When former Paula Deen employee Lisa Jackson filed her discrimination lawsuit on March 5, 2012, in Chatham County Superior Court in Georgia, I expect she did not anticipate the impact her case would have on the Paula Deen empire. Now, before the case has even gone to trial, Deen's goose is already cooked.
Jackson alleges that Deen and her brother promoted sexual harrassment and discrimination in the workplace, and what's more, that they often made racist comments disparaging African-Americans. On May 17, 2013, lawyers deposed Deen and asked her about her racism and her use of the "N" word. A deposition is part of discovery during a civil case during which one side asks an opposing witness questions under oath, and it is either video recorded or taken down by a court reporter. Later in trial, if that witness's testimony differs from their deposition, then opposing lawyers will try to impeach the credibility of the witness.
When Deen was under oath, she admitted to using racist language, and when Jackson's lawyers attached her deposition to a court filing, it became part of the public record. It wasn't long before the Savannah Morning News and the rest of the world caught wind of what she'd said. The rest is history. While I can't speak to the actual motivations of Jackson's attorney, I am sure they gained significant leverage by making Deen's comments public.
In my current position as a mediator, I see a lot of discrimination and harrassment civil cases. Mediation is part of what is known as "alternative dispute resolution." Instead of a case going all the way through trial, the parties work with a neutral third party to settle their dispute. By reaching a settlement, you can save time and money and avoid the stress (and in some cases, media attention) that comes with trial. How a case is settled is completely up to the litigants, since the outcome is not decided by a jury. I often tell attorneys that we are putting a value on what the risk is for either party to proceed to trial. What's it worth to each side to settle?
It's doubtful that Deen and her brother could even imagine the magnitude of the damage that Jackson's lawsuit could wage on their empire. The parties are still in the discovery phase in which each side figures out what the evidence will be and what the witnesses will say in their testimony. The way the civil process works, which is different from criminal cases, there are not supposed to be any surprises during trial. But here they are, a long way from even reaching trial, and media scrutiny and the court of public opinion have already condemned Deen, costing her many of her endorsements, cancelling her TV show and voiding her cookbook publishing deals. The damage has been done, and it's hard to say if Deen will ever recover.
From a legal standpoint, I am certain of one thing: Someone should have calculated the risk of allowing Deen to undergo a deposition. Being under oath, Deen had to tell the truth and admit to her mistakes. But all of that could have been avoided if Deen and her lawyers had settled. Sometimes lawyers aren't able to fully gauge the risks they and their clients face, especially when there are celebrities involved.
Sure, hindsight is 20/20, but I know there are some attorneys out there who think that Deen should have settled this case long before her empire came crumbling down. Deen may have been in the wrong in the first place, but it is clear that settling, as it often is, would have been just plain smart.
(Jackie Glass is a lawyer and former district court judge from Las Vegas. You can write to Jackie by emailing email@example.com. You can follow her on Twitter at @theJudgeGlass. This column is being provided for informational purposes only. It may not be relied upon by you as legal advice and does not create an attorney-client relationship.)Copyright © 2014, The Baltimore Sun