Wrongful Exposure of Adultery

August 16, 2007 | 79 comments
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A man used 1-800-FLOWERS to send roses to his mistress. Despite his explicit instructions to keep the matter secret from his wife, the company sent a thanks-for-using-our-services note to his home address a couple of months later. His wife investigated and ended up discovering her husband’s affair. They’re getting divorced and the husband is suing 1-800-Flowers for damages.

Even if his jurisdiction does not make adultery a crime, the suit should be dismissed. The fact that the law does not prohibit a conduct does not mean that one has a legally compensable right to the conduct.

79 Responses to Wrongful Exposure of Adultery

  1. Lupita on August 16, 2007 at 4:52 pm

    Wow. I’m almost speechless. It never ceases to amaze me that people are willing to make their absolute and utter idiocy public knowledge. I try to keep mine under wraps as much as possible.

  2. jimbob on August 16, 2007 at 5:26 pm

    “Even if his jurisdiction does not make adultery a crime, the suit should be dismissed. The fact that the law does not prohibit a conduct does not mean that one has a legally compensable right to the conduct.”

    I haven’t read the pleadings, but is this really the issue? If I’m the guy’s lawyer, I argue normal tort elements: because he’s a customer, 1800Flowers had a duty to protect his privacy; they breached that duty by violating his privacy; an estranged home relationship was reasonably foreseeable; and it caused him significant damages.

    Does he win? Almost certainly not. He’s got serious problems on every one of these elements. But 1800Flowers may settle to make it go away quickly.

  3. cchrissyy on August 16, 2007 at 5:39 pm

    “Even if his jurisdiction does not make adultery a crime, the suit should be dismissed. The fact that the law does not prohibit a conduct does not mean that one has a legally compensable right to the conduct.”

    the suit isn’t about a right to adultery, it’s that the divorce settlement got revised to be more expensive to him once she knew, and so his “damages’ are the $ difference in the settlement price.

  4. Kaimi Wenger on August 16, 2007 at 5:41 pm

    Hmm. Interesting question.

    Assuming that I want to do some bad thing — bad, from a societal standpoint, though not illegal — am I still protected by normal tort and contract principles?

    For instance, say that I contract with the flower company to deliver $100 worth of flowers to my mistress. The flower company then fails to deliver.

    Can I sue them for breach of contract? Should they be able to defend by saying that I shouldn’t have a mistress anyway, so they’re free to breach the contract without having to pay damages?

  5. Frank McIntyre on August 16, 2007 at 5:44 pm

    “Should they be able to defend by saying that I shouldn’t have a mistress anyway, so they’re free to breach the contract without having to pay damages?”

    I can think of worse things.

  6. Adam Greenwood on August 16, 2007 at 5:53 pm

    Interesting hypo, Kaimi W. The big difference I see is that in your flower delivery hypothetical the fact that they were being delivered to a mistress is irrelevant to what happened. The flowers could be delivered to practically anyone and the legal case and the damages would be the same. If a mistress left a man because a florist failed to deliver flowers on her birthday and he sued for emotional damages or loss of consortium or something then it would be a different. The mistress being involved all of a sudden makes a difference to the case. The law should properly say in that case that you don’t have a legally compensable right to have a mistress.

    In the 1-800-FLOWERS suit, if the guy paid extra to not have his receipt delivered to his home, he should be able to get that extra refunded. If not, he should probably get nominal damages. But the extra expense he suffers because his wife discovered his adultery is his own affair. The law’s sympathy to the exposed adulterer should be slim.

  7. Bob on August 16, 2007 at 6:12 pm

    #2:I don’t know Jimbob, You don’t get to the damages until you prove your Tort. You must show a Duty to protect privacy (not just it is their policy), Notice of an estranged relationship with the wife (flowers?!), It seems like the Tort of Defamation would be apply , then “truth” would be the Full Defense. Even if you prove your Tort, you the must link the Damages.

