In a decision with potentially large ramifications, New York Federal Judge LaShann DeArcy Hall won't dismiss a libel suit against "Shitty Media Men" creator Moira Donegan.
Explaining, the judge says it is possible that Donegan created the entry herself. The judge believes that Elliott should be able to explore whether the entry was fabricated. Accordingly, discovery proceeds, which will now put pressure on Google to respond to broad subpoena demands. The next motion stage could feature a high-stakes one about the reaches of CDA 230.
Lessons From Bar Fight Litigation
In a previous phase of my career, I had an insurance company sending my firm work, which wrote liability policies to a whole bunch of seedy bars. So I got to defend rather a lot of cases of negligence arising from bar fights. By special request, I’ve summed up some observations that I recollect from this part of my experience as a younger lawyer.
Typically, the loser of a bar fight who later initiates a lawsuit has been beaten up pretty badly, or at least has the medical bills to suggest significant personal injuries. The loser sues the bar on one of several theories — the most common ones being inadequate security, not having banned a patron known to have a history of fighting, bar employees initiating the violence, or bar employees responding to a situation with unreasonable force. But that’s the boring legal stuff.
Demographics and Damages
Here, I can only provide anecdotal observations. I do not purport to have personally handled a statistically significant number of cases, and consider that the source of my cases was an insurance company that marketed itself to dive bars in and around Los Angeles. And recall that my experience was accumulated in the mid-1990’s, and as I discuss below, I am not immune to lensing of my memories. Still:
Roughly equal numbers of men and women filed these lawsuits. All of them were people of moderate to low economic means. Most of them where white and aged between thirty to fifty years.
In roughly half of these cases, the accusation was that the bar staff were the assailants, and in the other half, the claim was that the assailant was a “regular” patron who had a history of violence. Large numbers of participants — plaintiffs and their companions, bar staff, (alleged) assailants, non-participatory eyewitnesses — had criminal records, usually for petty drug offenses.
Everyone I can remember had tattoos, although one female plaintiff’s tattoos were not visible if she dressed modestly; I saw them when she pushed up her sleeve in deposition to show me a scar on her arm that she attributed to the fight.
I never had a case in which guns were involved. In one fight, a knife was pulled and things got a little slicey (better than getting stabby). In another fight, tensions lingered several days later and sadly resulted in a homicide. Mostly, though, we were talking about bruises and minor cuts, not broken bones or maimings, resulting from fisticuffs. The complaints were stitch-ups given by paramedics or at the E.R., sometimes resulting in scars; and lingering neurological and psychological complaints like persistent headaches, recurring dizziness, periodic episodes of blurred vision, agoraphobia, nausea and IB syndrome, and sleeping irregularities.
What’s that worth in terms of dollars? Generally, we were talking in the lower range of five figures, although I’m obligated to keep the exact amounts confidential (assisted by the fact that I don’t actually recall the specific numbers of any specific case; this was quite some time ago). I do recall several cases settling for a lot more money than I was particularly happy about, but then again I was a young lawyer eager to prove myself and thus anxious to take these things to trial, so the claims adjusters I was working with were more risk-averse than I.
And the phrase bar “fight” is something of a misnomer. “Assault and battery” are closer to the mark. Sometimes it’s a pretty one-sided affair — a drunk gets out of control and four bouncers eject her. Or one dude wants to fight and another doesn’t so the first dude just whales on the second dude. Because once someone has the upper hand, they use it. Whatever back and forth exchanges of punches mimics a 1970’s Clint Eastwood street fighting movie happens early and briefly. One person is usually better than the other at violence, and the winning tactic seems to be somehow immobilizing the opponent at an early point in the melee.
Why Bar Fights Start
You might think that a bar fight is most commonly started between two guys fighting over a woman. That’s not so, at least not in my experience. Ejection seems to be a more precipitating event. More than half the bar fights I had to sort out started when a too-drunk patron was asked to leave and refused to do so.
