• July 22, 2014
SEAL Trident

SEAL Trident

Update (July 22, 2014): The case heads to the jury…

Update (March 21, 2014): Chalk a “win” up on the Minnesota Litigator prediction tally! (See the prediction below and the linked denial of summary judgment for the defendant.) (On second thought, let’s not keep a tally of my predictions and only highlight the ones where I turn out to be right, so you think I am awesome.)

Update (January 21, 2014):  When a lawyer calls another lawyer a “liar,” they never use that word (which is a good thing). They say things like this: “Whether [opposing counsel’s] misstatements arise from deliberate fabrication, overzealous misinterpretation, or simple carelessness, they are caution signals…warrant[ing] skeptical scrutiny.”

No one asked me, but when one makes such inflammatory ad hominem attacks, one ought to have the intended target(s) squarely in the middle of the cross-hairs. Otherwise, the tactic backfires and discredits the accusing lawyer.

In my opinion, counsel for Kyle took several shots at Ventura counsel this past week and they missed the mark. At best, they grazed the target.  Kyle counsel, in the reply brief in support of the second motion for summary judgment, identifies four supposed “caution signals” to taint the credibility Ventura counsel — that is, not just Ventura himself, but his lawyers.  Based on these four points, counsel argues, “All of Ventura’s factual and legal assertions warrant skeptical scrutiny.”

I think not and I am sticking with my prediction below.  This prediction, as opposed to another recent one I made, seems risky.  However, to the old adage, “A lawyer who has not lost a jury trial has not tried enough cases,” we can add, “a person who has not failed to predict the outcome of lawsuits probably has not predicted many outcomes.”

Update (January 14, 2014): In their responsive brief to Estate of Kyle’s second motion for summary judgment, Jesse Ventura’s lawyers give as good as they got (Props to David Olsen, Court Anderson, John Bisanz for the Twin Cities law firm of Henson & Efron).  In the post below, I complimented the defamation defense counsel’s brief. Kudos warranted for Ventura’s lawyers for their hard-hitting response brief.  No amount of carpet cleaning could remove all of the unsavory spots of intoxicated inconsistencies in the tapestry of Kyle’s story and those of his inebriated hangers-on.  

The question still dangles for Sr. U.S. District Court Judge Richard H. Kyle, Sr. (D. Minn.): where a drunken pod of SEALs (and other witnesses) purport to sincerely believe that one of them knocked down a public figure after the public figure supposedly spoke callously of a fallen comrade, could the public figure’s adamant denials and his accompanying corroborating witness testimony sufficient for him to prove at trial by clear and convincing evidence that the SEALs were all bark and no bite?

I will venture out onto the thin ice of prediction: summary judgment, I predict, will be denied.  If I am right, the next question will be whether these brawlers still have it in them to go the ten rounds of trial or whether they might figure out some negotiated compromise, even if their views of the underlying facts are irreconcilable.

Original post (December 20, 2013): Note that the emblem of the Navy SEALs (Navy Sea Air & Land Teams (why not SALTs?)) is an eagle gripping an anchor, a trident, and a flintlock musket pistol.

You cannot reasonably expect a bird of prey, even the majestic American Bald Eagle to be able to hold onto all of this cargo at once.

And we cannot expect history to hold onto both the account of Navy SEAL Chris Kyle that he decked Navy SEAL Jesse Ventura at a bar in Coronado, California (witnessed by several other SEALs who corroborate Chris Kyle’s account with minor (see linked brief at p.9)) and SEAL Jesse Ventura’s statement that IT NEVER HAPPENED (“Coronotso”).

The universe is not big enough to contain these two alternate realities.

However, the question for our legal system (Sr. U.S. District Court Judge Richard J. Kyle, Sr. (D. Minn.), to be specific, at least in the first instance) is whether Ventura’s evidence, which is pretty lame in the opinion of one blogger, at least, presents “a genuine issue of material fact” for a jury to decide or whether the defendants can prevail “as a matter of law” given the paucity of Ventura’s evidence.

The question is not as simple as it might seem at first.  If this were simply a “he said, they said” dispute, this would be a classic fact issue to be submitted to a jury.

But it is different here because Ventura is a public figure.  So the U.S. Constitution’s First Amendment’s protection of the freedom of speech puts a special burden on Ventura in this case.  He must produce evidence, at trial, sufficient for a jury to find Chris Kyle’s “actual malice” by “clear and convincing evidence.”

If, hypothetically, Chris Kyle fought with another bald giant, with shoulder length hair in back, wearing a beard that looks more like a snake biting him on the chin than any beard normal people wear (the same evening that the real Jesse was photographed at the same bar), and Kyle mistakenly believed he had skirmished with Jesse Ventura (along with several other eye witnesses), then there was no “actual malice.”

Is Ventura able to come up with evidence that Kyle and the other SEALs’ corroborating sworn testimony (supported by other evidence, as well) is a brazen lie made from whole cloth and disseminated with malice?

I assume there is no doctrine in the law that someone could be so widely regarded as a jackass, that his widely known reputation is so checkered from years of highly publicized bombast, bloviation, arrogance, contempt, and combativeness (if, also, ferocious and defiant independence), that little if anything could be said about him that could constitute a claim of defamation.  That is, one’s reputation can, presumably, hit rock bottom at some point making one effectively immune from defamation.

Reading the extremely thorough, maybe perfect, brief of Kyle’s Faegre Baker Daniels lawyers (can anyone find a typo?), I conclude that, if such a doctrine were to exist, these lawyers would have found it and would have invoked it in this brief.

[Previous Minnesota Litigator Posts on The Ventura v. Estate of Kyle Brawl on top of a Brawl Here.]

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