By now, everyone has heard about the $10 million defamation lawsuit filed against ESPN by a disgruntled NY Yankees “fan” who became the butt of a joke after falling asleep during a Yankees–Red Sox game this past April. The lawsuit was filed July 3rd in a New York state supreme court in Bronx County (yes, that’s where Yankee Stadium is), and has since been widely publicized by all the big networks. What the networks aren’t telling you is that the lawsuit is garbage. Literally, the claims in the complaint are so utterly baseless that the paper it was printed on now has less value than it did before it left the copier. And for a minute, forget about Andrew Rector—the overweight plaintiff who’s claiming damages for “loss of reputation and character” and mental anguish—and focus on his so-called lawyer, Valentine A. Okwara, Esq.
First of all, without even getting to the substance or merit of the lawsuit (or lack thereof), the lawyer should be ashamed of himself for filing a pleading so replete with grammatical and typographical errors in a court of law of any jurisdiction. This is verbatim language taken from the actual complaint filed with the court:
8. On or about April 13, 2014, the plaintiff was at the rivalry game between the Boston Red Sox and New York Yankee. It is well known that rivalry between the New York Yankees and Boston Red Sox is always the biggest in all of sport. For decades millions of people all over the world turn out or tune in to watch these games. Plaintiff accordingly was at this game.
9.In the course of watching the game plaintiff napped and this opened unending verbal crusade against the napping plaintiff.
10. ESPN Cameras focused on the plaintiff, Announcers like Dan Shulman and John Kruck unleashed avalanche of disparaging words against the person of and concerning the plaintiff. These words, include but not limited to “stupor, fatty, unintelligent, stupid” knowing and intending the same to be heard and listened to by millions of people all over the world, including people that know the plaintiff in person or interacted with the plaintiff.
11.The defendant Major league Baseball continually repeated these vituperative utterances against the plaintiff on the major league baseball web site the next day. These words and its insinuations presented the plaintiff as symbol of anything but failure
12.The defendant MLB.Com continued the onslaught to a point of comparing the plaintiff to someone of a confused state of mind, disgusted disgruntled and unintelligent and probably intellectually bankrupt individual
13.Nothing triggered all these assertions only that the plaitniff briefly slept off while watching the great game something or circumstance any one can easily found them self.
14.John Kruck in his verbal attack insinuated that the plaintiff is individual that know neither history nor understood the beauty or rivalry between Boston Red Sox and New York Yankee.
Reading that gives me flashbacks to the movie Dances with Wolves. And yes, there really were no spaces between the paragraph numbers and text, paragraphs 11 and 12 really had no periods at the end, there was no space between paragraphs 13 and 14, and John Kruk’s name is really spelled that way throughout the pleading! According to the New York State Office of Court Administration, Mr. Okwara has only been licensed for about a year, but presumably he must have passed the NYS bar exam, which, of course has a lengthy essay portion (e.g. these are the Feb. 2013 NYS bar exam essay questions). How that happened will probably remain a mystery. For what it’s worth, Okwara purportedly graduated from the University of Buckingham Law School. Never heard of it? Neither had I. Apparently it does exist, somewhere in the UK. No, it’s not on the list of ABA-approved law schools.
But perhaps grammatical and language usage faux pas shouldn’t be grounds for disbarment, so let’s move on, to the second reason Okwara should be disbarred. Even if he should get a pass for his lack of language/writing skills, having just recently graduated from law school and taken the bar exam, the black-letter law should be fresh in Mr. Okwara’s head, so there’s no excuse for the implausible claims he asserts in the lawsuit, and to which he certifies under oath as true. The complaint lists four “causes of action,” which are the claims, or bases for the relief sought, however, there are really only two causes of action set forth—defamation, and intentional infliction of emotional distress. The third and fourth causes of action are for “damages,” and “exemplary damages,” respectively. In case you didn’t go to law school, damages are an element of every common law cause of action in a civil lawsuit.
The third reason Okwara should be disbarred is that the facts he alleges in the complaint are patently false, and anyone with any modicum of common sense and English literacy should have been able to figure that out before filing a sworn document with a court. If you listen to the 1:14 ESPN clip, neither Dan Shulman (@DShulman_ESPN) nor John Kruk (@JohnKruk_ESPN) make any of the outrageous statements specifically identified in the complaint. In fact, their comments are lighthearted and benign. By alleging facts that he knew or should have known were untrue, Mr. Okwara violated Rule 3.3 of the ABA Model Rules of Professional Conduct, which prohibits lawyers from making “a false statement of fact or law to a tribunal.”
In addition, Model Rule 3.1 prohibits lawyers from filing a lawsuit “unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.” Because this lawsuit is based on made-up facts, by definition it is baseless, or frivolous. Thus, that is the fourth reason Okwara should be disbarred.
And the fifth reason Mr. Okwara should be disbarred is that he has done his client a huge disservice, not only by falsely advising him that he had a case against ESPN, the NY Yankees, et al., but more importantly, by advising him to file suit in the first place, he has caused national attention to the underlying events—mainly the video that shows his client in a less-than-favorable light—which everybody had long forgotten about. Ironically, the publicity over this lawsuit is much more likely to damage Andrew Rector’s reputation and image than the actions complained of in the lawsuit. Thus, by advising Mr. Rector to bring this lawsuit, his attorney also violated Model Rule 2.1, which provides that: “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations, such as moral, economic, social and political facts, that may be relevant to the client’s situation.”
On top of all that, everybody who buys a ticket to a MLB game is subject to the terms and conditions of the ticket license (i.e. the fine print on the back of the ticket). That’s because buying a ticket to a sporting event effectively creates a contract between the venue/team(s) and the fan (a.k.a. licensee). Although I haven’t seen Mr. Rector’s ticket, I am certain that when he purchased it, he gave up certain rights, such as the right to sue if injured by an errant baseball, and the right to use his image or likeness during television coverage of the game. Of course, that doesn’t give ESPN the right to make defamatory statements about you, just because you bought a ticket to the game, but if you listen to the clip, nobody made any defamatory statements. The announcers made light-hearted joking references to the fact that Mr. Rector was asleep. A fact is never defamatory, because a defamatory statement, by definition, must be false.
You might be asking yourself, right now, whether I’m worried about whether Okwara is going to sue me for defamation. The answer is no. Could he sue me? Sure, he could file a frivolous lawsuit against me, just like he did to ESPN and the other defendants in this lawsuit. Unfortunately, anyone can file a lawsuit against you, for anything, or nothing at all. That doesn’t mean they’ll win. All I’ve done here is present the facts as they were alleged in the lawsuit, and express my opinion about those facts. It is my opinion that the lawsuit is frivolous. Apparently, Mr. Okwara’s opinion of the lawsuit differs from mine. Do I really think he should be disbarred? I can’t make that determination; not without an investigation, to find out why he said what he said in the pleading. But it’s not my decision anyway. What I do believe is that the lawsuit isn’t likely to survive a motion to dismiss, and if by some miracle it does, then summary judgment is imminent.