  8. Bob on August 16, 2007 at 6:32 pm

    It seems some here want to use Damages to Prove a Tort(?). #6: I don’t think (in CA), emotional damages, or loss of consortium can stand alone (?). I think you first must show PI or PD, then these can be piggybacked onto the case.

  9. jimbob on August 16, 2007 at 6:55 pm

    Bob,

    I made clear that I thought *all* of the elements had serious problems. I’m just telling you how to best get it past a motion to dismiss–to the extent that’s possible–without dealing with Adam’s original questions.

  10. Adam Greenwood on August 16, 2007 at 6:58 pm

    an estranged home relationship was reasonably foreseeable

    and it caused him significant damages [he should be compensated for].

    Here’s the two elements in the theory that you lay out, JB, that I object to. The state can’t accept these without accepting that you have a legally compensable right to commit adultery and conceal it.

    The fundamental question tort law answers is ‘who should have to pay for this harm?’ When the harm is divorce and higher alimony payments because of adultery, it should be the adulterer.

  11. Bob on August 16, 2007 at 7:36 pm

    #10: You’re right Adam, 1-800-Flowers should show more care in sending flowers where there is bad feeling in the home.

  12. Adam Greenwood on August 16, 2007 at 7:48 pm

    One more thought about your hypothetical, Kaimi W.: a court could find that contracts to deliver flowers to mistresses are void as against public policy even if adultery isn’t criminal in that jurisdiction. But this would not necessarily mean that the florist could pocket the $100, if I recall. It means that the guy with the mistress couldn’t recover expectancy damages.

  13. Bob on August 16, 2007 at 7:57 pm

    #11: Just having fun. #12: Are you saying this is not Tort Law, but Contract Law?

  14. jimbob on August 16, 2007 at 8:23 pm

    “The state can’t accept these without accepting that you have a legally compensable right to commit adultery and conceal it.”

    I’m not sure that there has to be this specific a decision for the claim to survive. Can’t our adulterer state it instead as a right to have private matters remain private?

  15. Kaimi Wenger on August 16, 2007 at 8:42 pm

    Well, Adam, is your argument in addition to arguments against these sorts of secondary harms, in the first place?

    That is, let’s say that I legitimately marry a woman, but for some reason, my parents hate her, and so I conceal the marriage from them. I send her flowers via 1-800-flowers. The receipt is sent to my parents’ house, and I am disinherited.

    Would you believe that I should have a claim for the $500,000 that I would have otherwise received?

    In other words, do you think that revealing a mistress is not cause for damages, but revealing a wife is cause for damages?

    And if not, then isn’t your argument just against attenuated damages in general — not necessarily against damages cause by revealing adultery, specifically?

  16. Bob on August 16, 2007 at 10:36 pm

    Again,respectfully, I see some of you with ‘Damages’.. in search of a Tort. The man ordered flowers, he gave his name, he gave his address, they sent HIM a thank you note to the address provided by him. His wife (Or divorce already underway wife) read it. This is only thing I see being a Privacy issue is by her. No money should be paid by 1-800-Flowers.

  17. Adam Greenwood on August 16, 2007 at 10:36 pm

    I’m not sure that there has to be this specific a decision for the claim to survive. Can’t our adulterer state it instead as a right to have private matters remain private?

    I don’t see how you can prevail on the claim without bringing out that your wife found out about your adultery and you’re suing to recover alimony.

  18. Adam Greenwood on August 16, 2007 at 10:43 pm

    You are right that there’s an issue there about attenuated damages, Kaimi W.–$500k for erroneously routing a receipt isn’t foreseeable, and there’s authority that even if he explained to the clerk or whoever the reason that he needed the receipt not sent to his house there’s authority saying that there needs to be some extra compensation or other special manifestation that the florist was willing to assume this unusual risk. Further, I have an idea that loss of inheritance usually isn’t recoverable because its too speculative and uncertain. But my objection to the 1-800- Flowers case really isn’t the attenuated damages. A man concealing his wife doesn’t do him a great deal of credit but its not barbarous like adultery is, so in a case without attenuated circumstances I wouldn’t see a problem.

