Celebrity Lawyer Breaks Down Pitt v. Jolie & Depp v. Heard Cases
[Source: The Litigation War Room]
Celebrity lawyer Christopher C. Melcher, who is ranked as a best family law attorney in California, breaks down Brad Pitt and Angelina Jolie‘s ongoing celebrity divorce battle as well as Johnny Depp and Amber Heard‘s defamation case on The Litigation War Room podcast.
Welcome to the Litigation War Room, where you will hear great stories and great insights from some of the nation’s most accomplished courtroom lawyers. Here is your host litigation attorney, Maxwell Goss.
On this episode I interview celebrity divorce lawyer Christopher C. Melcher of Walzer Melcher LLP, which is ranked as a best family law firm in California. Chris represents celebrities and high net worth individuals in divorce and other family law matters. Chris is also a regular commentator on legal cases involving famous people. He has been quoted in featured in media outlets, including ABC News, CNN, Fox News, USA Today, and Entertainment tonight. In this interview, Chris gives his take on the Johnny Depp Amber Herd trial and the ongoing custody battles between Brad Pitt and Angelina Jolie. Along the way, Chris provides useful insights for all lawyers on how to handle cases involving explosive, potentially damaging personal allegations. I really enjoyed this interview, and I think you will too. Chris Melcher, welcome to the Litigation War Room.
Well, thanks for having me, Max. I’m super excited to talk about this topic with you.
I’m excited too. Chris, I’d like to hear a bit about your practice. You’ve got a very interesting niche that I think will be of interest to our listeners, and after you tell us about that, then we’ll dig down into a couple of cases that I know are very much of public interest, and I think will peak the interest of our listeners. But to begin, will you go ahead and just maybe tell us just a little bit about you and about your firm and about your law practice?
Sure. I’m a divorce lawyer based in Los Angeles. I’m handling cases throughout California, and the niche that we have is representing folks that are going through high stakes divorce involving very large estates. So these are usually business owners, celebrities, trust fund beneficiaries, executives of publicly traded companies that are going through a divorce. It’s an interesting practice because when someone unfortunately has to divorce or break up, all aspects of their life ( a lot of times) are intertwined in that case. So it’s very personal and it’s not only just dealing with division of their home, it’s their business, it’s their future income retirement, it’s time with their kids, and when they can’t resolve things quickly, it winds up in a public courtroom. So this is very, very challenging litigation. It makes it interesting because we’re able to deal with so many aspects of law and valuing different types of assets. We never get bored, but what I found is, is that these are mostly psychologically or emotionally driven disputes, and that’s kind of where I’m focusing on the source of this problem and trying to address that, rather than just the legal aspects of it.
Now Chris, you’ve been described as a celebrity lawyer and you’ve appeared on television in a number of times, and people Google your name, they’ll find out that you’re a regular commentator in print and on television. You represent a lot of very interesting clients, a lot of high asset clients, as you mentioned, not only celebrities, but others with, as you say, very large estates. Just have to ask, how do you get into an area like that? That’s quite a niche.
Chris Melcher (03:20):
I fell into it when I got out of law school in the 93 and 94 era, the economy was in a terrible state in Los Angeles. There was no hiring and I had these ideas of being a corporate securities attorney and I wanted to work for the SEC, figure out all of this stuff about corporate securities and then go into private practice and represent companies in initial public offerings and take a piece of the offering for the services. I saw that with gentleman Richard Reardan, who had a firm Reardan Mackenzie in Los Angeles and became quite wealthy doing that, and then eventually was mayor of Los Angeles. So I was trying to follow in his footsteps, but when I got out, no one was hiring- not even the public defender. I went in private practice, kind of a come in the door type practice, and I got exposed to so many different areas of law doing that and settled in really in criminal defense and was specializing in or working towards my specialty in criminal defense.
And there was a guy down the hall from me who was a solo divorce practitioner who had this niche that he learned from his dad about representing these big divorce cases. And he was looking for somebody who could do trial work for him. And so he convinced me to switch over, which I had no idea that I would ever be a divorce lawyer. So once they started learning about the practice, they thought, wow, this is really interesting. So me, him and his secretary built a firm. Were now at, I don’t know, nine lawyers, eight or nine lawyers somewhere in there, and it’s been a great ride. So I’ve been a lawyer for 28 years, 20 as a divorce lawyer.
