Monday, November 10, 2008

Durham: "State Law Can't Touch Us"

In its most recent filing, the city of Durham claims absolute immunity for the portions of the civil suit dealing with North Carolina law.

In some intriguing legal reasoning, Durham’s attorneys concede:

A city may waive its governmental immunity under North Carolina law by purchasing liability insurance or participating in a local government risk pool that covers losses arising from tort claims for which a city would otherwise be immune.

And they note that

The City maintains three consecutive annual excess liability policies that may potentially be implicated by the time period of conduct alleged in the Amended Complaint.

But, they maintain,

By the express terms of each policy, the excess coverage is not triggered until the City has exhausted a self-insured retention that it is “legally obligated to pay.” Because the City cannot be “legally obligated to pay” losses arising from claims for which it has immunity, it cannot exhaust its self-insured retention with those losses. Thus, the excess coverage is not triggered, and the City’s immunity remains intact.

In other words, cities can purchase liability insurance whenever they desire to do so, and fall back on a claim that they still have absolute immunity because that liability insurance never should be allowed to kick in.


On another matter, two significant North Carolina results from last Tuesday’s election.

First, in the Attorney General’s race, Roy Cooper not only won reelection, but topped the ticket, capturing 61.1 percent of the vote. The margin of victory came despite the last-minute retribution from the Wilmington Journal, which urged North Carolina voters to punish Cooper for failing to sustain charges against demonstrably innocent people.

Second, in the U.S. Senate race, North Carolina voters ousted GOP senator Elizabeth Dole. That’s the same Elizabeth Dole who not only refused to demand a DOJ investigation of Mike Nifong’s misconduct, but preposterously asserted ten weeks after Cooper exonerated the falsely accused players that the lacrosse case was still “an ongoing criminal investigation and pending judicial proceeding.”

Dole, by the way, stayed classy right to the end, closing her campaign with an ad leaving the false impression that her opponent, Kay Hagan, had cried out, “There is no God!”


Debrah said...

The Roy Cooper campaign was really gratifying.

Cash Michaels and William Barber look like fools.

Regarding the Dole-Hagan race, neither of them was a stellar candidate; however, most local Dem candidates benefited from the Obama connection.

Those who followed the lacrosse case know how useless Dole was and how she went about pretending to be clueless to avoid dealing with voter backlash, but that "religious" ad was ridiculous.

Hagan is not much better.

She benefited from Dole's inane maneuvers and the fact that she could stick to Obama's coat tails.

During key Q&A sessions with area newspapers, Hagan bobbed and weaved and mostly avoided answering controversial questions.

I didn't care for either of them.

skwilli said...

I have learned that "class" has nothing to do with politicians of any stripes.

Joey7777 said...

Good for Cooper!

Anonymous said...

Hate to say it but I found the City's brief to be pretty convincing. I have not read the cases they cited but, if quoted correctly, the one case from the same court the suit is proceeding in seemed exactly on point and the governmental immunity endorsements seem tight and on point with existing case law.

C. Thomas Kunz

Anonymous said...

Dole is a Duke grad and former member of the Duke BOT from 1974-1985; she gave the commencement address in 2000.

Does she have any contact with the current members of the BOT? With the president of the university, Brodhead? Did they advise her concerning the case? Was that a reason for her silence?

When did she first decide the accused were not guilty?

And what did she do after she learned this?

BillyB said...

If Durham's argument is so airtight, why didn't they plead it right away, instead of spending millions in legal fees? Could it be that all the attorneys are in bed with each other and lend great creedance to the punchline of an old joke, what do you call 1000 attorneys at the bottom of the ocean? a good start

Anonymous said...

