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To win Jussie Smollett suit, brothers may need to do what prosecutors didn’t

Abimbola and Olabinjo Osundairo | CBS Chicago

Two bodybuilding brothers say their reputations were trashed by lawyers for Jussie Smollett, but proving the actor’s celebrity attorneys owe them damages may mean proving the same case against the “Empire” actor that Cook County prosecutors dropped last month.

Brothers Olabinjo and Abimbola Osundairo on Wednesday filed a lawsuit against Smollett’s lawyers, Tina Glandian and Mark Geragos, claiming the two lawyers smeared them on national television and in podcast interviews after Cook County prosecutors abruptly dropped charges against Smollett a month ago. But defamation lawsuits often hinge on one issue: whether the alleged harmful statements were true.

“The issues here are kind of flipped, but the central facts are still right at the center, with Jussie Smollett right in the middle of it,” said Joseph Siprut, a Chicago litigation attorney. “The question, ‘Did Jussie Smollett pay them for this attack, or were they rogue assailants?’ is still there.”

Attorney Mark Geragos | AP Photo
Attorney Mark Geragos | AP Photo

Lawyers Geragos and Glandian aired multiple allegations that disparaged the Osundairos, the only known witnesses against Smollett as he faced felony charges for lying to police: that the brothers staged the Jan. 29 attack themselves and lied to a grand jury; that the Osundairos trafficked illegal steroids from Nigeria, and that Abimbola and Smollett had “engaged, at least briefly, in homosexual acts together.”

In the lawsuit, filed Wednesday in federal court, the brothers denied all the allegations, which the two lawyers aired publicly on “Good Morning America” and several podcasts after Smollett’s case was dropped last month.

Daliah Saper, a Chicago lawyer who has handled numerous defamation cases, said few such cases go to trial, with the vast majority either dismissed or settled. Few people want an intense, detailed examination of the truth of scandalous allegations, and there are accusations against both Smollett and the Osundairos that are going to be subjected to depositions and subpoenas.

“They’re going to be kind of putting themselves on trial, because immediately [Geragos and Glandian] are going to make the defense that these statements are true,” Saper said. They will also argue more technical legal matters, such as whether the Osundairos are public figures or the statements were intended to be taken as factual, Saper said.

Gloria Schmidt, attorney for Olabinjio and Abimbola Osundairo, announces the filing of a federal lawsuit claiming defamation in the Jussie Smollett case, during a press conference at the Union League Club, Tuesday morning, April 23, 3019. | Ashlee Rezin/S
Gloria Schmidt, attorney for Olabinjio and Abimbola Osundairo, announces the filing of a federal lawsuit claiming defamation in the Jussie Smollett case, during a press conference at the Union League Club, Tuesday morning, April 23, 3019. | Ashlee Rezin/Sun-Times

At a press conference Wednesday, the Osundairos’ lawyer, Gloria Schmidt, seemed to dig in for a battle over the truth.

“We’re going to make sure that the lies and malice attacking our city, our police department and my two clients are met with truth and healing,” Schmidt said.

Geragos and Glandian fired back in a statement calling the filing “a comical legal document.”

This “so-called lawsuit by the brothers is more of their lawyer-driven nonsense, and a desperate attempt for them to stay relevant and further profit from an attack they admit they perpetrated,” the statement read.

“While we know this ridiculous lawsuit will soon be dismissed because it lacks any legal footing, we look forward to exposing the fraud the Osundairo brothers and their attorneys have committed on the public.”

Proving Smollett’s lawyers were lying about Smollett’s victimization, when they knew he plotted the assault with the Osundairos, means that if the case goes to trial, the public might get a look at the kind of evidence that would have been examined had Smollett’s criminal case moved forward, said criminal attorney Adam Shepard. Similar witnesses could be called — including State’s Attorney Kim Foxx. And, unlike a criminal trial, in a civil case, Smollett himself could end up on the witness stand or sitting for a deposition.

“If their defense is going to be the truth of the matter, I would think they would want to put him on the stand to say what occurred,” Shepard said. “Of course, [Smollett] is their client, so they might want him to take the 5th Amendment if he did testify. That’s a very interesting dynamic.”

Veteran defense lawyer Richard Kling said it’s “bizarre” to see defense lawyers sued for defamation.

“It’s going to be a mess,” he said. “Everybody who’s a potential witness is going to be drawn into a lawsuit and God knows how long it’s going to go on.”

Also working against the Osundairos is the fact that the lawyer who represented them made statements about the case to reporters while they were suspects, and then witnesses, against Smollett, before the case was dropped.

“She potentially painted her clients into a corner,” Kling said. “I don’t think there’s enough paint for all the corners that everybody is in.”

Saper wasn’t sure whether either side would have the stomach to take the case to trial, but if it does go that far, it will be because one side is fixated on being vindicated in the courts — either by a jury verdict or a settlement.

“I don’t know if this has the earmarks of a successful defamation case, but it does have the earmarks of being the kind of case you file to show you’re outraged,” she said.