  19. Adam Greenwood on August 16, 2007 at 10:47 pm

    #13: I don’t know what theory the adulterous man is suing under. If a random individual exposed a man’s adultery, suing would obviously require a tort theory. But in these facts, the man asked them not to send anything to his home as part of a transaction to purchase flowers, which sounds like a contract action to me. Whether the man could bring a tort claim for violation of a contract duty depends on the jurisdiction.

  20. WillF on August 16, 2007 at 11:14 pm

    In other news, woman call cops after buying “fake” cocaine: http://www.cordeledispatch.com/local/local_story_223195348.html

  21. WillF on August 16, 2007 at 11:31 pm

    Regardless if he wins or not, would it really be worth causing this kind of publicity about yourself by filing a suit? Even if he wins, he loses.

  22. timer on August 17, 2007 at 1:05 am

    Adam, from what news source do you find that the man committed adultery?

    I looked up the 1800flowers at news.google.com, and I couldn’t find anything that says that the man filing suit committed adultery. I only found that he was in the middle of divorce negotiations with his wife, and he sent another woman flowers with a note that said “I love you.”

    Most of us here agree that even if (for whatever reason) divorce was inevitable, he should have waited until divorce proceedings were final before expressing love to (or even falling in love with) another woman. But not everyone feels that way (divorce proceedings can take years, after all), and I don’t see that the inappropriateness of the flowers/note gesture itself has any legal relevance.

  23. Bob on August 17, 2007 at 1:32 am

    #22:”Adam, from what news source do you find that the man committed adultery?” You guys are more into adultery then I am, But wasn’t it this unveiling that was going to cost him higher Alimony?

  24. Nick Literski on August 17, 2007 at 2:20 am

    #6 Adam:
    The plaintiff has specifically stated that he did not commit adultery. He says he was involved in a relationship with this woman, but had not been physically intimate with her.

  25. Brian on August 17, 2007 at 2:23 am

    I think it very hard for this man to win this case, but he does have at least some legal leg to stand on, else why would the judge have not thrown out the case in summary judgment? If one of the employees of 1-800-flowers agreed to keep the matter a secret, then the secret being let out equals a breach of verbal contract by the agent of that company. The man may end up getting some punitive damages, but not anywhere near the money he is asking for. Just my two cents as an armchair lawyer. ;-)

  26. Kyle R on August 17, 2007 at 3:45 am

    #23 “You guys are more into adultery than I am”.

    ah….

  27. Bill MacKinnon on August 17, 2007 at 8:08 am

    Hmmm, after mature deliberation and fee-less consultation with my attorney, George A. Smith, Esq. (that great and early advocate of “Mountain Justice”) I am driven to quote not from the British or American common law but from Charles Dickens, the favorite novelist of the novel-less Brigham Young, “…because, Mr. Bumble, the Law is an ass” (or words to that effect), ipso facto, de minimus and sui generis.
    P.S. Have discovery proceedings yet uncovered whether the invoice was addressed to the gentleman in question and the extent to which the subsequently estranged spouse violated his privacy rights by opening mail addressed to him rather than to her or to the happy couple jointly?
    /s/ One Who Needs to Know

  28. Mark IV on August 17, 2007 at 9:05 am

    Bill M.,

    Oh sure, you just need to know “for a friend” right? LOL.

    Not only is the law an ass, but the right to privacy is a penumbra.

  29. Adam Greenwood on August 17, 2007 at 10:04 am

    Timer,
    The news sources I’ve seen said that the man was having an affair at the time. According to them, he and his wife were contemplating divorce but hadn’t made up their minds until she discovered the flowers, confronted him, and he confessed his affair, which precipated matters, and, allegedly, will lead to higher alimony payments. In any case, feel free to treat what I’ve said about the suit as commentary on a hypothetical if you feel uncomfortable saying that this particular man is probably an adulterer. I can’t be sure, myself, since I’m just relying on news reports.

