About a year ago a colleague brought my attention to the increase in irrelevant, inflammatory, scandalous, and improper language in plaintiff pleadings in catastrophic injury, fire, and death cases. Since that time, the problem has only intensified around the country. The purpose of this improper practice is multifaceted, and has nothing to do with properly or sufficiently pleading a lawsuit. Primarily, it is designed to create ready-made and targeted sensational content for news organizations to publish and re-publish (and for news bots to disseminate) to poison the future jury pool. The lay public interprets this content as imbued with credibility not only because it emanates from sworn or verified court filings but because it carries the further patina afforded by multiple news sources’ reliance on it. This method of pleading-to-press (hereinafter “P2P”) publicity attack carries far more weight than mere press conference allegations. Ironically, P2P is demonstrably wrong because a plaintiff counsel making the identical assertions at a press conference or via a press release during litigation would be subject to libel claims (litigation privilege does not attach), gag orders, and professional misconduct referrals in most jurisdictions. Just like the Reptile attacks are simply a repackaged variant of the long precluded “Golden Rule” tactic, the P2P attacks are nothing more than a very clever but highly improper way to circumvent the press conference publicity impropriety; the defense bar and judiciary simply haven’t caught up with it yet.
Since the content never disappears, it also remains available for the actual jury to access during trial (notwithstanding judicial instructions) and becomes interwoven in the public narrative surrounding the tragedy. While much of the public discussion of “Google mistrials” – where a jury is tainted by inadmissible material reported in the press but just seconds and clicks away in the modern world – focuses on criminal cases, the same concerns apply in the civil context. Moreover, the Google mistrial public discussion focus is also squarely placed on juror access to information, rather than on plaintiff attorney publishing of information. Press reports that parrot plaintiffs and equate deep-pocket/low-fault or purely passive alleged tortfeasors with the actual judgment-proof tortfeasor, or actually directly posit blame and fault on the deep-pocket while barely mentioning the active or intentional tortfeasor, wreathed in inflammatory language or other prejudicial material that would never be permitted in court, can be accessed at any time by any juror. And, even if not directly, these jurors can be influenced by family and friends and coworkers who have read and accepted these press reports at face value.
It goes without saying that these stories can’t be Googled if they don’t exist, and that therefore anyone who stands to benefit from them being Googled has an incentive to help create them. As complaints are public record, it is trivially easy to seed them with tempting pull-quotes that serve the dual purpose of creating public relations pressure on defendants to settle and poisoning the well at trial in the event that the pleadings are either left untouched and made available to the jury (with the precaution of course that they are not evidence, surely a comfort to the maligned defendant) or, again, via Google.
It’s no surprise then that we and our colleagues have seen these pleadings more recently of late, including wrongful death or catastrophic injury cases involving vacation home rentals; the complaints commence with full “preliminary statements” that are emotional and targeted several-paragraph narratives of grief, loss, and blame raging against – not the rental homeowners whose code violations or other negligence actually caused the harm – but the deep pocket internet services that assisted the vacationers find the rental. The same occurs in complaints arising from fatal shootings on the premises of corporate businesses or catastrophic Dram Shop/DWI fatal crashes; the narratives of blame do not target the judgment-proof shooters or drunk drivers but the corporate owners. And since these lawsuits are frequently accompanied by companion lawsuits brought by witness bystanders for emotional injuries or simply multiple individual plaintiffs, each individual complaint filed months apart blast similar sentiments that – even to the uncynical eye – seem eerily coordinated to maximize multiple news cycles and cross-corroborate one another. The language of these deep pocket liability narratives can now be found, word for word, in hundreds of internet news articles reporting on each tragedy.
We have even learned of plaintiff attorneys who have hired authors to assist in drafting their P2P complaints.
What Are A Civil Defendant’s Recourses?
