My new business website www.vistalawyer.net is now up and running. My sister tested the interactive form for new clients seeking an initial consultation and I successfully received the following email from my first potential “client.”
Message about nature of legal dispute:
The Daily Bugle is defaming my boss, Spider-Man.
From: Peter Parker (firstname.lastname@example.org)
Form Filler Phone: (701) 123-4567
Form Filler Email:
Form Filler Fax: (321) 123-4567
Other Name If Applicable: Spider-Man
Other Fax: 781-234-1243
Other Phone: 702-345-6778
Other Email: email@example.com
Conflict: Mary Jane Watson, The Daily Bugle, Aunt May
Dates and Times: Sunday Mornings
Time Sensitive or Not?: Yes, I want them to stop insulting Spider-man
Documents: Archives of the Daily Bugle
It made me laugh to read the email but then I got to thinking. How would I respond to such a potential client legal inquiry?
Initially, I would take into consideration who is contacting me – Peter Parker – and his relationship with his “boss” and “friend,” Spider-Man. Spider-Man and not Mr. Parker would be my potential client and it would be Spider-Man to whom I would owe various client duties of loyalty, confidentiality and care. No matter who contacts me, the person or legal entity who has the legal issue is who needs to actually hire and retain the attorney. Even if Peter Parker contacts me, I would need to speak with Spider-Man or otherwise receive confirmation from him in writing that he chooses to retain my law office and that he confirms the information Peter provides to me on his behalf.
Because the duty of confidentiality extends to potential clients, I could meet with Spider-Man and he could be assured (subject to very limited exceptions such as the threat of imminent bodily harm or death to a third party) that everything we discussed would remain confidential including his identity.
SIDE NOTE: This of course assumes Spider-Man is contacting me pre Marvel’s Civil War story arc where Spider-Man unmasked publically or post Brand New Day story arc where his identity is once again hidden. And yes, I am in fact that much of a comic book geek. Guilty as charged.
Thereafter, my concern would turn to who is the person or entity that is on the other side of the potential dispute or conflict, or the potential Defendant in this disagreement. According to Peter, Spider-Man’s claim is against The Daily Bugle. I must investigate and make sure that is something that can be proven. Who is the Daily Bugle? Is it a corporation, fictitious business name, a limited liability company, a sole proprietorship? Where does it operate and engage in business? Is it really the Daily Bugle or its parent company that is potentially liable or responsible to Spider-Man or is it a particular reporter or editor who works for the Daily Bugle or both? Could this just be Eddie Brock or some other employee going rogue and falsifying photos or are these articles being published without authorization?
This inquiry is of vital importance for several reasons. First, bringing a lawsuit against the wrong entity or without factual or legal basis is arguably frivolous which can possibly lead to the imposition of sanctions and attorney fees and costs against both attorney and client. Second, where the potential Defendant is domiciled and engages in business can affect an attorney client relationship. A Defendant cannot be hauled into court in just any state or any city. A client should engage an attorney who is licensed and practices in the area where the Defendant can be sued and be subject to the court’s authority also known as personal jurisdiction. Third, there is the question of collection. Once you identify the Defendant or Defendants, assuming a client sues and wins, does the Defendant have assets that are subject to collection? If there are limited or no assets for collection perhaps Spider-Man may not want to pay attorney fees to pursue a case against the Defendant. Fourth, I as the attorney need to know if the potential Defendant is someone that I have an existing or prior attorney client relationship with. If I do, that will more than likely preclude me from taking the case or even engaging in the initial consultation with Peter Parker on behalf of Spider-Man.
Luckily, I do not have a prior or existing relationship with the Daily Bugle or John Jonah Jameson, Jr., its assumed to be editor and likely to be the author of any articles that “defame” Spider-Man. I can speak with Peter about his case. Assuming that both the Daily Bugle and Mr. Jamison engage in business almost exclusively in New York and reside in New York, this would prevent me from taking the case. I am only licensed in California and Nevada and clients are generally better served in cost and experience in finding an attorney who is local. I would suggest that Mr. Parker and Spider-Man seek an attorney licensed in New York and therefore experienced in New York law. Matthew Murdock may be available for consultation even though he practices primarily criminal law. She-Hulk would be a better candidate (she has helped Spider-Man before legally) but as she is a daughter in law to Mr. Jameson there may be a conflict that prevents her from taking the case.
