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Good Try, Avenatti, but Stormy Daniels’ Lawsuit Probably Isn’t Going Anywhere


Anyone who’s been watching Michael Avenatti in action in recent months knows him to be half-lawyer, half-publicist –savoring media wins as much as any courtroom victory. The lawsuit Avenatti filed Wednesday on Stormy Daniels’ behalf sure plays well on TV, even if its legal fate isn’t nearly as compelling.  Unfortunately for Avenatti, the defense motion to dismiss won’t be decided by the court of public opinion, but by that time, it’ll likely have filled enough news cycles to have been worth the effort.

In the lawsuit against Daniels’ pre-#basta lawyer, Keith Davidson, she raises some seriously troubling allegations against Davidson and his co-defendant Michael Cohen. The only problem is that she hasn’t made a particularly compelling case for having been harmed by their behavior.

Daniels’ complaint levels only one claim against Davidson – that he breached his fiduciary duty to her. The corresponding allegation against Cohen is for aiding and abetting Davidson’s breach of duty. California allows for claims based on breach of fiduciary duty, and they operate much like other torts. The plaintiff must prove that the defendant owed the duty, breached the duty, and caused harm. Easy to say – not always so easy to prove.

That Keith Davidson owed Stormy Daniels a fiduciary duty is a given; he was her attorney, so that’s clear. Proving a breach is a bit harder, but certainly possible if Daniels can produce evidence to back up the factual allegations contained in the complaint. According to her account, Cohen sent a text message to Davidson saying, “call me,” immediately after news broke about the Daniels/Trump affair. From then on, the two lawyers are said to have “hatched a plan” whereby Daniels would appear on Fox News and deny having had an affair with Trump. According to the complaint, Davidson not only manipulated Daniels for Cohen and Trump’s benefit, but also did so while revealing confidential client information. Those are big no-nos. If Daniels can introduce sufficient evidence to support these allegations, it would definitely constitute a breach of fiduciary duty between lawyer and client – not to mention violation of several rules of professional conduct.

The lawsuit’s momentum breaks down, though, on the issue of damages. Although Daniels alleges that the Hannity ploy cost her, “an amount to be proven at trial, but which exceeds $100,000,” it’s tough to imagine what such damages might be. How, exactly does trying to get someone to lie to Sean Hannity hurt that person if the whole thing never happens? This seems like logic that’s going to be hard to sell in court. On a breach of fiduciary duty claim, if there are no damages, there’s no lawsuit – an argument Davidson will likely raise when he defends what he called in a statement to Law & Crime an “outrageously frivolous lawsuit.”

In the unlikely event Avenatti is able to pull a rabbit out of the damages hat, the case could proceed, and punitive damages might become a possibility. Until then, though, he’s pulled off another few days of great press for his client at the expense of Donald Trump and Michael Cohen. Not a terrible outcome after drafting just 16 pages.

(Photo by Tara Ziemba/Getty Images)


This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos