Sunday, June 01, 2008

Selected comments re: motions to dismiss 38 suit

The "38 suit" informally refers to a suit brought in federal court, Greensboro, this past February by lead attorney Charles Cooper on behalf of 38 members of the 2006 Duke Men's lacrosse team and some of their family members.

The plaintiffs seek relief for allege rights violations by a number of individuals and entities including Duke University, Duke University Medical Center and the City of Durham, NC. Defendants filed motions to dismiss this past Friday.

You can read the complaint filing and the motions to dismiss at

Jim in San Diego and the Ex-prosecutor have made selective comments concerning Friday's motions and other aspects of the suit. Their comments follow, after which I offer a few comments below the star line and provide links to KC Johnson's posts concerning the motions.

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.

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 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 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 will be some of the best witnesses I have ever seen. A federal jury will be drawn from the entire district of the Greensboro 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.


I thank both Jim in San Diego and the Ex-prosecutor for their informed, thoughtful comments.

Re: Jim's "the FIRPA statutes were specifically drafted to protect students."

I'm told by other attorneys the federal executive and courts have been very strong in protecting students' rights under FIRPA.

As I understand it, if Duke was even just unintentionally "sloppy" regarding protecting students' FIRPA privacy rights, it will be a serious matter. If it turns out Duke went along and actively cooperated with Nifong in FIRPA rights violations then Duke will, one attorney said, "be looking at a poison pill."

What Jim and Ex-p say about the suit not being a slam dunk fits with what I'm being told.

But what Jim and Ex-p say about the importance of having the facts on your side, judges and juries trying to do what is right, and it often being "surprising how that is accomplished in court" also fits with what I've been told.

Bottom line - The attorneys I've spoken to have to a person said that while you can never be sure what can happen in a complex suit such as this one, the plaintiffs have much the stronger hand.

While I don't want to put words in Jim's and Ex-p's mouths, I read them as saying the same thing.

They'll be more about all this in the days, weeks and months to come.

If this post interested you and you haven't already done so, be sure to take a look at these KC Johnson posts: The Duke Motion to Dismiss - Creative Writing 101 - The Other Briefs.


Anonymous said...

The intricacies of the law make it very difficult to forecast how a case will go. So many imponderables. But looking at the plaintiff's charges and comparing them with the defendants' dismissal motions, it doesn't look real rosy for Duke et al. I hope Jamie Gorelick is permitted to argue the case in court, because she will manage to alientate any fair-minded juror with her obnoxious attitude.
Tarheel Hawkeye