ANDY KENNEDY’S ARREST LEADS TO COMPETING CIVIL CLAIMS
The defamation lawsuit filed by University of Mississippi head basketball coach, Andy Kennedy, has taken some interesting twists. Kennedy was arrested on December 18, 2008 after allegedly punching a cab driver in the face and using ethnic slurs outside a Cincinnati nightclub. A valet attendant supported the cabbie’s claims in a police report. The next day, Kennedy filed a defamation lawsuit against both the driver and valet.
As I previously wrote, filing a “preemptive” defamation lawsuit can be a valid, aggressive response in order to false accusations. However, the Kennedy case illustrates the kind of unintended consequences that may result when a lawsuit is brought so quickly after an incident.
LITIGATION CAN SPIRAL OUT OF CONTROL AND MUST BE CAREFULLY CONSIDERED
It’s important to remember that, while a useful tool to vindicate your reputation, a lawsuit is difficult to control. In Kennedy’s case, he brought a lawsuit almost immediately after criminal charges were filed against him. In his civil case, Kennedy’s wife joined as a plaintiff seeking loss of consortium. Then the defendants in that civil case filed counterclaims against Kennedy. So Kennedy faces the prospect of fighting a messy civil case while defending himself on criminal charges of assaulting the cab driver.
In the court of public opinion, the merits of the competing claims in the civil case are secondary. Published reports by the Associated Press of the countersuit against Kennedy suggest that those claims are not unexpected. The cabbie asserts claims for assault and that Kennedy’s suit is “frivolous.” The valet also assets a claim that Kennedy’s suit is frivolous.
Filing a civil case while criminal charges are pending is a dangerous strategy. For one thing, there will be a fight over whether the criminal defendant can be forced to testify before the criminal case is resolved. Ordinarily, the criminal defendant is also the civil defendant. However, in this case, the civil case was brought by Kennedy — and I’m certain that one of the battles in that case will be the timing of Kennedy’s deposition. If Kennedy is forced to give testimony in the civil case before the trial in the criminal case, that will obviously impact Kennedy’s Fifth Amendment rights. And if Kennedy asserts such rights in the civil case, that will impact Kennedy’s ability to prevail in that case.
The moral of the story is that the decision to bring a defamation case is not to be made lightly. The pendency of criminal charges, the expansion to include family members and other factors concerning facts and evidence that will come to light must be considered before filing.
Kennedy’s imbroglio in Cincinnati will be interesting to watch.