Monday, October 15, 2007

The Chronicle, Pressler's Suit, & a Question

The Chronicle editorializes today concerning the lawsuit recently filed on behalf of former Duke lacrosse coach Mike Pressler. The editorial follows in full, after which I make a few comments and ask a question concerning the suit filing. I hope someone will answer the question. It concerns an important matter.

Now The Chronicle editorial:

Former Duke men's lacrosse head coach Mike Pressler's recently filed lawsuit against Duke marks yet another chapter in the seemingly unending judicial process that has followed the lacrosse case.

Pressler's attorneys seek to void the financial settlement reached last March between Pressler and the University because they claim it was violated when John Burness, senior vice president for public affairs and government relations, made disparaging comments about Pressler. In a press release from University Counsel Pam Bernard, the University seems confident in its ability to defend against the lawsuit.

Although the University has sustained much criticism for the numerous lawsuits recently filed against it, we have learned all too well that we cannot rush to judge Pressler or the University as details of the settlement are confidential. This board awaits new information to come to light to evaluate this highly sensitive case.

Indeed, at this point, we know very little about this suit in particular and don't pretend to know much about the intricate legal processes at play. We need to give both the University and Pressler's attorneys time to present their arguments before reaching conclusions.
I left the following comment on the thread of the editorial post:
To the editorial board:

I'd like to commend you for a well-writen and very sensible editorial.

It's a service to the Duke community.

Sincerely,

John in Carolina
I’ve read the filing once and press accounts concerning it.

I plan to post today or tomorrow on the press accounts – look for a post: “One suit, two stories.”

Now a question I want to ask those of you who are attorneys or particularly knowledgeable regarding filings in suits of the type Pressler is bringing.

In the filing (available here in pdf form) Duke is ID’ed as “the defendant” and John Burness as “the official spokesperson.”

The filing contains a number of numerated paragraphs in which specific statements by “the official spokesperson” are cited.

Up through paragraph 22 “the official spokesman” is the only person cited as having made statements which Pressler’s attorneys assert breached the agreement with Duke.

Then paragraph 22:
22 - Upon information and belief, the defendant, acting through its official spokesman, agents, employees and representatives, has made about Coach Pressler additional defamatory and disparaging statements that breach an essential and dependent covenant of the Confidential Agreement.
The filing doesn’t cite particular statements it asserts Duke’s “official spokesman, agents, employees and representatives” made “that breach an essential and dependent covenant of the Confidential Agreement.”

My question: Is 22 a kind of “any and all, now and forever” boiler plate statement used as a contingency in the event discovery reveals that others besides Burness made statements which Pressler’s attorneys would assert breached the Confidential Agreement; or does 22 indicate Pressler's attorneys are in possession of what they believe are statements made by others at Duke besides Burness which the attorneys will assert breached the Confidential Agreement?

None of the press reporting of the filing has mentioned 22 or addressed the question I’m asking.

I hope someone can help with the answer.

The most comprehensive coverage so far of the Pressler suit has been provided by The Johnsville News here and here. It was at TJN I found the pdf link to the filing. If you, like me, sometimes have trouble with pdf documents, TJN has the full text of the filing in this post.

7 comments:

LB said...

not a lawyer...Seems to me that "22 - Upon information and belief, the defendant, ....." is saying that a third party, maybe someone who had a direct conversation with one of the people mentioned in 22 can say with a certain (maybe absolute) degree of accuracy (they can be believed) that something negative to the principles of the agreement were breached. Therefore, the suit can include those others comments and people. An example might be say Jason T of FODU fame talking with Dick B of duke fame and dick says to Jason that pressler always let his LAX kids drink with no punishment. Jason could be a witness to direct conversation with dick and show that the agreement was abused by dick.

But, then again, im not a lawyer so I am only guessing.

Ralph Phelan said...

Your question could be boiled down to "Do they already have more statements, or are they bluffing in hopes they'll get more in discovery?"

I'm not a lawyer either, but my guess would be that neither we nor Duke are going to find out the answer until the trial starts.

My other guess is that the question "Are they bluffing?" will be very much on Steel and Brodhead's minds as they try to get to sleep tonight.

"Do you feel lucky, punk?"

Jim in San Diego said...

I am a lawyer.

Paragraph 22 is boilerplate. It covers the contingency that additional statements are discovered.

The existence of this boilerplate is important. It will be unnecessary to amend the complaint to make additional allegations if additional evidence of breach of the settlement agreement is found.

Steve said...

The language ties out to old case law about relief. It has become pretty standard. It prevents having to continually try the case again. Pressler's lawyers plead as I would something easy to prove then use boilerplate to make other claims about violating the settlement agreement. That would be the easiest way to beat a motion to dismiss. Duke is certain to file one. You don't want to get tricked into violating the agreement when you file a complaint about the other side violating it.

Jim in San Diego said...

re: paragraph 22

Experience tells us in these kinds of cases that, if Burness was so careless as to make the public statements he is alleged to have made, he (and perhaps others) have made similar statements elsewhere.

Emails are a likely candidate to find such statements.

However, any publication to any other person will do, including cocktail conversations or internal staff meetings.

Mr. Burness is foolish to get caught making these statements. Once discovery starts, such that Duke staff and faculty might be deposed, the lid may start to slide off Pandora's box.

If I were Mr. Burness' attorney, I would have advised him long ago to shut up. If I were Duke's attorney, I would have advised the Board that Mr. Burness was a significant legal liability to Duke.

If I were Mr. Pressler's attorney, I would have told him to be very cautious about incurring the expense and exposure of civil litigation; however, if Duke is too stubborn/careless/indifferent/ to the terms of their own settlement agreement, then go for it.

Enoch said...

Do you believe that Pressler is just now getting around to suing Duke for something that was said in April? Or has something else come up that also broke the non-disparagement provisions of the settlement agreement?
Could there be a thread in the negotiations with the "other" lacrosse players or the recent attacks from Duke Faculty and Dr. Coleman?
If Pressler has something explosive it's worth a lot more buried in boiler plate than disclosed in the filing. Once disclosed, its value in a settlement negotiation declines.

Anonymous said...

I am a lawyer as well. I agree with Jim in San Diego's comments re Para 22. I also agree that if this suit survives Duke's inevitable motion to dismiss or motion for summary judgment, the discovery stage of litigation on the merits of Pressler's claims will get very ugly for Duke. Given the inability of Burness to hold his tongue (whether in public statements or cocktail chat), Pressler's lawyers will have some fun.

Another point to consider: one of the partners (Don Beskind) in the firm that represents Pressler teaches at the Duke Law School as a "Senior Lecturing Fellow" in trial practice. He has done so for a number of years and is well-connected at the Law School. Putting aside any conflict of interest issues (I'm assuming that Beskind's firm analyzed those issues), Beskind has his ear to the ground at Duke. More thoughts (some of Jim Coleman's recent, odd comments are in much sharper focus now)...little time; will check back later.