Battle looks to be headed into arbitration

Charlie Sheen’s legal battle against Warner Bros. and Chuck Lorre over “Two and a Half Men” looks to be headed into arbitration, which means that save for the occasional leak to the media or Sheen’s own public saturation, much of the next legal chapter will be in private, not in the courts.

Sheen’s legal team, led by Martin Singer, may very well wage an effort to force a jury trial. But the studio and Lorre are eager to let this play out behind the scenes. If history is any guide, it’s for good reason.

Studios fear that no good can come from the disclosure of the intricacies of their deal-making, even when they are winning (sorry, couldn’t resist). But there’s also the notion that jurors, even those with a conscious desire to play fair with the facts, harbor a predisposition to favor an individual plaintiff especially when up against a studio conglomerate.

“It’s the David vs. Goliath story, the individual versus the institution,” notes Darrell Miller of Fox Rothschild in Century City.

The situation is magnified when it is a celebrity plaintiff, even one who carries a lot of baggage, he says. There are ample examples of this on the criminal side, where celebrity justice is a cottage industry and, per the New York Times, the perp walk is starting to mirror the red carpet. To an extent this is true in civil matters.

“When dealing with a celebrity, no matter what the topic, you do walk into a courtroom with a tremendous advantage,” said Jo-Ellan Dimitrius, a jury and trial consultant.

Of course, successful litigants will insist that they won fair and square, a point often borne out as cases head to the more sober purview of judges on appeal. But talk to jury consultants and they warn of a subconscious jury factor when it comes to celebrity.

“No matter jurors’ best efforts, they tend to listen to celebrities, almost in a sense of awe, and give them more attention than perhaps they should,” said Art Patterson, jury consultant for DecisionQuest. “The individual juror identifies with the party closest to them.”

Dimitrius points to one case she worked on: Francis Ford Coppola’s suit against Warner Bros. in which a jury in 1998 awarded the filmmaker $80 million in a bitter dispute over the making of a “Pinocchio” project. The trial pitted the emotional testimony of a famous director against the relative faceless defense of studio suits, but the decision was reversed by the state Court of Appeal.

Several years ago Carol Burnett sued Fox and the producers of “Family Guy” over a parody of one of her characters and her famous ear tug, but the suit was thrown out. Gary Bostwick of Bostwick & Jassy, who represented the studio, said that one of the things they would have to contend with had the case gone to trial is that, as shown in her celebrated libel suit against the National Enquirer, she was a very good witness and the jury was somewhat awed by her. “That is a tough thing to overcome,” he says.

Sheen would surely test the limits of the celebrity advantage. Aaron Moss, chairman of Greenberg Glusker’s litigation group, said, “There’s no doubt jurors like celebrities — if they have positive images.”

One issue in the Sheen case is whether the studio, up until recently, turned a blind eye to his criminal problems because “Men” brought so much money to Warner Bros. To a jury, “some would say that is business as usual and others would say shame on you studio and we’ll give Charlie $100 million,” Dimitrius said.

David Cannon, a trial consultant for the Jury Research Institute, said while he doesn’t envy Sheen’s reps, “people are understanding today, more than they have ever been” about celebrity foibles, aided and abetted by the unvarnished world of reality television.

The tendency to swoon over stars also isn’t exclusive to jurors. In 1999, U.S. District Judge Dickran Tevrizian issued a decision in favor of Dustin Hoffman, who had sued Los Angeles magazine and then-owner CapCities/ABC over an altered photo from “Tootsie.” While he obviously based his decision on findings of fact, his written decision started with a paragraph-long summation of the actor’s career that took on the tone of “Inside the Actors Studio” host James Lipton. “It can be said that Mr. Hoffman is truly one [sic] our country’s living treasures, joining the ranks of an exclusive handful of motion picture talent.”

As private as arbitration may be, Dimitrius warns that it also isn’t free of predispositions. Just as studios use focus groups and mock trials to gauge the impact of their courtroom strategies, she said they may have to conduct similar research on framing the Sheen case.

She said, “Whether they get a true neutral entity — I question whether that is even available these days, because arbitrators watch movies just like the rest of us.”

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