When the bar back or the bouncer attempts to escort the drunk out of the building, the drunk refuses to cooperate, and if the escorting turns in to physical handling, the drunk will wrestle away and attempt to run back in the bar. It is during this struggle that harmful physical contact between the drunk and someone else is initiated. By whom is not always clear — does the drunk punch the bouncer; does the drunk flail at the bouncer and hit a bystander; does the bouncer hit the drunk? These are the burning questions that must be sorted out in a bar-fight lawsuit.
You’d think that running back inside a place whose employees are trying to throw you out was a bad idea, but let’s remember we’re talking about very drunk people here. The bar become associated with pleasant emotions, of safety and calm and getting the booze buzz on. They don’t think it through in the heat of the moment that even if they succeed and get back in the bar, they still aren’t going to be served.
I never had a case of a man hitting on a woman, her turning him down, and then he got violent towards her. I only had one case of a man hitting on a woman, getting interrupted by her husband, and the drunk and the husband getting in to a fight. I did have many cases where a drunk interpreted someone’s statements or actions as an invitation to resolve conflict through violence.
Violence Must Be Fun Somehow
Now, this may be the result of witnesses trying to rationalize why a fight broke out. And by “rationalize,” I mean “speculate.” But based on what I heard from dozens of witnesses, those bar fighters who initiate confrontations with other patrons (as opposed to reacting badly to being 86’ed by the staff) do so as a substitute for obtaining sexual release. Dozens of witnesses over multiple cases reported to me that the person they identified as the assailant had either recently suffered a romantic reversal or had recently stuck out when trying to hit on a member of the opposite sex.†
This suggests at least some substance to the trope of a link between propensity to violence and sexual frustration — the woman (or man) with whom the drunk was flirting is already spoken for and uninterested in extra-monogamous play, typically. “I’m not very likely to get laid today, so instead I’ll fight with someone,” seems to be roughly the thought pattern here. I speculate that this means on a neuro-biological level that engaging in aggression and violent behavior produces a feeling of satisfaction, which in turn triggers a release of endorphins or other similar hormones that the fighter’s brain craves.
This carries some rather dark implications for experiencing one’s own sex drive upon which I do not care to reflect further at this time.
Time and Distance are Confusing
People are bad at estimating, and especially bad at remembering their estimates, things like time and distance. Ask a participant in the fight how long it was from the first punch to the last blow, and you’re like as not to get a response of “About twenty minutes” as opposed to the much more accurate “I don’t know.” (Hint: as discussed below, sixty seconds or less is typical on video, when video is available at all.)
It’s not hard for a lawyer to take testimony like this and use it to impeach a witness’ credibility and sometimes even her confidence. “How far was it from point A to point B” gets you “About a hundred feet,” and “How long did it take the bouncer to run from point A to point B?” gets you “Very fast, about three seconds.” Well, come on. The world record for the 100-meter dash is Usain Bolt’s 9.58 seconds — a little math reveals that mr. Bolt can ran almost that fast five years ago, under ideal conditions. Can a 45-year-old overweight bar bouncer duplicate that speed in a crowded bar? Doesn’t seem very likely.
So the good news is that a site inspection will reveal how far it really is from point A to point B. And then you can make a judgment about whether the distance estimate or the time estimate was right. Because it ain’t both, unless your bouncer is also an Olympic-class sprinter at the apex of youth and physical conditioning. The bad news is that people are pretty much always going to say things that make it look like they have no idea what the fish they’re talking about when those statements are scrutinized, so often no witness is particularly credible or reliable.
A tangent on witness reliability: I was surprised, at this early stage of my career, at how often third-party witnesses would simply ignore subpoenas. I’ve since become quite jaded.