The comment from Dole was a disarming lie by someone of arrogance and by someone in power who thought that they did not have to be held accountable because they would not be held accountable. Time and time again whether it was the President of Duke or the Duke Board of Trustees or the academics who supposedly had read stories of the Scottsboro boys or the story of others who have been wrongly accused and who as academics were people who should have known better and who were powerful people themselves and who might have supported good law or good governance and who choose to be arrogant and above the law and who chose to ignore the law . . . many of these bastards have been rewarded and gotten all that and then some and yet all of us have been the losers in this fiasco because of their behavior. It was they who rioted in their ignorant logic and were wrong and who participated in the mob and in the public street and who were wrong again and again. They did not pursue justice and they were wrong. They put the law and the Constitution at risk and they were wrong. It was not the lacrosse team or their families or their friends who did this. It was the educated elite who refused their responsibility. No, the lacrosse case was not an ongoing criminal case at all and certainly not in the way that it should have been ongoing . . . with an ongoing investigation of an arrogant Duke faculty inciting a near riot and behaving the way that they did or in and investigation of an incompetent and corrupt Durham.

Anonymous said...

For those with the interest in contemplating some of the finer points of municipal immunity, follow the above link to have a look at a NY case on municipal immunity. Keep in mind this is a New York case, not a North Carolina case, but the principles and reasoning are interesting.


Anonymous said...

Is Dole a Communist?

Anonymous said...

The NYT identifies Jamie Gorelick as potentially Obama's pick for Attorney General.
If Gorelick becomes Attorney General in the Obama administration can she remain on the Duke legal team ? Sort of like how Steel remained on the BOT. It is a Duke tradition.

bill anderson said...

Last year, I predicted that Dole's cowardice on the lacrosse case would help undo her. My sense is that she was one of the reasons that a federal investigation into the criminal activities by the Durham police, Nifong, and Tara Levicy was blocked.

Now, she does not have to worry. She can stay in the Beltway full-time and shill for Viagra with Bob.

W. R. Chambers said...

Perhaps Duke will extend an offer to Elizabeth Dole.

Wright said...

Well, elections have consequences, and according to the New York Times, one of the current rumors floating around alleges that Obama intends to name none other than Jamie Gorelick as his AG. If this is true, KC, is this the change you were voting for or does it represent audacity taken to a whole new level?

Anonymous said...

billyb: I think the reason that they have only now brought this up is that the Pettiford case cited in their brief (which is the case that seems directly on point) was only recently decided. The holding of the case see3ms strange to me but, nevertheless, the case does seem to support the City's argument that they have not waived sovereign immunity by the purchase of the particular insurance policies.

C. Thomas Kunz

Raynfala said...

Kay Hagan was not much better. She accepted a campaign donation from an atheist organization, yet helped perpetuate the stereotype that atheists are icky, immoral people right until the end.

bill anderson said...

Whoa! I just looked at the ad! It definitely will live in infamy. My guess is that Dole decided she was behind to the point where she needed to take a leap of the high bar. Sorry, Liddy! There was no water in the tank when you jumped into it.

As I have said before, had she not taken the coward's way out in the lacrosse case, she would likely have had a better chance to be re-elected. Enjoy the Viagra ads!

Debrah said...

Some might want to check out this insanely unprofessional offering from Cash Michaels in the Wilmington Journal back when Nifong was just getting started.

It's really disgusting to read how Michaels uses the full names of the accused and where they live, but tries---to the point of nausea---to deify the prostitute criminal Mangum.

One cannot revisit this disgusting display of injustice enough to remind us all of the double standards employed.

Debrah said...

Make no mistake, the city of Durham fully expects to get away with this latest tactic.

The place is run by those who always do what they wish with no repercussions.

Just months ago, a female Durham City Council member cost the city thousands by trying to get a white employee fired.


Because he was white and she wanted a "minority" in the position.

This woman, like Duke's Gang of 88, is held accountable for nothing.

Did the mayor over there just roll over and die....or something?

Does Mayor Bell think that Cora Cole-McFayden was doing the right thing?

Debrah said...


Duke hits its magic $300M aid target

By Gregory Childress : The Herald-Sun
Nov 11, 2008

DURHAM -- With more than a month to spare, Duke University has reached a goal it set three years ago to raise more than $300 million in endowment for financial aid.

