HOW TO DEAL WITH SLAPPs
If you find yourself the target of a SLAPP, don't panic! Many other people have been in your position, and there are individuals and organizations out there that can help you.
What to Expect Initially
If you are the target of a SLAPP, you may receive a demand letter from the lawyer representing the SLAPP filer which lists a series of "options" you must meet to resolve the matter before a lawsuit is actually filed. Often, the letter will demand a sum of money, an apology (generally public), your agreement to refrain from speaking out or participating in the future, your agreement not to bring a lawsuit against the SLAPP filer, or a combination of these and other things.
The more likely scenario is that you will learn of the SLAPP when you are personally presented with a "Summons" and "Complaint" at home or work. The Complaint will list the specific "wrongs" you are alleged to have committed. Look for the legal jargon: words like "libel," "slander," "interference with contract," etc., which are briefly defined above.
The Summons is a notice, telling you that you have been sued; it will give a deadline (usually 30 days) within which you must file a formal response to the Complaint with the court.
Locate and Hire an Attorney
It is always best to find an attorney to represent you.. Do not try to handle the case yourself! Being sued, especially with a SLAPP, is very serious business. An attorney may be able to effectively end the litigation at the very beginning of the lawsuit, minimizing the emotional and psychological stress that can result from being sued, and saving you tremendous amounts of time and money.
Act Early. Do not wait until just before the formal response to the Complaint is due to start looking for an attorney. Lawyers are busy, too, and need some time to assess your case. Waiting until the last minute to find a lawyer to help you will only add stress to an already stressful situation.
If you find yourself pressed for time, keep in mind that the attorney who files your formal response to the Complaint does not have to be the attorney who will eventually represent you in court. At the very least, find a lawyer who can help you draft and file a response to the Complaint on time. If you miss this deadline, the Court can enter judgment against you, without first considering all the arguments in your defense. If a judgment is entered against you, you may have to pay the SLAPP filer for any damages that are being claimed as a result of your activities! DEADLINES CONTAIN THE WORD "DEADL[Y]," AND SHOULD BE TREATED AS SUCH. THEY CANNOT BE MISSED.
But Lawyers Cost Money
It should come as no shock that most lawyers expect to get paid for their work. Yet, even without increasing fee rates demanded by attorneys, defending a case is extremely expensive. Costs associated with a typical case include court costs, photocopying services, postage, delivery services, telephone, expert witness fees, deposition fees and other costs. You must consider how these costs will be paid.
The attorney you select should be in a good position to tell you how much he or she estimates defending you will cost. Lawyers are often flexible on how they expect to paid. Do not be afraid to discuss alternative payment terms with the lawyer and with an eye to your pocketbook. Some lawyers will agree to take your case on a contingency basis. This means that the lawyer will be paid only if you either win the case and the court rules that the SLAPP filer must pay your attorneys' fees or you successfully bring a lawsuit against the SLAPP filer for damages suffered by you as a result of being the target of a SLAPP (This is generally referred to as a "SLAPPback.")
If you are sued as a result of expressive activity undertaken on behalf of a group, check on whether the group has insurance which may cover you, maintains a legal defense fund, or is willing to help defray legal costs by doing fundraising on your behalf.
Some attorneys will agree to defend you on a pro bono (free) or low cost (reduced hourly attorney fee rate) basis. One way to find pro bono or low cost legal services is to check the Where To Find Help section of this handbook. Be forewarned, however, that the law requires that you remain responsible for paying all legal costs associated with the case, such as filing fees and court costs. This is true even if the attorney agrees to work for you for free.
Now the good news. Under the new California anti-SLAPP law, you will be entitled to recover legal fees, court costs, and other expenses if the judge rules that the SLAPP filer cannot show a probability of winning the suit. Thus, even if you can't afford to pay hourly attorney fee rates, an attorney will often be encouraged to defend you on a pro bono, contingency, or low cost basis if he or she understands that attorney fees will be paid by the SLAPP filer if you win.
Insurance: Defense vs. Coverage
In many cases, your homeowner's liability insurance policy will require the insurance carrier to defend you if you are sued. Consult your carrier and an outside attorney to see if you are covered. If so, the carrier will provide a lawyer to help you. This will mean you will not be required to pay legal fees for legal representation. Be aware, however, of two consequences of such an arrangement. First, the company attorney will be inclined to reflect the carrier's position, which may not always be in line with what you want. Second, there is a difference between the insurance company providing you with a defense and ultimately paying any judgment entered against you. The company may defend you, but reserve its rights not to pay the judgment if it later determines the judgment is not covered by your policy.
Factors Determining the Right Representation for You
Finding the right attorney will take a little bit of work and energy on your part. There are a number of factors to consider:
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Sympathetic. It is helpful to find a lawyer who shares or understands your politics, or at least someone who will listen and understand why you said or did what you did. Conflicts over differing philosophies, gender bias, or political beliefs are not only time consuming, they may affect the kind of representation you will receive.
