Legal expert: Fox settlement talks may mean "they realize the weakness in their own case"

The start of Dominion Voting Systems' $1.6 billion defamation trial against Fox News was delayed Monday amid reports of settlement talks between the two sides.

Judge Eric Davis on Sunday announced that he would delay the beginning of the trial, including jury selection, until Tuesday. Two people familiar with the case told The Washington Post that both sides are instead scheduled to meet Monday to determine if a last-minute deal could be reached to avoid trial. 

One of the Post's sources told the outlet that Davis asked the two sides to "make a final effort to settle the issue before proceeding with a trial."

If the case proceeds to trial, a jury would be responsible for deciding how much to award Dominion in damages.

"Settlement talks will delay the trial but how long depends on how far apart the sides are on the money," Brandon Rottinghaus, a political science professor at the University of Houston, told Salon.

He added that Fox wants to avoid time in court to stop "negative headlines and limit the precedent this might set in the future as other news organizations are challenged on false assertions."

Davis on Wednesday sanctioned Fox News after Dominion accused the company's lawyers of withholding information in the discovery process, which Fox denied. 

The evidence includes recordings of former Trump lawyers Rudy Giuliani and Sidney Powell admitting they had no evidence to support their Dominion election fraud lies, which are at the heart of the lawsuit.

Davis also said he is considering tapping an outside investigator to look into Fox's legal team for not being "straightforward" with him after the network failed to disclose the scope of Rupert Murdoch's officer role at Fox News. Whether Murdoch made decisions as a corporate officer of Fox News or not is a key detail in Dominion's case. The voting technology company has tried to show that Rupert and Lachlan Murdoch, the chief executive of Fox Corporation, were involved in making decisions about what Fox broadcast as part of its coverage of the 2020 election. A spokesperson for Fox said the network complied with all of its discovery obligations.

The trial is one of the most closely-watched defamation cases in a decade. First Amendment experts believe that it could have a major impact on the public's trust in the media and the future of defamation law.

"Sometimes as the parties get closer to trial and they dig into the details of witness testimony and exhibits, they realize the weakness in their own case, and become more interested in a settlement," said former U.S. Attorney Barb McQuade, a law professor at the University of Michigan and MSNBC contributor.

She added that while it is "very common for cases to settle", it doesn't happen this close to trial after a lot of legal fees have been incurred in preparing for the trial. 

"The delay would likely not impact the trial unless the case gets resolved altogether," McQuade said.

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Dominion has accused Fox of tarnishing its reputation by airing baseless conspiracy theories. But Fox has continued to defend itself, saying they were reporting on notable allegations protected by the First Amendment.

Davis last month ruled that the statements aired by Fox were false, meaning a jury only has to decide whether the statements were aired with "actual malice." First Amendment experts have argued that Fox can no longer rely on the First Amendment as a defense since the evidence offered in the case has satisfied the "actual malice" standard, which is necessary to prove defamation. 

Another potential risk to Fox is a lawsuit from Smartmatic, which is demanding $2.7 billion over the network's coverage of TrumpWorld's false claims about the 2020 election. The case is working its way through New York state court.