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J. Toy
Seaman Apprentice
Joined: 10 Aug 2004
Posts: 96
Location: Pa.
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 Posted: Sun Sep 18, 2005 6:03 pm Post subject: Kerry.... Tick Tock |
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http://beldar.blogs.com/beldarblog/
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Memo to Sen. Kerry
TO: Sen. John F. Kerry
FROM: William J. Dyer (a/k/a Beldar)
RE: Limitations
Spectacular lawyer though you may (or may not) be in your own right, I know your staff includes some agile and diligent legal minds. Nevertheless, in the interests of fairness, I feel obliged to remind you of the fact that Unfit for Command: Swift Boat Veterans Speak Out Against John Kerry by John E. O'Neill and Jerome R. Corsi — which spent several weeks at No. 1 on the NYT Bestsellers List before last year's presidential election — was published on or about August 15, 2004, just over one year and one month ago.
I'm quite sure you'll recall that many of your supporters, defenders, and admirers argued enthusiastically that fall, and even after the election, that you ought to sue Mr. O'Neill, Dr. Corsi, and their publisher, Regnery Publishing, Inc., for defamation — more specifically, for libel based on the book and slander based on their public comments in connection with it.
I'm less sure — but will nevertheless give you the benefit of the doubt — that you'll remember from law school and perhaps from your bar review course that defamation lawsuits are generally are based on state law, and that they are generally subject to state statutes of limitations, regardless of whether they are filed in state or federal court.
My concern, however, is that you may not be aware that most state statutes of limitations for defamation are quite short. In Texas (where Mr. O'Neill resides), New Jersey (where Dr. Corsi resides), and the District of Columbia (where their publisher Regnery Publishing, Inc. has its principal place of business and you have your own regular place of business), those jurisdictions' respective statutes of limitations on defamation claims expire only one year after the alleged defamation is published.
Thus, in most of the logical, permissible, and likely venues in which you might have brought such a defamation lawsuit against Mr. O'Neill, Dr. Corsi, and Regnery Publishing, you've already allowed your potential claims to become time-barred, Sen. Kerry! D'oh! Why'd you let that happen?
There may be still be a few permissible venues — perhaps Massachusetts, which has a shamefully generous three-year statute of limitations for defamation — in which your sloth (or whatever else may explain your inaction to date) has not yet extinguished your potential claims.
Nevertheless, you're also doubtless aware that with each additional day that passes, the evidentiary trail grows colder; potential witnesses' memories fade; and the chances that jurors are likely to take your potential claims seriously continue to evaporate. There is no possible tactical or strategic benefit to your continuing to withhold your claims, and there are overwhelming downsides to doing so. Your delay is inexplicable if you believe your claims are meritorious.
On the other hand, regardless of limitations, truth is a defense to a defamation claim — whether that claim has been brought in days, weeks, months, years, or even decades after the alleged libel or slander is published. A defendant might even voluntarily choose to waive his or its limitations defenses. And even a defendant who has asserted an applicable statute of limitations as an affirmative defense may nevertheless choose, as a tactical preference, not to bring an early summary judgment motion. Indeed, some defendants may quite relish the opportunity to begin discovery on the merits, being delighted to finally have an opportunity to have subpoena power, oaths, and penalties of perjury to help them finally dig out the truth.
In fact, just based on my own personal experience with him, Senator, I'd sorta bet that John O'Neill would not only waive limitations, but even pay your filing fees for you!
Seriously, though, Senator, some folks might draw the inference that rather than your having just forgotten the one-year anniversary of the publication of Unfit for Command — oopsies! — you're instead desperately afraid to ever face cross-examination under oath, or document subpoenas of yourself and your hagiographer Doug Brinkley, or the rest of the brilliant spotlight that accompanies a public lawsuit. Folks might become more and more convinced that you've very deliberately let most state statutes of limitations expire already, and that you'll continue to allow the clock to run on any that haven't yet.
The 2008 campaign season is right around the corner, Senator, and nobody is likely to forget the SwiftVets' allegations before then. If you believe that you have a legitimate defamation lawsuit, sir, you must use it or lose it. Put up or shut up. You snooze, you lose.
Tick-tock, Senator. Tick-tock!
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kate
Admin
Joined: 14 May 2004
Posts: 1891
Location: Upstate, New York
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| Posted: Sun Sep 18, 2005 8:26 pm Post subject: |
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great post by Beldar, as usual
already posted on the main page, please see thread
Many Happy Returns (of Beldar) link
please post comments there, thx 
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