University officials announced last week that the university has received $301.1 million in gifts and pledges, including $221.4 million for need-based undergraduate scholarships, $19.2 million for athletic scholarships and $60.5 million for support of graduate and professional students.

While the $221.4 million for need-based scholarships is $8.6 million shy of the $230 million goals set by the university, officials are confident the money will be raised by the time the campaign ends Dec. 31.

"We're working with a number of donors and we will make that goal," said Susan Ross, assistant vice president for the Financial Aid Initiative.

Ross, who has led the four-year effort, said the recent economic downturn stalled some contributions the university had expected to receive.

"Others are stepping forward in their places," Ross said. "In this economy, people understand the need for student aid more than ever."

Duke University is one of a small number of schools with a need-blind admission policy. That means students are admitted to the university without regard to their ability to pay. The university is committed to providing a full financial aid package to everyone who demonstrates need.

About 45 percent of Duke's undergraduates receive financial support to attend the university. About 40 percent receive need-based aid.

Ross said the university has established 400 new scholarships, which are named for donors who gave $100,000 or more to the initiative. The scholarships ranged from $100,000 to $10 million. There were also a couple of scholarships created in the $5 million range, Ross said.

One $260,000 scholarship for need-based undergraduate scholarships was created in honor of Jim Belvin, the longtime financial aid director who retired last month after 32 years at Duke. Ross said former students who received financial aid, other alumni and colleagues contributed to the Belvin scholarship. He is credited with administering financial support that helped more than 30,000 students attend Duke.

In a news release, President Richard Brodhead said the initiative's success will ensure a Duke education remains affordable and accessible for all students and families.

"Through this campaign, generous donors have invested in Duke students for generations to come," Brodhead said. "Duke has a fundamental commitment to selecting students on grounds of talent and character, not their family's ability to pay. The uncertainty in the economy makes it more important than ever that we be able to stand by this commitment."

Sally Dalton Robinson, who co-chairs the initiative with fellow alumnus G. Richard Wagoner Jr., expressed pride in the initiative's success.

"We're so proud of Duke and its supporters for strengthening Duke's financial aid program to benefit today's talented students and generations of students to come," Dalton said.

Gary Packwood said...

The City of Durham expect to win eventually and unless Duke is trying to help Durham, the Duke BOT needs to implement a joint City/Campus program to reduce the anger about of-campus student parties. If not, the jury pool will be tainted across the entire State of North Carolina.

The Duke Office of Student Affairs is fully aware of Campus/Town programs across the county that help reduce noise and litter from student parties. Such programs do work!

When is Duke going to stop talking about off campus student party problems and actually do something?

Anonymous said...

The first paragraph that KC quotes clearly states that the very act of purchasing liability insurance by iteslf WAIVES immunity for the city.


Perhaps their lawyer did not read this part.

ES Duke 1990

gak said...

I think the city may get off the hook but I don't think they can take any of the individual police officers with them.

Anonymous said...

I know the law can't touch this . . . right. It only touches who the powers that be want it to touch . . . not some decent young kid who has his life to live. Your faculties and police have become racists because that is where the power is . . . you point your finger like some McCarthyite critic and everyone rolls over and the object of your finger pointing goes to jail . . . no problem . . . Duke's sense of justice . . . no problem . . . just pay the fine . . . that is what money is for . . . yeah.

Debrah said...

Although I've yet to see a report about this in the papers, last evening on the local news it was reported that an officer or two in the Durham Police Department might have written some bigoted opinions about Barack Obama on his/her/their Facebook pages.

Seems there will be a "full investigation".

Even the usually-reasonable council member Eugene Brown weighed in with emotionally over-the-top rhetoric as if the world might come to an end.

I have one question for these strange people who operate inside a hermetically-sealed bell jar of gross double standards:

Where is their "full investigation" of the behavior and the deeds of their police department and their city leaders when the Duke lacrosse players were being framed?

Where are they now that everyone knows a city council member, Cora Cole-McFadden, tried frantically to get a man--who is white--fired from his job and replace him with a "minority" employee?