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Experienced. Find someone who has experience defending SLAPP victims or who is familiar with the legal and factual issues of your case. This can be critical to your case both in terms of costs and time. Ask the lawyer if he or she has worked on these kinds of cases before, and what kind of experience that lawyer has generally. You may also ask if the lawyer would mind if you speak to other clients and/or SLAPP victims the attorney has represented in the past.
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Willing to Share the Load. It is important to remain involved in the decision-making process throughout all the stages of the lawsuit. Do not be afraid to ask about the potential ramifications of all legal and strategic decisions before authorizing your attorney to take action on your behalf.
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Media Savvy. It may also be helpful if the attorney is used to dealing with the press. Often these kinds of cases generate a lot of media interest. The right kind of media visibility will help your case. The wrong public image, however, could be devastating.
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Compatible. Often, you must ultimately decide if you will be satisfied with the prospective attorney. It is very important that you be able to work with the attorney comfortably. You may well be spending more time with this person than you know.
The Mechanics of Finding a Good Lawyer
Take the time to gather all information you can and present it to prospective attorneys. Ideally, the attorney should have a complete a picture of the relevant facts of the case and any legal matters pertaining to the case that you may be aware of.
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Case package. Create a neat package of information that you can present to potential attorneys; it may include:
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a brief cover letter which is respectful of the attorney's time, focuses on the key issues in your case, and states, specifically, what you would like the lawyer to do for you.
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a copy of the demand letter, Complaint or any other official document you received from the SLAPP filer or his or her lawyer.
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the names of any attorneys who may have advised or represented or advised you in this action, and how to contact them.
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the names of the attorney or attorneys representing the SLAPP filer, and how to contact them.
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the names of important witnesses, if any.
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key newspaper articles or other background information about your case and/or your opponents.
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Attorney interview. Explain your story as succinctly as possible. You may even wish to practice before the first interview. Have you own list of questions ready. The list should include questions about the case, as well as questions about the lawyer's experience and interest in similar suits. Become familiar with California's anti-SLAPP statute and ask the attorney if it applies to your case. You may want to learn as much as you can about SLAPPs in general. Your local library is a good source for current literature on the topic. You can also learn more about SLAPPS by contacting one of the agencies listed in the "Where to Find Help" section of this page.
THE LEGAL PROCESS - DEFENDING A SLAPP
There are several stages to SLAPP litigation. The following is a list of the key events you can expect in defending a SLAPP.
Filing a Response
You have a very limited amount of time (typically, 30 days) to file and deliver "an initial responsive pleading." Often, your "first responsive pleading" will be the Answer to the Complaint. This is a formal document detailing your response to each of the allegations in the Complaint. Or, it may be a document which attacks the Complaint on legal or factual grounds, such as a Special Motion to Strike (described below). Remember that your initial response, whether an Answer, a Special Motion to Strike, or other document, must be filed with the Court and delivered to the other side within the deadline specified on the Summons.
Opposing a Temporary Restraining Order.
A SLAPP filer can ask for a temporary restraining order ("TRO") when the Complaint is filed. A TRO is a court order that temporarily orders or prohibits a specific act or series of acts until the court rules on the matter. A TRO is of limited duration, usually lasting no more than 20 days. You may get very little notice (24 hours) that a TRO is being sought. As a TRO may impact your ability to speak out on an issue or remain active in important public affairs, it must be vigorously opposed.
Opposing a Motion for Declaratory and Injuctive Relief.
he Complaint may seek declaratory relief, which means that the filer has asked the court to make a ruling on the respective rights and duties of the parties under the circumstances. The Complaint may also seek preliminary or permanent injunctive relief; like a TRO, a preliminary injunction is a temporary order which orders or prohibits a specific act or series of acts until trial. A permanent injunction orders or prohibits an act or acts indefinitely.
A motion for declaratory or a preliminary or permanent injunction requires that all interested parties be given notice of the motion (usually 15 days) and an opportunity to be heard. The crucial issues in a SLAPP are frequently decided on such motions. If the SLAPP filer is seeking such a motion, it must be vigorously opposed.
Bringing a Special Motion to Strike.
California's new anti-SLAPP statute, Code of Civil Procedure § 425.16, gives victims an opportunity to have the court rule at the outset whether a SLAPP filer can show a probability of winning the suit. If the judge finds that the filer cannot prove that the case has a probability of winning, the court will "strike" the Complaint, and dismiss the suit. The court will also order the filer to pay to the SLAPP victim his or her attorneys' fees and costs.
This special motion generally must be brought 60 days from the date the Complaint is received, and is the best way to put an end to a SLAPP early in the proceedings. The special motion to strike can be brought later than 60 days after the Complaint is received, but only if a court, in its discretion, allows it to be filed at a later time.