Okay. Well thanks for sharing that. That’s really interesting. For this episode, I wanted to get your insight on some things. I do want our listeners to be exposed to just some of your fascinating insights. You and I had a great conversation a week or two ago as we got ready for this podcast, and I know that you’re a regular public commentator on cases of public interest, so I wanted to dig into a couple cases that have been all over the media and get your insights on those. So let’s start with the very recent case, the Johnny Depp v. Amber Herd case. Can you tell us a bit? I mean, I think just to set the stage, I think everybody’s heard of it, everybody’s caught glimpses of it, at least on television or in the newspapers or on the internet. Some people probably watched every twist and turn, but if you could sort of level set and just let us know what’s the case all about.
Chris Melcher (05:59):
Sure. Well, there’s three cases, and I’m not involved as counsel in the case. I was a legal commentator following that case from the beginning when they separated.
And it started as a divorce and domestic violence restraining order application by Amber against Johnny back in 2016. So I followed that case in extraordinary detail. It’s been very interesting. And so they were married briefly and then when they broke up, Amber had filed a request for domestic violence restraining order against Johnny, giving him 24 hours notice to his counsel when he was overseas for the premiere of a movie. And his mom had just died. And Amber said that she was afraid based on some conduct that she alleged he had engaged in and went into LA Superior Court with this restraining order application. And these are handled in a very abbreviated way because there’s supposed to be emergencies and we want to protect people.
So, she asked for protection. She was given this order against Johnny, and then she walks out the front door of this courthouse in Los Angeles with a bruise on her face, and the media was there in force. And there’s questions about why the media was even there. It’s been alleged by somebody who formally worked for TMZ, Morgan Tremaine, that Amber had tipped off TMZ, and she definitely went out of the most public exit of that courthouse.
The bruise that she had on the side of her face or apparent bruise was contradicted by a photograph of her the following day where she was photographed with a high resolution lens by a paparazzi no bruise. And so there’s an allegation that she had applied makeup to her face to show that bruise, but Johnny settled quickly, or the two of them settled quickly after this. I think it was the right thing for both of them to do.
It was a 7 million settlement to her, and that should have been the end of it. And there was a non-disparagement provision in their settlement agreement, but it wasn’t the end of it. He paid her the money. She went on television saying that she had no interest in his money, that she had donated the $7 million to charity.
So she was kind of making these statements in the press.
Eventually she does an op-ed piece that the Washington Post had published where she said that she had spoken out, (and this is the beginning of the #MeToo movement) that she had spoken out against a powerful man that she was in a relationship with and bore the price or paid the price when all of these powerful people associated with him had retaliated. And it was clear from the statement, even though she didn’t name Johnny, that she was referencing him.
And there was also a statement that was made about Johnny in the UK by The Sun calling him a wife beater, where they were picking up these allegations that she made against him in the domestic violence restraining order application. So Johnny at first sued The Sun in England and for defamation, their laws are the opposite of ours. The publisher has to justify the statement.
So he had figured that he would win out there, and Amber was not a party, it was him versus the publisher. And Amber testified and he lost that case in England. The judge found that there was sufficient information on which this publisher could rely upon to make the statement because Amber had made it. Then thereafter, he sued her for this op-ed piece in Virginia and he won there. In that case, she had countersued him for some statements that his attorney at the time Adam Waldman had made in the press about Amber and the jury found that some of those statements were also false and gave a small, relatively smaller award against Johnny for those statements. So those are the three cases that took many, many years to resolve.
So it really did have its genesis in something that really was a family law type dispute. But there’s all these things that followed. And let me just pause here and ask, was it crazy for Johnny Depp to sue her for defamation in the United States after he had lost in the UK?
Chris Melcher (10:47):
Well, yeah. When I was watching this, I thought, like I say, it was the right thing to settle the divorce quickly. Then to sue in the UK, It’s like, okay, I mean look, he’s opening up. Anytime you sue, you open yourself up. So he opens himself up in the UK, but, they don’t have first amendment there, so then the publisher has to prove that he’s a wife beater. So okay, I can get my head behind that. But then he loses, which is like, wow. So he put himself out there, no, I’m not a wife beater. And then here you got this English judge after trial saying, well, hey, kinda looks like maybe you are. And so I thought, wow, that really was disastrous because how many people were really thinking about these allegations before he went and sued in England and now he’s put ’em on full display and he’s lost.
