Friday, February 29, 2008

Peculiar Duke Motion

In a peculiar move, Duke has filed a motion demanding that the Duke Lawsuit site (which contains copies of the civil suit by the unindicted players, as well as links to press coverage) be shut down. The motion claims that the website violates rules against pretrial publicity.

Six pages into the motion, however, Duke's attorneys concede that the ethics rule in question "does not address whether creating a website or holding a press conference would be violations." (One would think that the University would have some precedent for such an unusual request.) Moreover, the ethics rules specifically allow attorneys to make public statements countering negative publicity "not initiated by the lawyer or the lawyer's client."

Given the copious negative statements by Duke officials and especially by Duke faculty members about the unindicted lacrosse players, it's hard to imagine a clearer example of negative publicity "not initiated by the lawyer or the lawyer's client." It's not hard, however, to imagine why Duke would want to ensure that the lawsuit receives as little publicity as possible.

25 comments:

jamil hussein said...

heh. Duke did not have problems making guilt-assuming statements when they were advocating racist Gang88/AA supported trashing towards Lax players.

Anyway, thanks to Duke, this website gets now 100 times more traffic and the lawsuit will be copied to countless other websites.

Censorship does not work. Duke has hired Jamie Gorelick, Janet Reno's number 2 hack who wrote the memo that prevented CIA and FBI talking to each other. Great match to Duke.

Anonymous said...

And the hypocrisy never ends.

Free speech is a cherished principle when needed to protect PC faculty -- but is dispensable when the university is the defendant in a lawsuit.

Duke Prof

Anonymous said...

JLS says....

As I posted on FR, my read is:

1. Some people feel their reputations were harmed by Duke and sue them [I am not sure if slander/libel are alledged]

2. The alledge harmed people try to reclaim their reputation by publicizing their suit.

3. Duke asks the Judge to top them from defending their reputations?

Odd is right.

Anonymous said...

I know the law...I am it's

greatest transgressor.

-Roy Bean

Anonymous said...

This whole business has always been treated as though it were to be tried in a court of star chamber and brushed under the rug even as the lacrosse players themselves were thrown under the bus. These Duke people have hidden their actions and motives from start to finish in this hoax even as they attempted to persuade everyone that they are foxes of intelligent and upright behavior. This whole Duke regime thinks that they are telling the truth of the matter when they yell out that it is only "us chickens" who are in the true chicken coop of decency and law while using the "law" to abuse justice in violation of the law's intent and purpose. These people have known all along what has kept them honest and what has kept justice in this case alive and viable, and it has not been the policy of academic glasnost or the character of the Duke leadership and the majority of its employed academics or lawyers.

Jamie said...

Very strange indeed that Duke is not settling - and kicking up a fuss about this lawsuit site really doesn't make any sense at all.

Given what can easily be proven, and with all the treasure Duke has (and keeps on raking in), settling every single claim related to this case is a no-brainer. So what if Duke's coffers take a hit, even for a few dozen millions? Peanuts. It's a lot easier to write that fat check than to have to grapple with what caused this fiasco in the first place.

If you're Duke, you cut the check, and you keep on doing exactly what you've been doing, trusting that the next time you pillory some students they can't prove quite so completely what you've done.

I mean, that was just incredibly bad luck. Won't happen again.

Anonymous said...

From the motion:

" Plaintiffs will almost certainly argue that these statements are fully permitted by
Rule 3.6(b)(2), which allows an attorney to comment about “information contained in a
public record.” Many of these statements are direct quotes from the Complaint, while
others are slight paraphrasings of the Complaint. (See, e.g., Compl. ¶¶ 3, 11(a), 11(b),
11©.) When a complaint contains such incendiary language, an attorney should not be
permitted to hide behind the language of the complaint and make a statement to the press
that strings together paragraphs that are highly prejudicial. Such an action is contrary to
the very intent of Rule 3.6, “materially prejudices an adjudicative proceeding,” and
should not be allowed. "

Anonymous said...

Are juries ever allowed to be told about what was discussed/offered at a settlement conference?

From the motion:

" The statement by
Pamela Bernard, Vice President and General Counsel for Duke University, said:
If these plaintiffs have a complaint it is with Mr. Nifong.
Their legal strategy – attacking Duke – is misdirected and
without merit.
To help these families move on, Duke offered to cover the
cost of any attorneys’ fees or other out-of-pocket expenses,
but they rejected this offer. We will vigorously defend the
university against these claims.
We do not think it is appropriate under the North Carolina
federal court rules to make any further statements. "

Anonymous said...

The reality is, however, Duke has created more publicity by filing the motion.

They just can't help themselves.

Anonymous said...

You just can stop, can you?

mac said...

To the Duke Lawyers and Bobby Steel and Buffy Brodhead, who would suppress free information and speech about the case and attempt to keep their secrets from all, these being the same men who instructed young men not to hire lawyers in order to protect their own rights, I offer a quote from Braveheart:

"Before we let you leave, your commander must cross that field, present himself before this army, bend over, and kiss his own arse."

Et tu, Bobby?

Anonymous said...

Only in Wonderland!

Anonymous said...

And let's not forget the unfunny, poorly written sarcasm - posing as legitimate opinion - in the News & Observer, written by a racist hack, Barry Saunders. His race-baiting, prejudiced and ill-informed drivel repeatedly proves the point that most of the media, and much of the public, are still calling the players, as a group, without regard to facts or truth, privileged greedy white criminals.

Anonymous said...

It is sickening that Duke University, in claiming that the Plaintiffs' press conference and website violate North Carolina Rule of Professional Conduct 3.6 actually quote Duke in-house counsel Pam Bernard as she violates North Carolina Rule of Professional Conduct 3.6.