Make sure that there is a good basis for bringing the special motion to strike. If the court finds that it is frivolous, or brought only for purposes of harassment or delay, the court will sanction you, and order you to pay the amount of attorneys' fees and costs incurred by the other side in opposing your motion.
Dealing with Discovery.
Discovery is the term for the process in which parties to litigation gather information from each other. This is accomplished by depositions, in which individuals are orally questioned by lawyers, under oath, as if on the witness stand, or by interrogatories, which are written questions by one party to the other and which require a written answer, also under oath. Parties may also ask that any important documents be turned over; this is known as a request for production of documents. The process of discovery can take months to complete.
Under the special motion to strike procedure of Code of Civil Procedure § 425.16, described above, all discovery is suspended or stayed until a judge rules on the special motion to strike. This means that all discovery must be halted until the judge rules. This is important because even the process of having to answer discovery requests can impact one's willingness to oppose a project or speak out on public issues. However, if you believe the other side has information necessary to your defense, you will be unable to get it once the special motion to strike is filed. Carefully consider whether there is information you may need before filing the special motion to strike. Alternatively, the court, upon a formal request and for good cause shown, may order that a specified course of discovery be conducted.
Arbitration.
In many counties, once discovery is over, cases are ordered to arbitration. Arbitration is a mini-trial or hearing in which the case is presented to a neutral party -- usually another attorney or a private or retired judge -- who makes a determination and an award. The arbitration ruling can be appealed by either party.
Filing a Motion for Summary Judgment
Upon completion of discovery and following arbitration (where the arbitration procedure is used), any party can bring a motion for summary judgment. This is used to inform the court whether there are any material issues of fact in dispute. If there are no factual issues in dispute, and only issues of law remain, the judge decides the case by interpreting the relevant law. If however, factual disputes remain to be decided -- for example, whether one party or the other is telling the truth -- the case must go to a jury, unless the parties agree that a judge may decide the issue.
Preparing for Trial
If the case cannot be resolved by any of the above procedures, it will be considered in a trial. A jury or judge will hear the evidence, which may include live testimony from each side, and present a final ruling or "judgment."
Judgment and Appeal
After trial, a judgment is entered according to the ruling of the jury or trial judge. If the judgment orders the payment of money from one party to another, there are various mechanisms to enforce the judgment to ensure that payments are made. A final judgment may be appealed to a higher court, by either party, but only upon a showing of some legal error. Generally, the filing of an appeal does not render the judgment automatically unenforceable. To pursue an appeal, the losing party must instead post a bond, often in an amount twice that of the judgment, to secure the judgment during the appeal process.
Pursuing Settlement
An agreement among the parties to resolve the case can be reached before the Complaint is filed, at any time during the litigation, or even after trial.
Mapping Out a General Strategy With Co-Defendants
It is very likely that you will not be the only person being sued by a SLAPP filer. A common strategy is for the filer to sue all vocal opposition. In addition, the SLAPP filer can sue numerous (anywhere between ten and several hundred) as yet unnamed "DOE" defendants. This means that the SLAPP filer can, at any time during the case, replace a "DOE" defendant with a named individual. As a result, others who are sympathetic to your position or cause may be fearful of helping you or continuing to speak out on the issue, because of a concern that at any time they, too, may be sued.
If you are one of a number of people being sued, consider a cooperative defense strategy. Cooperation with other defendants can have a number of benefits. Often, it helps to develop a good and successful defense. In addition, cooperation with others can reduce the stress and financial burden of defending a lawsuit by yourself.
The first step is to come to an agreement with co-defendants about what issues to focus on. Does the litigation seek to impede your work or that of your organization? How important are these goals to your work? Would you be willing to give up your work to settle the case? What if others have used alternative or unlawful means to pursue these common goals -- are you willing to stand with these persons, though you differ as to how specified goals should be accomplished? Consider the significance of the suit -- if the SLAPP filer is successful in silencing you and your friends, will others be silenced too?
Decide how litigation expenses and attorney fees are going to be paid and by whom. If money and resources must be raised, agree upon fundraising efforts, who is responsible for these efforts, and how money will be disbursed from such activities.
Decide at the outset who will be the spokesperson(s) for your case. Spokespeople should be selected with extreme care. Public perception is important in generating interest, support, money, and sympathy. You do not want to take the chance of alienating either the judge, who will be ruling on your case, or potential supporters of your work.
If problems or disagreements arise which cannot be resolved in discussion, it is probably a good idea to split from the group and obtain your own lawyer. There is little advantage to being united with others if your own case is going to suffer.
Dealing with the Press
Whether or not your attorney is experienced in dealing with the press, become familiar with The Press Handbook. This handbook, available through the Media Alliance in San Francisco, California, will show you how to generate positive media coverage and support for your case.
