Friday, January 23, 2009

More re: "Duke’s Chronicle Ignores Insurer's Charges"

Ken in Dallas has followed the Duke/Durham case closely. He commented re: Duke’s Chronicle Ignores Insurer's Charges.

Parts of Ken’s comments are in italics; my responses are in plain.

Ken said - - -

While I agree the Chronicle could have been more forthcoming in its article, there are often claims (and counterclaims) made in court filings. Some are true. Some are without merit. I think we need to be careful here.

You’re right about a need to be careful here and the merit or lack thereof of claims and counter claims made by parties to a lawsuit

That said, The Chronicle should've told readers National Union, in its response, charged Duke, in its suit filing, with making claims against NU which NU said were
“knowingly unfounded, malicious, frivolous, and in bad faith.” (See this JinC post)

NU knows it will have to argue those charges and convince the court.

NU could have said Duke’s claims were “unfounded.” It chose to say they were “
deliberately unfounded.” (emphasis added)

“Malicious,” according to this legal dictionary, means:
An act done maliciously is one that is wrongful and performed willfully or intentionally, and without legal justification.

Duke's Chronicle Ignores Insurer's Charges I should have noted that according to the same legal dictionary referenced above, “in bad faith” means: The fraudulent deception of another person; the intentional or malicious refusal to perform some duty or contractual obligation.

And from the dictionary's discussion:

Bad faith is not the same as prior judgment or Negligence. One can make an honest mistake about one's own rights and duties, but when the rights of someone else are intentionally or maliciously infringed upon, such conduct demonstrates bad faith.

The existence of bad faith can minimize or nullify any claims that a person alleges in a lawsuit. Punitive Damages,
attorney's fees, or both, may be awarded to a party who must defend himself or herself in an action brought in bad faith (emphasis added)
NU made its "bad faith" charge in a section of its response in which it asked that Duke compensate it for attorneys’ fees and other expenses it incurs in connection with the suit.

Having said that, Duke's well documented violation of federal FERPA laws should have been noted. The student body needs to know that its personal information is not being kept private. Now that I think about it, perhaps that should be a separate story in the Chronicle.

Ken, in this paragraph I score you hitting two “over the fence.”

1) Attorney’s tell me if Duke violated FERPA laws and regulation in the first place with the release of confidential student information to Nifong and DPD, that would be extremely serious and some of those at Duke engaged in the release might well be subject to criminal charges.

If having violated FERPA laws and regulations, Duke then joined with Nifong in an elaborate deception which included lying during proceedings in Judge Titus’ court, that would be, as one attorney put it: “arsenic for Duke.”

2) The student body and parents need and deserve to know whether personal information was kept private. I’ll bet you find it very disturbing that neither Duke’s trustees or their president, Dick Brodhead, has denied the allegations and assured the Duke community that nothing like what is alleged ever happened.

Thanks for your most recent thoughtful comment and for the many that have preceded it.



Anonymous said...

Excellent post. See this interesting piece in the Wall Street Journal:

Anonymous said...

Excellent post. See this interesting piece in the Wall Street Journal: