A few more (last?) thoughts on Donald Rosenberg v. Plain Dealer and Cleveland Orchestra

Tim Smith, with whom I participated in a twitter chat 2 nights ago, expressed there and on his blog yesterday, the kind of thinking about the conflict between Donald Rosenberg, the Plain Dealer, and the Cleveland Orchestra that represents a problem and dispute resolving attitude that, I think, the best lawyers embody. There’s no question Rosenberg was no fan of Franz Welser-Möst, the Orchestra’s conductor. There’s no question his views on Welser-Möst were shared by many (though by no means all). There’s no question the repeated expression of those views irritated the Orchestra. So, what should have happened? Perhaps the Plain Dealer could have split up the reviews of the Orchestra between Rosenberg and another reviewer. Perhaps they could have published “dueling” reviews.

In short, there were things the Plain Dealer could have done to address the problems they perceived short of the ham-handed way they did handle it. Indeed, it may have been a better idea to have reassigned Rosenberg years earlier, at the point the Orchestra replaced Christoph von Dohnányi, whom Rosenberg was a fan and friend of, with Welser-Möst.

Let that be a lesson. Anticipate and address problems, and address them creatively, not in blunt fashion that exploits nothing more than your clients power.

That’s not to say, as should be clear from all I’ve written on this affair, that I think Rosenberg did a wise thing in suing in response to the Plain Dealer’s ham-handed way of dealing with the problem. As I’ve said from the beginning, it was very unlikely that Rosenberg would prevail on any claim in his lawsuit. Nor was it a situation the defendants were likely to settle in order to resolve what little legal uncertainty did exist for them. The Plain Dealer and Cleveland Orchestra’s biggest problem resulting from the lawsuit wasn’t any potential damages they might have to pay, no matter how unlikely — rather, the biggest problem was the hit Rosenberg’s claims had on their reputations. His claims resonated in the larger world. At times he seemed almost like a martyr to the cause of critical integrity. And, indeed, the problems caused by our corporate media’s corruption by the subjects they cover is a huge one (though I happen to think Rosenberg’s situation is a rather minor instance of it, if it even is an instance of it).

If the Plain Dealer and the Orchestra had settled the lawsuit, the perception would have been that they had conceded on the issue of undue influence by the Orchestra over the newspaper. Since the perception of that influence was their biggest problem vis-a-vis Rosenberg, they could ill afford to settle. Settlement was even less attractive since their legal position was so strong. So this lawsuit was not going to settle. And in all likelihood — a very strong likelihood that I would never deem a certainty only because law doesn’t permit certainty any more than does, say, medicine — Rosenberg was going to lose (as I’ve said from the very beginning).

And what did Rosenberg have to gain by suing and losing? I don’t think he gained anything. If anything, having had a jury declare his claims without merit, he seems less compelling a figure than he did before the trial. There’s the virtual certainty the lawsuit cost him quite a bit of money. And lawsuits are not fun for litigants.

Some suggest that the mere fact of discovery in the lawsuit made it a worthwhile endeavor. But what did we learn as a result of the evidence compelled by the lawsuit? That the Orchestra didn’t like Rosenberg’s repeated negativity, and that the Orchestra wasn’t alone.  That the Orchestra expressed these views to the Plain Dealer. Unlike Tim Smith, I see nothing noteworthy in Anne Midgette’s belief that the trial disclosed something new about the Orchestra’s role in Rosenberg’s reassignment. One would have to be particularly naive to believe that the Orchestra would not express its disagreement to the Plain Dealer with Rosenberg’s repeated negative views regarding Welser-Möst. Finally, we also learned, as we would have known with a second’s thought before the lawsuit, that the Plain Dealer’s editors know less about music than Rosenberg.

We knew all these things already. So the lawsuit did nothing but hurt Rosenberg, cost the defendants and taxpayers money, and generate a lot of material for a few writers.

One final word: I do not mean to say Donald Rosenberg had no right to file the lawsuit. He had every right, and assuming he knew that he was very likely to lose, I would even have been happy to represent him. I would have been clear to him, however, that I did not see the benefit he was deriving from it. There’s no question I would have derived a lot of benefit from it. He would have paid me, and it would have been a fun and interesting lawsuit to be part of.