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The lawyers defending the American Bar Association and the ABA Journal in a defamation suit brought by Philadelphia attorney Richard A. Sprague are waging a three-pronged attack in an effort to get the case tossed out without any trial. Attorneys David H. Marion, Joyce S. Meyers and Michael K. Twersky of Philadelphia-based Montgomery McCracken Walker & Rhoads have filed a trio of summary judgment motions that say Sprague lacks the evidence to prove actual malice; that he can’t show the Journal article at issue harmed his reputation or caused him emotional distress; and that he can’t meet the heightened test to win punitive damages where the plaintiff is a public figure. In the first brief, the defense team says that if U.S. District Judge William H. Yohn Jr. of the Eastern District of Pennsylvania finds Sprague can’t show actual malice, there would be no need to reach the two motions relating to damages. Sprague filed suit after an article in the Journal described him as “perhaps the most powerful lawyer-cum-fixer in the state,” according to court papers. The article appeared in the October 2000 ABA Journal and was headlined “Cops in the Crossfire,” court papers state. Reporter Terry Carter detailed the unusual court battles that ensued after Philadelphia police officer Christopher DiPasquale shot Donta Dawson, an unarmed black teen-ager in the early morning hours of Oct. 19, 1998. When the district attorney’s office chose not to prosecute DiPasquale, the article said, a group of black leaders and elected officials filed a private criminal complaint and won a court order from a black judge that required District Attorney Lynne Abraham to pursue murder charges. Sprague’s suit cites a single paragraph: “The political stakes were raised in May when the DA accepted outside help in the case from her former boss, Richard Sprague, perhaps the most powerful lawyer-cum-fixer in the state. The appearance of the storied Dick Sprague set off alarms in the black precincts. Within a week, they brought in their own big guns.” In its November 2000 issue, according to court papers, the magazine printed a clarification that said: “Attorney Richard Sprague has objected to a reference made to him in ‘Cops in the Crossfire.’ … The Journal intended the reference to mean that Sprague is known for his problem-solving skills in politically nuanced cases. The Journal did not intend to convey that Sprague has engaged in any unethical or illegal activity. The Journal regrets any confusion that may have arisen from its reference to Sprague.” In his suit, Sprague and his lawyer, James E. Beasley of Beasley Casey & Erbstein, allege that the article falsely implied that Sprague has “fixed” cases and “used ‘power’ to influence and/or arrange their outcomes by improper and/ or unlawful means.” Such a description, the suit says, “falsely ascribed to [Sprague] conduct and a character that would adversely affect his fitness to properly perform the practice of law.” Early on, Sprague cleared a significant hurdle when Judge Yohn refused to dismiss the suit and held that readers of the magazine could have attached defamatory meaning to the magazine’s labeling Sprague a “fixer.” Yohn found that the term “fixer” has both a positive and a negative meaning, and that since the ABA Journal‘s use of the term was not clearly positive, Sprague had a valid defamation theory. Now the ABA is urging Yohn to look past the theory and reject Sprague’s case for lacking the facts to back it up. The three summary judgment motions build on the ABA’s success in a previous motion that asked Yohn to declare Sprague a public figure. That motion proved to be a non-battle since Sprague opted not to contest it. But it was still a significant win for the ABA since the legal hurdles are much higher for public figures in libel suits. In the first summary judgment motion, the ABA argues that Sprague simply can’t meet the “actual malice” test. The term “actual malice,” the ABA defense team says, “is a term of art in constitutional law that has nothing to do with the common law meaning of malice as ill will or hostility. Rather, the [U.S.] Supreme Court has defined actual malice as publication of a statement ‘with knowledge that it was false or with reckless disregard of whether it was false or not.’ Similarly, ‘reckless disregard’ is a term of art, defined by the Supreme Court to mean publishing with ‘a high degree of awareness’ of probable falsity.” To win a libel suit, the brief says, the public figure plaintiff must prove “by clear and convincing evidence” that the defendant “in fact entertained serious doubts as to the truth of his publication.” In other words, the brief says, proof of actual malice requires a showing of a “calculated falsehood.” If that test is applied to Sprague’s case, the ABA insists he cannot win. “The actual malice standard cannot be met merely by demonstrating an ambiguous word choice that might lead a reader to misconstrue the author’s intended meaning. Rather, plaintiff must prove that defendants knowingly published a false statement with an intent to create a false impression in the minds of readers,” they wrote. The defense team reminded Yohn of his previous ruling that said the term “fixer” applied to a lawyer can have both laudatory and pejorative meanings, depending on the context in which it is used. “Thus, to meet his burden of proving actual malice, plaintiff must prove not only that the term ‘fixer’ could have a defamatory meaning but also that (1) the author and editors intended to communicate that defamatory meaning at the time of publication and (2) they had a high degree of awareness that the statement was false,” they wrote. On that point, the brief says, Sprague has “no evidence.” On the contrary, the ABA says, the deposition testimony of writer Terry Carter “establishes that he used, and intended to use, the term ‘fixer’ in the laudatory sense to describe Mr. Sprague as a highly regarded lawyer known for his skill in handling difficult, high stakes cases.” And the editors who reviewed the article all testified that they understood the word in context as conveying a “positive impression” of Sprague’s “reputation, skill and effectiveness,” the brief says. REPUTATION INTACT In the second motion, the ABA argues that Sprague cannot meet his burden of proving that he has suffered any harm to his reputation or compensable emotional distress. “Plaintiff has not come forward with any evidence — let alone competent evidence — that his reputation has been damaged,” the brief says. Instead, the brief says, Sprague’s parade of heavyweight lawyer witnesses — from Sen. Arlen Specter to former ABA president Jerome Shestack — have all said that they don’t think any less of Sprague as a result of the article and don’t know anyone who does. The witnesses who gave depositions included former U.S. Attorney Michael M. Baylson, who was recently confirmed for a seat on the federal bench; Philadelphia District Attorney Lynne Abraham; Philadelphia Common Pleas Judge Esther R. Sylvester; and former Temple University president and law school dean Peter Liacouras. And Sprague himself testified only about speculation that the story might cause him problems in settings where he is not well known, such as Washington, D.C., where Supreme Court law clerks or Justice Department officials might view his cases or his appointments to positions skeptically as a result of the opinion they had formed. The ABA argues that such speculation falls short of the legal test. “Mr. Sprague’s ‘evidence’ of reputational harm is based entirely on his inadmissible speculation that unidentified hypothetical strangers might think less of him. Pennsylvania courts have consistently held, however, that ‘injury to reputation is judged by the reaction of other persons in the community and not by the party’s self-estimation.’” In the final motion, the ABA says Sprague can’t meet the law’s heightened test for seeking punitive damages in a libel suit brought by a public figure. “Under Pennsylvania law, a public figure in a defamation action may not recover punitive damages unless he presents competent evidence of both actual malice and common law malice,” the brief says. Ordinary plaintiffs can prove liability by showing simple negligence — the publishing of a falsehood — and can win punitive damages if they can show actual malice, or publication with knowledge of the falsity. For public figures, the hurdles are higher at both stages. To prove liability, the public figure must show actual malice; to win punitives, he must show common law malice or “ill will.” The ABA argues in its third brief that Sprague “has not adduced any evidence that suggests, even remotely, that defendants harbored any ill will or ‘evil motive’ toward plaintiff.” Instead, the brief says, the evidence shows that the writer and editors at the ABA Journal didn’t even know Sprague personally and “harbored no animosity toward him.” And the article didn’t even focus on Sprague, the brief says. “In fact, he played a bit role in the story. Defendants did no more than use a word to describe plaintiff that the court has found to be ambiguous and that some readers may have misunderstood,” the brief says.

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