Friday, March 14, 2008

Plaintiffs Respond to Duke’s Motion

For background concerning the post which follows, please see Duke's Motion a Stumble and Law Prof Responds to Duke's Motion.

Attorneys for 38 unindicted members of Duke University’s 2006 Men’s lacrosse team and some of their family members have filed their response to Duke motion “regarding attorney –initiated and attorney-sanctioned contact with the media.” The response is available (pdf) at - Response to Duke's Motion.

The plaintiffs 18-page response, which asks the Court to deny the requests in Duke’s motion, is extremely persuasive.

Based on what attorneys tell me and what I’ve read of the Duke motion and the plaintiffs’ response, I can’t see how the court will grant any of the requests in Duke’s motion.

I continue to believe what I said when Duke first filed its motion: it was “a stumble.”

Does Duke really believe an attorney of Charles Cooper's caliber and experience would commit ethical violations in any situation, and especially in so public a setting as a press conference or by agreeing to the setting up of an information Web site.

I’ll say more about the motion and response this weekend. posts the first two paragraphs of the response’s Argument. Give them a read if you don’t have time to read the entire response.

There are three exhibits (A, B, and C) attached to the response.

Exhibit A is a copy of the request for change of venue filed Dec. 15, 2006 on behalf of David Evans, Collin Finnerty and Reade Seligmann, then under indictment but subsequently declared innocent by the NC attorney general.

I strongly encourage you to read the change of venue request asserting the three men could not get a fair trial in Durham because of grossly biased media coverage and statements by, among others, some Duke leaders, faculty and students.

People are starting to forget a lot of what went on during the frame-up attempt and how many spoke out and helped enable it.

The change of venue motion is not a complicated legal document. It can be easily understood by a lay person. It's a valuable reminder.

Exhibits B and C are Duke statements concerning University efforts to settle suits. The plaintiffs provided them to the court as evidence that, while attorneys for the plaintiffs have not, as Duke alleges, violated the NC State Bar’s code of professional conduct or any rule of the court, Duke University appears to have done so.


Anonymous said...


It appears to be a well reasoned and clearly researched smackdown.

This ill advised motion indicates Jamie Gorelick's legal expertise may be over-rated. She was merely a political hack in the Clinton administration.


Insufficiently Sensitive said...

So Jamie Gorelick, as lead counsel for Duke, must be responsible for Duke's argument "that these statements nonetheless run afoul of the rule because they were “incendiary”. So much for Ms Gorelick's ability as an actual trial lawyer - she's obviously not counting on prevailing in that court on that issue. The plaintiffs have brushed off her motion pretty cleanly.

That "incendiary" phrase she crudely inserted is a red flag, demonstrating her ability to perform for a media gallery and her confidence that said gallery will take her red flag and run with it. Duke must have coughed up her astronomic billing rates for such political moves, hoping that she can prevail by backdoor means such as media campaigns and political influence instead of actually winning a case at law.

We'll see, Ms. Gorelick, we'll see.

drew said...

Why are we not surprised that Ms. Gorelick apparently attempted to muzzle the speech of the plaintiffs in this action through her letter sent in advance of the press conference announcing the filing of the suit? This is somewhat typical behavior for political, rather than civil, attorneys – the goal is to preemptively squash any comments that might be in opposition, rather than to actually protect the integrity of the legal process. Jamie Gorelick is a political figure, not (apparently) a very good lawyer, and her grandstanding with this case has merely set Duke back a little further in its defense.

It’s never a good idea to try to use the courts to bamboozle your opponents, made only worse by trying to enlist the court’s help through questionable facts and logic. The Duke defendants’ attempt to highjack the communications stream was a monumental blunder, and one that will likely resound in the later stages of this case. Not only has Duke sought to defame the various LAX team members, but it has also tried to impugn the integrity of Mr. Cooper and Mr. Bork. The actions with respect to each of the adversary parties will be seen as a pattern of institutional sociopathy, wherein Duke is acting it its own self-interest (not necessarily a bad thing); however, in a manner which is derogatory to the reputations and interests of others (here’s where the good thing goes bad).

