For those of us who toil in the vineyards of civil litigation, unalloyed good news is rare. Even great outcomes come at too high a cost in fees and what is usually years of delay. Far more often the outcomes are anything but great — either the high cost and daunting process of litigation makes any attempt at justice unattainable, or in the cases that are brought, justice is thwarted or so compromised that it is just a tarnished accommodation of competing financial interests of parties and counsel moderated by an exhausted deal-making judiciary.
The enduring popularity of crime fiction and the mystery novel, as Dorothy Sayers well understood, is that it represents a “dream of justice” not encountered in the actual tribunals of our courts or their corridors. So it was with considerable delight and astonishment that I picked up my morning newspaper on Feb. 26 to read the following full page announcement in the New York Times:
On February 5, 2014, the National Enquirer released an article about Philip Seymour Hoffman and David Bar Katz that purported to be an exclusive interview with Mr. Katz. Following a lawsuit brought by Mr. Katz, the Enquirer investigated further and learned that it had made a good faith error by publishing an interview with a person who falsely and convincingly claimed to be Mr. Katz. The Enquirer promptly and responsibly acknowledged its error and publicly apologized to Mr. Katz, his family and Mr. Hoffman’s family.
Given that the malicious false interview asserted among other things that Mr. Katz, a well-known playwright and screenwriter, was complicit in Mr. Hoffman’s drug use and had freebased cocaine with him the night before the actor’s death — a report first relayed to Mr. Katz by his 14-year-old-son — any lawyer could tell you that harm could be presumed at law. Mr. Katz signed the libel suit within hours of learning of the publication. Within two days, the Enquirer retracted the interview and apologized.
The Enquirer’s prompt retraction and apology was accepted by Mr. Katz who then suggested that something positive come out of these unfortunate events, and together with the Enquirer, which provided the funding, he established a foundation in honor of Hoffman to present an annual $45,000 grant to an American playwright for an unproduced play that best embodies a search for truth, as determined by a committee of leading playwrights. The Enquirer understood that it should take full responsibility for its error, agreed with that goal and funded the foundation.
Three weeks to the day after the defamatory publication, the parties achieved something like perfect justice. Swift. Swiftian, even. A modest proposal to set up an annual sum that represents a fraction of what protracted litigation would have cost to right the wrong, patch the wound and heal the blow to Mr. Hoffman’s friend and family, while at the same time honoring a talented artist brought to a sad early end by his addiction. It doesn’t appear that any lawyers got rich on the proceedings and the reports indicate that Mr. Katz focused the recovery on more than a purely personal reward for the harm done to him by what he called these “awful” and “ludicrous” falsehoods about his friendship with the actor.
In all my years as a lawyer, I’ve never seen such swift and satisfying justice — a thoroughly sensible and admirable outcome brought about by honorable behavior by all of the participants in the legal proceedings, especially Mr. Katz, but also legal counsel for both parties.
Thomas Jefferson wrote that “the most sacred of the duties of government is to do equal and impartial justice to all citizens” and yet I doubt if I am the only lawyer who would agree with the ancients that justice is the least observed of all the virtues. We as a profession should take time to reflect on such an achievement, extend our admiration to all involved, and finally, I hope, ask ourselves why examples of the judicial system working so well as this are so rare.•