Those nasty things he said are privileged? What does that mean? Ask the Lawyer
Q: We have a dispute with a vendor who has a lawyer demanding payment and threatening a lawsuit. The vendor sent me a hostile email, which is abusive and false, and copied it to our mutual customer. I am told it is “privileged” so I can’t make claims about it. Can you explain this?
S.J., Cerritos
A: In California, there is a litigation privilege that protects communications from civil liability. These can include a variety of publications, from writings to verbal accusations. The privilege is set forth in Civil Code Section 47b, and can, in fact, be absolute.
There are some exceptions to the litigation privilege, however, such as a violation of certain state and federal unfair debt collection statutes, and criminal prosecution for perjury. Further, bear in mind that for a communication to be privileged and thus protected, it must be made to further the objects of the litigation, and also must have some connection or logical relation to the action.
Given the nuances here, consultation with qualified counsel is highly recommended. Incidentally, I know from personal experience about remarks that have been aimed at me related to a potential lawsuit — and which were highly offensive. I was not able to take action, however, given the litigation privilege. Instead, we focused on prevailing in the eventual case, as well as showing that the “bad guy” would be extremely foolish to continue his conduct.
Q: Our lawyer tells us we can impeach a key witness in the case (who will testify for the other side). We think he should make that clear now so the case could go away, but our lawyer says it is a better strategy to wait and bust the witness at trial. Any thoughts?
S.G., Belmont Shores
A: This is not as unusual a dilemma as you may think. I say “dilemma” because it is tempting to let the other side know you can indeed impeach their witness, and doing so may result in ending the case, or getting a better settlement. On the other hand, you hired the lawyer presumably because of his or her expertise. Thus, the decision turns on who ultimately is running the show. Bottom line: Which decision is more prudent — is it better to let them know what you have, or pounce at the right moment?
A couple of “war stories” may be of interest: A colleague of mine kept impeachment evidence in his back pocket, went to trial, used it effectively and got a terrific verdict. There can be circumstances, however, where the court does not find “true impeachment,” which means the evidence may not be deemed admissible, or simply may not work as well as hoped. In one case that I tried, the impeachment testimony and evidence was admitted that afternoon; but the next morning, the judge changed his mind (excluding it).
Hence, an important question here: What is it that you are seeking to achieve in your case? The answer could have a significant impact on whether your lawyer can be persuaded to “let the cat out of the bag” now, as opposed to sitting and waiting to “ambush” the opponent at the precipitous moment.
Your lawyer ultimately may do what you tell him or her to do. Talk it out carefully to determine if you can get on the same page.
Ron Sokol has been a practicing attorney for more than 40 years, and has also served many times as a judge pro tem, mediator, and arbitrator. It is important to keep in mind that this column presents a summary of the law, and is not to be treated or considered legal advice, let alone a substitute for actual consultation with a qualified professional.