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39 St. Louis U. L.J. 1207 (1994-1995)
The Chilling Effect of Libel Defamation Costs: The Problem and Possible Solution

handle is hein.journals/stlulj39 and id is 1219 raw text is: THE CHILLING EFFECT OF LIBEL DEFAMATION COSTS: THE PROBLEM AND POSSIBLE SOLUTION* DAVID BOIES* PICKING up from the last presentation, I do not believe serious defamation lawsuits chill First Amendment rights by winning judgments, by winning verdicts, or by winning retractions from news organizations. As the Supreme Court has recognized, there is a healthy role for defamation lawsuits in the area of free expression. Defamation lawsuits are one of the ways the public-individuals and corporate citizens---can fight back against published attacks that they think are fundamentally false, and, in most of the kinds of cases we are talking about, malicious in terms of the actual malice standard. There is, however, a problem, which is illustrated by some of the charts that those of you who were here for the first presentation saw. One of the charts shows the success rate of plaintiffs in defamation cases: the average success rate is very, very small. That reflects the fact that there are very substantial hurdles to the successful prosecution of a defamation case. Those statistics are related to a finding we made in the middle 1980's, and which is probably still true. We did a survey to find out what percentage litigation expenses (legal fees and disbursements) represented the total amount of transfer payments resulting from defamation lawsuits. What we found is that if you add up all the litigation costs and the money that is actually paid to plaintiffs-if you add up all the money that both the plaintiff and the defendant have thus spent as a result of the litigatior---somewhere between 3.5% and 8% of that goes to the plaintiff, and over 90% (maybe well over 95% because there are real problems of collecting the data) go to legal fees and expenses. What that says is that it is a good market for lawyers. It also says the real costs involved here are not the costs that come from paying judgments, because judgments are hard to get, and as some of the other statistics that were shown in the last hour demonstrate, even after you get judgments, they are * This article is based on remarks delivered on September 8, 1994, at a Corporate Defamation Conference at Saint Louis University School of Law. ** Partner, Cravath, Swaine & Moore. Mr. Boies received his B.S. from Northwestern University and his LL.B. magna cum laude from the Yale Law School. He is a former Chief Counsel and Staff Director of the Senate Judiciary Committee.

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