Saturday, May 31, 2008

Creative Writing 101

The Duke attorneys summarize the lacrosse players’ claims, in the very first paragraph of the Duke reply’s “nature of proceedings”:

[The lacrosse players] contend that Duke and its employees violated their legal rights by providing the police with information about the alleged rape during the investigation. They also contend that the University had a legal obligation to quell public debate about the alleged rape. In essence, Plaintiffs argue that the University had a legal duty to stand between themselves and the prosecutor, and to try to prevent the police and prosecutor from investigating them for a very serious crime.

All the filings in this case are in the public record, and available on the internet. There’s nothing in any of the lacrosse players’ filings that even remotely suggests that the players “contend that the University had a legal obligation to quell public debate about the alleged rape.” Or that the players “contend that Duke and its employees violated their legal rights by providing the police with information about the alleged rape during the investigation.” Or that the players believed “that the University had a legal duty to stand between themselves and the prosecutor, and to try to prevent the police and prosecutor from investigating them for a very serious crime.”

Surely, of course, Duke’s lawyers—some of the most accomplished civil attorneys in the country—fully understand that their description of the lacrosse players’ case bears no resemblance to the reality of the actual claims.

How, then, to explain the off-the-wall summary of the case? It would seem, unfortunately, that Duke has used its filing to try and influence not the court but public opinion in general and its alumni in particular. That might be a wise public relations strategy. But it seems a rather risky approach to take in dealing with a court of law.

I summarize the Duke motion to dismiss below; a post tomorrow will look at the city's reply.


Anonymous said...

no one must wonder HOW MUCH MONEY did duke spend to try to confuse the original pleadings

its clear they havent even tried to clearly brief their objections...rather they have adopted a strange attack

i knew they were crazy about this case but spending money for word garbage is an insult to the court

Debrah said...


Lawyers file motions to have lacrosse suits dismissed

By Ray Gronberg : The Herald-Sun
May 31, 2008

DURHAM -- Lawyers for Duke University say 38 members of the school's 2005-06 men's lacrosse team are trying to overturn settled law and get a court to say colleges should run interference for students accused of crimes.

While former District Attorney Mike Nifong's 2006 handling of a rape case against three members of the team was "shocking," Duke had no legal obligation to help team members or proclaim their innocence, the school's lawyers said Friday.

Duke's stance emerged in court documents filed in connection with a federal lawsuit against the school, the Duke University Health Care System and the city government by the 38 players.

Friday was the deadline for Duke, the hospital system and the city to file motions asking U.S. District Court Judge James Beaty Jr. to dismiss the case.

None of the players involved in this lawsuit were indicted. The three who were, David Evans, Collin Finnerty and Reade Seligmann, are pursuing their own lawsuit against the city and Durham police. Three other unindicted players have also sued the city, Duke and the hospital system.

Duke's contends that any violation-of-contract claims by the 38 players should fall if they rely on statements in Duke's student handbook. Judges have twice said the handbook isn't a binding agreement between Duke and its students, the school's lawyers said.

Nor can the players claim they were damaged by school President Richard Brodhead's decision to cancel the team's 2006 season, Duke's lawyers contend.

"No North Carolina court has ever recognized a breach of contract claim based on a university's cancellation of an extracurricular activity, and courts in other jurisdictions have rejected similar claims," their brief said.

With only few exceptions, courts have also frowned on lawsuits filed by students claiming damages because they received bad advice from a school's faculty and administrators.

The players allege Duke's dean of students, Sue Wasiolek, urged them not to retain lawyers or tell their parents after the investigation began.

But even if that claim is true, "providing advice to students about the difficulties they face is not the kind of action that the courts have found sufficient to create an actionable duty of care, and such a holding would seriously chill communications between students and educators," Duke's brief contends.

Lawyers for Duke Health filed a separate brief defending hospital administrators and a nurse who examined the stripper. The players contend the nurse botched her examination of the stripper and abetted Nifong and the Police Department's investigation.

But the nurse, Tara Levicy, owed the players nothing, the health system contends.

Lawyers for City Manager Patrick Baker and a group of police commanders targeted individually by the lawsuit also filed a dismissal motion Friday. In it, they contended that the stripper's allegations combined with Levicy's comment to detective gave police ample reason to investigate the players.

bill anderson said...

There is an old saw that says when you have the facts, argue the facts. If you don't have the facts, argue the law. And if you have neither, then pound the table.

Duke is pounding the table, but insisting that because it is Duke, the law does not apply to the actions that administrators, faculty, and DUMC personnel took in framing these young men.

What strikes me as curious is that the claims Duke makes in the response are false on their face, and they know that we know they are false. Yet, they make them, anyway. Thus, my sense is that Duke is claiming that it is above the law.

Howard said...

I ain't no stinking lawyer but I smell a "past is prologue" thing at work here. The real suits will be against the Group of 88 after the current suit. Duke faculty have every reason to do all they can to kill this because they may find themselves in bankruptcy court.

Anonymous said...

