Dominion v. Fox News

Some thoughts on the Fox-Dominion settlement:

• Most civil suits end in settlement. When I was a young lawyer trying to get some courtroom experience, it drove me nuts that cases I had spent late nights preparing kept settling — often on the courthouse steps. Those decisions are made by the client, and there is always judicial “encouragement” to get the parties to find middle ground.
• Settlements are the norm. But this one was truly exceptional.
• I keep hearing disappointment that Dominion settled the case for too little (less than half of the $1.6 Billion initial claim). The initial demand figure in any lawsuit is always a significant multiple of what the lawyers really hope to get. The fact that this case settled for $787.5 Million is astonishing. If, at the end of trial a jury had awarded even half that amount, Dominion’s lawyers would have been justifiably jubilant.
• Any trial victory would have been followed by lengthy appeals, culminating in a trip to the US Supreme Court on First Amendment issues. The current Court is a byproduct of Fox News. There is every reason to think that it would reverse a verdict against Fox, leaving MAGA world to gloat.
• It is true that the specter of Murdoch(s), Carlson, Bartiromo, et al, being forced to testify and publicly admit their “guilt” is something that many of us were looking forward to. The trial would not have been televised, so that the impact of such testimony would be roughly equivalent to the excerpts of deposition testimony and discovery disclosure (e.g., emails where Tucker states that he hates Trump) that were released leading up to the trial.

• If there had been a trial, no MAGA minds would have been changed because the MAGA news channels would have scrubbed the humiliation of Fox personnel from any trial summaries, the judge would have been attacked as a woke apologist from Joe Biden’s home state, and any outside (accurate) summaries would have been attacked as radical socialist MSM distortions.
• At the end of the day the audience for humiliating testimony would have been us — and while it would have reinforced our already deep understanding of how lousy Fox & Friends are, a guaranteed, un-appealable settlement of nearly $800 Million far outweighs the entertainment value of what we missed.
• This setelement won’t bankrupt Fox, but there are other suits pending. At some point, a Billion here and a Billion there begin to add up. I keep thinking that civil litigation may be the ultimate answer to Trumpism. The Dominion case has been resolved while we’re still waiting for Trump to be indicted for January 6, for election fraud, for fundraising fraud, for other apparently criminal conduct in his business dealings. Remember, it was Ronald Goldman’s family’s civil suit that brought OJ Simpson down after a criminal acquittal. Civil suits do not require unanimous verdicts. One MAGA holdout on a criminal jury can insulate Trump from liability.