Hubris is difficult to control once it becomes evident (calling Governor Spitzer?); however, the form of “institutional hubris” shown by Duke, by the Durham City Government, and by many of the individual defendants is staggering. There’s almost a “ends justifies the means” argument at play; however, the “ends” were predicated on racial, class and gender bias, while the means were flat-out fraud.

Many of the defendants in this matter had ample opportunity to discontinue their participation in the LAX fraud process and disclaim any further bad intent. Now, however, they’re stuck with their actions and statements, many of which were on the record in some form or other. This could become reminiscent of the one-time Clinton administration advisor who was obliged to argue (under oath, I think) that his entries in his own personal diary were lies. The defendants’ only tenable position might be to argue some sort of mental illness that prevented their seeing the hoax in its true form.

In the end, Duke and Durham will be shown to be ethically lacking in this entire matter. It’s really a shame, however, that it has taken so long for the end to even start to arrive.

Anonymous said...

Thanks John

All I have seen is a Brief filed as a memorandum for the Motion. The Response notes the actual Motion and several Exhibits Duke had included, one Exhibit included with the Motion was identified in the Brief (Footnote 5 on Page 5)

5 The press conference, in its entirety, can be viewed on as of the date of the filing of this Memorandum. For the Court’s convenience, a transcript of the press conference is attached as Exhibit 6.

I hope someone can direct me to a source for the motion in question and possibly the exhibits also.

The Response does a great job of showing how much of a waste the Motion and Brief are, so I'm back to questioning why attorneys from a firm that an elite school like Duke would hire filed this "extraordinary" motion. With that in mind, there should be a reason other than clocking hours to charge for or having inadequate skills in the legal profession.

I previously suspected and commented that it may just be the beginning of many more efforts by Duke, through those representing them, to hide or delay the public from seeing all that will come out in the discovery. Judging by how the response summarized the motion, I'm not certain WTH they are doing now. Not only is what has and will come out embarrassing for Duke, the work of those attorneys representing them looks rather embarrassing also.

I have to include one of my favorite parts of that response:

We note initially our disagreement with Duke’s claim that the passages from the press release excerpted in Duke’s brief are framed in “incendiary language.” The excerpted passages simply summarize in plain, straightforward language the wrongful conduct by Duke that is alleged in the Complaint to have caused Plaintiffs great injury and to have given rise to their claims. Indeed, even now we are hard pressed to see how we might edit the statements to make them less embarrassing to Duke. The simple reality is that the intentional torts pleaded in the complaint -- e.g., fraud, abuse of process, intentional infliction of emotional distress, obstruction of public justice -- cannot be alleged in terms that the Duke and Durham defendants will find pleasing, as demonstrated by the similar allegations contained in the two complaints previously filed in this Court by six other members of the 2006 Duke lacrosse team. If Duke had not so callously and deliberately violated its contractual and legal duties to its innocent students, it would not now be facing these historically unprecedented legal actions by what effectively amounts to its entire 2006 lacrosse team."


Anonymous said...

Jamie Gorelick is a bully, plain and simple. When she was with the Department of Defense, I had occasion to witness her performances when I was with the Navy Antiterrorist Alert Center and we had to respond to her whimsical PMS episodes. She is a vicious, political animal whose primary talent is as an attack mongrel. She fits in quite well with the Dukes of Duke. She's met her match in Cooper.
Tarheel Hawkeye

Anonymous said...

Perhaps Ms. Gorelick assumes a Democrat judge favorably disposed to the politics of her argument. She's used to playing in front of hometown referees. It's possible she has grown accustomed to making her case before a friendly media and court. Maybe she's wrong this time? As far as the court I mean. For example, she has the N&O eating out of her lap, to risk an edgy mixed metaphor.