Welcome to lawyering 101. The objective is to 1. Immediately frame the matter for the reader in a way that will prejudice the other side; and 2. Give the MSM a way to frame the story to prejudice the other side.

Unfortunately, number 2 only works one way, in favor of the left's narrative, whatever it is. Read stories about lawsuits against businesses, cases involving injuried individuals and insurance companies. To read the stories, everyone is a victim and all businesses and insurance companies are evil. The truth is nearly oppossite - but why let the truth get in the way of an agenda?

Anonymous said...

Briefs, even by high priced lawyers are cheap talk. This one more than most. It seems that Duke knows they will lose in court and hope to make the PR price too high for the players. The brief is DOA. This is about polluting the jury pool. As you will remember Duke began with a gambit to strangle the rights of the players to communicate to the public. Now they plan to try the case in the press if they can.
Dick and his "senior team" are going to get their butts scratched in discovery.

Anonymous said...

Typical attorney Straw Man argument. Doesn't work with juries and I highly doubt it will work with a judge. Then again it's the LAX case, so anything could happen.....

drew said...

I mentioned earlier in a comment on your blog that the selection of counsel by Duke is/was indicative of a desire not to employ a “litigator”, but rather to engage a “political” lawyer. Jamie Gorelick’s name and her style is all over this brief, in that the brief itself seeks to deny what should be obvious, and focus the reader’s attention (and, hopefully, the press’ attention as well) on a fiction that the University is weaving about what actually happened, and Duke’s role in the case.

Many actions of the Duke defendants could perhaps be explained away if certain nasty components of the underlying truth can be made to go away. In light of that, the University (along the lines of Prof. Tyson) are trying to re-write the history, and in a way that will neuter the appearance of its perfidy in this entire matter. This is an example of “Washington law” not “real law”. I suspect that the plaintiff’s counsel is smart enough to swat this type of revisionist history aside, and focus the Court’s attention on the actual matters at hand. As either a plaintiff or a defendant, you don’t get the opportunity to re-cast the underlying questions in light of factual conditions precedent. Thus, the University’s brief potentially compels their legal team to explain to the Court the deviations between the brief’s predicate and the actual facts on the ground. The Court should have little trouble in determining the validity (or lack thereof) in the University’s “spin”; particularly in light of the Attorney General’s findings and the clear record of the NC Bar hearings. When the University’s case seems to be built on a rose-colored look at what actually took place, many of their arguments will/should be found to have wholes.

Furthermore, as a delaying tactic, this filing is a disaster. This type of filing merely hardens the position of the plaintiffs, and makes any type of out-of-court settlement all the more difficult. One might think that Duke would try to put its best collective “foot” forward; however, the quality and the nature of this reply is most inadequate. It neither compels the Court to dismiss the suit, nor does it give the Court a reasonably-logical “way out” that will result in what Duke must surely want – time to negotiate and yank this matter out of the hands of a judge that is not necessarily in their pocket.

Ms. Gorelick is possibly engaged in the legal fight of her career; however, it appears that she thinks she’s merely rolling a bunch of Washington bureaucrats and politicians. The Court won’t be counting “brownie points” in this matter, nor will it be guided by what the newspapers might say next week/month/year. This could well become “A Few Good Men” all over again, wherein Duke thinks it sent a lawyer, but the plaintiffs sent a litigator. The plaintiffs’ counsel is hopefully viewing this filing as an indication of the weakness of the case that Duke will be compelled to argue. A good lawyer will easily turn this filing on its ear, and use it as a bludgeon to club the Duke administration about the ears.

There’s going to be a lot of tuition wasted in the next 12-24 months, as Duke continues to pay its counsel, and then will be compelled to pay the plaintiffs. Duke’s arrogance will merely make the price that much higher.

Anonymous said...

They needed to get creative since all the facts are against them but from what I've read so far, they didn't really get very creative. Rather they have strung together a bunch of blatantly irrelevant and oft times stupid statements.

You gave a number of examples and there are plenty more.

Anonymous said...

Request to Plaintiffs' attorneys:

Please take Brodhead's deposition and attach it to a motion.

Follow it up with Holloway's.


W. R. Chambers said...

"In essence, Plaintiffs argue that the University had a legal duty to stand between themselves and the prosecutor, and to try to prevent the police and prosecutor from investigating them for a very serious crime."

Duke's lawyers are asking too much of the phrase "In essence.." Actually, they are abusing the English language and insulting the reader's intelligence. Far from offering the reader the essence of the plaintiffs' claims, Duke's lawyers have offered complete and utter nonsense, and have put a bit of a dent in their own credibility.

I wonder what the judge will think. If a successful motion to dismiss must be based on a fair characterization of the facts as alleged, were I the judge, after reading the defendant's factual summary, I would read the rest of the defendant's brief with considerable skepticism.

Debrah said...


White 'euphoric' in accepting Duke AD post

By Bryan Strickland : The Herald-Sun
Jun 1, 2008

DURHAM -- Kevin White sounded on Saturday like a high school recruit announcing he had accepted a scholarship offer to play for his dream school.