Duke's motion quotes Bernard saying that,

"To help these families move on, Duke offered to cover the
cost of any attorneys’ fees or other out-of-pocket expenses,
but they rejected this offer."

MOTION, at p. 6. Every attorney knows that ANY mention of a settlement offer is verboten because of the risk of prejudicing the jury.

Rule 3.6 provides that an attorney cannot issue a public statement which "will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter."

As K.C. Johnson noted in his excellent posting,

"Given the copious negative statements by Duke officials and especially by Duke faculty members about the unindicted lacrosse players, it's hard to imagine a clearer example of negative publicity 'not initiated by the lawyer or the lawyer's client.'"

Additionally, the Plaintiffs can now point to statements made by Duke in-house Pam Bernard, and the need to counteract those unethically prejudicial statements.

It is my belief that the Duke attorneys quoted Bernard in the motion because, in a trial or hearing, it is always better that you tell the judge or jury about the fleas on your dog, rather than have the other side pick them out one by one.

These are my opinions.

Gary Packwood said...

Duke Attorneys had to actually do something productive for their Leap Year billing in order to synchronize their calendar for finished legal documents churned out during the month of February.

Perhaps the Gang of 88 will launch their own web site to debate this peculiar development and the wisdom of using this new publicity as a recruitment tool for new students.

The web site http://www.dukelawsuit.com/ is up and running again to include a new entry about this motion from Duke to take it down!

You can't make this stuff up.
::
GP

Legal Eagle said...

Seems a little crazy (motion), but a calculated move by Duke; little to loose, a lot to gain - even if it appears counterintuitive.

Anonymous said...

THIS IS A Textbook EXAMPLE OF HOW THE clintons defended themselves

and of course DUKE is advised by someone who was close to the disbarrd president

all of this covered up as DUKE raised tuition TWICE the rate that social security participants get

duke up 4.7% social security participants 2.9%

they must need a lot of money to PAY the LEGAL EXPENSES

mac said...

Violating rules against "pretrial publicity," eh?

Gosh, I think there was a statement signed by 88 signatories which inflated pretrial publicity a teeny bit, wasn't there? I seem to remember a University President saying something about "whatever they did was bad enough" - maybe bad enough to send three young men to jail for 30 years? Pretrial publicity. Huh. Interesting. Interesting tactic, coming from Duke.

Maybe Duke's lawyers aren't up to speed yet.

Anonymous said...

If counsel for plaintiffs is in fact the moving force behind the dukelawsuit website, I suspect the Court will have some heartburn. Granted, this is an unusual case, and Duke's truly egregious conduct may well justify unusual measures, but the idea of counsel for a party in a high profile case setting up a website dedicated to publicizing the lawsuit makes this federal court litigator very uneasy.

On the other hand, if the publicist / webmaster is truly acting independently of the attorneys (i.e., if Bork has been hired by the families and is not just adjunct to their counsel), then the various disciplinary and local rules don't appear applicable. It's essentially the inverse of the Nifong situation: Nifong got dinged because, inter alia, he was making public statements that the parties would have been perfectly free to make, but that he *as a lawyer* wasn't.

At the end of the day, I think Duke's motion is much ado about nothing. Every non-sealed filing in the case will be available on the internet immediately to anyone with a PACER account, and will undoubtedly be linked, posted, analyzed, and discussed on sites like DIW, JiC, LS, etc. within hours. While I'm sure that Duke will try and get as many documents and depositions as possible sealed or otherwise under a protective order (a decidedly uphill battle in federal court), expect all such efforts to be strongly resisted by both the plaintiffs and the media.

Bottom line: Duke had better get used to the fact that all the dirty laundry that comes out in the litigation is going to be online almost instantly, and with very little opportunity for spin or damage control. And this outside observer eagerly awaits reading what Broadhead, Steele, Moneta, Levicy, Lubiano, Baker, etc. have to say at their depositions.

LKB in Houston

Anonymous said...

It is highly unlikely Duke will prevail in this motion. I am speaking as an attorney who engages in Federal lawsuits in these jurisdictions. Highly unlikely they will prevail. Their assertions are disingenuous and disregards logic and the Duke position and actions from the beginning. Discovery will occur.

Anonymous said...

As a long-time former litigator, I can tell you that the worst mistake you can make is to assume that the "other side" is stupid..... it will be interesting to see how Duke's motion plays out.

Legal Eagle said...

RE: "Anonymous said... As a long-time former litigator, I can tell you that the worst mistake you can make is to assume that the "other side" is stupid..... it will be interesting to see how Duke's motion plays out." - 3/1/08 11:34 AM

Amen.

Insufficiently Sensitive said...

"To help these families move on, Duke offered to cover the
cost of any attorneys’ fees or other out-of-pocket expenses,
but they rejected the
" BRIBE.

Not only do Duke's stratospheric legal eagles (Duke does run a law school, no?) seem a bit desperate with this ham-fisted motion, but Pam Bernard's admission that they tried to BUY OFF these injured players from pursuing a course of justice seems downright third world.

But then, political correctitude sometimes seems no more than a movement to impose third world standards on the rest of us.

Bring on the lawsuit, and let's see what comes up on the discovery that Duke is so desperate to prevent.

clazy said...

Every month I get another copy of the Duke alumni mag, this after a silence of what, 10 or 15 years? More? Along with all the fundraising crap. As if that could undo what I've seen. Good riddance. I used to be somewhat ambivalent about my time there, but on the whole, I was proud of the place. Now I'm glad I've put two decades between us. My classmates are gone, my professors are gone, I wouldn't even recognize half the campus--I said goodbye to anything worth missing a long time ago.

Anonymous said...

To LKB in Houston:(from a layman)

How soon after a deposition is taken could it be available to the public in some form, and exactly how would that happen? Thanks.