Friday, May 30, 2008

Duke defendants file motions to dismiss

Today Duke University and the other defendants filed motions to dismiss the lawsuit by the 38 players and family members.

Representatives of the plaintiffs have performed an important public information service by posting Duke’s and the other defendents' supporting memoranda and exhibits on this page at

They deserve our thanks for the posting.

I’ll be interested to learn your reactions to the documents.

I’ve not read them yet.


Jim in San Diego said...

It is expected in a case like this that civil defendants will try to get as much of the case dismissed as possible, to limit exposure.

The core of the defense brief seems to be "Mike Nifong did it - how horrible", and to characterize the Duke defendants as having no legal responsibility for the prosecution, and no affirmative duty to defend students from a rogue prosecutor.

However, the LAX players' complaint alleges many causes of action beyond mere passivity on the part of the Duke defendants. So, at first glance, it looks like the defense motion misses several of the more serious civil claims.

To give one example, it is hard to see how Duke's violation of the FIRPA statutes to assist with the prosecution of their own students can be foisted on Nifong. After all, the FIRPA statutes were specifically drafted to protect students.

Usually in Civil cases, a party who causes injury while intentionally breaking the law is presumed to be negligent.

However, it would not be surprising that some of the many claims would be dismissed for one reason or another. The players would then have the right, later, to appeal any such dismissals.

The players are well represented, and this whole process is very interesting, professionally.

If I could give a broad opinion, this is a case where the players have the facts on their side, and the Duke defendants may (mostly) have the law. By that I mean it is not a slam dunk to craft a civil case against the Duke defendants.

On the other hand, in my experience, a lawyer would usually rather have good facts to work with than the law, as the law is seldom precise and absolutely controlling. Since judges and juries try to do what is right, it is often surprising how that is accomplished in court.

Jim Peterson

Ex-prosecutor said...

I concur with the informative comments of Jim in San Diego, and would like to provide some additional and more basic information.

Even if I am an Olympic swimming champion, I can stand on a boat dock and watch another swimmer drown. I have no duty to try and save the victim unless I somehow caused or contributed to his situation. A civil action filed against me by the family of the victim would be be dismissed because I had no duty to save the victim.

In the Duke lawsuits, based on my quick reading of the motions to dismiss, it looks looks like the the defendants are arguing they they are not liable to the plaintiffs because they owed them no duty. For instance, Duke is claiming that even if it does not abide by what its student handbook says its treatment of Duke students is to be, it is not actionable.

I agree with Jim in San Diego that some of the plaintiffs' claims, while very inventive, probably will not survive the motions to dismiss. But others will, maybe some as to each defendant.

After the judge has ruled on the motions to dismiss, the parties then will take depositions and trade copies of various records, a complicated process because the cases are so complicated.

After the discovery process is completed, the parties then will file motions for summary judgment, saying that, as to the plaintiffs' claims which have remained after the the resolution of the motions to dismiss, there are no genuine issues and the plaintiffs or defendants are entitled to judgments as a matter of law. Usually, all parties claim they are entitled to judgments as a matter of law.

To return to my swimming analogy, I would have lost my motion for summary judgment if the plaintiff claimed that I pushed the victim into the water and watched him drown. However, if the plaintiff could develop no proof that I had pushed the victim, I, as defendant, could have the lawsuit dismissed on my summary judgment motion.

If a witness testified she saw me push the victim in, but I said I had not, the case would go to trial, to ascertain who was telling the truth.

There are several reasons why the plaintiffs want to keep in the lawsuits as many plaintiffs and causes of action as possible. The larger the number of defendants, the more insurance policies there are available for settlement. Also, there likely will be lots of finger-pointing, as Jim in San Diego as pointed out is already occurring.

As he also said, the plaintiffs have the sympathetic facts and and will be some of the best witnesses I have ever seen. A federal jury will be drawn from the entire district of the Durham federal court. While the herd of defendants and their lawyers can all blame Mr. Nifong and Linwood Wilson, both of whom probably will be representing themselves, this tactic easily could backfire and make the jury mad.

Anonymous said...

Peder Zane has a new post about media bias and I can't tell if he's serious or trying to be funny.

Funny in the liberal way of looking at things.

Anonymous said...

It's all a PR stunt. Duke's lawyers aren't that dumb.