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Judge sets two trials for lawsuit against Cooper

By Gary D. Robertson

Associated Press

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DURHAM — With about two weeks to go before empaneling jurors, a judge ruled Thursday there would be two trials in a defamation lawsuit filed more than a decade ago against North Carolina Attorney General Roy Cooper by a former political rival.

Dan Boyce, who ran against Cooper in 2000, and father Gene will be the plaintiffs in the first trial, set to begin April 28 barring an out-of-court settlement, which appears unlikely. The Boyces, two former law partners and their now disbanded law firm sued Cooper, his campaign committee and others alleging they were libeled by a Cooper campaign TV commercial about a 1990s class-action tax case against the state. The lawsuit alleges the TV ad was untrue and Cooper’s camp knew it.

“That is the main purpose of this lawsuit — to clear publicly my name and that of my partners in the law firm,” Gene Boyce told Superior Court Judge Osmond Smith in a Durham County courtroom. Cooper’s attorneys have repeatedly said no libel occurred.

The second jury trial would involve the ex-partners, who are Gene Boyce’s daughter and her husband. Smith said he was creating the separate trials to minimize confusion for jurors about differing thresholds for determining libel. Jurors could award compensatory and punitive damages to the plaintiffs if they decide libel occurred.

Smith also ruled that Dan and Gene Boyce were public figures. That means they must convince jurors at a higher standard — that Cooper acted with malice or reckless disregard, rather than just being negligent. The negligence standard is set for plaintiffs in the second trial, Philip and Laura Isley, who are private figures, Smith ruled. The law firm is also a plaintiff.

The case has been delayed by at least three trial court rulings and three appeals court decisions. Losses in court could affect Cooper, a Democrat now planning a bid for governor in 2016 to unseat Republican Pat McCrory. The case also could ultimately set case law on protections of political speech directed at a private company.

Allison Van Laningham, one of several attorneys representing Cooper, the campaign and a former campaign aide in the lawsuit, told Smith it made sense to create two trials.

With one trial, she said, “it would be tremendously difficult for a jury to have to try to parse out five different plaintiffs, several different standards that could potentially apply.”

Joe Knott, a Raleigh lawyer working with the Boyces in court, said the separation would needlessly complicate what he called a simple case for jurors about whether the ad is true or false.

The commercial said that Dan Boyce’s law firm “sued the state, charging $28,000 an hour in lawyer fees to the taxpayers. The judge said ‘it shocks the conscience.’ “

The ad referred to a lawsuit filed by North Carolina residents who paid a tax on stocks and other securities that was ultimately found unconstitutional. These people, who paid the tax under protest, received a $146 million settlement. The proposed fees were rejected by the judge at the time and later reduced.

Dan Boyce has said his law firm wasn’t involved in the case at the time of the settlement — Gene Boyce and another law firm handled that portion of the case. But lawyers on Cooper’s side have said the ad’s contents were based on research and Dan Boyce’s own campaign literature and statements taking credit for many cases.