    Brian,
    I’m not concerned with what the judge and jury actually do. I’m saying that they *ought* to deny this kind of claim.

  30. greenfrog on August 17, 2007 at 11:01 am

    Adam,

    As I parse your responses to Kaimi’s questions, it seems to me that (esp. your response in #18) you are advocating a back-door way to make adultery illegal in a society that generally doesn’t find adultery illegal.

    If I’m not missing something important in the analysis (and I readily acknowledge that I may be), isn’t that essentially an argument in favor of judicial activism in opposition to majoritarian rule?

    Is there a hierarchy of values (outside the Constitution) that should guide us in deciding when to countenance judges’ actions in counter-majoritarian ways and when to reject such actions?

  31. Bob on August 17, 2007 at 11:03 am

    #24: My “Law” is old. But I recall punitive damage can not stand alone or raise from Contact Law (?)
    #28: I agree with Adam, there are lot of real Privacy issues that need airing before this one.

  32. Adam Greenwood on August 17, 2007 at 11:35 am

    First, Greenfrog, at least a substantial minority of jurisdictions still criminalize adultery or make it a tort, though these laws are often not enforced. Second, my whole point is that the law has a range of options between criminalizing adultery and treating it as an outright acceptable thing to do. You can treat adultery as a tort, you can make it a grounds for divorce that gives the injured spouse extra rights or benefits, you can make contracts that involve or promote adultery void as against public policy, and you can say that one should not be able to get tort damages arising from one’s own adultery. I see no logically compelling reason why a jurisdiction that doesn’t criminalize adulterty still can’t do some of these other things.

    State court judges traditionally have had common-law power to decide things like when ‘public policy’ makes a contract void, when particular kinds of damages are unrecoverable because of ‘moral turpitude,’ and so on. The historical legal oppobrium for adultery, the public sentiment against its morality, and the fact that the jurisdiction in question makes adultery a negative factor in divorce would all provide a basis for the court to make this decision. Assuming that adultery was actually made legal by the local legislature, however, the court would want to examine what the legislature did to see if it intended to completely normalize adultery or just to strip it of its criminal consequences.

  33. roland on August 17, 2007 at 12:09 pm

    Take a closer look at the lawsuit people. The wife is filing for divorce and asking for $1 million in child support and alimony. The man is just trying to forward the bill over to 1-800-Flowers.

  34. Nick Literski on August 17, 2007 at 12:25 pm

    #33:
    So, Adam, suppose a man commits adultery. Suppose his paramour knew at the time that she was infected with HIV, and withheld this information from the man, who otherwise would not have had unprotected sexual intercourse with her. As a result, the man becomes infected with HIV.

    By your public policy reasoning, should the man have no recourse in tort for what amounts to an intentional act of infecting him with an incurable infection? If this occurs in a jurisdiction where the woman’s conduct would be considered criminal, should she be free from prosecution because her victim was engaged in adultery at the time?

    Oh…and will you answer my #30?

  35. Kyle R on August 17, 2007 at 12:51 pm

    Would it change anything if 1-800-Flowers had blown his cover to a second mistress rather than the wife?

  36. Adam Greenwood on August 17, 2007 at 1:29 pm

    Probably not, but I’m curious, what would the damages be?

  37. Kyle R on August 17, 2007 at 1:44 pm

    Free flowers for life?

  38. Bob on August 17, 2007 at 1:54 pm

    Lesson: First, try sending flowers to your wife..then you will know the thank you card is coming.

  39. Adam Greenwood on August 17, 2007 at 1:54 pm

    Heh. No, that would be the compensation. The damages is the harm that you’ve suffered.

  40. Bob on August 17, 2007 at 1:56 pm

    #35: Did you mean short life?

  41. Kyle R on August 17, 2007 at 1:59 pm

    The harm would be having only one, possibly no mistresses.

  42. Kyle R on August 17, 2007 at 2:01 pm

    #38 Good point Bob. Adam, the harm would be endangerment of life.

  43. Bob on August 17, 2007 at 2:04 pm

    #35: I’ll take that settlement! Can you imagine picking up the phone and sending anyone flowers..FREE..For the rest of your life? You’d be somebody!

  44. Kyle R on August 17, 2007 at 2:10 pm

    Here in the East End of London people just steal them from the park.

    A kind of villainous sense of romance….but at least you wouldn’t wind up in the situation of the chap who is the subject of this thread. I notice from the receipt (now available on-line) that he sent her a cuddly toy as well.

    Imagine cuddly toys for life. You’d need, why, you’d need to get a million dollars in damages (ahem, compensation) from somewhere.

  45. Adam Greenwood on August 17, 2007 at 2:43 pm

    As a 10th level prescriptive legal black belt, I am happy to answer your questions, Kyle R. There should be no compensation for loss of the second mistress’ company and services. There should probably not be compensation for bodily harm to the philanderin’ man, unless for some reason the florist should have reasonably known that such would result.

  46. Dan S. on August 17, 2007 at 6:27 pm

    This sounds like a bar exam question. I think that, perhaps, there could be a negligence claim.

    I would argue that a flower company that actually delivers flowers is in the business of cultivating human relationships. That is their service, not just delivering flowers. After all, it’s not like they are delivering pizzas where consumers actually consume the product. No, they are delivering a sentiment. They owe a duty to perform their service in a relatively competent fasion. However, if specific instructions are given by a client to perform the service in a specific way, and the flower company accepts that responsibility (unknown if they accepted), then the flower company has failed to live up to their responsibilites. Sending thank-you letters to the buyer could arguably be considered part and parcel of the service. In other words, the flowers go to the mistriss publically, and the thank-you letters goes to the sender privately. So, in other words, the duty of the flower company has no relationship to the adultery at all, but rather to performing their services properly. Hence, duty and breach.

    However, what is the injury that the breach caused? It sounds like the human relationship was already damaged. Could the flower company have foreseeen the harm that their deliver of a thank-you letter would cause more damage? Probably. They seem to have had specific knowledge of it.

    Finally, however, if the flower company could argue that the husband was mostly at fault for the causation by having an affair while the relationship was in a damaged state, then the husband was probably mostly at fault for the injury. The flower company only caused a slight portion of the injury by playing a part in brining it to light. Plus, they could argue that the husband probably owed an equal duty to the flower company to not confess his affair, or at least to do a better job of hiding his activities so that they were harder to discover.

  47. Adam Greenwood on August 17, 2007 at 6:33 pm

    So, in other words, the duty of the flower company has no relationship to the adultery at all, but rather to performing their services properly. Hence, duty and breach.

    You only get damages if you say he has a legally compensable right to conceal his adultery. I see no reason why the law should say that.

  48. Bob on August 17, 2007 at 6:53 pm

    #44,45: Or, a town too small for one attorney, can support two! Or, if the flowers came in water, maybe Maritime Law applies?

  49. Bob on August 17, 2007 at 7:06 pm

    Clear Dram Shop Law. Wrongfully serving flowers and thank you notes.

  50. Dan S. on August 17, 2007 at 7:21 pm

    I’m not saying that the company had a duty to conceal his adultery, but to follow instructions that they agreed to. If they agreed to not send anything to the man’s home, then they failed to perform that duty. According to the article, the flower companies policy generally states that they keep that kind of information private. Therefore, arguably, they are offering that privacy right as a part of their service, especially if someone specifically asks that they enforce that policy before they will do business with the company.

    The damages he’s claiming are related only the injury caused by violating that duty, which, according to his attorney, is the difference in alimony if they had not breached their duty to not send anything to his home.

  51. Dan S. on August 17, 2007 at 7:31 pm

    From the 1-800-Flowers website . . .

    “. . .you may instruct that other personal information about you or your message or gift recipients’ that you have provided to us not be shared with third parties. . .

