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Philadelphia attorney Richard A. Sprague’s defamation lawsuit against the American Bar Association and the ABA Journal is shaping up to be one of next year’s hottest trials, with a star-studded witness list and a slew of interesting legal issues. But if the ABA and its lawyers get their way, the case won’t even make it to a jury. If it does go to trial, court papers show that Sprague and the ABA have very different ideas about the way it would play out. Over the next few weeks and months, U.S. District Judge William H. Yohn Jr. of the Eastern District of Pennsylvania must tackle a small mountain of motions, including three separate summary judgment motions. If the case survives summary judgment, Yohn must then decide a handful motions in limine from each side to frame the issues for trial. For starters, the ABA is seeking to block both of Sprague’s experts. And it also wants Yohn to limit the number of high-powered witnesses Sprague can call to the stand. Sprague’s witness list includes Sen. Arlen Specter; former ABA President Jerome Shestack; former U.S. Attorney Michael M. Baylson, who was recently sworn in as a federal judge; Philadelphia District Attorney Lynne Abraham; former Pennsylvania Attorney General Leroy Zimmerman; Temple University Chancellor Peter Liacouras; and Philadelphia Common Pleas Judge Esther Sylvester. “The power and prestige of these witnesses are likely to cause the jury to base their decision on Mr. Sprague’s association with these important people rather than the merits of the case,” the ABA’s lawyers wrote. In the suit, Sprague claims the ABA Journal falsely accused him of corruption when it referred to him as “perhaps the most powerful lawyer-cum-fixer in the state.” The article appeared in the October 2000 ABA Journal and was headlined “Cops in the Crossfire.” In it, 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 Abraham to pursue murder charges. Sprague’s suit focuses mostly on 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, 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.” Sprague won the first major battle in the case when Yohn rejected the ABA’s motion to dismiss on the grounds that the term “fixer” was intended as a compliment and therefore was not capable of defamatory meaning. Instead, Yohn held that “fixer” has both negative and positive meanings and that readers might have taken it the way Sprague suggests. But the ABA won the next round when Sprague conceded that he is a public figure whose libel case must meet the higher “actual malice” standard. Since then, the ABA’s lawyers — Joyce S. Meyers, David H. Marion and Michael K. Twersky of Philadelphia’s 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 that 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. Sprague’s lawyers — James E. Beasley and Barbara R. Axelrod of Beasley, Casey & Erbstein — have now responded to those motions with briefs that offer a clearer picture of their case and show that they intend to put the entire article on trial. As Beasley and Axelrod see it, the ABA Journal reporter decided to focus only on the DiPasquale case because he wanted to make the story about race. In fact, they say, Sprague had been hired by the district attorney’s office to work on two cases that presented the same issue. But in the second case, the police officers who shot an unarmed black suspect were black themselves. In their brief, Beasley and Axelrod set out to show that Carter’s description of the facts in the DiPasquale case was riddled with errors — proof, they say, that he was setting out to portray Sprague as corrupt. The brief says Carter and the ABA Journal “egregiously and deliberately misrepresented the facts of the underlying police matter, and then, with that warped foundation laid, told their readers that a district attorney was corruptly trying to help white police officers evade prosecution for the point-blank, gangland-style slaying of a black man; and to that they added this bald, outrageous lie: that the ‘fixer,’ Mr. Sprague, was brought in to ensure the success of this corrupt scheme by fixing the case.” As a result, they argue, the article “directly attacked the core of Mr. Sprague’s integrity as a lawyer and smeared his reputation in the most outrageous, wanton and reckless way.” They also argue that the article implied that Sprague was a racist. Beasley and Axelrod argue that the ABA’s editors have admitted that they were aware of the possible derogatory meaning of the term “fixer” and that they knew their readers were also aware of that negative meaning. The ABA’s summary judgment motion must fail, they said, since the linchpin of its argument is that the magazine’s staff intended the term “fixer” to be read in a completely positive and laudatory way — even though that definition is not recognized in the dictionary. But the ABA’s lawyers argue that Sprague’s lawyers are the ones whose logic falls apart since they “persist in arguing that the word fixer can have only a negative meaning.” Since the judge has already ruled that the term “fixer” is ambiguous, the ABA argues, it has already won the case. Sprague now can’t meet his burden under the actual malice standard, the ABA’s lawyers argue, since they can’t show that the ABA Journal‘s staff had the subjective intent to publish a false statement. Sprague’s lawyers said in a response brief that they considered the ABA’s argument “plain nonsense.” The ABA’s claim, Sprague’s team says, is that “there is no evidence from which a jury could find either that they intended fixer disparagingly or anticipated that it might be so interpreted.” But that argument, they say, is “completely at odds with common sense and moreover with the evidence, including defendants’ own admissions.”

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