Depending on your jurisdiction, a motion to correct or strike portions of the pleadings is the first line of defense. See California Code of Civil Procedure Sec. 436 (authorizing Court to strike out “any irrelevant, false, or improper matter inserted in any pleading”); Texas Rules of Civil Procedure Sec. 9.011 (signing of pleadings), 9.012 (violation; sanction), 9.013 (report to grievance committee); New York CPLR 3024(b) (correction of pleadings).
The New York statute, for example, has been used most recently to strike inflammatory irrelevant terminology in CVA complaints, which frequently utilize hyperbole and inflammatory rhetoric directed at institutions or individuals. See Robb v. Robb, N.Y. Co. Index No. 950000/2019 (Sup.Ct., N.Y. Co., 2019); see also Pisula v. Roman Cath. Archdiocese of New York, 201 A.D.3d 88, 107 (2021) (for full academic discussion of analysis under the statute). In Robb, the plaintiff counsel repeatedly used the scandalous term “predatory” throughout the complaint when referring to defendant’s acts, and included an improper narrative paragraph as described above.
The motion court agreed with defendant and granted its motion, holding that the term “predatory” was highly prejudicial and superfluous and did not advance any particular cause of action stated in the complaint. The court further held the language of the offending paragraph as “not relevant to plaintiff’s claims in the slightest”, and ordered plaintiff to re-serve and re-file an amended complaint without the stricken language.
Because of the nature and timing of these specific types of decisions, appeals are seldom taken and there is very little appellate case law to draw from (an appeal as of right does not lie from decisions on CPLR 3024(b) motions, but leave to appeal by permission is available [see Pisula, supra]). But the point here is that if the motion courts are comfortable granting this relief in CVA cases, it seems they should be even more comfortable in passive alleged liability cases against deep pockets.
It should also be noted that the little appellate and lower court level decisions involving striking or correcting pleadings have never dealt with or considered the P2P problem discussed here, so this is a fertile opportunity to make new law. Counsel litigating this issue should bear in mind that, because the P2P problem has never really been passed upon, existing case law under each jurisdiction’s pleading-governing statutes offers only partial utility in resolving the issue.
The Fly In The Ointment
The problem is that even the promptest successful motion with an accompanying request for a TRO will not be quick enough to prevent the news organizations from repeating the pleading language, especially when helpfully forwarded to them contemporaneously with its filing. In other words, this amounts to shutting the stable door after the horse has bolted.
The Ultimate Fix
The ultimate fix is similar to that of preventing the improper injection of punitive and Reptile tactics that have plagued our courts. It requires repeatedly shedding light on this practice, establishing the intentionality and improper strategy behind it, educating the courts and defense counsel, and being creative, aggressive, and unrelenting about the relief sought. That is, beyond merely seeking to have the offending language stricken from the complaint, defendants should use everything in their arsenal, including change of venue applications; sanctions and disciplinary referrals; additional peremptory challenges; and very specific and admonishing curative charges.
For example, defense counsel should annex the news articles parroting the improper complaint language as an exhibit to the motion to strike and couple the motion with one for a change of venue (and, in egregious instances, sanctions for frivolous conduct or disciplinary referrals). In New York such a motion would be made under the authority of CPLR 510(2) & (3): “The court, upon motion, may change the place of trial of an action where: **** (2) there is reason to believe that an impartial trial cannot be had in the proper county; or (3) **** the ends of justice will be promoted by the change.” Arguing for a change of venue from the metropolitan area to a more conservative outlying county based on plaintiff counsel’s intentional interference with the jury pool would significantly diminish the claim value and seem a powerful disincentive for a continuation of such improper tactics. All it would take is just one such decision, and the P2P revolution would be over. Importantly, a motion court decision under CPLR 510 is subject to deferential “abuse of discretion” review, and won’t be lightly overturned. While an appellate court recently denied a motion for a change of venue based on a single article in a local paper, the Court described the article as “an objective overview of the parties’ dispute”, and the problematic material contained in the article included quotes from defendant’s officials and the mayor, rather than problematic improperly pleaded allegations crafted by plaintiff’s counsel that were parroted in numerous internet news articles. See Village of Malone v. Stone Mountain Prime, LLC, 217 A.D.3d 1219 (3d Dep’t 2023).
