Wednesday, February 27, 2008

Butler’s “A House Divided”

You can add Kristin Butler’s latest Chronicle column, “A House Divided,” to the long list of outstanding columns she’s produced.

Besides calling it to your attention, I want to offer a few comments in response.

Butler begins:

Thirteen months ago, The Chronicle's editorial board had this to say about the Brodhead administration's performance during the lacrosse case: "People should not forget to recognize the adequacy of a 'good' performance in the turbulent and charged atmosphere of the last year. And in the end, history may very well judge the University's response as sensible and well executed given the constraints and competing interests at stake."

It's hard to imagine anyone offering that assessment today.
I’d be interested to read The Chronicle editorial board’s current assessment of “the adequacy” of Duke’s response to the lies of Crystal Mangum and Mike Nifong and all that’s followed.

Does The Chronicle ever ask itself why on March 25, 2006 President Brodhead didn’t let the public know the lacrosse players had been extremely cooperative with police?

What does The Chronicle think of Brodhead’s failure to say anything critical of those who rallied under the CASTRATE banner, and those who produced and distributed the Vigilante poster?

Why, instead, did Brodhead tell the public that whatever the lacrosse players did “was bad enough?”

How about his silence when a black hate-group threatened Reade Seligmann?

Does The Chronicle believe Brodhead would have been silent if an African American student had been so threatened by a white hate-group?

Why did The Chronicle recently say Brodhead "must" remain as Duke President?

More from Butler:
These 38 families have already turned down the University's offers to fully compensate them for their expenses-legal and otherwise-during the saga, lending credence to the assertion that their goals extend well beyond money.
Wise words. My bet is the folks who brought this latest suit want truth more than money.

And, yes, I know it’s awfully hard for most of the media and others with pot-banger mentalities to believe such people exist.

But they do.

Regarding the plaintiffs wanting truth more than money, Butler says:
If that is indeed the case, then we should view this suit as the logical result of administrators' decision to shirk responsibility and stymie reform at every opportunity.

From the newly disbanded Judicial Affairs Review Committee to the Campus Culture Initiative and beyond, Duke administrators have remained disconcertingly slow to learn from their mistakes, which were legion.
Slow to learn from their mistakes?

Kristin, you're too kind.

They haven’t learned from their mistakes. They’ve tried to cover them up to protect themselves at the expense of the University. In the process, they knowingly hurt innocent people and damaged Duke’s reputation. They need to go; the sooner the better.

Butler continues:
Don't expect admins to acknowledge that is was their unique combination of ignorance, arrogance and denial that brought us to this point.
Ah, now we’re back agreeing.

Butler ends:
But the inconvenient and unavoidable truth now seems to be that in his haste to avoid the perception "that a well-connected institution was improperly attempting to influence the judicial process" back in March 2006, Brodhead created many more problems than he solved.

Too bad the whole University will get stuck with the bill.
Too bad, indeed.

Buter's entire column is here.


Anonymous said...

John, are lawyers ethically allowed to comment to the press about what was discussed in a settlement meeting (an extrajucial event), such as that Duke offered to pay attorney's fees and out of pocket expenses?

O/T In today's Chronicle, Kelly Akhiemokhali wrote an editorial which belittled the 38 Duke Lacrosse (2006) students' suit.(See )
What I find most startling about this piece is that the author should know better as she has "conducted research analyzing how educational systems can engender trauma." (See )

drew said...

John, I can’t help but get the continued impression that the University is intentionally stonewalling all the suits and other negative reactions. For reasons that are definitely unclear to me, it would seem that Duke believes that some sort of cavalry is going to ride in from outside the picture, and rescue the University from all of its otherwise worldly concerns.

There is, however, no “magic bullet”; no “get out of jail free card”; and (more importantly) no white horse on the horizon. The Duke administration is rearranging deck chairs on the Titanic, safe in the conviction that “this too shall pass…”

They’ve been successful so far in buying off settlements with University money (…if we need more, we’ll just raise tuition for the ever-growing list of applicants…); however, it might actually be the case this time that they’re up against a group of plaintiffs who really want to see reforms, and will not be swayed by only money. Also, the amounts that would likely be available to any one plaintiff in the group of plaintiffs will presumably not be a life-changing sum. So, the plaintiffs will be concerned with the principle of the matter, not the damages.

I also tend not to believe the University when they tout the numbers of applicants and donations – we’ve seen that Duke can play fast and lose with the truth in the past – why should we take what they say now without a fair amount of skepticism? It seems that Duke has only trotted out the “good” statistics when they are trying to leverage some more money out of their donor pool. If the incoming freshman class is going to be so exceptional in every regard, why are they so dumb as not to be able to find out that it’s a campus in trouble, with an administration that apparently treats the students as chattel, rather than guests?