Woman are Quite Capable of Initiating Violence
When these cases first started coming to me, my understanding of women engaging in violence was colored by the idea that a woman would be aggressive in cases where she felt an emotional and personal provocation — if she thought another woman was trying to poach her man, or if her man had cheated on her, or something like that. I admit it, this way of looking at the world was quite sexist of me, and rather patronizing towards women.
But sometimes, a woman just gets drunk and doesn’t like being cut off by the bartender, just like her male counterpart. Or she responds disproportionately to a trivial miscommunication as though it were an intentional insult or a challenge, just like a drunk man more stereotypically will. Conquering my prejudice that women are disinclined to violence as a means of conflict resolution was an uncomfortable bit of growth I had to go through, in part because I didn’t think that it was a very complimentary sort of thing to observe.
Women were faster to employ weapons, whether prepared (the knife) or improvised. Improvised weapons are almost always thrown, and have included highball glasses, pool balls, bar stools, knives, and in one notable case, the assailant’s own feces. Male bar fighters used weapons too, but in my experience less frequently. Male fighters use environmental objects to assist in their hand-to-hand combat (slamming an opponent into a wall, bashing an opponent’s head into a parked car).
Neither male nor female assailants seemed to care all that much about the sex of their co-combatatants. The men seemed to think women were perfectly appropriate targets for violence based on their behavior (e.g., cutting in line ahead of them for a bathroom, pushing and shoving, and/or slurred insults and challenges); female bar-fighters did not demonstrate any particular concern about perceived imbalances between their own physical abilities and that of the men with whom they were fighting. I’m reluctant to call this phenomenon a triumph of cultural progression towards gender equality, so you can make of it what you will.
A Rashômon Theory
One of my first neurological-psychological speculations after the experience of deposing six witnesses and getting six different stories, and then hearing those same six witnesses each testify later, with each such story deviating substantially from the witnesses’ prior deposition testimony. I never went back to diagram it, but I believed at the time that each of these twelve stories told by these six witnesses, was in their own way mutually inconsistent with the other eleven available recollections of the disputed events (although not all of the inconsistencies was particularly material). How could this be?
I later found a neurological explanation. Memories are proteins encrusted on the outside of neurons within the brain. These proteins dissipate as the electricity flows through them and influence the direction or strength of this electrical impulse somehow, and then reconstitute when the electrical impulse is gone. Somehow, the pattern of electrical impulses is interpreted by the brain as a whole as a memory, but this means that every time we remember something, we are literally destroying that memory and reconstituting it — so each time that happens, there is a risk of error in replication. Think about how a computer file, say a JPG picture of your cat, has a small risk of data corruption every time it is used, copied, or otherwise accessed.
I’m not a neurologist. I’m not a (trained or properly-educated) psychologist. But I have had to make a study of how people behave, to take critical looks at how they seem to be thinking and communicating. So while I don’t really know if this is correct, it seems both a reasonable and satisfactory theory to explain my observations about the self-serving plasticity of human memory.
Even without my untrained and murky quasi-science, it’s nevertheless human nature that folks tend to tell stories that favor themselves, stories in which they at least don’t look bad, and generally in which they look good. About the only exception to this is when people tell stories with the intent of eliciting either laughter or sympathy from their interlocutors — then, they will tell stories that either reveal a trivially morally wrong but embarrassing behavior, or a story of overwhelming external circumstances and their own an unwise but understandable reaction to them.
The witnesses who testify in bar fight cases, which as it turns out is similar to the way witnesses testify in all cases, remember the dramatic events of the incident over and over and over again. If my theory is right, then what is happening is that people are telling themselves over and over again that they were the good guys, they were innocent of any significant moral wrongdoing, until they convince themselves to a moral certainty that this is the truth. No one wants to seem themselves as the bad guy, so they lens their own memories such that their own behavior becomes reasonable, socially acceptable, and morally justifiable. I’ve since observed that this phenomenon is powerful enough that witnesses will sometimes recant their own contemporaneous writings.
