March 2009
The 'so what?' defense
By Jim Walsh

Be careful of what you read in the newspaper about litigation against school districts. Very often the story makes out school officials to be the bad guys, much more so than the facts would justify. This is not entirely attributable to sloppy reporting. It’s also a predictable consequence of how school attorneys defend their clients.

Let me explain. When a person is accused of wrongdoing, whether they are 7 or 77 years old, there are four possible responses.

1. Fall on your sword. “You are right. I was wrong. What can I do to make up for it?”
2. No. “I didn’t do it. You are simply mistaken about the facts.”
3. Yes, but… . “I did it, but here’s why it was the right thing to do.”
4. So what? “Yeah, I did it. So what? It did not violate the law or the rules.”

In litigation, a good defense attorney will often offer responses 2 through 4 — all at the same time. “We didn’t do it, Your Honor (Response No. 2). But if you should somehow conclude that we did do it, you will find that we had ample justification for it based on what the other guy did (Response No. 3). And besides that, even if we did do it without ample justification, what we did is not a violation of any rule or law, so what’s the big deal?” (Response No. 4).

In an effort to be efficient, a good defense attorney will ask the court to address Response No. 4 first. If your attorney can establish that this thing you are accused of is not a violation of law, then the court will dismiss the case before everyone gears up for a trial. There are various legal mechanisms for this, such as a Motion for Summary Judgment, or a Motion to Dismiss.

When your attorney asserts the “so what?” defense, the argument goes like this: “Your Honor, my client did nothing wrong. The plaintiff has it completely wrong. But just for the sake of argument, we are willing to temporarily concede that we did everything the plaintiff alleges that we did. So, go ahead, Your Honor, and assume, just for the sake of argument, that we did exactly what we are accused of doing. Your Honor, even then, we have not violated the law. So you should dismiss this case entirely.”

If that argument is successful, your attorney has done you a great service by getting the case dismissed at the earliest (read: cheapest) opportunity.

In its decision, the court will spell it out clearly. For example, a recent Supreme Court case opens with: “Because this case comes to us on a motion to dismiss under [federal rules], we assume the truth of the facts as alleged in petitioners’ complaint.”

The court then goes on to recite all of the facts “as alleged” rather than as proven.

Unfortunately, the later summary of the decision in newspapers and other publications often omits the “as alleged” part, leading readers to conclude that you did all the things of which you were accused. Moreover, your attorney may win the case but lose the public relations battle. With the “so what” defense, the attorney’s argument can often be summed up this way: “Your Honor, my client may have done some really stupid things here. My client may have exercised bad judgment. My client may be incompetent and lacking in social skills. You may wonder who on Earth would hire such a bozo to run a public school. But my client, Your Honor, did not violate the law! Stupidity, bad judgment, rudeness and incompetence are not against the law!”

Winning with that argument may feel like losing.

So be careful about what you read, and remember: It didn’t always happen the way it is alleged to have happened.

JIM WALSH is editor in chief of Texas School Business and the managing editor of Texas School Administrators’ Legal Digest. Also a school attorney, he co-founded the firm of Walsh, Anderson, Brown, Gallegos & Green, P.C. He can be reached at jwalsh@wabsa.com or by visiting www.walshanderson.com.