Thursday, January 29, 2009

More re:Who should worry about Duke/Durham discovery?

Anon @ 10:05 commented re: Who should worry about Duke/Durham discovery?

Anon’s comments are in italics; my responses are in plain.

Anon began - - -

I look forward to discovery but I have never worried that it wouldn't happen.

While they stressed the court will set limits on what can be asked during discovery, every attorney I’ve talked to – all with no direct involvement in the lawsuits, but all of whom are following the suits – has said Plaintiffs’ attorneys will be able to question in all the major areas in which the Plaintiffs’ are requesting discovery.

I do hope those who should be worrying that discovery will happen are but I'm not sure they realize the gravity of their situation yet.

I think some do have a sense of the gravity of their situation. Duke’s hiring Jamie Gorelick was, IMO, an admission on Duke’s part that its situation is so grave that the best legal counsel money can buy won’t be enough. So it hired a person known for her political influence rather than her knowledge of an extremely complex area of law.

If attorneys in Duke’s Counsel’s office went along with a charade involving dissembling to students, parents and the court regarding the university’s alleged secret and illegal release of protected (FERPA) student personal information, then I’d think those attorneys know they face grave consequences from the court and the State Bar.

Keep in mind that of all the terrible things Nifong did, it was the act of lying to the court that landed him in jail.

I think by virtue of their professional training and experiences the police defendants have, or at least should have, a good understanding of the gravity of the claims made against them in the suits.

It seems to me that some, particularly the miscreants at Duke, have gone merrily about business as usual, as if they didn't have a care in the world.

Yes, but a lot of that is posturing. When you can’t/won’t tell your own insurer what happened, you know your situation is very serious even if you keep telling yourself somehow all your influence, loyal alums and billions will get you out of things with “just a few scrapes.”

Clearly they want everyone to forget about it. They want to silence their critics and MoveOn but even if that happened it wouldn't matter. The lawsuits are what they should be worried about. Discovery should scare the peedoodle out of them.

I get sufficient satisfaction knowing they are worried or they will be at some point. So many and so much will be exposed I should feel sorry for them but I don't.

Of course they want to move on. They did terrible things.

Thanks for your comment.


Ex-prosecutor said...

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 said...

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 see 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 said...

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 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 any person 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.