BIG NEWS Reply: Cliff's Notes Version

by Oroborus21 26 Replies latest watchtower scandals

  • Oroborus21

    For those of you who don't want to read my post in the Anderson thread here is the abbreviated form:

    Legal Misrepresentation is not the same as the common dictionary definition. Legal misrepresentation requires that the bad actor KNOWINGLY and DELIBERATELY lied with RECKLESSNESS.

    The Society believes that it is telling the truth with its statemetns on blood, or at least it will claim so, and it has come to that belief after careful deliberation not out of recklessness.

    IThe tort of Misrepresentation is designed to punish the guy who sells you a lemon for a car, knowing that it was in a previous accident or tells you that there is no water damage or termites to the house you are buying when he knows differently.

    The theory espoused in the journal's essay is a soap bubble.

    -Eduardo Leaton Jr., Esq.

    ps: "Cliff's Notes" is a copyright of some rich guy.

  • chasson

    Oroborus:The Society believes that it is telling the truth with its statemetns on blood, or at least it will claim so, and it has come to that belief after careful deliberation not out of recklessness

    Interesting, but do you think that the several misquotations found in the books of the Watchtower are volontary or not ?



  • Gill

    No one would want something 'forced' on themselves that they did not want and so....the blood 'problem' for the JWs will continue. In the end, they don't refuse blood because of the blood brochure published by the WTBTS they refuse blood because it has been pointed out to them by the WTBTS that the bible prohibits using blood.

    If the WTBTS is faced with a massive law suit, the JWs will only see it as persecution. If they have to pay out compensation, the R and F will produce the money to save the WTBTS.

    I'm not getting excited about this, as much as I understand why people want it to shake the foundations of the WTBTS. The GB are probably pissing into their incontinence pants they're laughing so much at the 'Big News'!

    They honestly believe that blood is condemned by the bible and so they celebrate the martyrs, (ie those poor kids who had all died without blood transfusions on the front of an old Awake or Watchtower). That's it. Full stop. What the hell do you think the WTBTS is run by lawyers for? They've got it covered. They are a religion and God knows how the USA loves its cranky religions and its crazy freedoms, ie believe whatever you want, the state won't intervene. It's OK for everyone to have guns...doesn't matter how many people get killed in gun related accidents etc etc.

    From me....and in NO WAY disrespecting those who are working so hard to bring down the WTBTS....but from me...A BIG RASPBERRY to the BIG NEWS!

  • Confession

    It's good to get your professional input, Oroborus. The only inroads I see this making toward waking up active JWs is if the WTS decides to alter policy. We know that they have often changed policy often in order to protect themselves financially. But if they decide to make blood transfusions a conscience matter, I believe it may have a profound impact on the rank and file.

    If they do so, it will be clear that it is a reaction to the threat of lawsuits. If people who have lost loved ones to this policy find out that this monumental change in policy came--not from the deaths of thousands of individuals--but instead because they want to protect themselves financially, it will anger many people.

    But, of course, the significant threat of effective lawsuits can only come if there is a legitimate case. If there isn't, as you say, then this policy change may never come.

  • Oroborus21

    It is probably dependent upon the instance.

    Many are just careless scholarship. Contrary to popular opinion among JWs that is the Writing Dept is not replete with great and careful scholars. It has some good ones and had some great ones like Barbara (though she probably doesn't consider herself a scholar in the formal sense?)

    Others, as stated by Ray Franz in CofC when he was helping to produce the Aid to Bible Understanding book, were deliberately written so as to demphasize disconfirming info or ignore it all together and to reinforce the accepted doctrines and culture at the time.

    I think both of these situations continue today.

    But my point with my previous posts is that the author of the journa's essay is completely off base if she seriously thinks that the tort of Misrepresentation, which is exclusively used in economic contexts, can serve as a basis for a lawsuit against the Society. If anyone has the whole article available I would love to read it for the legal analysis part of the essay. I am sure that she has well documented the out-of-context quotations and misrepresentions of medical facts, using "misrepresentation" in the common sense, but I question how well the legal analysis was laid out. I didn't see any in the excerpts that were provided.

    The bottom line is that these statements of the Society, even if false, or its whole stand against blood transfusions, will not and does not constitute misrepresentation in the legal sense and this is setting aside all of the constitutional issues that would be considered in such a lawsuit.

    What the author fails to understand is that the tort of Misrepresentation is not (like Defamation) where the issue is whether something is true or false or misleading. It is a tort designed to punish bad conduct of someone deliberately lying in order to induce you to do something to your detriment, usually to buy or to sell something. The issue is not the veracity of the claims it is the MENTALITY of the actor. If the Society either doesn't know that they are saying a falsehood (due to poor scholarship for example) or believes (even half-heartedly) that what they are saying is the truth (due to religious conviction perhaps), though it be a lie itself, there is no Misrepresentation. (there are other grounds for fixing the problem but not the tort of Misrepresentation).

