Friday, January 30, 2009

Informed commentary re: likely Duke/Durham discovery

In response to More re: Who should worry about Duke/Durham discovery? three comments were made that belong on the main page.

Even if you’ve read that post, I encourage you to read it again before reading the post that follows. The third comment especially assumes a detailed knowledge of More re: Who should worry about Duke/Durham discovery??

If you haven't read that post at all, you know the rest of what I'd say.

I’m running the three comments without interspersing any responses because together they just make a great post.

So I’ll leave things like that today but I will comment on some of what the three say tomorrow and Sunday.

You’re of course free to comment when you like.

I’ll thank the three commenters now as we begin with the Ex-prosecutor - - -

It will be interesting to see who actually represents the Duke defendants at the depositions. As long as they keep their stories straight, they probably can be represented by the same law firm.

However, once the depositions begin, I'll bet that all defendants, including those from Duke, will try to lay it off on each other.

When conflicts develop among the officers and employees of an insured, the insurance company, because of its duty to provide a defense, must retain separate counsel for those whose defenses conflict.

When the depositions and document productions start, the legal fees will increase by geometric progression.

To make this even more interesting is the fact that Duke is battling on two fronts, the first with the plaintiffs and the second with its insurance company, which, in turn, may soon battle with another insurance company, as to whether either is responsible to fund the defense.

As observed by the immortal bard himself in Henry VI, Act 2, Scene 5: "Ill blows the wind that profits nobody." Here, while Duke must suffer for its well-deserved misfortune, its paid by the hour lawyers will do naught but profit richly.

Drew followed with - - -

Ex-prosecutor has squarely struck the nail on the head - I have had occasion to be deposed in a number of suits, as well as being the respondent in a number of civil suits.

When you are one of many respondents, and when you cannot count on any of your co-respondents to hold up under pressure, your best (and frankly, only sane) move is to insist on separate counsel.

When the insurance company provides counsel to your employer and any number of individual fellow employees, there's never any guarantee that you won't find yourself thrown under the bus, either by "your" counsel (who occasionally has a vested interest in defending the employer just a little bit harder), or by one of your co-respondents, who thinks they can dodge a bullet by re-aiming the gun at someone else.

In many respects, it would be interesting to see what (if any) indemnity that Duke has provided to its employees in the suits - it could be that Duke will be pulling the strategic strings while at the same time retaining the ability to do the bus-tossing of its employees.

We saw how well they (the University administration) acquitted themselves when the LAX players were "the other guy".

If I were an individually-named respondent, I would tell Duke to take their counsel on a long walk off a short pier, and would insist on hiring my own counsel (at University expense) for any depositions or trial appearances.

I don't know much about the courthouse involved, but it's quite conceivable that they might need to move any proceedings to an alternative facility, in order to accommodate the (presumably) scores of attorneys and respondents.

I've seen it happen when a series of depositions needed to be scheduled in a vacant theatre in NYC, in order have sufficient space for nearly 200 lawyers and another 40 respondents.

The "action" took place on the stage, and the questions, objections, and other legal mouthpiecing came from the seats in the audience. A very expensive way to run a case, and in this case, the costs will likely all fall on Duke's tab.

I would suspect that many of the lawyers could view a case like this as a partner-maker, since the billings will be extraordinary.

If I had a few bucks to spare, I'd open an all-night photocopy and printing/binding service in Durham, or else get a catering business put together.

Lawyers always work late, but rarely work without extensive creature comforts. This case could become a little "profit center" in the Durham economy for some time.

Anonymous added - - -

What a wonderful word - "dissemble" - to disguise or conceal behind a false appearance, per an internet dictionary. I have always thought that this allegation, termed by the Cooper [38 players and some family members] suit "a fraud upon the court", if true, constitutes a premeditated, nefarious act of a potential criminal nature - not to mention a really stupid decision.

As they say, the cover-up is often worse than the crime.

The real question is how high up the chain of command did this decision go, or, if discovered later - who knew what, when? It is very hard to imagine what university official would take this decision on his/her own, and would not seek to cover one's ass with written advice of outside counsel - especially if forced by one's duty of employment to sit through such a proceeding in silence.

The fact that such discussions were held by persons is probably privileged for those having the discussion, but the reporting within the organization that counsel should be / had been consulted, is probably not (I am not a lawyer).

Did non-lawyer higher-ups exercise their authority and assume responsibility? Did anyone argue that Duke could not carry on this alleged charade?

That decision process will be interesting to discover.


Ex-prosecutor said...

Drew's post suggested comments which I should have included in my original submission.

My experience is that the main interest of insurance companies in defending an insured is to hold down the costs. That is the responsibility of the adjuster to whom the case is assigned.

While lawyers representing named insured owe their sole allegiance to the insured, those representing the employees, although paid by the insured, must represent only their client and cannot bow to the wishes, often demands, of the insurer, who is paying the bills.