Wow, that really didn’t work out well for him. And then when he sued in Virginia, I thought, this is a mistake. That was my view that I stated at the time that it was just like, man, you has to leave this alone. You’re opening it up. You have to now prove that Amber’s statements about you are false and that they’re done with what we call actual malice because he’s a public figure. How are you possibly going to win this? Aren’t you just opening up more?
And when the case started, I mean there were really bad allegations that came out and I know we want to talk about that. It was like, man, you’re just bringing this on yourself. But something turned in the case and it flipped and he was able to recover from it. And I think that’s where the lessons come here for us in litigation. But it was a high stakes gamble that he made by basically fileting himself in public.
Yeah, it’s kind of amazing and really remarkable and remarkable in retrospect that he won. And I take it also had something to do with his prospects in Hollywood. My understanding, my very limited understanding, is that there’s some concern, is he going to be in the next Pirates of the Caribbean? Is there going to be another Pirates of the Caribbean, for example? And so maybe that’s why it was in addition to the personal reputational manners, maybe it was a matter of protecting his livelihood.
Chris Melcher (13:00):
Well, I think so. And it’s also just his reputation, his legacy, and it’s very difficult to overcome allegations. And unfortunately, what’s happened is in our society is that we’re quick to judge. People read headlines, they don’t read the story. So it’s easy to make an allegation against somebody and it will stick. And it’s very difficult to overcome it. And a lot, the classic advice has been, Hey, don’t address it. Just it’ll die down it, leave it alone. Because the more you address it, the more oxygen you give to that story. But the problem is, is that if you’re in Hollywood or any high profile business or really anything at this point, I mean if you’re accused of domestic violence, you become toxic. It’s like, no, people don’t want to work with you and it’s not safe for them to work with you because they don’t want to be criticized. So there was a matter of survival probably to his decision
And the days of sweeping those things under the rug probably long past as well. So maybe there was something about the moment, the #MeToo moment, on the one hand, maybe it looked worse for him, but on the other hand, maybe it made it all the more important for him to fight.
Chris Melcher (14:12):
Well… because things were swept under the rug and ignored and we covered for favored people is what made #MeToo necessary. Unfortunately, it can go too far and that the rights of the accused have sometimes been forgotten. And that’s what makes our society great is that we’re going to hold people accountable, but also we have to give people an opportunity to defend themselves. And they can’t do that in a tweet or immediately. There’s considerations here where maybe they can’t just immediately say, Hey, here’s my story. So, unfortunately our appetite for this information is insatiable and it’s, we want immediate responses where it just doesn’t really work that way. And some have paid the price. And he’s an example about don’t judge too quickly. Don’t look at the TMZ story of somebody walking out of a courtroom with a bruise on her face and assume that he beat her because he went through this trial and proved no, he didn’t.
Now tell us, as we all know now, there was a pretty dramatic reversal in this case. You said you were skeptical yourself at the outset. And I think it’s fair to say that there’s pretty common public perception that, gee, these allegations from her are pretty serious and doesn’t look so good for Johnny. What happened?
Chris Melcher (15:38):
So what happened is that Amber testified on television, and that’s what’s different than the UK case versus the US case. In the UK case that Johnny lost, Amber testified, but it was done privately. They don’t have televisions in the courtroom there. They don’t have a jury there for these type of matters automatically. And she, as a non-party, she was not subject to what we call discovery, what they call disclosure. So the deposition wasn’t taken…
Oh, because he was suing the son, the newspaper.
Chris Melcher (16:17):
Exactly right. And in England, which is different than the US system, you can get what they call disclosure from the person you’re suing or the entity you’re suing, but not from third parties. Unlike in the US we’re suing a company, well, we can start issuing subpoenas to whoever we want honestly and get a lot of information from them. The UK is different. So she was protected against disclosure. She didn’t have to reveal this. And when she’s told her story, it was in a courtroom that was not publicized in a way that the Virginia Court one was. So she was not subject to scrutiny. Fast forward to the Virginia trial, she then takes the stand after having been subject to discovery witnesses, having been forced to reveal information, including the two charities that she claimed she gave all this money away to the Children’s Hospital of Los Angeles and ACLU who had to testify.
