2006 MLRC/NAA/NAB LIBEL DEFENSE ... - Directrouter.com

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For exclusive use of MLRC members and other parties specifically authorized by MLRC. © Media Law Resource Center, Inc.rulings involved several motions in limine by Defendants which, for the most part, weredenied.9. Significant Mid-Trial Rulings:Most of the evidentiary rulings made by the judge during the course of the trial wentin favor of the Plaintiff. A substantial amount of “bad” character evidence as to John Zieglerwas admitted, and much of it concerning the claim for negligent hiring/supervision, whichhad been previously dismissed on the motions for summary judgment, was also admitted.10. Trial Management (mid-trial jury instructions, special verdict, sequentialissue determination, bifurcation):The court did give a preliminary instruction on constitutional actual malice followingthe opening statements of counsel. With respect to jury instructions, the court generallyfollowed the traditional Kentucky practice of only “bare bones” jury instructions.11. Pre-Selection Jury Work (psychological profiles, attitudes surveys, mocktrial, pre-selection questionnaires, “shadow” juries):The Defendants retained a trial/jury consultant – DecisionQuest, based in Louisville,Kentucky.12. Pretrial Evaluation:Prior to trial, we believed that many of the jurors would likely be offended by thestatements made by talk show host John Ziegler. The question ultimately would be whetherwe would be able to present the case in such a way that those jurors would not find DarcieDivita to be a sympathetic plaintiff and would put aside their personal beliefs or opinionsabout the statements made by Ziegler and follow the applicable law concerning truth,statements of opinion, and actual malice.13. Defense Juror Preference During Selection:Generally, we thought that a “preferred” defense juror would include any of thefollowing:radio;Young men – particularly those who were familiar with and had been exposed to talkProfessional women who probably would not find Darcie Divita to be a sympatheticplaintiff.26
For exclusive use of MLRC members and other parties specifically authorized by MLRC. © Media Law Resource Center, Inc.14. Actual Jury Makeup:Mixed – eight women, four men15. Issues Tried:Plaintiff’s claims for defamation, false light, invasion of privacy, public disclosure ofprivate facts and intentional infliction of emotional distress were al tried to the jury.16. Plaintiff’s Theme(s):The primary theme for Plaintiff’s trial was that Defendant John Ziegler was a“spurned suitor” filled with hatred, spite, and ill will, and who was retaliating and seekingrevenge against Darcie Divita.17. Defendant’s Theme(s):First, as to talk show host Ziegler, Defendant Ziegler’s local counsel tried to portrayhim as being brutally honest – but sometimes he said things that were in bad taste oroffensive, but that he always believed that those statements were true.As to 84 WHAS Radio, the primary theme was that in the talk show context, Ziegler’sstatements were either admittedly true or clear statements of opinion made withoutconstitutional actual malice, and that Divita had voluntarily participated in all of the publicityand discussion.18. Factors/Evidence:a. Pre-existing attitudes of the venire towards the plaintiff, defendant,or issues:Very difficult to ascertain at the start of the trial.b. Sympathy for plaintiff during trial:Seemed very weak. Divita did not make a particularly sympathetic plaintiff.c. Proof of actual injury:Almost nonexistent.d. Defendants’ newsgathering/reporting:Really not applicable or at issue here in this talk radio context.27
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2006 MLRC/NAA/NAB LIBEL DEFENSE ... - Directrouter.com

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