This puts the employees' lawyers between a rock and a hard place, so to speak. On the one hand, the insurance company often will turn the bills of all the lawyers over to an auditor, whose sole reason for existence is to is to slash them dramatically.

This has resulted in lawsuits by lawyers retained to represent employees, asserting that, while the insurance company agreed to pay them at a certain hourly rate, the company breached this contact, for its secret intention always was to slash the bills.

On the other hand, the employees' lawyers, regardless of the source of payment of their fees, owe their sole loyalty to the employee represented. So, an employee tagged for a big judgment, will sometimes get a second lawyer, sue the first lawyer and the insurance company for breach of the insurance contract by failing to provide a defense.

To make this even more complicated, if lawyers representing Duke are limited by the insurance company in defending the case in the manner they think they should, Duke could then, in case of a judgment against it, sue their own company for failure to provide a legitimate defense. Many states provide that a judgment, under such circumstances is increased by 25% as a penalty against the insurance company.

So, to me, it looks like everyone, potentially, is both a stabor and stabee in the back.

The Machiavellian possibilities of this make my head hurt and perfectly explain why people hate lawyers.

Anonymous said...

Great post is right.

I'll give up the Super Bowl if I can have Brodhead and Nifong forced to answer questions under oath.

Anonymous said...

Are DUMC(hosp) and Duke Univ currently being represented by same attorneys? Seems those 2 groups would want to separate.

Anonymous said...


Thank you for your post as it will, most likely for the future, provide a road map to figuring out the twists and turns of the cases.
That being siad, I am not as sure as some that the courts will rule on favor of the lacrosse players to allow discovery. One must bear in mind that these cases are being heard by the same North Carolina judiciary system that allowed (until AG Cooper stepped in) Nifong and the police (and by extension everyone else who is a defendant)to run roughshod over the rights of RCD and the other lacrosse players. The old boy network is a strong one in the Carolinas and there does exist a strong interst to protect the "brand". I hope that I am wrong - but I am not as hopeful as many. Why are there all these filings and counterfilings? Is this a defense ploy to wear out the lacrosse players finances and their resolve?

drew said...

Ex-Prosecutor - your first comment on this thread again attacks that nail efficiently; however, there's one aspect of all the lawyering that might confuse things further - remember that Duke's own insurer has disclaimed any further coverage, based on an apparent payment in full of the limits from the 2006 I+O policy.

(Presumably) that being the case, Duke's counsel is working on Duke's own dime, as is the counsel for any of the individual employees named in the suits. If you think an insurance company can try to pare down costs, try to imagine Duke's own attempts to pare down the costs, and without the insurers' benefit of knowing how bad faith claims practices suits actually work!

Duke will likely try to steer the employees to lesser (and lesser-priced) lawyers (the entire breadth of NC lawyers with significant experience in these matters may soon be used up), leaving the employees with only marginally-experienced representation, funded by a vindictive "guarantor". Duke will almost be obliged to throw some of the employees under the bus, because the BOT will continue to act to protect themselves, not Duke, and certainly not the employees or the Lacrosse players.

As for the potentially divergent goals and strategies of Duke and DUMC, I don't know whether they have separate counsel; however, if they have any divergence in their respective BOTs/BODs, etc., I would certainly make sure that whichever board **I** sat on had separate and competent representation if I didn't play in both sandboxes.

Anonymous said...


Liestoppers just posted the lawywers" response to Nifong's claim that he has absolute immunity.

Anonymous said...

I appreciate all of you commenting here.

I've a couple of questions:

Are the trustees indiviaually responsible for damages or would they all be pair out of Duke's big, big money pot?

Can a Duke or Durham defendent ask the court under certain situation to order Duke or Durham to pay for
a seperate counsel?

It looks like we may be headed for justice.

Anonymous said...


Very interesting posts on the legal representation in the case.

Human nature being what it is, I would expect some paranoia to set in as we get closer to depositions. It seems plausible that some defendant(s) will want to strike a deal with the plaintiffs to avoid being thrown under the bus. An adverse verdict could put some individuals (including the lawyers involved initially) under significant financial/career risk.

Duke will likely try to have all the Duke defendants represented by their council. Look for the individusls who retain separate council to be the ones who could be open to strike a deal.

Note to cks: While I originally shared your concern about the case being dismissed without depositions being taken, the latest Supreme Court rulings seem to have cemented plaintiffs case.


Anonymous said...


I hope that you are right - however, given the vicissitudes of this case, nothing would surprise me. There are many Duke alumni who will do anything to protect the Duke brand and there are those in the law profession who will do anything to protect their own on the principle that "there but for the grace of God....". We see that spillover in politics as well which is why Geithner's failure to pay his taxes was dismissed as a glitch so that he was confirmed and why the newest tax cheat, Daschle will be confirmed by his former Senate buddies.

Steve said...

You never posted on this "tomorrow and Sunday" as you promised. You should keep all these issues alive.Thanks for complimenting my comment as Anonymous. Have enjoyed your blog for a long time.

Steve Hoffman
Stamford, CT
Duke '77
Parent '10