Saturday, August 25, 2012

Who Will Pay for the Defamation Lawsuit Against Former Members?

A man without self-control
is like a city broken into and left without walls.
(Proverbs 25:28 ESV)

My attorney sent me a copy of the court documents submitted for fees.  I expected the fees to be a little higher, but they are still a big chunk of change.

Here is the top portion of the document:

Many people have been wondering how much the pastor/church will have to pay in court costs and legal fees for the this case.  Below is a screen shot of the  document. (If you like legalese, you can read the full 26-page document here.)

For the record - this does not cover any travel/food/lodging expenses, nor does it cover 1-1/2 days off work for Hannah.  I live more than 4 hours away from the courthouse and required an overnight visit for both court dates.  Because we were not required to be in court, our expenses were not covered.   

I want to post some of what I consider to be key parts of the legal document here.  When our story spread through the media, the overwhelming response was, "what in the world?" and "what kind of pastor would do something like that".   People were outraged and rightly so.  Some Christians expressed that they were ashamed of that response and were embarrassed.  In comments on articles on the internet and on my blog, many quoted the verse from the Bible  where Christians should not sue other Christians (1 Corinthians 6), others quoted the verse about turning the other cheek (Matt 5:39), etc.  Both believers and non-believers alike were overwhelmingly shocked and appalled by the idea of suing another  Christian.  They were not only shocked at the lawsuit, but equally appalled by the dollar amount of the lawsuit.   

One of the primary purposes of the anti-SLAPP motion which my attorney filed is to prevent frivolous lawsuits against free and protected speech.  Once an anti-SLAPP motion is filed, it prevents either side from gathering more information or "discovery" (extensive interviews and interrogations, confiscating materials, e-mails, etc,) which can take months, is costly, and can keep the case stuck in the court system for perhaps years.  I was served the subpoena on March 1 and received the judgment on July 26.  Nearly 5 months is a very quick result for a lawsuit (yet at times it felt like eternity and there was an emotional toll on me and the family).

Hopefully, my case will serve as a reminder to those pastors who get worked up from reading negative and emotional responses from their former church members that a lawsuit may not be the best course of action for them financially or otherwise.

Every single attorney who read my subpoena - both local and national - indicated to me sentiments like this:  the lawsuit is ridiculous,  the amount of the lawsuit $500,000 is absurd, and the pastor/church are foolish to waste their time and money on something so frivolous.   Some attorneys even suggested the possibility that any attorney who might take on such case could be brought before his peers for some sort of disciplinary measures for agreeing to take such a case in the first place.   

Here are some standards in Oregon that pertain to the awarding of fees.  I found it quite interesting.  It is pretty clear that the court system does not look favorably on frivolous lawsuits.  The court does consider exorbitant damage amounts, the reasonableness of claims, and diligence in filing legitimate claims.

Factors considered in calculating the award of fees are set out at ORS 20.075(1) and (2). The ORS 20.075(1) factors usually are considered to determine whether to award fees at all but also play a role in evaluating the reasonable amount to award when fees are mandated. Those factors are: 
(a) The conduct of the parties in the transactions or occurrences that gave rise to the litigation, including any conduct of a party that was reckless, willful, malicious, in bad faith or illegal.
(b) The objective reasonableness of the claims and defenses asserted by the parties. 
(c) The extent to which an award of attorney fees in the case would deter others from asserting good faith claims or defenses in similar cases. 
(d) The extent to which an award of attorney fees in the case would deter others from asserting meritless claims and defenses. 
(e) The objective reasonableness of the parties and the diligence of the parties and their attorneys during the proceedings. 
(f) The objective reasonableness of the parties and the diligence of the parties in pursuing settlement of the dispute. 
(g) The amount that the court has awarded as a prevailing party fee under ORS 20.190. 
(h) Such other factors as the court may consider appropriate under the circumstances of the case. 

