Litigation As Press Release

by Elizabeth G. Thornburg

(Editor's Note: Elizabeth G. Thornburg is the Judge John T. Copenhaver Visiting Chair at the West Virginia University College of Law, where she teaches courses in civil procedure and complex litigation.)

In his 1995 article, Speaking Truth to Power, Herbert Eastman suggests that lawyers drafting pleadings should take care not to lose the client’s story in sterile legalese. “Every client has a story that deserves to be told ̶ from the corporate client trying to survive in a harshly competitive climate, to a spouse embroiled in a bitter divorce.” There are a number of reasons to prefer a vivid, compelling narrative to a recitation of legal formulas, but one of the reasons relates to public relations. As Eastman points out, “through the media, the complaint speaks to the greater community. That community includes the defendants, the defendants' superiors, and possibly their friends and colleagues. That community may come to see hidden problems in a new light, consider change, and press for settlement.”

Is this what is going on in West Virginia University v. Rich Rodriguez? Shortly after Rodriguez announced his resignation, local news was filled with outraged local opinion. How could a West Virginia coach betray his state and his alma mater by breaking his promise to stay, asked one set of folks. How could the University so foolishly fail to keep its promises and lose a talented coach, asked others, including some big donors to the sports program. As the controversy bubbled, both sides addressed the public mostly through surrogates. As Charleston Gazette writer Dave Hickman noted, “I suppose what really irritates me most is that both sides seem intent on conducting this brawl through their corner men. . . It’s as if not speaking directly to the matter somehow stations them on high moral ground. What a load of crap.”

Enter the court system. Less than two weeks after the Rodriguez resignation, WVU filed a lawsuit, asking the court to declare that IT had not breached its contract. Just to make things more fun, the complaint attached Exhibits: copies of Rodriguez’s original contract, as well as first and second amendments to the contract, which included long lists of benefits like two courtesy cars, football camps, and bonuses for season ticket sales. Whether or not the buyout clause is enforceable, no money was due when the lawsuit was filed. WVU not only filed the case in court, but also sent copies of the complaint to local media outlets. “We paid the money into the assistant coaches’ pool, and we fixed the football stadium,” says WVU in lawyer talk. “Don’t blame us for losing the coach.”

As for Rich Rodriguez, his Ohio lawyers have practiced storytelling on steroids. To try to document an offer to settle the case for $1.5 million, they filed a “Notice of Filing of Letter of Credit.” There is no such procedure in federal court. More noteworthy is the Answer, which tells a tale of presidential pressure, rabid fans destroying mailboxes, and promises broken. Not to be outdone in the Exhibit department, Rodriguez attaches his “supplemental” resignation letter, detailing all of his complaints about his situation at WVU.

There’s a limit to storytelling, though, as Eastman’s article points out. The story teller needs to maintain integrity, honesty, competence, and professionalism. It’s time for the lawyers to stop creating nonsense claims (“Imprudent Actions by West Virginia University” is not an affirmative defense). It’s time for the lawyers to stop making legally frivolous claims, such as asserting that WVU had waived its objections to the federal court’s jurisdiction. (As all my first year Civil Procedure students know, it’s just not waivable.) It’s time for the lawyers to stop making legal claims that are incompatible with the story they want to tell, such as claiming in one place that the university filed its suit prematurely and in another that the suit is barred by “laches,” a doctrine that kicks in when a defendant is prejudiced because of the plaintiff’s unfair delay in bringing suit.

Enough already. Telling a client’s story is valid, and important. But the court’s role is not to be a public bulletin board, and a lawsuit is not a press release. Storytelling in pleadings is constrained by the relevant law. Otherwise Rule 11, that referee of good faith, will step in and throw a flag on the play. Illegal procedure: 15 yards.