    “We want to communicate with you only to the extent you want to hear from us. If you prefer not to have personal information collected from you via the Web Site, emails, mail, fax, and telephone shared with third parties, or to set your preferences concerning promotional communications, please follow the directions below.. . .”

    The instructions are to email them with the request.

    Doesn’t that sound like the company is offering to abide by this request as part of their service?

  52. Adam Greenwood on August 17, 2007 at 7:34 pm

    Sure, Dan S. But the adultery is an integral part of the causal chain. You can’t avoid that. If we were using your reasoning, he could still get damages even if the activity the company inadvertently exposed were illegal, and that’s not the way the law should work.

  53. Dan S. on August 17, 2007 at 8:15 pm

    How is the adultery (I’d say affair in this case b/c there is no proof of adultery) part of the causal chain? The affair had already occured. The affair is not what is causing the claimed injury. The “knowledge” of the affair by the wife is what is causing the claimed injury.

    Knowledge of something, and the divulging of that knowledge when under an obligation not to, can easily provide a compensable right to damages. Take for example NDAs. Those are wholly enforceable, and if you divulge the underlying information in a way that causes damages, then you can be liable for the divulgence. Trade Secrets are another example. Insider secrets is another.

    If the act “is” illegal, the divulgence of the activity may be tainted by the illegality of the underlying activity. However, in this case, the underlying activity is not illegal.

  54. Dan S. on August 17, 2007 at 8:51 pm

    I think that what you are saying, Adam, is that the more despicable the underlying act, the less there should be compensable rights to consequences of divulging that act, even if you’re under an obligation to keep it secret. That isn’t how the law should work either.

    When the activity is illegal, there may actually be obligations to reveal that information. In fact, 1-800-Flowers says that it is policy to divulge private information, or more specifically, to cooperate with law enformcement activities, if they know of illegal activites.

  55. Bob on August 17, 2007 at 9:16 pm

    #48, 49 Dan ( only having fun remember), I think you over used “duty’ ( are we talking Tort or Contract?), failed to define ‘personal Information’ (did they have a right to send a bill to the his home?), and failed to define ‘third parties’ (wife?) Nor did you show he e-mailed his request ( a requirement).

  56. Dan S. on August 18, 2007 at 2:01 am

    Bob, I actually agree. I’m a little bored today and thought I’d take a stab at arguing the contrary position. I’m sure that all those arguments you made, and more, would poke plenty of holes in my position.

    However, I think there might be a contractual or quasi-contractual agreement in there somewhere. True, I argued tort negligence above, but maybe contract law would fit better.

    I would be interested in seeing what the actual email he wrote contained (if he did write an email), and what 1-800-flower’s response was to his email. I doubt they would have written something like “Mr. X, We’d be more than happy to keep quite about your affair. Afterall, mistresses keep us in business!”

  57. Kyle R on August 18, 2007 at 6:03 am

    #43 I’m a legal neophyte so I defer to your judicial num-chucks.

  58. Adam Greenwood on August 18, 2007 at 8:40 am

    I think that what you are saying, Adam, is that the more despicable the underlying act, the less there should be compensable rights to consequences of divulging that act, even if you’re under an obligation to keep it secret. That isn’t how the law should work either.

    Why not? In the situation we’re discussing, adultery is a but-for cause of the damages he complains of.

  59. Bob on August 18, 2007 at 10:26 am

    #58: I agree! Adam’s big but-for wins this case in Civil Court.

  60. Dan S. on August 18, 2007 at 12:01 pm

    #58 – I think that the law draws a bright line between legal and illegal activity. If it is legal, then a victim has a protectable right. If not, then the individual who broke the law does not. For legal activity, where someone is wronged, the law should not say that the underlying act, though legal, is dispicable and therefore we should treat it as if it were illegal by not granting any protecable rights in relation to it.