They testified they didn’t get all that money from her. And so she was caught in a lie there and she was caught in a lot of other lies. And her demeanor on the stand is what did it, at least for me and I think for a lot of people. It’s one thing to say all these allegations, but then when you’re watching the person testify, you’re judging their credibility.
It’s one thing that we, I think all have experience in dealing with people and saying, do we like and believe this person? And it, there’s subtle cues that tell us yes or no. And the cues that she was giving off were highly incredible, inconsistent testimony. Her expressions didn’t match the words that she was saying. And I’m trying to give her credit saying, well look, if she is a victim of domestic violence or survivor domestic violence, and she would have potentially a lot of trauma from that. So maybe she wouldn’t express herself in a way that I would expect, or maybe she’s just different than the way that I would expect. But looking at her on the stand for several days, even on direct examinations, softball questions by her own counsel, not talking about cross, it was a horrible performance and it was unbelievable. And it was at that point, which was the turning point for me in that trial…I was saying, I just don’t believe her even before she was cross-examined.
And it’s interesting what you say, there’s real connection between likability and credibility. I don’t know if that’s good or bad or somewhere in between, but it seems to be a fact. And you and I were talking and something that struck me as maybe it’s not because I’m particularly, I’m not a particular fan of Johnny Depp, but I never thought of him as a particularly likable fellow. But by the end of this case, he certainly seemed more likable than his opponent. Can you just say a few words about likability and how that factors particularly in a setting where you have a jury?
Chris Melcher (19:06):
Well, that’s right. I mean, I was a fan of his work. I didn’t know anything about him personally. And when he started testifying, because he was the plaintiff, so he started out before Amber took the stand and it was torturous his testimony. He speaks slowly, he takes a lot of time kind of thinking about his words. And when I was watching, and a lot of times it was sped up on YouTube so I could get through this. And then the information that he was revealing about, he was abused by his parents, particularly his mom as a child. And the only way he coped with that was through drug and alcohol use. And I was like, wow, okay. I mean I actually feel really sorry for him based on what he went through, but it’s like, wow, really no, we shouldn’t be hearing this. This is such personal information.
But he took all that and basically turned what are some negative facts and explained it in a way that made him likable to saying, look, you’re seeing me hear with a lot of drug and alcohol problems. I’m not a party guy, I don’t do that to party to have fun. I do it to basically self-medicate. And it was like, wow, okay. I feel really badly for him. And through his experience of being abused by his mom, he said he retreated when his mom would abuse him, he would retreat, he wouldn’t fight back. We all have different ways of coping with this stuff. And then he ended up finding himself in a relationship, he said with Amber Herd who was aggressive and we see this from audio tapes of her at the time, highly aggressive towards Johnny. And what did he do? He retreated, he ran into a bathroom, locked himself in there and she’s trying to get in there to attack him further.
So it humanized him, it explained all this drug and alcohol abuse that we saw him engaging in from the eighties as a coping mechanism for some very difficult childhood that he had. And so he turned bad facts into something positive.
And then Amber also had the opportunity to do the same things to say whatever motivated her to be so angry and abusive towards him on the audio tapes that were played at that trial, she could have explained it- but she didn’t.
She took no responsibility. It was always Johnny’s fault. She took no fault of her own. And that’s what I think doomed her.
And it’s like all of these cases that we have, we have good and bad facts and it’s like it’s an opportunity to take a bad fact and turn it into a positive, you know, make you got lemons, you make lemonade. You can’t just say, here, eat the lemon raw. No, we’re not going to like that. But that’s the approach she took.
Yeah. Boy, so many lessons there for trial lawyers, not only those who represent celebrities, but really all of us, not just about likability, just whether you have a likable personality, but about telling a compelling, coherent, plausible story. And even when you’re talking about the big picture of your upbringing and your background and your struggles, it was very critical for Johnny Depp that it hung together with what he was alleging or what his defense was, I guess, what he was alleging. Whereas hers- there’s a disconnect. Is that fair characterization?
