If Kesha ultimately loses her case against Dr. Luke, the producer she has accused of drugging, raping, and abusing her, it won't be for the lack of qualified attorneys. Since suing Dr. Luke in October 2014, the singer has been represented by Mark Geragos, who previously defended Chris Brown and Michael Jackson—and yes, it was for what you think. In recent days, Kesha’s legal team has also brought on Daniel Petrocelli, who bested O.J. Simpson in a wrongful death civil case.
So why, then, did she just suffer a serious courtroom defeat?
On Wednesday, New York Supreme Court Justice Shirley Kornreich rejected nearly all of the claims Kesha's lawyers brought before her. Understandably, the ruling has spurred intense outcry. Still, as the New York Times neatly phrased it, the specific allegations Kornreich threw out this week were "infliction of emotional distress, gender-based hate crimes, and employment discrimination." And a review of the judge's decision, along with an earlier courtroom transcript, raises questions about what, exactly, Kesha's high-profile legal team was trying to do here. (Pitchfork reached out to Geragos and Petrocelli and, as of press time, has not heard back.) If the goal was to prevail in court, this round was clearly a bust. In the court of public opinion, though, Kesha is winning.
Kesha's lawsuit includes some horrifically detailed assertions about Dr. Luke, but when it comes to the actual legal claims, the judge found the arguments deeply lacking in particulars. Kornreich wrote that while Kesha claimed she was “sexually, physically and verbally abused by Gottwald for a decade, she describes only two specific instances." The judge raised a similar point at a hearing in February. "You have to be specific," Kornreich said, according to the transcript. "And you have to be specific as to what happened and when it happened, at the very least. And it's not here." Tina Glandian, an attorney in Geragos' law firm, replied that Kesha's team could amend their claims to add what the judge wanted, but the judge said that "this is the second amendment and still doesn't give any facts." Why, nearly a year and a half after suing Dr. Luke, couldn't Kesha's lawyers offer the judge the specifics she wanted?
Again and again, Kornreich held that the allegations against Luke fell short in ways top-flight attorneys like Kesha's might have foreseen. On emotional distress, the judge ruled that claims were either too old under the one-year statute of limitations for this type of allegation, or else failed even "to state a claim" that could meet the "strict standard" required. On the hate crime allegations, Kornreich sparked an uproar by writing, "Every rape is not a gender-motivated hate crime." It's an appalling statement to read, especially imagining the pain those words could cause to a victim reading them. But the statute quoted by the judge explicitly required Kesha's lawyers to claim Dr. Luke's alleged actions were driven by a gender bias. According to the decision, Kesha's attorneys didn't make that claim. If that's right, then why didn't they?
A word the judge has used a lot in this case is "conclusory." It means when you state a conclusion without offering any supporting evidence—in this case, for instance, asserting that Dr. Luke breached some standard for legal liability, but not saying when or how. According to Kornreich, Kesha's lawsuit alleged "in conclusory fashion" that Dr. Luke was continuing to abuse the singer, "but in keeping with" Kesha's claims, "she supplies no dates or specifics." Kornreich wrote that if Dr. Luke "abused Kesha at any time," Kesha should be able "to allege what occurred, or when and who she told. Similarly, she would know which Sony executives witnessed any abuse, the nature of the abuse, and when it occurred. She failed to make the necessary allegations."
None of this need change anyone's mind about the underlying essence of Kesha's claims. (Dr. Luke hasn't faced any criminal charges, and he has denied the allegations.) Let's assume, in good faith, that everything Kesha asserted in her legal filings is true. That Dr. Luke drugged and raped her, and also, over the course of a decade starting in 2005, subjected her to vicious emotional abuse. That when she testified under oath in 2011 that he did not drug or rape her, she was too intimidated to say what really happened. Her lawyers would still need to allege that stuff properly in court. The judge wrote that they didn't.
However, one possibility is that Kesha's surest route to victory is through not the judicial system, but via the public. It's difficult, after all, to prove what happened in 2008 or earlier between two people, especially given that Kesha would be contradicting her previous sworn deposition. But on social media, the distinction between whether what the judge ruled is legally wrong or just wrong-sounding can become moot.
Days before the judge's ruling, Kesha took to Instagram to say she had been "offered my freedom" in exchange for a public apology and statement that she was never raped (a representative for Dr. Luke said in a statement, "The only thing Kesha is not free to do is to continue to lie about Dr. Luke"). Posts like that one have helped turn Kesha's cause into a public rallying point, with A-listers like Lady Gaga, Lorde, Miley Cyrus, Fiona Apple, Ariana Grande, and Kelly Clarkson speaking up on her behalf recently. Back in February, Taylor Swift's spokesperson said the singer would donate $250,000 to Kesha "to help with any of her financial needs during this trying time.” On Wednesday, UltraViolet, a women's advocacy group, issued a statement applauding "Kesha for her courage to stand strong in defense of the truth." Protesters have marched on Sony's headquarters, though Sony wasn't named in the original California lawsuit and has said it can't end Kesha's contract with Dr. Luke. A pop star’s fight can transcend a courtroom, and public relations has everything to do with that.
Could the courts just be a means to an end: an out-of-court settlement, by popular demand? If so, it would presumably be in Kesha's interests.
Another possibility is that Kesha's high-powered legal team is simply making mistakes. They have misfired badly at least once before: In December 2014, Geragos insinuated on Twitter that Dr. Luke also raped Lady Gaga—a claim Gaga quickly denied. Missteps happen, and Kesha's lawyers still have paths forward, in New York and California court as well as beyond.
Of course, the final explanation here is that Kornreich simply might be wrong about the law—that is always a possibility in our legal system. Kesha has already appealed the judge's February ruling rejecting Kesha's request for an injunction that would have allowed her to sign to another label besides Dr. Luke's Sony Music imprint Kemosabe Records. A further source of hope for Kesha's side is Kornreich's rationale for rejecting the employment discrimination claim. "Kesha failed to plead that any of the alleged discrimination occurred in New York," the judge wrote, leaving open the chance that Kesha's original suit in California, currently on stay, could eventually resume.
Whatever the end result, after this week's major setback, Kesha supporters may have questions not just for the courts, Sony, and Dr. Luke—but also for Kesha’s own legal dream team.