Grant did well in settlement

Thursday, it was revealed that NASCAR has settled the $225 million sexual harassment and racial discrimination lawsuit filed against the racing body by former official Mauricia Grant. Yahoo! Sports legal analyst Craig Silverman discussed the settlement, what it means and why the two parties chose to settle rather than go to court.

Y! Sports: What do you make of the settlement?

Craig Silverman: It suggests to me that Mauricia Grant did pretty well.

Y! Sports: Why does this suggest to you that she did well?

CS: I just think you have a very deep-pocketed defendant who was suffering in the court of public opinion. This was a way for NASCAR to stop the bleeding and not air any dirty laundry or even any allegations of dirty laundry.

You can't help but notice the timing, which is during the holiday season when news gets less emphasis and people aren't really paying attention to NASCAR.

She sued for $225 million, but I don't think she got anything even close to that. But any kind of fraction of $225 million can still be pretty large.

Y! Sports: Is there any way to surmise how much money she will get from this settlement?

CS: It's almost impossible. I was in Colorado when the Kobe Bryant civil claims got settled and nobody still knows exactly what that was. I believe Mauricia Grant was represented by the same law firm that represented the Fox staffer who sued Bill O'Reilly and nobody is certain what she recovered in her settlement.

The key to these kinds of settlements is confidentiality. If Mauricia Grant were to call Yahoo! Sports and tell you what she received then she would have violated the terms of the agreement and might be compelled to give it back.

Y! Sports: You predicted a settlement. Was this typical of how these sorts of civil suits play out?

CS: The vast majority of litigation is settled without a trial. It's no great prediction for an experienced litigator to predict settlement.

The key to a case of this kind is to survive summary judgment. What a defendant tries to do is present evidence that a plaintiff doesn't even have a leg to stand on. Even if her allegations are true, there is no legal cause of action.

I don't even know if it got that far where there was any major litigation that went on in the courts.

But it's hard to knock a case like this out because it comes down to a question of credibility.

Mauricia Grant claims that somebody said something to her and even if the other person denies it, that's an issue of fact for a jury to decide who they believe.

If NASCAR had had a smoking gun reason to fire Mauricia Grant, then she probably would have been out of luck. For example, if they could prove that Mauricia Grant stole money from NASCAR and could prove that to a judge as basis for terminating her, then I doubt this case would have gone forward.

In other words, Mauricia Grant at least had a claim that NASCAR probably would have had to defend in front of a jury.

Y! Sports: So, NASCAR didn't necessarily have anything to discredit Mauricia Grant, who NASCAR terminated prior to the filing of this lawsuit, as a credible plaintiff?

CS: NASCAR may have had lots of ways to attack her, but apparently there was no smoking gun reason for termination that would cause any fact finder to say, 'Wow, there's a legitimate reason for firing someone.'

Y! Sports: People are going to look at this, see that NASCAR has settled, and some are going to perceive that as an admission of guilt.

CS: NASCAR might have won at the trial, but they would have spent a lot of money on attorney fees and there would have been a lot of tension and distraction and negative publicity. So, NASCAR decided to cut their losses.

To use a sports metaphor, it's like a game that never happened. They talked about playing each other but ultimately they decided not to.

I attend mediations all the time. Generally speaking you have a retired judge who tries to arrange a compromise. Most people who go to mediations are willing to compromise. No side gets exactly what they want, but they get some finality and closure.

This case could have dragged on for two years before it went to trial and then many more on appeal. That's expensive and stressful and by settling both sides eliminated risk.

Y! Sports: Why do these cases take so long to litigate?

CS: In a case like this, there would have been dozens of people deposed, potentially. Court calendars are crowded. Summary judgments motions are filed and sit on judges' desks for however long it takes for a judge to get to it. Criminal cases get priority over civil cases. There are a lot of reasons it takes a long time.

Y! Sports: Since this suit was filed, NASCAR launched its own internal investigation which resulted in the firing of two of the 17 officials named in the suit. What can we surmise from NASCAR's action?

CS: That's interesting circumstantial evidence that NASCAR might have felt vulnerable.

We can make an inference that the two things were connected, but you can't be sure.

It has a huge impact on the atmospherics at the litigation.

If it went to trial, the defense might try to keep it out as a subsequent remedial measure. That's a legal term that in civil cases, for example, if somebody trips over defective stairs, then somebody fixes the defective stairs and the plaintiff wants to bring that in as evidence. The law frowns on that because otherwise people would keep the stairs defective just to avoid conceding a point in litigation.

There's a social policy that we do want subsequent remedial measures so we don't defendants to not take those steps for fear that it will be a point against them in litigation.

But here, especially with inappropriate racial or sexual conduct, normally speaking this doesn't happen in a vacuum. Somebody prone to racist or sexist statements has a pattern of behavior that you hire investigators to find out about. That is compelling evidence in front of a jury.

If an allegation that a racist remark was made and the person denies it and you can bring in two, three or four people who can testify to this person having a history of making such statements, that's pretty devastating evidence.

Y! Sports: Who would you say won in this settlement?

CS: Mauricia Grant fired many shots and allegations at NASCAR. And it's like a low scoring hockey game where you only need one of your shots to get into the net to potentially win the game and the litigation.

I don't know how much money she got, but she had some big time lawyers who felt they could make some money representing her, probably on a contingency fee. And if I had to guess, I'd say Mauricia Grant made a lot more money through this lawsuit than she would have made through her salary in NASCAR.

Craig Silverman is a legal analyst for Yahoo! Sports. He is the primary partner of Silverman & Olivas PC, a Denver trial law firm that handles civil litigation. He's practiced law since 1981.