    As for the causation, I would argue that the chain of events “for the claim” start at the emailing by the pliantiff to 1-800-flowers and their acceptance, which would be the time the agreement was made between the parties. I emphasize “for the claim”, because the claim to injury is not directly related to the affair, or the divorce, but rather to agreement. Because the agreement was not abided by, the effect was the worsening of the alimony payments. The affair was not part of the chain of events that led up to the breach. Rather, the chain of events started with the acceptance of the agreement, and then the sending of a thank-you note. If we start pulling in other events, you might as well pull in the rest of past history that led up to the affair.

  61. Bob on August 18, 2007 at 12:32 pm

    #60: “Because the agreement was not abided by, the effect was the worsening of the alimony payments.” I would think a Judge ‘worsened’ the alimony payments for ??…’despicable actions? and/or the failure of the husband to disclose same to the Judge at an earlier Hearing of the case?

  62. Dan S. on August 18, 2007 at 1:33 pm

    #61 – I think dispicableness is a valid reason for delivering harsher punishments.

  63. Dan S. on August 18, 2007 at 1:53 pm

    And for determining degrees of an outcome. But what Adam is saying is “The fact that the law does not prohibit a conduct does not mean that one has a legally compensable right to the conduct.” I’m saying that the legally right should exist, even if the outcome of the case is viewed in light of the conduct.

  64. Adam Greenwood on August 18, 2007 at 5:07 pm

    I think that the law draws a bright line between legal and illegal activity

    No, it doesn’t. Torts aren’t illegal, contract breaking isn’t illegal, and so on, but the law doesn’t smile kindly on them. But even if the law did, why should it? There’s nothing particular confusing about disfavoring some kinds of behavior even though the behavior isn’t criminal.

  65. Bob on August 18, 2007 at 6:14 pm

    #64: Right again Adam, Just spend sometime in open court and you will see a Judge “disfavoring some kinds of behavior even though the behavior isn’t criminal.” And a Jury can be even worse.

  66. Dan S. on August 19, 2007 at 12:35 am

    Torts are actionable because a law was made making them actionable. If there was no law, then a tort would be completely legal and there would be no remedy. When I say “legal” versus “illegal” I’m talking in a broad sense about torts and civial actions too. Maybe torts are not criminal, but I didn’t say criminal versus non-criminal. I probably should have said actionable versus non-actionable considering that the term “illegal” often carries the connotation of criminal.

    At any rate, isn’t that what you are saying? That some torts, although actionable, shouldn’t even be considered in a court of law because the underlying activity, though entirely legal, offends our morals enough that it should not even be considered on the merits?

  67. Dan S. on August 19, 2007 at 1:29 am

    #64 – “There’s nothing particular confusing about disfavoring some kinds of behavior even though the behavior isn’t criminal.” . . .

    I agree. But where I disagree, to a certain extent, is that I think that cases with colorable claims should be heard on the merits, even if you and I don’t think they will win because the underlying activity is morally objectionable. Take for example President Clinton. Though I’m not a huge fan of his, I did watch his impeachment confirmation hearings/trial in the Senate. If the Senate had just said, “I don’t think we even need to hear the facts. . . we should deny any hearing because the underlying activity was Adultery”, then he would have been removed from office. As it was, however, the Senate did hear the case on its merits, the defense was quite persuasive, many facts came to light that weren’t previously understood, and he wasn’t removed from office. So, let each dog have his day in court.

  68. Bob on August 19, 2007 at 1:53 pm

    #67: I don’t feel you should bring a case to court without a change to win, just to prove a point. Pick another ‘venue’. Like a Blog!

  69. Bob on August 19, 2007 at 7:56 pm

    #68: that’s chance to win. Did you know that 50% of attorneys lose in trial?

  70. John Taber on August 19, 2007 at 10:07 pm

    Then there was a case about eleven years ago (right after I graduated from BYU) where a woman mentioned in a chatroom that her marriage wasn’t going well. A man in that chatroom felt sorry for her and sent her flowers, and when the woman’s husband found out he stabbed her to death. (The other man is a sports-talk radio host in Philadelphia, just up the road from me.)