(On the subject of writings, police and sometimes paramedics get write down statements from witnesses or participants, which are universally criticized after the fact by witnesses who remember things differently from what is written.‡)
As a general rule, the more time passes between an event and a demand that they recount it, and the more thinking about it that they’ve done in that interim period, the more profound memory lensing will be — and generally the more lensing has taken place, the more insistent the witness will be that her statement today testimony is the absolute Gospel truth. This is probably a defense mechanism of the subconscious to allow people who have done bad things to continue to live with themselves afterwards; a way of silencing the superego. This all assumes, of course, that the person is not simply lying. People do that with some frequency, too.
It’s frightening to realize that 1) you, too, are a human being whose organic brain labors under this imperfection, and 2) courts decide questions of peoples’ lives, liberty, and property based on the assumption that oral testimony recalling past events is the highest and best form of evidence available to a jury. Deeper and still more disturbing is really gasping that 3) if everyone’s memory of past events is lensed such that we insist that even contemporaneous recordings of those events was somehow erroneous, then we really all live in a world where objective truth is an indeterminate and uncertain concept, more aspirational than actual.
The Healing Power of the Settlement Check
As with many other kinds of litigation, most of these cases settled before they got to a jury. But sometimes, delays and problems came up after a settlement figure was agreed upon. During those times, I learned after the fact that the plaintiffs reported to their lawyers that upon reaching the agreement, many of their objective symptoms — the ongoing headaches, the anxiety and sleepless nights, dizziness, and even agoraphobia — mitigated significantly.
The plaintiffs were convincing when they stated these things: they really believed what they were saying, and that they had this experience after a settlement number was agreed to, even if it was a number that they had to be cajoled by a mediator into accepting, but before they actually had their portion of the money in hand.
It seems that resolution of the dispute caused the symptoms to subside. What I haven’t noodled out yet is whether eliminating the stressor of litigation also eliminated the stimulus of psychosomatic subjective complaints, or whether eliminating that stressor triggered some sort of objective change in the person’s physical condition.
Bystanders and Noncombatants
Bar fights start quickly and end quickly. On those surprisingly rare occasions when video of the incidents was available to view, the fights lasted less than sixty seconds before the aggressor was subdued or restrained, and violence ended.
So bystanders tend not to be physically involved. When bystanders did get involved, they attempted to separate the combatants. When there were bouncers, they always stayed out of it. But most bystanders reported not even knowing that a fight was underway until several punches had been thrown. (This did not stop them from offering their opinions on who started it, of course).
The cops never arrived on the scene on time to see anything actually happen (really, how could they?), and when deposed, they always read their written statements out loud in response to any question any attorney asked, and remembered nothing independently.
I think I’m a better lawyer for having sifted through all the chaos of all these cases. Doing these cases kept me grounded in a world of unsophisticated people, rather than the somewhat more intellectual and professional world of lawyers who interact exclusively with other well-educated professionals; I was at some risk of becoming much more elitist at this point in my life than I later turned out to be, however imperfect that is. I developed my theories about truth and testimony that I describe above, which even if not scientifically valid still seems to serve me pretty well today, and those help guide me guide my clients through a world of conflicting testimony to this day.
And I’ve never been in a bar fight myself.
† In more than a dozen bar fight cases I handled, an out-of-the-closet LGBTQ person was never involved, not even as a bystander. Granted, none of my clients were gay bars. These were not particularly pick-up places at all — these were the sorts of places that met the needs of the middle-aged man of sporadic acquaintance with grooming tools and foggy descriptions of his places and manners of employment, who prefers his Tuesday-at-10:00 a.m. kickstarter to have appreciably more vodka than tonic. But I’ll bet good money that fights break out at (divey) gay bars too, and probably for the same sorts of reasons and with the same frequencies that they happen in cishet bars.
‡ Because of a law of evidence called the “Hearsay Rule,” using such written statements as evidence was frequently problematic.
Burt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.