Chris Melcher (22:25):
That’s right. And I think it’s hard when- because we are storytellers as lawyers and a lot of times we want to focus on the facts of the incident and just dive right into it and get granular about whatever -it’s an accident or it’s this divorce thing that we’re asset that we’re valuing- and we just want to focus in on it because we know we have to prove that. But then we forget- we’re talking about people here- and we are also trying to sell our story or persuade a judge or a jury. We’re also obviously people. And so I think taking the time to humanize, and it’s a hard word I think for some people to understand because it’s like we’re human. Why do we need to be humanized? Well, I think in a case a lot of times we’re looking at ourselves as plaintiff or defendant, petitioner, respondent, and it’s like, hey, we’re people, those are just labels and what makes us special? Because there’s something about each one of us that makes us unique and relatable.
And I think that we has to take the time to bring that information out there. And especially like I say with the Johnny situation, it, it’s like his story explained a lot about him. It kind of then turned what could have been. Cause I thought like, wow, this guy’s just a raging alcoholic and drug addict and I really don’t like that to all of a sudden be like, oh wow, okay. He’s medicating himself for something that happened to him when he was a kid, and look at how he reacted in the face of aggression, he retreats and now we’re going to see evidence of him retreating in the relationship he had with Amber. So they tied it all together. It’s really, really well done.
So I do think that there’s lessons there of kind of slowing down, telling the story, humanizing our client.
I think you commented already, but say a little bit if you could, a little bit more about the resolution of the case in the jury’s verdict.
Chris Melcher (24:22):
So at the end of the day there’s like $10.35 million dollar verdict against Amber herd for defamation against Johnny Depp, and then a $2 million dollar verdict against Johnny for the statements that his lawyer had made after this domestic violence allegations were raised that were defamatory against her.
I don’t know that he’ll ever see a dime of that, but he did go there to clear his name and I think his name was largely cleared. There were so much viewership on that trial, it was similar to the OJ trial that I watched and a lot of us watched back in the day. This was an OJ trial. And I think the fact that celebrities were involved, that it was televised, that there was kind of this likable Johnny Depp character and the villain Amber heard there, it was like watching a mini series, but these are highly personal events for these two individuals.
But there were learning lessons for a lot of people about how law works and that that’s what I enjoy as a commentator is to kind of be a translator for what’s going on in the court. And I like it when people are engaged in legal issues.
But the main thing, the takeaway for me is that if somebody is going to go into court and testify, it has to be honest and you have to be likable and you have to take responsibility. And somebody coming in like Amber did, where it’s, ‘Hey, I didn’t do anything wrong, it’s all everybody else’s fault’ and I’m going to basically lie on the stand. That’s a recipe for disaster.
So true. And so well said. Really appreciate that. I want to respect your time. We could talk about Johnny and Amber all day I think. But I do want to talk briefly about another case that was in the press quite a bit, and I know you have some interesting observations about, but the saga of Angelina and Brad, the celebrity divorce of Angelina Jolie and Brad Pitt. What was that all about? Can you just set it up the genesis of that?
Chris Melcher (26:27):
Sure. And this is another one that started around the same time, I think it was 2016 that they were married, they had children together.
And then there was an incident on a plane in Los Angeles that Angelina claims that Brad was physically abusive towards one of their children. And so she files for divorce and she’s making these allegations here that he’s not safe to parent. And that sets off the divorce. They eventually resolve their financial issues-except for this co-interest that they had in a winery, Chateau business in France. But the custody issues have lingered on to this day. And this is another surprise because most celebrity couples will resolve things quietly because this is toxic to their brand. But here a second celebrity couple who have litigated throughout this entire period. Now the bad facts against Brad were, that he’s being accused by Angelina Jolie of this conduct and that is, it would be very, very damaging to his career or ability to work.
Chris Melcher (27:43):
So whatever happened on that plane, who knows we weren’t there. But he did handle it very well. Afterwards, he said, ‘I’ll submit to whatever questioning you want, I’ll go to co-parenting classes, I’ll have a monitor, basically the security guard present during my parenting time. I’m going to kind of back off and let Angelina dictate what the parenting term should be.’ Whether you did something right or wrong, that’s the way to move forward. It’s like, another parent has concerns. Let’s address those concerns and move forward. So even if he did something wrong on the plane, I think he comes out looking correctly as the solution focused, forward looking parent, let’s address it, let’s move forward.
And it really illustrates that it’s not just about getting back at Angelina, but he really does want the time with the children, right? And wants to address whoever’s right, whoever’s wrong, wants to address and move forward in whatever way necessary to make that happen.