    Now what you are alluding to is the case where the Society deliberately lies. Well that is the hard case. Merely showing the context of the statement or misquote is not enough to prove the case. Usually with the economic situations you have to show, from an evidentiary standpoint, that either the actor took some step to conceal what they knew (the hidden defect), remained silent when they had a legal obligation to speak, or had actual knowledge of the truth - such as the car was delivered in a wreck or the real title indicated that it had been a wreck and the person forged a new one or had the car fixed and never tells the buyer about the real history.

    From what I have gathered from the Anderson clips (and again I have not yet read the Essay) is that the author is pointing out all of the mistakes in the Blood brochure.

    I mean Jeez Louise - hundreds of good apostates have been doing that for decades with the literature. that's why people are (falsely) getting excited saying "oh the Society misrepresented this" misrepresented that...and that is not what the law will address. Again even setting aside the religious issues.

    If that were the case we would have seen lawsuits, even unsuccessful ones, propounded years ago. My god the Government didn't even tell us the truth about Iraq. Can we all sue someone for misrepresentation? No. Do you think that a religion is held to a higher standard than our government? You have to be fooling yourself if you think that is the case.

    Hey it is a misrepresentation (not legally) when the Pope claims to speak ex cathedra with the authority of God. Do Catholics have a mass lawsuit? this is just silly.

    Caveat Emptor is a well respected maxim in the law and everyone has a duty to accept what they are receiving with a grain of salt. Now, you and I knowing the Witness culture can understand that in that environment, there is a predisposition of trust and acceptance, and of course questioning or challenging is discouraged or even punished. thus it is easy to be fooled into thinking that due to the culture of Jehovah's Witnessses and to an extent the theology, such as the FDS doctrine, that Witnesses are subject to greater suppression of their individual judgement. Perhaps that is so, though I tend to believe that is less true than others.

    But a court of law will be unfamiliar with the situation and sceptical of it. This reminds me of Margaret Singer's testimony in the Mosko case in that it would take expert witnesses to convine the judge or jury that the Witness was completely under the spell (or at least substantially so as the Jury instruction reads) of the Society and that the Society's deliberate lies contributed to their decision not to take blood (and of course that some harm occurred).

    But here is another problem that I didn't mention before. Most torts, including Misrepresentation, are personal ones. Thus if the person dies after having refused blood, it may be an issue as to whether their family or heirs would have standing to sue the Society on a Misrepresentation claim. Maybe not. And of course if there is no harm that results, then they won't be able to sue for anything. So it has to be a situation where they are at least injured in some capacity or suffer emotional or psychological damages but do not die. Yet if death is not a real risk, I can't see that the blood issue would be likely to be fought about anyway. But all of that is an aside.

    The point that all of this keeps coming back to and what I said in the beginning of the original post is that the fatal flaw is to assume that Misrepresentation, legally, has occurred. Again you have to show that the Society deliberately lied. How does one propose to do that? The only possible conceivable way that I could even imagine would be to get the actual writers of the misrepresenations on the stand and then grill them!

    let's say you have a Perry Mason moment and they confess to deliberately writing and publishing somethng false even though they knew that the facts were different then what they said.

    Ok, now you have to show reliance and that raises a very practical problem. You actually have to show that the plaintiff read the very statement in issue.

    today, most JWs DO NOT READ THE BLOOD BROCHURE ANYMORE because it is out of date. It has been supplanted with the new information that has come out in the Watchtower. It is not enough that the religion says don't take blood or that they carry a No Blood card, voluntarilly, -which really hurts their case. You again have to show that the person harmed actually relied upon the specific misrepresented (false) statement. Sure they could testify that they did but I got to tell you they would probably get eaten up in court, and besides a jury isn't going to give them much credit.

    there could be a sympathetic judge or jury that is pursuaded by expert testimony that the person was not acting totally under their own volition when they refused blood, and they didn't make any personal statements about it themselves, but then you come to the other topic which I never addressed, since it is pointless, the remedy.

    In Misrepresentation situations, which again is in a contract situation most often, the person gets either damages or recesion of the contract.

    there is no injunctive relief, like ordering the Society to stop telling its members to not take blood transfusions or not to punish them if they do. there is no way of putting the person back to their original position, except, economically.

    What is being lied to about blood worth? If the person is injured then maybe millions. But if not, maybe a dollar is what they get. Punitive damages may be available but they are always by the will of the court. As for a class action like some have suggested forget about it. Not going to happen.

    There is maybe only one hypothetical that I could think of that might be a winner. If a person were highly pressured to sign their Blood Card (advanced medical directive) and a lot of false statements were made by the Elder doing the pressuring (and you could win in proving that because they are appointed by the Society they should be deemed as agents of the Society) and the person resisted and resisted but his or her individual will was obviously overcome and she signed the card and the elder and his co-witness signed the card, and the peson then walked right out of the Kingdom Hall and was struck by a car, rendered completely unconscious, was taken to the hospital and the Elders followed and did not permit the Hospital people to either seek an injunction or administer blood, insisted on the validity of the blood card and the person was not given blood and was left paralized because of the lack of a blood transfusion. Then maybe, just maybe that would be a winner with a Misrepresentation suit against the Society (although she would have a stronger case against the Hospital). Anything, and I mean anything other than what I so narrowly described is not going to be a Winner. (Notice how a court looking at this instance doesn't have to get into the religious issues because the plaintiff would likely have accepted a blood transfusion or not signed the No Blood Card BUT FOR the pressure of the Elders and the mistatements of facts that induced her to sign the card. Note also that there would have to be a showing of such false statements, preferably of non-religioius type, such as "Blood is bad medicine" or "it won't improve the odds of saving your life", etc. by the Elder)

    -Eduardo Leaton Jr., Esq.