In the original complaint, the pastor/church hand selected alleged defamatory phrases which were taken out of context.  My attorney had to go through each and every phrase, bring the context to the court and explain my point.  This was a very time-consuming and costly effort, but was necessary because if even one phrase was ruled as defamatory, I could lose the case.  Taking those many phrases out of context was not helpful for the plaintiffs whatsoever:  

The "reasonableness" of conduct factors enumerated under ORS 20.075(1)(a), (b), (d) and (e) strongly favor Defendants. Plaintiffs’ Complaint and Amended Complaint alleged an intent to seek punitive damages. All of the 17 claims against Julie Anne Smith and the 4 against Meaghan Varela were based on isolated words and phrases, and all lacked any context or explanation through properly plead innuendo, thus failed to conform to Oregon pleading rules [ORCP 18], indicating a lack of careful consideration prior to filing suit for $500,000.

Here is more from my attorney on how each alleged defamatory phrase needed to be defended:

There were 17 different claims against Julie Anne Smith, 1 against Hannah and 4 against Meaghan Varela. Each statement had to be moved against separately and the basis for the defense set out in detail (religious belief, opinion, opinion based on state facts, etc). The number of claims was the major reason that legal research and individual motions took the amount of time invested. 

Here my attorney discussed Hannah's part of the lawsuit - and how the inclusion of her words as defamatory in the lawsuit were not reasonable:

The single claim against Hannah Smith was not well-taken. It is very unlikely many Oregon attorneys would have thought it reasonable to include this young woman in a suit for $500,000 in damages for her single online comment that the Plaintiffs’ were "no-way Biblical." It is even more unlikely anyone would repeat the same allegation in the Amended Complaint after its weakness should have become evident from the discussion in the Smiths’ motions filed on April 27, 2012. 

After filing the anti-SLAPP motion, the both attorneys for the defendants got word that the Plaintiff's attorney was going to subpoena another former church member for questioning.  As stated in the subpoena, the former church member was supposed to bring all documentation related to our former pastor to the pastor's attorney's office at a specific date/time for questioning.  This did not go over real well, to say the least.  Can you imagine first seeing your friends getting sued and then finding out that you are getting called in for questioning?  Yikes!

This action was completely against the provisions of the anti-SLAPP law.  The plaintiff's attorney needed to be "reminded" of this violation.  My attorney discussed this issue in the motion for fees because that, too, involved additional time and money.

Plaintiffs also served a "notice" of intent to depose other church members not named in the lawsuit on May 3, after the Special Motions had been filed, which was a violation of the automatic stay of discovery [ORS 31.150] arising from the earlier filed Special Motions. The attempt to circumvent the stay was not reasonable. Other litigation conduct by Plaintiffs prolonged litigation and caused additional effort and response by Defense Counsel, discussed more specifically under "hours of effort," pp. 8-17, post.

The total figure I added up was $44,372.55 for defending Hannah, Meaghan and me.  The total amount was approximately $16K for the two defendants who were dismissed early on, so the overall total for all defendants works up to be around $60,000 for the church/pastor to pay (approximately 60 hours of work charged for the dismissed defendants and approximately 108 hours to defend Hannah and me).  

Now the question is:  who will pay?  The pastor or the church?  

One of the most disconcerting aspects of this case for me is realizing the strong possibility that the money to pay this huge bill will most likely come from the tithes and offerings of church congregants.  Will the pastor feel the effects from his pocketbook?  It's ridiculous to use God's money to pay for a man who got his feelings hurt - utterly ridiculous!  Even if what I said on Google or my blog was not true and truly defamatory, most reasonable pastors would know to leave the comments alone - simply ignore them.   

I hope the current church members think carefully about aligning with a pastor who sues and now may use their tithe money to foot the bill of their pastor's foolishness.  

How fitting is today's Proverb.  It's the 25th day of the month, so I'm reading Proverbs 25:

What your eyes have seen
do not hastily bring into court,
for what will you do in the end,
when your neighbor puts you to shame?
(Proverbs 25:7-8 ESV)


  1. Wow.

    So, if I understand this right, your (very competent) lawyer argued that, according to Oregon state law, the plaintiffs' lawsuit included aspects that were ill-considered, ill-prepared, unreasoned, and unreasonable. Also, there was the demonstrated problem of attempting to by-pass anti-SLAPP statutes by issuing an "intent" to depose more witnesses. This was all evidence that the defamation lawsuit was indeed unwarranted and frivolous.

    So now, the plaintiffs ... but basically, the congregation, who (I'm assuming) pays their co-plaintiff pastor's salary ... will owe $60,000. Assuming the judge so rules, this will cost them perhaps a year's worth of Pastor O'Neal's salary for following his leadership.