This racist behavior from a city "leader" has cost them thousands. I suppose the man sued to get his job back.

Why has no one in that banana-republic place called Durham expressed outrage about any of this?


Debrah said...


Barber has smoked out another one.


Debrah said...

Is this another case of prosecutorial misconduct in Durham.....or no?

Anonymous said...

Anyone familiar with Bob Dole's Kansas campaign tactics is not even slightly surprised by his wife's tactics in this campaign.

Good riddance.

Anonymous said...

7:53 PM

Yes, this has been driven by a certain amount of arrogance and without much concern for accountability.

Anonymous said...

Maybe Obama might be willing to endorse something like this for Durham and the lacrosse cases:

WASHINGTON -- With growing talk in Washington that President Bush may be considering an unprecedented "blanket pardon" for people involved in his administration's brutal interrogation policies, advisors to Barack Obama are pressing ahead with plans for a nonpartisan commission to investigate alleged abuses under Bush.

The Obama plan, first revealed by Salon in August, would emphasize fact-finding investigation over prosecution. It is gaining currency in Washington as Obama advisors begin to coordinate with Democrats in Congress on the proposal. The plan would not rule out future prosecutions, but would delay a decision on that matter until all essential facts can be unearthed.


For full story see:

Ken Duke

Debrah said...


NAACP: Expel NC students for racist Obama graffiti

Nov 12, 2008

RALEIGH, N.C. -- The North Carolina NAACP wants North Carolina State University to expel four students accused of painting racist messages about President-elect Obama on campus.

School Chancellor James Oblinger held a closed-door meeting Wednesday with NAACP President Rev. William Barber to discuss the graffiti in the campus free expression tunnel.

Barber wants an official response within 48 hours. Oblinger says both sides have agreed to move forward.

Four students admitted spray-painting the messages, including one that used a racial slur and suggested shooting Obama in the head.

Officials have said the unidentified students won't face criminal charges because the writing wasn't a hate crime since it was written on a wall where free speech is encouraged.


The NAACP is a racist Group Its Self

Submitted by seahappy on 11/13/2008 @ 05:43 AM

These students were wrong, but they are young people who make errors in life..Their Judgement could have been as bad as NCCU and the NAACP toward the Duke Lacross players..Now that was some serious judgement flaws.....


Submitted by localyocal1 on 11/13/2008 @ 05:51 AM

The time has come for this country to expel the racist and bigoted NAACP group.

Let the NAACP apologize

Submitted by squid90 on 11/13/2008 @ 08:57 AM

As soon as the NAACP apologizes for NOT supporting the wrongly and falsely accused Duke University LAX players, I will think about why I should support their NC State concerns. This is an organization whose agenda is misguided. Martin Luther King said it right. To bad no one from the NAACP ever listened.

Be careful about what you ask for

Submitted by bahama2008 on 11/13/2008 @ 09:04 AM

The NCSU students were definitely wrong. They did the right thing by coming forth and admitting that wrong. I don't see how expelling them from school and putting a permanent mark on their academic record is going to help anybody. This issue should be handled using the Student Guidelines, not by the NAACP. Where was the NAACP when a Sarah Palin image was hanging from a noose?
I was standing in a DMV line and saw a T-shirt that was as offensive or more offensive than what was written on that wall. Is the NAACP going to go after these type things as well. I don't think so.
The NAACP should back off and let the NCSU leadership deal with this issue. These students didn't kill or physically hurt anyone...they did something that was very immature and short sighted. The NAACP approach is doing nothing but stirring up the racist pot...something they are very good at doing. It's frightening to think where this will end up....especially when you think back to some things that happened in Durham a couple of years ago regarding an black exotic dancer.

Free speech

Submitted by blueheel on 11/13/2008 @ 09:34 AM
Free speech goes both ways, whether you like it or not. Yes, the NAACP IS a racist organization, penetrated by Socialists that want to continue dividing our society. Too bad blacks don't realized they're continually being used for those purposes.