Chris Melcher (28:47):
That’s right. It looks reasonable. When you’re defending somebody who’s been accused of some act of violence, a lot of times that client wants to fight and is saying, this is false, this didn’t happen. I want to defend myself. You go in there and fight and that that’s a natural reaction. But then we have to think about this.
How does that look when you’re accused of doing something violent and now you’re going in with a very aggressive posture in court, kind of looks like you’re a violent person. That could be a conclusion. It’s unfortunate, because how else do you defend yourself? But that’s a conversation that I have with the clients. It’s like, don’t fit the mold. Certainly you can put on a strong defense, but you have to be careful here because if you’re coming in too aggressive, you actually look like you’re a violent person potentially, or you have problems with your emotions or you are unaware of your effect on other people, whatever it’s going to be.
So it’s a very difficult thing when you’re accused of something how to respond to it. But he took the, ‘let’s back off approach. You got concerns, Angelina, let me address those concerns.’ So I think point Brad… Now you fast forward all these years later, six years later, there have been no allegations by Angelina Jolie against Brad Pitt for anything involving the kids since then, six years, the only incident she has is one time on a plane six years ago.
So why are they still fighting over custody? It makes no sense. Whatever happened is in the past, let’s move forward. Let’s address it. Nothing else has happened. So the theory is, it’s obviously something other than whatever happened on that plane must be driving this dispute. And it’s really unfortunate that both of them have been able to resolve this, because kids get affected by a divorce, even a friendly or amicable divorce. They get affected.
And especially when their parents are fighting for so long, it’s really, really harmful to the kids. And then you add on to the fact that they’re celebrities. So now everything that happens in that divorce case we’re even talking about now is all publicized. And these poor kids can’t have any privacy based on this dispute that their parents are unable to handle. So it’s really a shame on both of them that they’ve had that dispute go on for so long.
Something you said earlier was so perceptive, which is that, look, these celebrities like anybody else there, human beings are living out drama… We tend to identify, we take sides, maybe we switch sides as we watch these things unfold. And it’s easy to make light of the interest that many of us may have in celebrities. And there’s sort of a trivial side to it. But seems to me that’s part of what explains our interest is that these people are living out human life for everyone to see. And it’s of interest because they’re like us. They may be celebrities, they may be famous, they may be fabulously wealthy, but they’re like us and they have the same sorts of problems that either we have or that we’re acquainted with.
Chris Melcher (31:58):
That’s absolutely right. I mean, we’re all people and we all have the same problems. And in some way some of these celebs are ill-equipped to handle this situation because they don’t have anyone in their life who’s willing to hold them accountable or telling them ‘you’re out of line here, you have to stop this behavior.’ No one is going to dare say that to them because they’re going to fall out of grace with the celebrity. So sometimes they live in this bubble, the ones that are more aware- we are able to settle those cases quickly and that’s the right thing to do because it’s toxic to their brand. And then it gives them an opportunity to really be a role model for everyone else that’s looking up to them by saying, ‘if you have a dispute, this is the way to solve it. You don’t go six years in litigation, you resolve it quickly, respectfully, you move forward.’ And that’s the way it should be done.
And for the most part, except for a couple of these stories we’ve talked about- most of them have resolved things out of court because they’d be insane to fight. But when you are fighting in court, it’s very difficult because now you’ve got the litigation happening and you’re deciding what are you going to put in court papers? But then you also have what is going to go in newspapers. And it’s a very difficult dynamic to deal with that.
Just a couple of more general questions to wrap up. Both of these cases, the Depp Heard case and the ongoing Angelina and Brad celebrity divorce involve some unsavory facts, some unsavory allegations, and some cases that, especially in the Depp Heard- it’s rather salacious- but celebrity cases are not unique in having these kinds of facts. What advice would you give to attorneys for handling those kinds of facts? I mean, they’re really intensified in the case of celebrities. Because again, it’s all over the television and everything else. What advice would you give for attorneys for handling unsavory facts?
Chris Melcher (33:53):
And I think that because of social media, it’s not just the celebs who are being exposed with these allegations so quickly. I mean, things will spread very, very quickly about executives or other well known people in the community. So the decision has to be made quickly. How are we going to address this? So you, you’ve got an allegation that’s come out there, whether it’s a new lawsuit or just a claim that’s made on social media.
