaintiffs as well. Would it make any sense, in order to promote impartiality, for the plaintiff to remain anonymous? Put aside the legal rules which complicate this.

I don’t think I’m missing the point - maybe I didn’t make my point clearly. Judges are supposed to be impartial so if in fact or appearance they are not impartial, that’s bad. Plaintiffs are not supposed to be impartial - so if in fact or appearance they are not impartial, that’s fine. You can’t say because judges *are supposed *to be impartial and we should limit acts where they may appear to be biased, plaintiffs are not supposed to be impartial, so we should limit acts where they may appear to be biased. Those are very different scenario.

It can in myriad ways. As noted before, the damages are largely arrived at when jury assesses the credibility and strength of the case based on testimony. Funding can change the testimony which can in turn impact the damages. It’s not the bloodless process you imply it is. If it were, Hogan could just present his medical bills, lost income, etc. and call it a day.

I’m okay with this risk. To the extent that testimony is changed I operate under the ideas I outlined above. Unless it’s lying or something in that vein then modified testimony is okay.

None of that would prevent this scenario. We’ve gone over this multiple times. You keep assuming that it’s only unscrupulous organization that can be successfully sued. It’s not. The reason is that every news organisation makes tons of mistakes. The trust the wrong sources, or imply something libelous. That goes for the NYT on down. Just like a cop following you all day will find something to arrest even the most law-abiding person with, a litigious billionaire will find actionable torts to bring to court.

Well, torts inflicted by the NY Times on down can be litigated and if they have merit the NY Times should pay damages. I’m sure they get sued often. A simple mistake doesn’t rise to the level of libel. And since third party funding of litigation has been possible for quite some time, I’m not that concerned of any impending doom.

Hogan clearly can fight back. Contingency based litigation is almost always available to someone in his situation.

If the allegations are true, then Hogan did not have the resources to bring to conclusion the litigation that was done with Thiel’s backing. He could fight back, but not in the same way he could with Thiel’s resources. What if it was a minor blogger that didn’t have Thiel to back them up? Should they be able to accept third party funding? My point here, is the relative wealth of a person shouldn’t matter when determining if funding is allowed.

I appreciate you being open about this point at least. Let me know what you think.

@brickbacon

Why do you think prosecutors are required to disclose during the discovery process any promises, inducements, or rewards that have been given to a witness? Surely a defense attorney bringing up such an arrangement in court would be an ad hominem by your logic, right?

I still think this is a good question. My thoughts revolve around differences in civil vs. criminal proceedings, the power of the State vs. the power of individuals. Rule 3.8(d) of the Model Rules of Professional Conduct promulgated by the ABA indicates that promises of favorable treatment to witnesses in criminal proceedings should be disclosed, in conjunction with the requirements of Brady v. Maryland. I don’t think these rules hold for civil proceedings, but I’m not sure about that.

I think this is probably the strongest argument against my position - that non-disclosed third party funding may induce the plaintiff to lie or impact the earnestness of the plaintiff. I agree it may. I stand by what I said in my post #130: Because that’s the fallacy of association. People may make these kind of evaluations but in my mind they should not do so. I agree that money can buy influence in some cases and people can be persuaded to lie for money or other motivations. I do agree that a civil jury is basing their damage assessment in part on the credibility of the plaintiff. I think in weighing the harms, forcing knowledge of third party funding does more harm than good and the probative value is outweighed by the prejudicial impact.