    And there is still the potential issue of whether they/he will appeal. Their evidence can't get any better. Wouldn't it be best if they quit while they're only this far behind?

    1. Yes, Brad, you are correct. During this process, a number of attorneys from all over the country have asked me to forward the legal documents to them. Every comment I have read from attorneys about the original complaint (written by Attorney Roger Hennagin) is that it was not written very well. I was surprised to hear this because one of the attorneys I originally spoke with as I was "attorney shopping" mentioned that Roger Hennagin was well-respected and a very tough attorney. Now I'm thinking the attorney who told me that might have been pulling the wool over my eyes to convince me to hire him.

      During both hearings, with both the original attorney and the replacement attorneys, the attorneys were trying to add more to the complaint in the courtroom. My attorney continually reminded them that bringing in extra complaints to the courtroom that were not on the original complaint was not allowed. She even went as far as saying that they would need to sue again if they wanted to bring these other issues in court.

      You probably are within the ballpark of the pastor's salary. This is a congregation with 100 people at the most. That's a lot of money for this size congregation.

      I think since both the pastor's name and the church's name are on the lawsuit as plaintiffs, the pastor should at a minimum pay half of the amount = $30K, perhaps more since he was probably the one who instigated the lawsuit.

    2. I suspect that even if the plaintiffs were to file another suit and their attorney(s) do everything "right," I cannot expect but that they would lose again.

      And, if you happen to know, if they brought suit again, would they be able to use *any* of the items from the original suit, seeing as how all counts were found to fail in meeting the legal standards for "defamation"?

      P.S. Thanks for posting documents and links over the past few months. It has been a real education, though certainly one that none of us would wish for.

    3. You know, it would really be foolish for them to try again. My attorney did an excellent job showing that Google reviews are obviously someone's opinions/reviews discussing quality of service. My blog clearly states the intended purpose - to discuss my experiences in the church which are obviously my opinion.

      I've discussed this a number of times, but for new readers, to win a defamation case requires the plaintiffs to prove that: (1) I intentionally told a falsehood and (2) I intended to hurt the pastor with my words (malice). BOTH (1) and (2) must in order to be classified as "defamation. Not one of the twenty-something phrases that were claimed to be defamatory met even the first level of the defamation definition. If some of the phrases had met the first level, then I can see possibly suing again for the off chance that the judge had made a mistake - - hoping they could get a new judge to look at the case. It would be an incredible long-shot to win - - - - especially with the proven track record of my attorney. Are you kidding me? lol

      I am pretty sure they can sue using the same phrases again. The filing fee for the last lawsuit was $505. I wonder how long their $$ will last?

      You are right, this legal stuff has been a real education to me, too. The whole process is fascinating and I have actually enjoyed reading the court documents. Here is how ignorant I was about this stuff. I thought that if we won, the judge would tell the other side to pay up and that would be that. Nope - my attorney had to put together the 26-page document basically justifying the fees and the work involved. I tell ya - learn something new every day!

    4. Julie Anne, did you ever find out why there was a change of attorneys? I find that aspect of the case interesting, but guess the original attorney probably wouldn't be willing to share much.

      I figure they will appeal the judgement for reimbursement, but if so, it would be quite foolish and only increase what is owed. It would also only bring more unwanted negative attention to the church.

      I remember how I felt when I started reading their original complaint. I found their charges to be quite comical and sounding like what a child would say. "Mommy! Susan said she thought I was kooky and short!" If we all started suing people for things like this, the court system would fall under the weight of the claims.

      I will be continuing to watch this until all the awarded fees have been paid.

    5. No, Lois, I didn't find out about why the change of attorneys. My hunch is that after the first court hearing and comparing the two attorneys, my former pastor probably realized he needed someone new. I thought the pastor walked into the courtroom confident, but left feeling uneasy. My attorney was completely prepared with numerous cases to back up her comments; when the plaintiff's attorney mentioned a case, he did not describe the case to make the connection. He really was ill-prepared. If he were my attorney, I would have been very disappointed.

      Unfortunately, the replacement attorneys were obligated to work with the original bad complaint, so they had a very difficult job.