  • Oroborus21


    I agree, and I do see the Blood Issue becoming first a total conscience matter and then finally being disregarded. some will walk, but many, including myself would be more inclined to rejoin under such a circumstance.

    And don't get me wrong, the legal process may be the best tool, externally to pressure the Organization and there may be some grounds for blood related lawsuits revolving around medical privacy laws but not the tort of misrepresentation.

    I mean I don't want to be too harsh and frankly, I have never been published, even in a third-rate journal, so I can hardly tout anything over my new colleague. But if I were to guess about the situation: obviously she is smart and having gone through a very personal tragedy of losing her mom to this insane false doctrine, she was highly motivated to do something with her training, but just again only seeing the excerpts it appears that she has made, shall we say some "rookie errors" and mixed up some basic differences between the real world and the legal world, namely that they often don't make sense together.

    Has the Society misrepresented things. Absolutely!

    Can it be sued for doing that? No.

    As for the supposed "peer reviewed" aspect, for one thing such Essay's are given a lighter hand then say a law review article and for the other, consider the source. It is Baylor after all. They have a very hardline view of Christianity there and no doubt are not particularly favorable towards the Witnesses. I really doubt that a critical article of the Witnesses would be scrutinized very closely.

    If anything, if it does turn out that the Essay is wrong on its legal analysis there may me more than a few of us lawyers out here that dash something off to the Journal to let them know. It doesn't help their reputation if they print something that has such apparent flaws in it.

    We will see. maybe I am wrong. It is now 3:30 am and I feel like I am talking out of my butt now :-) so maybe its is me!

    Well we will see. I guess like most of you, I also feel just a wee bit shafted. I did expect a bigger bombshell, something juicier than this from Barbara.

    Next time less buildup and more attention to the implications and review of something like this. It is a good article in that anything about Jehovah's Witnesses, written by any scholar or professional, whether pro or con adds to our greater body of literature and hopefullly are greater understanding.

    So to that ends, much Kudos goes to Ms. L-B.

    But please next time just say "hey there is this really interesting new Essay everyone take a look!"

    That would definitely suffice.


  • sixsixsixtynine

    Thanks for the analysis Eduardo, very interesting.

  • AuldSoul

    The tort of Misrepresentation is designed to punish the guy who sells you a lemon for a car, knowing that it was in a previous accident or tells you that there is no water damage or termites to the house you are buying when he knows differently.

    The fellow who sells you a car as in good condition when he knows it has been in an did he ACT recklessly? I think you're applying recklessness in the wrong sense. It is oxymoronic to suggest that someone could at once act deliberately and recklessly. The recklessness is in the sense of reckless disregard for CONSEQUENCE.

    You should know that since you are some sort of attorney.

    And it is in this sense that they will successfully be sued. They know in advance the potential consequences, they know in advance that they are misrepresenting secular facts attached to those potential consequences, and with reckless disregard for potential consequences they knowingly distort secular facts to create a misimpression.

    It is EXACTLY like selling a lemon. That's what you are missing. This essay attempts to theorize a legal method for holding them accountable for not telling all the material facts necessary to make an informed decision while purporting to do so. Just like a slick car salesman. Perfect analogy, you should have followed it to the conclusion.

    The doctrine is not being challenged, the SALESMANSHIP attached to the doctrine is being challenged. Where the salesman misrepresents material secular facts, they can be held accountable for misrepresentation AT THE TIME OF SALE if the consequences are eventually adverse.

    If a car is actively represented as not having been in an accident, or even if that salient fact is omitted, there is grounds for tort of misrepresentation no matter when injury is sustained if it can be attributed in part to the omission of that fact. At the least, there would be grounds to hear the case on this basis. If the death of the purchaser occurs, survivors can pursue the same tort on the same basis.

    Maybe this has helped you clarify the power of what is being discussed.


  • stillconcerned


    I have the complete article. Want it?

    BTW, got my law degree from Baylor, and wrote for the Law Review there.

    The law school provided the antithesis of a 'christian' education, and is completely separated from the undergraduate school.

    Kimberlee D. Norris

    attorney at law

  • jgnat

    stillconcerned, I like your style.

    Here's my shorter Cliff's version,

    This article states that because the JW's misrepresent secular evidence, they are not protected by religious freedom. They can be sued over misrepresenting the risks of refusing a blood transfusion. This would be a great document to provide to emergency rooms, local hospitals, and social agencies who temporarily take custody of sick JW children to provide life-saving medical treatments.

    Also, this opens the way for a class action suit from anyone who was harmed because of the misrepresented information on blood transfusions provided by the WTBTS.

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