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As a rule, it is generally not a great idea for lawyers to antagonize the presiding judge in the days leading up to a major trial. So Fox News’ lawyers could not have been feeling particularly good last week when, during the homestretch of pretrial hearings in the defamation case brought by Dominion Voting Systems, Delaware judge Eric M. Davis told them that they had a “credibility problem.” This is how a judge tells lawyers that he does not trust them, and for a party to high-profile litigation, the credibility of the lawyers in the courtroom is an essential asset — hard to acquire, closely guarded, and easily lost — that can subtly but crucially affect the proceedings.
This was an undoubtedly dramatic last-minute turn of events, but Fox has been on the ropes for weeks now in the run-up to the Tuesday start of the trial, which finds the network in a conspicuously weak position as it begins its defense against Dominion in what is expected to be a roughly six-week-long proceeding. The trial was supposed to begin Monday, but on Sunday evening the judge delayed the start of the case amid reports of a last minute push by Fox to settle. The election-technology company is looking for $1.6 billion in damages as a result of 20 episodes of alleged defamation that largely occurred during a monthlong period from mid-November to mid-December 2020 during segments in which crank lawyers Rudy Giuliani and Sidney Powell claimed that Dominion was part of an elaborate — and entirely fictional — conspiracy to steal the 2020 presidential election from Donald Trump. The segments mostly aired on shows hosted by Lou Dobbs, Maria Bartiromo, and Jeanine Pirro, on both Fox News and Fox Business.
Of course, no one knows how the case is going to turn out, but watching it with a lawyer’s eye means being aware of the key signals that have already been sent — what do the judge’s comments and pretrial rulings suggest? — as well as which courtroom dynamics to study closely as the case progresses. Here are the most important things to know and watch as the Fox-Dominion trial unfolds:
1.
The big revelation about Murdoch’s role
The trial begins Tuesday, but after two years of litigation, Fox News’ lawyers had revealed for the first time in the case that Rupert Murdoch, the chair of parent company Fox Corporation, also officially holds a position at Fox News as “executive chair.” This may seem like a small and perhaps inconsequential point — Fox News’ lawyers called the title an “honorific” — but it is not. The reason is that Fox’s lawyers have fought hard throughout the litigation to insist there is a clear distinction — both legally and factually in their day-to-day operations — between Fox News and Fox Corporation. Both are defendants in the case, but Fox Corporation has deeper pockets and a large portfolio of media properties in addition to the network. As it happens, though, Murdoch himself provides an even more direct and formal link between the governance of the parent and the subsidiary than we all previously knew.
Judge Davis, a former corporate litigator himself, was understandably angry with Fox’s lawyers, who, like their adversaries working on behalf of Dominion, will be spending the weeks ahead in trial asking the judge to make countless evidentiary and procedural rulings in their favor — about what evidence the jurors should be allowed to hear, what sorts of arguments the lawyers can make in front of them, and what legal instructions will guide their final decision. “My problem,” Davis reportedly said after learning about Murdoch’s dual role, “is that it has been represented to me more than once that he is not an officer” at Fox News. Things managed to get worse the next day, when Davis announced that he would appoint an outside lawyer to determine whether Fox had tried to mislead Dominion and the court; he left open the possibility that he would tell the jury that Fox had tried to withhold unhelpful information during the case. “I need people to tell me the truth,” he told Fox’s lawyers, which is not exactly an encouraging sign of things to come when the case is nominally about whether the media outlet is populated and run by a bunch of liars.
2.
The judge’s devastating pre-trial smackdown
In recent months, the lawsuit generated an avalanche of news coverage after the parties filed lengthy motions for “summary judgment,” in which they each asked Davis to rule in their favor based on what they claimed were undisputed facts gathered in the course of discovery. Dominion’s papers included a trove of internal communications that seemed to show many Fox executives and on-air personalities casting doubt on the false claims about Dominion in real time, but many of those communications also raised eyebrows among media and political observers thanks to a bunch of juicy tidbits that had less to do with Dominion’s actual case than the apparent internal dysfunction and more broadly endemic dishonesty among major figures at the network.
