Tucker Carlson And The Terrible, Horrible, No Good, Very Bad Texts
My bank client had no tolerance whatsoever for those employees who cost it money. If an employee in the retail branches couldn't or wouldn't balance at the end of the day on several separate occasions or paid out money in error, termination was the next step after one or more PIPs (performance improvement plans) didn't have the desired response. If the loss was ginormous, termination was immediate.
The employee handbook -- which no one read except legal, HR, and opposing counsel -- clearly explained performance expectations, and if the employee missed the mark and cost the client money, bye-bye. I occasionally wondered if the bar was too high for de minimis mistakes, but that was not my call. Sometimes I verbally sparred with decision-makers; sometimes I won, sometimes I lost. Sometimes a little "walking away money" in exchange for a release made sense; sometimes it didn't. Those decisions were always fact specific. De minimis mistakes can lead to big whopping mistakes. It's always a matter of risk versus reward.
So the news that Tucker Carlson is out at Fox News is really no surprise when you analyze the situation from an employment lawyer's perspective. Carlson was not the only one in the hot seat in the Dominion lawsuit, but he was not a minor player. And his flame-thrower-on-air personality contrasted, to a lesser or greater degree, with revelations of his private thoughts not helping his credibility. Previewing coming attractions, there's the Smartmatic case and Abby Grossberg's litigation in New York (hostile work environment) and Delaware (defamation).
I would guess that Rupert Murdoch, in addition to having to cough up a ginormous sum of money (and I would imagine that insurance and excess coverage carriers may well have contributed, although to what extent is unclear, since there were reservation of rights letters flying all over the place), wanted to tidy up Fox News. My sense is that Carlson may well only be the first to be shown the door. After all, it's only Thursday.
There was no way that Murdoch would give Carlson the chance to say goodbye on air. Whether he had enough time to clean out his office before that office was secured, who knows. In a sense, Fox News has indeed apologized implicitly by tagging Carlson and making sure that the door didn't hit him on the way out. Could it be said that Murdoch was "tuckered out" about Tucker? Sorry, I couldn't resist.
My fellow Above the Law columnist Mark Herrmann is spot on. If there is any takeaway from the Dominion lawsuit, it is "don't write stupid emails." It's the lawyer mantra or should be. The lawyer tells the client that they are discoverable (unless privileged), that the same goes for text messages, and every form of written communication that can be retrieved, whether purportedly deleted or not. That's what forensic IT people do for a living. Any difference between private and discoverable? We had one client who wrote every single email as "attorney-client privileged," even though he was not a lawyer, the communication was not addressed to a lawyer, no lawyer was on the email trail, and so the general counsel had to woodshed him for his transgressions.
However, I am always amazed (although I shouldn't be) that smart people do such stupid things, blowing off spot-on legal advice because they think that they are smarter than the lawyers. Everyone thinks that until they sit in a courtroom cringing at the defense table, sit for a deposition with opposing counsel drooling over stacks of emails ready for the deponent to be questioned on, or think that they can handle a matter without counsel only to be gobsmacked when the opposing party troops in with counsel ready for bear. (The last scenario happened to a friend of mine in the early 90s, who coincidentally happened to work for Fox at the time.)
Also out the door is CNN's Don Lemon. Fired. While I had admired his comments after George Floyd, I did not appreciate his ageist, sexist remarks. He needed to go, and obviously CNN agreed. Why do some people think that being on broadcast TV, cable, or any other outlet gives them permission to say whatever they think without regard to consequences? There's way too much of "ready, fire, aim." Whatever happened to the days when it was "just the facts," and viewers could draw their own conclusions based on unbiased reportage?
All this leads to dumbing down, to the idea that people must be spoon-fed. To a certain extent, we, the audience, have permitted that, and so we must share some of the blame, but notice that I said "some," not all. Ego often gets in the way, so whatever filter they may have had is gone. Whatever happened to STFU?
Both Carlson and Lemon have "lawyered up," using the same counsel to represent them separately. Terminations can make strange bedfellows. I wonder where one or both will land -- and land they will -- eventually.
Leave it to the late great Dame Edna to have a word, but not the last one. And if you don't know who Dame Edna was, you need to wake up or should I say, "woke up." (Except in Florida, of course.)
Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She's had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact -- it's not always civil. You can reach her by email at [email protected].