The battle isn’t over in the defamation lawsuit brought by former Gov. Jesse Ventura, who saw the U.S. Eighth Circuit Court of Appeals on Monday overturn the $1.8 million award he won from a jury two years ago.
Negotiations between the two sides appear inevitable. Here’s what may happen next.
“I think almost surely Ventura’s lawyers will ask for a rehearing from the three judge appeals court panel” that decided the case, said Chip Babcock, a nationally known libel attorney from Houston whose clients have included Oprah Winfrey.
But he doubts the panel will hear the case again. “It hardly ever happens,” he said.
Usually, the losing side will also ask for a rehearing by the entire Eighth Circuit Court, but the odds that it will agree to a hearing are also “very slim,” Babcock said.
Ventura’s team could ask the U.S. Supreme Court to review the case, but it is unlikely it will, said Lucy Dalglish, dean of the Philip Merrill College of Journalism at the University of Maryland. “The Supreme Court hasn’t bothered themselves with a libel case for a long time,” she said.
The Eighth Circuit has remanded the case back to federal court in St. Paul for a new trial. Here’s where it gets interesting.
Ventura had alleged that the late Navy SEAL Chris Kyle wrote a fabricated account of a fight the two had in a California bar in 2006 in his bestselling memoir, “American Sniper.” In 2014, a jury voted 8 to 2 to award Ventura $1.35 million for unjust enrichment and $500,000 for defamation. The Eighth Circuit said Minnesota law did not allow for an unjust enrichment award in a defamation case.
The appeals court also overturned the defamation award because it said Ventura’s attorney mentioned several times during the trial that Kyle’s estate was covered by defamation insurance, which made the jury more inclined to give Ventura the money.
Before there is a new trial, outside lawyers say it is a virtual certainty there will be settlement discussions, mandated by the court, and informal discussions. Neither side seems fond of the other. “It doesn’t look like there is a lot of hugging going on,” Babcock said.
Neither side has talked publicly since the appeals court ruling. But given that both sides have spent big bucks for lawyers — estimates are in the millions of dollars — there would seem to be an incentive to settle rather than hold an expensive new trial. Still, HarperCollins, the publisher of “American Sniper,” may, like other publishers, not want to send a signal it will hand out a lot of money to people claiming libel, said Babcock.
And Ventura may be disinclined to settle, Dalglish said.
“Jesse is going to stand on principle, he’s not going to back down. It’s not in his nature,” she said. “Probably the only way he would settle this case is if some part of the settlement would allow him to claim some sort of high ground, either an apology or something where they would acknowledge in some way he was wronged.”
If the case goes to trial a second time, “both sides will learn from their mistakes” in the first trial, said Jane Kirtley, professor of media ethics and law at the School of Journalism and Mass Communications at the University of Minnesota.
Who benefits from that? “It cuts both ways,” she said.
The Eighth Circuit hinted there were merits to both sides. “If I were a betting man, I would bet on the defendants,” said George Freeman, executive director of the Media Law Resource Center in New York City.
But it may be dangerous to bet against Ventura. “Many of the observers in this case were wrong at every juncture,” said local attorney Marshall Tanick.