Deadspin has posted the full content of the document filed by the NFL in connection with the claim of sexual harassment made by former NFL Network employee Jami Cantor. As expected, the claim made by the league that Cantor consented to the behavior about which she complains flows from the standard, cookie-cutter approach to preparing a formal “answer” to a civil complaint.
The problem for the NFL is that there was no apparent coordination between the lawyers at Proskauer Rose, who did a cut-and-paste-and-revise based on past answers filed for past clients in past lawsuits, and the NFL’s public relations function.
Here’s how it works. Law firms maintain sophisticated internal databases that allow all prior documents prepared in all prior cases to be searched and retrieved. When a junior associate (typically, someone a year or two out of law school) receives the assignment to prepare the first draft of an answer to a complaint in a case dealing with allegations of workplace misconduct, the young lawyer finds an answer from a similar case and uses that past document as the template for the new document.
In addition to responding to the specific allegations made by Cantor (the NFL’s answer contains a blanket denial of anything and everything), the answer to the complaint operates as a placeholder for so-called “affirmative defenses” that may or may not eventually be supported by the facts developed once the lawyers begin studying relevant documents and grilling knowledgeable witnesses. The goal in listing affirmative defenses isn’t to be accurate but to be comprehensive, listing anything and everything that could possibly emerge in any way as the basis for the handful of defenses that the defendant relies on at trial.
That’s why the NFL’s answer has 46 different defenses. Scroll through the document. They’re all there, nearly 50 tiny flags planted in the legal ground, allowing the NFL to proceed with the case knowing that any defense that ultimately may be justified by the facts has been preserved in the extended laundry list of defenses articulated at the outset of the case.
It happens all the time. It’s good, prudent lawyering. And, in 99.99 percent of all cases, none of the defenses listed in the answer create a separate problem for the client.
In this case, however, the Seventeenth Defense does. “The alleged conduct of the Defendants complained of in the Complaint was approved, consented to, authorized, and/or ratified by Plaintiff through her actions, omissions, and course of conduct; accordingly, the Complaint and each purported cause of action therein are barred,” the answer declares on page 4.
It’s an appropriate legal defense, given that sexual words and deeds among co-workers can’t become sexual harassment in the eyes of the law if the employee who complains about it later wasn’t actually offended by it at the time. It’s a poor P.R. strategy, however, given the perception that the NFL is blaming the victim.
Given the broader climate in which this allegation against Cantor is being made, it’s a horrible look for the league to suggest that, if there was inappropriate conduct in the workplace, she essentially was “asking for it.” Although this doesn’t mean the NFL should have completely waived the potential defense of consent, the NFL’s lawyers and its P.R. professionals should have worked together to create a strategy that would have allowed the defense to be preserved without giving the media a plausible basis for accusing the NFL of being tone deaf, at best.
And that’s ultimately the problem with cookie-cutter lawyering. The lawyers, who are merely looking to check off the current item on the daily to-do list and move on to the next thing, get numb to the parade of largely meaningless documents that roll down the assembly line. Sometimes, however, someone needs to press pause and realize that there may be words and phrases in the perfunctory legal filings that will result in all sorts of unfortunate words and phrases being directed against the client by the media.
Clearly, that didn’t happen in the NFL’s first legal filing in response to Jami Cantor’s claims.