      I'll keep you posted on the fees and if/when they get paid.

    6. You know, the original attorney might be a great attorney - there's only so much you can do when a case is without merit. Maybe he knew they were tilting at windmills from the beginning.

      I would hope that having to cough up $60,000 would be a wake-up call for the congregation, but maybe not. What happens if they don't pony up the cash?

    7. The general consensus I got from all of the interviews I did with attorneys was that any attorney would be a fool to take this case. Some attorneys even suggested that this attorney could be brought before a peer review board for disciplinary measures for taking such a ridiculous case.

    8. I forgot to respond to the last question, Buff. I have discussed this with my attorney. She has been doing this for a long while and has ways of getting her money. I can't remember specifically, but garnishing wages and liens comes to mind.


  2. BTW did you advise your attorney's of the donations that you took for your defense? I did not notice a line for that item.

    1. My attorney knows and she's been doing this stuff long enough to know what she needs to report or not. I have not been informed that one cent has been paid by the plaintiff.

      We have 2 sets of filing fees of $505 that we paid for, my daughter has 1-1/2 days of work she took off to attend the hearing, I took 2 trips (4-hours away) which included overnight lodging, meals, and gas. I don't think the donations would even cover that. There you go.

  3. Anonymous, did you contribute? If not, why do you care? Are you the same one who brought this up before? Do you realize that the amounts requested do NOT cover personal expenses of traveling to court? Those costs are excluded from the money they can be awarded. And do you realize that no one has received a penny yet?

    Hmmm. I assume, if they chose to do so, they could file a claim against the church for those? Small claims court? Attorney, are you out there?

  4. The money once donated is Julie Anne's to do with as she pleases. There are litigation costs that will not be awarded by the judge, including the cost for Julie Anne to meet or talk with her attorney, travel to the court, etc. Those are real costs, incurred by the stupidity of her former pastor and the former church, that the court will not award her from them unless she chooses to file suit to recover them, which I would not advise in this instance. So the donations will partially defray those costs, which are considerable.

  5. If Julie Anne received thousands of $$ in donations, it wouldn't be enough to cover the hassle. If the church members choose to stick around and support cult leader, then they'll just have to pay up.

    1. True statement.

      I cannot imagine writing out a check month after month knowing that the bulk of it would be going to pay off a frivolous lawsuit instead of supporting ministry work, helping needy, etc. It's shameful, really. I'd be putting my $$ elsewhere.

    2. LOL - Are you pulling against yourself? Who pays if the church folds up? Oneal? I guess the old saying "be careful what you wish for" has some application here.

      You are not on the hook are you?

  6. HMMMM.... no response. Uh-oh, somebody strike a nerve? Pretty sure the attorneys have their fees covered.

    1. Anon - If you are referring to the 6:59 comment, I have no idea what you are talking about. It confused me. Another thing, I couldn't tell if you were responding to Anon 1:45 or if you even were the same person as Anon 1:45 - which is precisely why I have requested that people choose a pseudonym in the posting instructions. Thx.

    2. Hmmm indeed, Anonymous at 9:55 AM.

      Besides what Julie Anne pointed out about the uninterpretable ambiguity of your comment,

      Also, I suspect it might be relevant to say at this point that bloggers are not required to be available 24/7/365 to meet commenters' felt needs for answers on their timeschedules. Also not wise to presume that delay in response must be assumed to be "an uh-oh moment" because "somebody struck a nerve." That.Is.Ridiculous.

    3. Thanks, Brad. I needed that laugh :)

    4. Not sure why you think the attorneys have their fees covered. This entire court filing details the UNPAID fees that piled up to defend her in this case.

    5. @ Buff
      Attorney's are smart enough to keep their clients on the hook for their fees. If all else fails and the church and/or Oneal go belly up, then JA has to pay up. There is a possiblility that Oneal will make a second run or appeal the decision and delay or abandon the debt. I think that a judgement lien on property is subordinate to other debt.

      I personally hope that everyone has had enough and will simply agree to disagree and leave each other in peace. However, it is ironic that JA would continue to root for the demise of the church that will pay the defense fees, or not. If the church caves then JA will have to pay up. Attorneys, am I right?