Davis ruled on the competing motions a couple weeks ago, and the result for Fox was truly abysmal. Dominion largely ran the table — at least as much as reasonably could have been expected under the circumstances — and the ruling substantially narrowed the scope of the trial and, more to the point, what Dominion needs to establish in the coming weeks in order to prevail.
Davis concluded, for instance, that all of the statements at issue about Dominion — the suggestions that the company had an algorithm that allowed it to change votes, for instance, or that it had been founded in Venezuela to rig elections for Hugo Chávez — were, in fact, indisputably false. In yet another ominous sign, he underscored the point in italicized, all-caps, and bold text: “The evidence developed in this civil proceeding,” he wrote, “demonstrates that [it] is CRYSTAL clear that none of the Statements [at issue] relating to Dominion about the 2020 election are true.”
The judge also ruled that Fox News in particular had “published” the statements through its broadcasts, but at the time he did not know about Murdoch’s formal role at the network. He concluded that the jury would need to resolve whether Fox Corporation itself had played a role in broadcasting the statements, particularly given evidence presented by Dominion indicating that Murdoch and his son Lachlan, who is the CEO of Fox Corporation, had weighed in on the network’s editorial direction during the relevant period.
Fox Corporation’s exposure on this point remains outstanding for trial, but Davis implied last week that he might have ruled differently in the course of the case if he had known that Murdoch also held a title as an officer of Fox News in addition to Fox Corporation.
3.
Fox’s best defense strategy is already off the table
Most notably, the judge blew right through a series of claims by Fox that its broadcasts might be protected by an assortment of legal privileges that have been recognized to varying degrees in prior defamation cases — privileges that were widely seen as among Fox’s best lines of legal defense. Davis rejected the availability of a “neutral report privilege,” which permits media organizations to report on “newsworthy” allegations even if they are false, by concluding that Fox News had failed to “conduct good-faith, disinterested reporting” on the false claims. He precluded a defense under the “fair report privilege,” which allows media outlets to report on claims made by third parties in the course of official legal proceedings, because none of the statements at issue actually concerned a pending legal case. (Most of the statements had in fact been made before any of the many failed lawsuits filed on behalf of Trump.) And he held that Fox was not entitled to protection from a “privilege for opinion” since all of the allegedly defamatory statements were statements of fact, either in part or in whole.
4.
Can Dominion prove actual malice?
That leaves just two discrete — but difficult — elements of the case for Dominion to establish in the weeks ahead.
First, did either or both companies act with “actual malice”? This will require Dominion to show by clear and convincing evidence that the people responsible for broadcasting the statements either knew that they were false or acted with “reckless disregard” as to the falsity of the claims.
In approaching this question to date, Dominion has tended toward a scattershot approach. It has lumped together corporate officers and editorial employees with varying levels of authority and control across Fox News and Fox Corporation, often treating their roles and responsibilities interchangeably. It has excerpted snippets of deposition testimony and documents that sound bad in isolation while presenting little if any surrounding context — a necessary accommodation, perhaps, to the constraints of legal writing but one that will be unavailable at trial. And it has generally elided exactly who knew what and when in relation to the exact timing of the relevant broadcasts and their specific substance.
Under Supreme Court precedent, however, actual malice must be “brought home” to the people with responsibility for the allegedly defamatory publication. In other words, the plaintiff needs to identify the specific people responsible for publication of the relevant statements and establish that one or more of those people acted with actual malice. As a result, it is safe to assume that Fox’s lawyers will try to hold Dominion’s lawyers to a much more rigorous analytic framework — with a more precise focus on exactly who was doing what at specific points of time in relation to the relevant broadcasts, their specific content, and the nature of the relevant employees’ and officers’ editorial roles. Whether the jury will care remains to be seen, but this will also be about building a potential record for appeal in the event that Fox suffers a significant loss at trial.