Not right

Submitted by tigger-mom on 11/13/2008 @ 10:00 AM

I don't know that expelling the students would have helped anything for the graffti, but what the student wrote about having Obama killed is very serious. After all this man is going to be the next president of the United States. What are the laws for threatening the President of United States? I don't care if where this threat was written is considered to be a place for the students to express their feelings freely. You don't suggest that someone shoot the President of the United States. As for the NAACP, I hope they are supporting the LaCrosse players now instead of the woman who told the lie. We need to stand up for everyone no matter what the color of their skin is. She was in the wrong. Now it is time for her to pay. As for the NCSU students, I am truly disappointed. When are we all going to start loving and accepting each other no matter what the color of our skin is or what nationality we are?

Debrah said...



City wins rounds in lacrosse suit cases

By Ray Gronberg : The Herald-Sun
Nov 15, 2008

DURHAM -- A federal judge has sided with the city in two Duke lacrosse lawsuits and ruled that there's no need for the opposing sides to start sifting evidence until he decides which of the players' claims merit continued litigation.

U.S. District Court Judge James Beaty Jr. cautioned city officials, however, that they have "an ongoing duty" to preserve all "potentially relevant evidence" in the cases in the meantime.

He warned that federal law gives him the authority to tell jurors that they can "draw unfavorable inferences" about the city's culpability if there's any loss or destruction of evidence, even if it's inadvertent.

Beaty issued the twin orders this week putting a hold on evidence gathering. One came in a case filed last fall by falsely accused former Duke University lacrosse players David Evans, Collin Finnerty and Reade Seligmann. The other stems from a case filed early this year by 38 other members of Duke's 2005-06 men's lacrosse team.

In both orders, Beaty wrote that opening the discovery process now "would be premature and inefficient" given the range of the players' claims against the city and the number of parties involved.

He also said it would likely trigger a significant number of disputes between the two sides that could best be resolved by a later ruling on the city's motions to dismiss elements of the case.

Meanwhile, Beaty used a footnote in the orders to say he intends to rule at the same time on the dismissal motions that lawyers for the city, police and other officials have filed in all three lacrosse cases, rather than handling them piecemeal.

The main holdup to a ruling is a third case, filed by Durham attorney Bob Ekstrand on behalf of 2005-06 lacrosse players Breck Archer, Ryan McFadyen and Matt Wilson.

The parties in that case are still swapping briefs. Beaty indicated that his ruling on the dismissal motions is on hold until they finish because all three of the civil rights lawsuits present "common issues."

Beaty's discovery rulings this week didn't affect the Archer/McFadyen/Wilson suit because Ekstrand, unlike the other lawyers representing lacrosse players, hasn't asked to begin taking evidence.

The lawyers in the other cases had argued the parties should at least begin planning for depositions and document exchanges lest the memories of witnesses fade or documents be destroyed.

Beaty's ruling on the point effectively adopted the city's position that a decision on the dismissal motions should precede discovery. It was his first major decision in any of the cases.

The city wants Beaty to throw out most of the players' claims. Its lawyers contend that authorities acted within the boundaries of law as they investigated stripper Crystal Mangum's false claims of rape in the spring of 2006.

Anonymous said...

Cut and paste above link for great article on the Dallas DA, Craig Watkins, the "Exonerator," who is spending tax dollars to test previously untested DNA and release prisoners who are thereby exonerated.


Anonymous said...