    6. Fred, Julie Anne has never rooted for the demise of the church. On the contrary, she has shown a heart for those people still in the darkness there because she was in that darkness too. She knows the freedom Christ offers, and her heart aches for those in bondage.

      She has expressed many times how it troubles her that the church members are on the hook financially for a poor decision made by the pastor.

    7. I would never root for the demise of the church. You won't find those words anywhere from my mouth or on this blog because it's far from the truth. I care for those people. It would be good to have a complete leadership makeover. Perhaps a name makeover is in order, too, since the name was completely tarnished by the negativity of the lawsuit.

    8. The winning attorney, with an award in a case like this, can file a lien on property of the losing parties. Property means more than real estate. It can include funds in accounts, automobiles, artwork, furnishings, etc. At some point, a judge can order payment from financial accounts and the sale of the property to pay off the judgment.

      Whether Julie Anne is liable to her attorney for fees awarded to the attorney against the plaintiffs is a matter of contract and agreement between them.

      Whether the church or pastor has a liability to their attorneys is also a matter between the church/pastor and the attorneys. The suit should never have been filed, and the question is, why did the attorney decide to do that and what was their advice to the church/pastor prior to the decision to file suit. Sometimes, suits are brought on contingency -- win and the attorney gets reimbursed expenses and then a cut of the net award after expenses, often 1/3 of the net. The attorney may have taken that bet for 1/3 of most of $500,000.

    9. "I cannot imagine writing out a check month after month knowing that the bulk of it would be going to pay off a frivolous lawsuit instead of supporting ministry work, helping needy, etc. It's shameful, really. I'd be putting my $$ elsewhere."

      I am not reading between the lines too much, or am I? I would say that JA is rooting against the church to say the least. She is trying to communicate with the congregants to consider putting their money elsewhere by cutting out their contributions or tithes. It is the same sophmoric strategy that many of the other "watchdog bloggers" employ to take down their former pastor. IMHO that strategy shows more selfishness than concern.

      Attorney is right on. The liens are subordinate to bank mortgages and etc?

      BTW, Jess - How do you know JA's heart?

    10. @ Fred ... are you the same person as Anonymous (Aug 26-28 above ) who brought up implied accusations about the use of donations, and now you've just switched Anonymonikers? And you apparently don't think Jess can know JA's heart, but kind of looks like you think you do ... and you seem quite familiar with "watchdog bloggers" - are you the Anonymous who shows up on FBC Jax, too? Hmmm ...

    11. Fred - with that logic you could imply that I want the demise of the pastor's family as well. That is ridiculous. It is not the pastor's children's fault that their father made a foolish choice, but they will most likely have to pay indirectly just as my family had to pay when I was not paying attention to the speed after driving home 10 hours in Dover, Delaware. The whole family suffered because of my mistake.

      The bottom line is that there are consequences to foolish actions. Many times innocent victims will be the ones to pay.

      And as far as me convincing people to not write out checks. Nah - I don't buy it. If they were going to leave, they would have left by now. I haven't heard of any mass exodus. They are there because they want to be there.

      Now why don't you run along and organize some sort of fundraiser to help pay for their foolish actions. They are going to need all the help they can get.

      PS Did you get permission from the other Fred to use his name?

    12. You are welcome for the long and responsive thread.

  7. Sorry about your predictament. Praying that the church is solvent and can supernaturally meet their least until your legal fees are paid. Maybe you should put the donate button back up after all. :)

    1. I could possibly be wrong, but my nose smells a troll.

      The donated money was intended to help the defense. The pastor and those who were foolish along to join him in the lawsuit are responsible for their own legal bills. Have you encouraged them to put donate button on their site? Perhaps you should.

      Anonymous comments dealing with the donation $$, etc, will be subject to the the following actions and I ain't PMSing.

  8. Uh, Fred.
    The pastor kings will not police themselves scripturally, so the only thing left for the sheep to do is "tell it to the church," and if said churches will not repent--they are to be treated like unbelievers; ie., there is a green line to take legal action. And, abusive churches run by despots should be taken down. What's with this 007 licence to kill for anything that calls itself a church?

    1. That is one thing that my former pastor did not do to my knowledge. I think he would have been more respected had he said we were unbelievers. But because he publicly said we were in church discipline, he had to justify his actions by broadcasting the mega-page diatribe press release.


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