Allan Favish is a Los Angeles-based attorney whose focus is on General Insurance Defense and Litigation Insurance Coverage/Reinsurance & Bad Faith Litigation. A UCLA graduate, he received his J.D. at Hastings College of Law in 1981.
[This letter to the editor was first published in The New Republic magazine at page 7, on March 10, 1997.]
To the editors:
In "One Bite at the Apple" (February 3), Jeffrey Rosen writes that, assuming Paula Jones's allegations are true, he does not think her charges against President Clinton "should be legally actionable" and that a judge "could dismiss" her case "on a motion for summary judgment."
While it is true her claims under civil rights and constitutional provisions are legally very weak, Rosen makes the same error as other media reporting her case; he acts as if her entire case were based on a "sexual harassment" law. It is not.
Apart from her legally weak claims, her complaint alleges intentional infliction of emotional distress and defamation. Thus, one issue is whether Clinton intended to cause her severe emotional distress by his conduct. Clinton allegedly told her that her immediate boss was a "good friend" of his and at the end of the encounter he told her, "You are smart. Let's keep this between ourselves."
Given what allegedly transpired in that room, for a judge to dismiss her case before a trial occurs would be totally without justification. Jones wants to prove that, for his own political protection and in retaliation for rejecting him, Clinton intended to intimidate her into keeping silent about something that she clearly would have an emotional and psychological need to speak about. She is entitled to try to prove this by effective cross-examination of Clinton before a trier of fact that can observe his demeanor. No judge can correctly say that this is an impossible feat for her to accomplish.
Therefore, while Rosen says "that a judge could conceivably let a jury decide what Clinton meant," the truth is that, if Jones desires it, a judge must let a jury decide what Clinton meant.