ES Duke 1990: Unfortunately in the real world one has to read beyond the first paragraph. As a law professor at my law school once warned: "What happens to lawyers who do not read the footnotes?" Answer: "Their children starve."
Here the issue is that, yes, buying liability insurance waives sovereign immunity but only if the insurance insures against the particular claim against the governmental entity claiming immunity. So, for example, if a city obtains an insurance policy that covers it only for claims brought against it for running city swimming pools, the existence of that policy may work to prevent the city from claiming sovereign immunity if you bring a law suit claiming your kid drowned because the life guard hired by the city was a drug addict and they knew it when they hired him and he was high when your kid went into the deep end. The swimming pool policy won't help you if you are a woman and your claim is that the city should be liable because the male city cop who stopped you for speeding offered to let you go free if you would show him your breasts. In the real world case against Durham, Durham is relying on a case which I have earlier indicated has stramge reasoning but, unfortunately for the plaintiffs, seems on point. The case (called Pettiford) was decided by the same court as is hearing the lax case. The insurance policy in the Pettiford case and the insurance policy that Durham has both say the same thing. In substance they say that the insurance company only becomes liable to insure the city for tort losses that the city has to pay over a specified dollar amount (like the deductible on your auto policy) that the city is "legally obligated" to pay. In a very strange bit of legal reasoning, the Pettiford case held that the city which purchased that type of an insurance policy should not be found to have waived sovereign immunity because the insurance policy only covered losses in excess of that which it was "legally obligated" to pay and, because it had never expressly waived its sovereign immunity for the amounts up to the deductible, the purchase of this type of an insurance policy was not sufficient to waive its sovereign immunity. As I said, this reasoning is strange-- if there was no deductible at all in the insurance policy, the city would be found to have waived its sovereign immunity in its entirety; the presence of any deductible measured by the "legally obligated to pay" language means that it has waived its sovereign immunity not at all.
This is why I hate watching civil suits-- if they are contested (which this one surely is), they last for years. Everything is done by motion or discovery that no one really sees and nothing really gets resolved in a way that vindicates the party who was wronged.
Had I been advising the lax team, I would have strongly advised them not to bring a case. Civil litigation (at least at the level of this case) is horrible for everyone who participates. The "good guys" (the laxers) think the court system will quickly remedy the injury done to the-- after all, they clearly got screwed. In actuality, the court system will merely offer the defendants a number of opportunities to delay any real resolution of the case. It's really no different than the advice one got as a sophomore member of a fraternity back in the late 60's-- if you get brought up before the Judicial Board of the college for participating in a fraternity prank: "Don't worry, just lie and deny." The defendants here will, through motion practice, lie, deny and delay until everyone (including all of us) are bored to death.The thrill of filing the case will, with time, be forgotten as the years roll by and the laxers move into adulthood with no resolution of the case. In all likelihood some serious number of years in the future when everyone except the die hards at the Liestoppers Discussion Board have forgotten the case, there will be a settlement which resolves nothing and leaves no one victorious.

C. Thomas Kunz

Publius said...

I didn't vote for Roy Cooper.

Let's not forget that he was forced to intervene in this case. Once he was forced to intervene, he then had to either become a confederate of Nifong's malfeasance, or drop all the charges against the obviously innocent Duke students. He wisely chose the latter option.

Roy Cooper has been no friend of people railroaded by corrupt prosecturos. He did absolutely NOTHING against the prosecutors involved in the Alan Gell and Darryl Hunt fiascos and bent over backwards to make sure the prosecutor of Union County, Scott Brewer, wouldn't face criminal or civil penalties for 2 capital cases where he coached witnesses to commit perjury.

Even in the case of Duke rape hoax Cooper's right hand man, Jim Coman, has preposterouly claimed that Nifong was simply overzealous in prosecuting men that he honestly believed were guilty. And of course we all know about Roy Cooper's very suspicious claim that he can't prosecute Nifong due to some procedural rule about invoking grand juries.

Anonymous said...

Judges also hate to be made to look like bad guys.

Thus far, every judge in this case appears to have been guilty of some highly dubious conduct (Stephens,Titus,Hudson, Smith,Marley,Bushfan,etc.)

Dismissing these suits will only have the effect of further suppressing the truth, which could emerge in depositions.

And in that event, the judge
signing the order will bear the brunt of public criticism.

Faith in the court system is already at such a low ebb that the
sea floor has about turned into
desert. It won't take much
more to finish the job completely.