Decision point one is, do you ignore it and hope that it dies down or are you going to address it? And so that’s the first point. If you’re going to address it, how are you going to address it? Are you going to do it personally, meaning the client, or are you going to do it through a representative? What are you going to say? Are you going to come out with maybe some evidence?
And this starts going against traditional advice mostly as a lawyer, especially if you go back- let’s say 20 years ago… Lawsuit filed, what does the defendant do? No comment. It’s in litigation. We will address this in court, what? Five years later?
Damage is done in minutes…I’m talking to clients and saying, well you could do that. Maybe the story dies down or we’re going to address it. If we address it, maybe we’re going to come out with some text messages, photographs, videos, whatever we have. Just saying, not only is this a false story, everyone here needs to take a look at this.
Please slow down in your judgment and give us a chance here and get ahead of that story. So that’s another, again, decision point that has to be made. If something is done that’s wrong, then it’s like, okay, take an ownership of it. And again, contrary to advice, I mean advice is like deny, deny, deny or remain silent.
But it’s like, hey, okay, there’s something that happened.
Do we get ahead of it and say, ‘you know what? I messed up. This is what I did wrong. This is how it hurt whoever I hurt, and these are the steps that I’m doing to address that.’ The elements of a good apology, and again, these are conversations that I’m having with a client and I think everyone should be thinking about, because otherwise you’re just roasting.
If you go with the classic approach again, which might work, but you were literally on the slow roaster here in the media, on social media, allegations being made, conclusions being reached, and with no response. Okay, great. Are you going to then wait two years in court and then present that evidence? And who’s looking at that time? Who cares at that time? These are conversations that need to be had and done immediately. I don’t have great answers on them because they are all very unique facts, but that’s what I’m advising.
Well, let me wrap up then with one question. When you as an attorney decide, or at least propose or discuss with your clients going public in some way, either trotting out some evidence that may have been unknown to the wider public prior to that point, or if it’s going public with a mea culpa, an apology of some kind, obviously that’s fraught with some risks, those things are going to get thrown back in the client’s face in a deposition or at trial later. There’s always the risk of defamation, I can imagine all kinds of risks. So what do you do when a client does decide to go public in that way? What’s your best advice for handling it properly and making it work and helping the client not to shoot himself or herself in the foot?
Chris Melcher (37:29):
We are first going to look at how the client presents because some people are very good at giving these presentations. Others not so much. So if they’re not so articulate or just can’t really get the point across convincingly, then we say maybe we should have a spokesperson to do that for that client.
You raise a good point about defamation. What we’re seeing so often here is that allegations get made and then they’re denied, and the original accuser then sues for defamation saying, well, hey, you know, just defamed me by saying that I am a liar. And so we’ve seen plenty of examples of those lawsuits even against a lawyer who makes the allegation that it’s a denial. So we have to look through that. Many states have a litigation privilege that would protect that, but that’s only when cases are filed, or at least they’re being contemplated. So, we’d want to look through what state laws are going to protect us.
Again, it’s a crisis that usually has to happen very quickly, but I think gone are the days of being quiet. When you look at the news cycle 20 years ago, people were still getting a newspaper on their porch in the morning, and it took a long time to generate all of that news here. Social media is dominant and pretty much anyone can create a social media post, and if it’s about something interesting enough, it could take off. So I just don’t think we have the luxury of just waiting and saying, let’s think about this for three weeks.
Just like in court. You’ve has to get in there, take control of that narrative. Well, Chris, this has been a fascinating discussion, really fun for me. If listeners want to find you or contact you, how can they do so?
Chris Melcher (39:14):
Sure. So if you just look on the internet, Christopher Melcher of top family law firm Walzer Melcher LLP, you’ll see all my information there. Always happy to talk to other lawyers. If there’s issues concerning California family law, which is the only thing I really know, let me know. I’m always happy to help answer those questions. And if anyone wants to connect up with me on social media, I’m really just looking at Twitter right now, so I’m at @CA_Divorce on Twitter. That’s my handle, and if you can follow me there or chat me up there, I’d love to meet you.
Okay, great. Well, Chris Melcher, it’s been a pleasure. Thank you so much for sharing your insights on the Litigation War Room.