5.
What is the alleged damage to Dominion actually worth?
The second major outstanding question at this trial is whether Dominion is entitled to some meaningful amount of financial damages — both in the way of compensatory damages for economic harm that the company suffered as well as potential punitive damages. Dominion is seeking nearly $1 billion for “the ultimate destruction of its enterprise value,” but the public information provided by Dominion in support of its extraordinary damages claim has been modest, and as Davis noted in his ruling, the issue is both hotly disputed and “intensely factual.” Fox has argued, for instance, that it is “simply unrealistic that a company that was generating as little as $10.6 million in annual EBITDA before the 2020 election could have skyrocketed to $1 billion in enterprise value in the few short years that followed.”
On this point in particular, we can expect a so-called “battle of the experts,” in which each side offers very different versions of what actually happened to Dominion’s financial condition as a result of Fox’s broadcasts. Both Dominion and Fox have prepared experts on damages and the related question of causation — whether and to what extent any economic harm to Dominion can be traced to Fox’s alleged misconduct (as opposed to other factors like, say, Trump’s crazy tweets). It is not clear whether all of the designated experts would testify at trial, but whoever takes the stand will be among the most important witnesses in the case, even though they will not have the boldface names that have attracted media attention in recent months. The lawyers will have invested considerable time both to preparing their own experts and to constructing lines of cross-examination for the other side’s experts on the most minute points with literally hundreds of millions of dollars at stake.
6.
Specific things to watch for in the courtroom
There are several important courtroom dynamics worth keeping an eye on in the days and weeks ahead that will give the smart observer a sense of where things are headed. The most obvious is what the parties choose to highlight and develop in their opening statements. Now that the case has been considerably narrowed, the lawyers should be able to provide tighter and clearer road maps to the evidence that they now believe is most pertinent to what is left of the case. It will be the first time we see the lawyers engage at length on the newly refashioned legal terrain for the case.
The idea of a trial theme may seem hazy, but lawyers devote immense effort to constructing master narratives in the hopes that they will guide the jury through the ins and outs of the case. Dominion has had a clear through-line throughout the proceeding: that many of Fox’s executives, on-air personalities, and editorial staff defamed Dominion in order to indulge their right-wing audience and boost their bottom line and that they did so to the considerable detriment of the country’s democratic process.
Until recently, Fox had leaned heavily on the idea that it was simply engaged in a form of traditional (and protected) news-gathering in the course of a complex and high-profile national issue. But now that the judge has gutted much of that defense, it will be interesting to see what, if anything, Fox’s lawyers come up with to replace it. The opening statement should be a good early answer to this key question: Have Fox’s lawyers developed a competing theme in the network’s defense?
Fox’s lawyers also have to be worried about the judge’s frustration with them in recent weeks, and it is far from clear that the pain is over. If more new evidence emerges at trial that Fox should have disclosed, the judge is not likely to go easy on them.
And, of course, the results of the inquiry into the belated disclosure of Murdoch’s dual status at Fox News and Fox Corporation remain outstanding with the possibility that more problematic revelations could surface that may both further anger the judge and lead him to tell the jury about it. That alone could be very bad for Fox: The underlying issue concerns the most prominent and important person in the corporate hierarchy, it reeks of the sort of legal gamesmanship that jurors can easily understand, and it also happens to be entirely consistent with Dominion’s theory of its case — that the network and its executives think they can do whatever they want with little to no regard for relevant legal and ethical constraints or, for that matter, the well-being of our country.
A trial will test both the accuracy and the limits of that broader proposition in a setting that Fox’s executives, hosts, and staff do not control. It is no doubt a deeply uncomfortable position for a media outlet that is used to telling other people what to believe. This time, a jury would get the last word.