Now White will be charged with finding ways to enhance Duke's appeal among elite high school athletes, especially on the football front, in his new position as the Blue Devils' athletic director.

"My wife and I and our children are not excited -- we're euphoric about being here," White said Saturday afternoon when Duke president Richard Brodhead welcomed him as the seventh athletic director in school history. "This is a special place, and I think this is a special time to be at Duke University."

White, who stepped down from his prestigious post as Notre Dame athletic director, which he had held since 2000, officially will take over on June 16. White replaces Joe Alleva, who announced his resignation from Duke on April 4 to become AD at Louisiana State University.

Terms of White's contract were not made public, but Alleva was given five-year appointments during his 10-year tenure, and White's title includes vice president, which typically involves a five-year appointment.

White heads to Duke at what seems like a crossroads era for the Blue Devils. Duke is at the top nationally in maintaining an enviable balance between athletics and academics and is near the top in terms of across-the-board, on-the-field success. Yet the school is entering a critical period in maintaining that success while also trying to wipe out its weaknesses.

The school is putting more financial backing into athletics than it ever has -- as evidenced by a strategic plan for athletics approved earlier this month that doubles the school's subsidy to $15 million a year. Most of the push revolves around football.

White comes from a college-football giant, and although the Fighting Irish have struggled on the field by their lofty standards in recent years, White said that behind the scenes he helped retool an infrastructure that was behind the times.

Duke football is trying to rebuild from a much lower starting point, suffering through 13 consecutive seasons in which it failed to win more than four games a season.

The first step was one of Alleva's last acts, the hiring of David Cutcliffe as head coach in December.

"We've got to get behind David and the football program," White said. "It's critically important. That's exactly what I'm prepared to do. I think that the Duke football future is awfully bright, but it's going to take a lot of attention and a lot of hard work.

"I know this is a corny statement, 'It takes a village to raise a child.' I think we're all going to have to help David. David isn't going to be able to do it by himself, and that's my job and everybody else's job at the university."

White already knows Cutcliffe because one of White's five children, Michael, played basketball at Mississippi when Cutcliffe was the school's football coach.

White, 57, is the first Duke athletic director to get the job without any official ties to the school since Wallace Wade arrived from Alabama in 1931, but that doesn't mean White is among strangers.

In addition to his relationship with Cutcliffe, White knows Duke coach Mike Krzyzewski through Notre Dame basketball coach Mike Brey, a former Krzyzewski assistant. White taught women's basketball coach Joanne P. McCallie in a graduate class at the University of Maine in the early 1990s, and he knows interim athletic director Chris Kennedy.

Perhaps even more important, White knows Duke on a certain level because of his time at Notre Dame, a school that shares a large set of values and potential pitfalls with Duke.

"We needed to find not just a great one, but we needed to find our kind of great one," Brodhead said. "I think that we are bringing one of the great ADs in modern America."

White said it wasn't easy to leave Notre Dame, where he had a contract through 2012, but he thought he had "one more really good run" left in him. White isn't one to shy away from new challenges, having served as athletic director at five other schools before landing in Durham.

"Notre Dame is a great place, and we had a whole bunch of years left in our contract there," White said. "I felt very comfortable and really loved the place. But you know what? Another set of challenges and opportunities just made our blood run, and we got really excited.

"I think the kind of skill set -- perhaps this will sound a little arrogant -- that I bring to this is probably in line with those respective challenges and opportunities. That's exciting to me."



Submitted by gmundenat on 06/01/2008 @ 03:03 AM

Of course Duke is putting more emphasis into athletics, that's where the real money is. Somebody has to come up with the tens of millions of dollars to finance Brodhead's legal wrangling. Lest anyone forget, had Duke treated their last batch of student athletes to the presumption of innocence those tens of millions could be spent on...academic endeavors. Imagine that! No high school athlete in his/her right mind would go to Duke if there was any alternative.

In case any budding journalist happens to care, follow the money...Duke's legal team: Who, EXACTLY, pays the bills? WHERE does he/she get the money? How involved and/or aware is EACH member of the board? WHAT has Brodhead been instructed, re. the parameters of this money pit? Follow the money. You will run headlong into ethics along the way.

A pig with lipstick is still a pig.

Some advice for the new AD

Submitted by pacfandave on 06/01/2008 @ 07:37 AM

Tread carefully. The next few years you will be walking a tightrope with no safety net save your own moral values. On one side of the abyss you have the Gang of 88 faculty reprobates and their shill, Richard Brodhead. On the other you have your athletes. These two groups are as polar as any you'll ever find. You will be forced eventually to choose between them. You will either become the buttboy flack of the former, as did your predecessor, or the defender of the latter against whimsical and arbitrary persecution. Watch your back.

Anonymous said...

In the last couple of weeks Duke and NCCU have denied their Student Bulletin, Factuly Handbook and Student Code of Conduct. NCCU denied its own Code of Conduct by failing to punish Mangum for violating numerous of its provisions.

Like Peter's three denials of Jesus. Without faith, the Christian religion is nothing but a bunch of old stories. Without codes, rules and handbooks, these universities are nothing but a bunch of old stories.