Since this is purely imaginary and putting aside the fact that I am only licensed in California and Nevada, let me follow through with the next portion of the legal consultation: getting to the facts. What follows are just some of the questions I would ask as part of an initial legal consultation.
What exactly word for word do the articles say?
Does Spider-Man have a claim?
What is the strength of his claims or claims?
When did Spider-Man become aware of these “defaming” articles and how much time has passed since then?
If Spider-Man pursues the claim what are the risks and benefits involved?
What are Spider-Man’s goals? What outcome would he like to see come from this? Is it something the law or an attorney can assist him in obtaining?
Can Spider-Man sue as Spider-Man or must he unmask?
Can Spider-Man financially, personally, professionally and emotionally afford to sue and go through a lawsuit?
Assuming Spider-Man prevails, can he collect?
Are there other options to just filing a lawsuit such as mediation, settlement, sending a cease and desist letter or reporting the matter to an agency or governmental authority with the power to act in a fashion that would gain Spider-Man what he wants?
Focusing on the legal issues, there are some major concerns regarding any accusation of defamation. Spider-Man is probably considered “public figure,” which raises the level of proof under some state common law to establish defamation. Spider-Man would likely have to prove actual malice. In my experience with prior defamation cases even when the writer of a newspaper article admits his hatred and malice of the subject of his article that is not in and of itself enough to win the day at trial. Defamation has many other elements that must also be proven. If the articles in question are opinion such as editorials or a mix of fact and opinion a great deal of U.S. law protects such speech entirely from any defamation claim. Freedom of the press and freedom of speech are protected liberties and the law favors those freedoms in defamation cases. Depending on the jurisdiction involved there may be other statues protecting a newspaper from claims of defamation as a matter of privilege. There is also a concern with truth. In many states defamation requires a false statement of fact that lowers the subjects estimation in the eyes of the public and is derogatory in content. Questions, opinion, partially true statements, true statements, hyperbole and insults are usually not actionable as defamation in and of themselves. If the articles claim that Spider-Man has committed a crime, to some extent that is true unless New York allows for vigilante justice. If the article claims Spider-Man robbed a bank or that Spider-Man had an illicit affair with Susan Storm that would likely be false and derogatory in nature but it would depend on the wording of the article. What, if any damages can or must Spider-Man prove to also prevail? Can he point to actual harm caused by the alleged defamation? These are just some of the legal issues raised and that I as an attorney would discuss with my potential client. The more potential claims the more factual inquiry that goes into any evaluation of a case.
Turning now to the more personal and economic issues, there are additional concerns that I as an attorney would have to discuss with my potential client. Can Spider-Man afford a long and likely highly contentious litigation or should he instead try and work things out outside of court? Will bringing a formal lawsuit expose Spider-Man to scrutiny that Spider-Man either personally or professional cannot or is not willing to endure? How will this affect his crime fighting? How will this affect Peter Parker or others at the Daily Bugle? What about Spider-Man’s friends and family? What if Spider-Man loses? Is he willing to take that risk?
As you can see, even the most simple potential “client” inquiry raises a whole host of questions which is why many attorneys simply cannot offer free consultations– the investigation and legal research necessary to even preliminarily advise a potential client can be extremely extensive and time consuming. A mere half hour or one hour consultation is usually not enough time to really address a client’s questions, concerns, legal issues, goals and options. New or potential clients should be prepared to think about the answers to these or similar questions when they are consulting with an attorney. Potential clients should also remember that your potential attorney is not a mind reader. If you do not tell me something I cannot magically know it. Professor Charles Xavier I am not. Even the smallest detail could change the whole direction of an initial consult. When contacting an attorney be prepared and be ready to give a detailed account of everything.
Finally, to Mr. Parker and Spider-Man if you are reading this blog, this blog does not provide legal advice and the information it provides is of an extremely general nature. Your case or legal issue may require more detailed or contrary legal advice from a licensed professional. Go call She-Hulk as your claims are time sensitive. Thank you for your inquiry to Assly Sayyar, Attorney at Law.