Discovery will not necessarily be an “open” affair – neither side is obliged to share what they find with anyone other than those people at the deposition or in possession of the documents. I suspect that counsel for the plaintiffs will play this one close to the vest, rather than trying their case in the media. The plaintiffs will only benefit by gathering additional damaging information in private, and they threatening the University (and others) with a “data dump” when it becomes apparent that the University’s defenses aren’t going to carry the day. The administrators will scan the horizon once more for the telltale dust cloud from that regiment of cavalry, and then realize that they have only two options – agree to what’s being demanded, or fight to the finish. I suspect that the current Duke administration would prefer to go down in flames rather than “cave in” to the plaintiffs.

It’s such a shame – they’re afraid of the faculty and their image, when they should be afraid of the courthouse. The faculty will throw the administration under the bus in a heartbeat, and the public can be mighty fickle when they sense the smell of fear.

Anonymous said...

Thanks John

KB is always great to read!

You brought up some interesting points there. The question may be 'can Duke settle'.

If they could convince the 38 + 3 to settle with them, they're left open to possibly having to testify in the cases involving the other defendants (Durham...).

Any attorneys for the defendants, especially those paid for by insurance companies, will be pitching blame every direction they can.

I suspect Duke would have to reach a settlement with 38 +3 & +3 covering for all the defendants to cover it all up ('move on' I think they'd call it).

I think Duke is limited to two options to select from; either going all the way or paying for all the complaints.


drew said...

kbp @ 11:24 –

Your points are interesting to consider. You’re suggesting that Duke would need to settle with the 38 plus the 3 plus (at least) 3 more. The one aspect that I hadn’t thought of was the need for unanimity on both sides.

When the insurer lawyers get involved, each of them is going to try to shift blame to another party, even if that party is insured by the same carrier. I work in the insurance business (although, thankfully, not in liability insurance for non-profits), and can make perhaps a few presumptions about the process and the participants:

1. there’s not a large number of insurers that regularly underwrite these types of risks, so it’s a reasonable conclusion that multiple defendants will be insured by the same insurers. Probably 80% of the defendant pool will be insured by about 2-3 insurers;
2. as a result, individual defendants (or, at least those that have a shred of good sense) will insist on having their insurers provide counsel for their defense independent of any of the other defendants also insured by their carrier. This will complicate the process, and expand the expenditures, exponentially;
3. at some point, the insurers will be forced into some sort of ethical trap – they will need to determine at whose feet they lay the blame, since they’ll be paying anyway. If my experience with insurer claims adjusters is any indication, they’ll be looking to dump the entire turd on the party with the highest deductible and the lowest limit of liability. They’ll put up their loss limit, and run away from the process telling their companies that they stopped the bleeding.

The circumstances above will make the process even more confused, since the one party that will be pushing hard for a settlement (Duke) will not have its interest well-aligned with the other defendants. Likewise the various plaintiffs – Duke will need to settle with all of them in order to effectively settle with any of them.

The University will definitely represent the deepest pockets in the defendant pool; however, their monetary position will not necessarily let them force a settlement down any of the others’ throats. It might work out that some of the relatively “minor” defendants could shake down the University as well, by holding out on a settlement unless and until the University indemnifies them for any damages as well. You could truly find out the honor among thieves in this scenario, as each of the defendant groups (University admin., civil, individual, and University employees) tries to better their own positions to the detriment of the others’. It becomes a high-stakes game of chicken, and (like in the movie “Crimson Tide”) the key is knowing when to blink.

If this all happens before the BoT comes to their senses and makes both Brodhead and Steel go away, it will be even juicier. Both Messrs. Brodhead and Steel will likely be willing to spend any of the University’s assets, rather than admit that they screwed up from the beginning. If that starts to happen, they and the remainder of the BoT could end up locked into their own game of chicken.

At some point, someone will be thrown under the bus, but it will only be plausible if the defamed party is one of the major actors. Although the University could (and likely will) throw Tara Levicy away like a used paper towel, her head on a platter isn’t going to help make the whole problem go away. The only “workable” bus-targets will be Brodhead, Steel, or someone well up the food chain within the G88, or (from the civic side) the Mayor or the Police Chief. All the other really believable bad guys have already been convicted in the court of public relations – Nifong has become the progenitor of a new verb, Himan and Gottlieb have already been shown to be a few sandwiches short of a picnic, and the various media outlets are starting to rely on the “news” exception to the libel laws.

So – who’s left? Certainly not the IT guys who gathered up the keycard evidence (although their testimony would be interesting to hear, particularly as to who told them to put together the information and when); nor the various and sundry other people who were just “doing their job”. No, it looks like the crosshairs are starting to focus on the Administration Building, and the people who have been stonewalling this one from the beginning.

Duke and Brodhead and Steel had better “lawyer up” real fast (even if they don’t really need to, since they’re not really guilty of anything – remember?), and they better get some real hotshot attorneys, because the litigation monster has already been awakened, and their motion to dismiss is not likely to stop the process in its infancy. This is going to take some time, but I for one (and, I suspect a lot of other readers of this blog) will derive almost guilt-ridden enjoyment from watching some of the weasels squirm.