    Who could sue who in that one?

    Adam, I suppose your next argument is going to be that only married adults should have the right to vote . . .

  71. Bob on August 20, 2007 at 2:06 pm

    #70: Everyone sue Adam for starting this!

  72. Adam Greenwood on August 20, 2007 at 2:13 pm

    Yes, John T. Married adults, unmarried children, and polygamous bovines should vote, but that’s it.

  73. Dan S. on August 20, 2007 at 5:35 pm

    #68 – I agree. I think I said “colorable” claim, which, I beleive, means that there is some chance of winning. Attorneys should review the facts before hand and determine whether or not there is a chance of winning. I’d think that attorneys who take cases on a contingency of winning certain wouldn’t go to court unless they thought there was a good chance of winning or settling. Those attorneys who take a case on straight fees, however, might unethically take a case to trial even without a good chance of winning in hopes of just milking a client of money. I believe there are some forms of censure for attorney’s who do that repeatedly. State bars should take responsibilty for monitoring that kind of thing.

    I’d be curious to know what you think the guidelines should be for determining that a case has no chance of winning. For me, it would either have to be a claim fabricated from nothing – no legal writing, no case law, no sense of equity, no nothing – or a case whose facts match a pattern of consistent loss or dismissal. But, I don’t see this particular case being either one of those.

    #69 – . . .that’s a good one.

  74. Adam Greenwood on August 20, 2007 at 5:41 pm

    When I say “legal” versus “illegal” I’m talking in a broad sense about torts and civil actions too.

    All right, but then you’re just arguing a tautology. Of course ‘legal’ activity should always be a valid basis for tort or contract actions in your view because ‘legal’ means ‘a valid basis for tort or contract action.’ I don’t want to argue semantics, so I’ll use your terms. Even if a jurisdiction does not make adultery “criminal,” it does not need to and should not make adultery “legal.”

  75. Dan S. on August 20, 2007 at 6:28 pm

    #74 – To me, this case doesn’t make adultery legal (even if adultery occured). Let’s say you and I are in business together running a blog. Jane Doe asks if she can invest in the business. She confides that she has borrowed the money from her pimp. She agrees that she will invest the money as long as we don’t send a receipt to her house explaining her investment. We stupidly agree, but then send a receipt to her house. Her husband finds out and beats her. She sues us for the medical expenses. If the court hears the case, is the court legalizing prostitution or wife beating? No. The compensable right is based on our agreement and the consequences of our failure to keep the knowledge secret.

  76. Dan S. on August 20, 2007 at 7:42 pm

    However, for sake of argument, setting my view on these facts aside, should adultery, or other objectionably moral activities be “legal” (provide a compensable right) just because the law doesn’t make them “illegal”? Yes if the facts merit a fair review.

  77. Adam Greenwood on August 20, 2007 at 8:11 pm

    Why? What does reviewing the facts have to do with it?

  78. Bob on August 20, 2007 at 10:00 pm

    #73: To be clear, I an not an attorney, but retired after 30 years as an Adjuster handling mainly PI Llitigations. (1500+ MSCs). “guidelines should be for determining that a case has no chance of winning”. Civil Court is theater, it’s not about the law, it is the ‘preponderance of evidence’. it will come down to personalties or life styles. OR: we will give the money to who we like! We like Firemen, School Teachers, Guys married 40 years,Guys who have not called in sick to 40 years,Kids with scars, and THAT FUNNY ATTORNEY. We won’t give money to: people without jobs when they should have one, Rich people, Whiners, Male Arabs, or THAT SMART ASS ATTORNEY. Many a time, I let a case go all the way thinking having the law or facts on my side would be enough to win, only to end up writing a check.

  79. Dan S. on August 21, 2007 at 12:08 am

    #77 – With a question like that, I think you might be offering up lip service to this thread at this point. So, I’m going to follow suit and sign out.

    #78 – Bob, I hear you. I’m still interested in hearing what you would consider to be guidelines for determing that a case has no winning chance.

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