During Super Bowl week, news emerged that Hall of Fame quarterback Brett Favre had sued broadcasters (and former NFL players) Pat McAfee and Shannon Sharpe and Mississippi auditor Shad White for defamation in connection with the ongoing Mississippi welfare-fraud scandal.
It appears that Favre sued each of them separately.
The case against McAfee was filed in Lamar County, Mississippi. Via sports and betting lawyer Daniel Wallach, McAfee removed the case from state court to federal court on Friday.
It was the only play by McAfee, given that Favre is a Mississippi native, who lives in Lamar County. Home cooking exists in state courts, when it comes to defendants who don’t live in that state. For that reason, federal law allows cases filed in state court against out-of-state defendants to be removed to federal court (if the plaintiff is seeking more than $75,000), where the judges are appointed for life and not part of the local political scene.
Although Favre’s lawsuit doesn’t make a specific demand in dollars, the filing includes quotes from Favre’s lawyer regarding the value of the case.
“Well I guarantee you the jury in Mississippi will make certain he learns how to apologize,” Eric Herschmann said regarding McAfee. “It’s going to cost Pat McAfee millions of dollars, and if it bankrupts him then he will have learned his lesson.”
As we’ve previously opined (and opinions are always protected under the First Amendment), Favre is the one who may learn his lesson here. McAfee’s statements, while perhaps technically on the wrong side of the line, seemed to be consistent with the widespread conclusions many have reached regarding Favre, based on facts that have emerged in connection with the Mississippi welfare scandal.
Far more importantly for Favre will be proving that his reputation was damaged by McAfee’s statements. To do that, Favre’s pre-existing reputation becomes relevant, because there’s no way to determine whether it was harmed without establishing where it was.
This gives McAfee’s lawyers license to delve into the nooks and crannies of anything and everything Favre has ever done, including but not limited to a certain alleged escapade involving a coworker, a camera, and crocs.
And because truth is always a defense to any defamation case, McAfee’s lawyers now have an avenue for investigating whether and to what extent Favre knew that money he received from Mississippi was coming from funds meant for welfare recipients. Anything Favre says in that case can and will be used against him, if he’s ever accused of criminal wrongdoing by state or federal authorities.
Finally, Herschmann’s habit of talking tough about the case continues to be curious, to say the least. While it’s a matter of individual lawyer style, I learned during 19 years of practice that no one knows how any case is going to play out in court -- until it does. There are too many unexpected twists and turns, too many potential issues with whether and to what extent witnesses might fold under questioning, too many variables both tangible and intangible that will influence whether the randomly-selected jury agrees or disagrees with the position a given party is espousing.
The best play, in my experience, is to work the case quietly, build it diligently, and then let the evidence do the talking -- and hopefully let the jury do the shouting.
In this case, we’re a long way from trial. But, man, if it ever happens, I may have to spend a week or two in a federal courthouse in Mississippi.