Regardless of whether a motion court confronted with this controversy (an issue of first impression) for the first time would grant a change of venue (or sanctions), the pushback itself should properly result in a chilling effect for at least some counsel in the needlessly overaggressive drafting of their pleadings. And, the particular plaintiff counsel at issue will face a heightened degree of difficulty the second time they face this motion because the intentionality will be even more obvious. This is why such motions must be made every time such a pleading is filed and counsel should be sure to always research the prior electronically-filed complaints of their adversaries to ascertain if they have engaged in this type of misconduct previously.
Should the case proceed to trial, the issue should not be abandoned. Defense counsel can reference the P2P tactic during jury selection as a basis to seek relief in the form of a higher number of peremptory challenges. If the jury pool contains members who have read about the incident on-line, they can be stricken but, more importantly, this should also generate another application for a change of trial venue. The inquiry needs to be repeated, not just at voir dire, but by the judge during trial. Hundreds of cases have gone to mistrial due to juror Googling, and though it is likely that the number of undiscovered cases of jury taint via Google far outnumbers the discovered cases, the fact is that jurors do sometimes come forward.
Defense counsel should also request a preliminary curative charge explaining to the jury that a wide number of news articles about the event before them contained information that was presented as factual but was really nothing more than allegations made by plaintiff’s counsel. This, too, provides an opportunity for a conscience-stricken juror to come forward (but it also can boomerang and risk raising the curiosity level of jurors, which is why a curative charge is, at best, problematic, and why relief prohibiting P2P misconduct at the outset is essential).
All the while, defendant must also argue that inquiry of individual jurors is an inadequate remedy under the circumstances. Jurors may not even remember reading a news report from several years earlier, or may be uncomfortable admitting that they did so recently. Or they may have been influenced by others who have read the report. Or, as mentioned above, the inquiry itself will prod the jurors to seek it out. With the ubiquitous nature of our modern internet news, mere inquiry is a one-dimensional approach to a multi-dimensional problem. Most importantly, where the problem itself derives exclusively from plaintiff’s counsel’s unnecessary sharp practice, the burden cannot be placed upon the defendant to demonstrate undue influence. Rather, a presumption of undue influence is warranted and the burden placed upon the plaintiff to demonstrate otherwise. Indeed, relief should be granted based on the mere appearance of impropriety; there is no justification or legitimate necessity for plaintiff’s recourse to the P2P tactic that – like any kind of jury tampering (including Reptile tactics) – attacks the integrity of the judicial process and needs to be prevented on this basis alone.
These positions are backstopped by the recent decision of the Georgia trial court in Cartagena v. Medford, Civ. Act. No. 20C-4779-4 (Gwinnet Co., Ga., 6/16/2023) ordering a new trial due to plaintiff counsel’s improper comments on TikTok and Instagram before and during trial, even despite jurors’ assurances that they had not seen any of the posts or videos. The Court did so on the basis of its role under the common law to protect the integrity of the judicial process.
This is, of course, novel territory for the defense bar and judiciary, and each jurisdiction carries its own nuances to deal with. But the proposals in this alert should constitute the first step toward cleaning up and eliminating the unfortunate P2P trend in litigation. We ask our readers to feel free to send us any filed pleadings (complaints) that reflect this growing problem so we can further demonstrate its danger to our courts in undermining the integrity of the judicial process.
In the meantime, special thanks to my friends and colleagues for their assistance, including my new colleague Jaion Chung in our Los Angeles office, my colleagues Jack Watkins and Chris Theobalt (New York), Ron Raydon (Texas), and Ron Brand (Irvine), and trial attorney savant Jeffrey Van Etten of Perry, Van Etten, Rozanski & Kutner, all of whom served as excellent sounding boards on these esoteric issues.