Somehow, I think a judge will have to find a way to get the participants in "Scottsboro II"
under oath. If he fails in that,
Durham and this whole case is going
to be remembered like "Scottsboro I", and none of the characters in that drama look good

(except for maybe Judge Horton; but then, he didn't believe a woman should be believed just because she cried rape; or that a man should be convicted of rape just because the prevailing culture didn't like the group he was from. Sad that there aren't judges around like that today.)

One Spook said...

C. Thomas Kunz writes @ 9:31 PM:

" In all likelihood some serious number of years in the future when everyone except the die hards at the Liestoppers Discussion Board have forgotten the case, there will be a settlement which resolves nothing and leaves no one victorious."

For all of you who understandably clamor for some type of "revenge" or "victory" or "justice" for the lacrosse players in the civil suits, I'd ask you to read Mr. Kunz's comment again ... and again. After that, print it out and tape it to your monitor.

IMHO, Mr. Kunz's comment is the single best dose of reality and truth this Blog has seen since the civil suits began.

Thank you, Mr. Kunz.

One Spook

Debrah said...

I totally disagree with Thomas Kunz.

The reasons are so multitudinous that a mere post would not contain them.

One Spook said...

Debrah writes at 9:36 AM:
"I totally disagree with Thomas Kunz.

The reasons are so multitudinous that a mere post would not contain them."

Oh come on, Debrah ... do enlighten us with your "multitudinous " reasoning based on having no training or experience in the practice of law vs. the reasoning of a highly qualified attorney with over 30 years experience in the practice of law.

As you are fond of writing, "LOL!" --- "GIS!" --- "LIS!"

In fairness, I believe all of us agree that the plaintiffs in the civil suits were clearly wronged and the facts support that. I believe all of us would like to see the defendants deposed and their craven behavior exposed to the world.

What Mr. Kunz has given us is a good dose of insight into the realities of the court system and realistic expectations of the typical process and resolution of civil suits.

I'd like to agree with you too, and after that we could go visit the Easter Bunny.

One Spook

Debrah said...

More caustic sarcasm from the peanut gallery.

Experience is a lovely thing, but as the presidential election has shown, not always enough.

I've been around so many lawyers as well as law professors for so long that I feel I can speak with some authority about them.

Certainly long enough to know that most major in doom and gloom unless their critiquing their own case.

There are many fine people in the profession; however, for self-preservation, if a lawyer tells me that the sun is shining, I go get an umbrella.

I also find many of them to be rather stiff and pessimistic.

Not like the Diva at all!

My suggestion for those in the profession in general is to get more exercise and cheer up!

Think positively and again, get more exercise.

Has anyone ever noticed how many of these people have very flat posteriors from sitting behind a desk all the time?

I take no advice from anyone who is not directly on a particular case.

That's why I'm the Diva and you're not!

ROTFLM-T's-O !!!

Anonymous said...

debrah: I am not doom and gloom. Rather, my point is that civil litigation is a horible way to try to remedy the type of wrong that the laxers suffered. You have to start with the fact that judges now do not "judge." They do not make a decision on the merits of the case of the plaintiffs or the defendants; rather, they think their job is to be an impartial referee of the "contest" between the plaintiffs and the defendants. Accordingly, there is no direction to the case-- the parties meander onward asking the judge from time to time to determine not the merits of the positions of the parties, but rather whether one side was "offside" on a motion. The defendants here will, as I have said in a previous post "lie and deny" and delay. Just think, KC's latest is a post reporting that the defendants do not have to participate in discovery because of the motions to dismiss. Okay, in five months, the decisions on the motions to dismiss will come down. Predictably, the defendants will get some of the plaintiffs' allegations dismissed; others will survive. So, a year into the case, discovery will start. Guess what, it will take forever and be punctuated by numerous motions to the court to exempt some parties from being required to give depositions. Think about it, the laxers are young adults just entering the real world. They will be getting jobs, some will be getting married, soon some will be starting families. Do you really think as this case goes on and on and on, that they will remain engaged in the details of what happened two (soon to be three, inevitably to be four) years before. All this said, debrah, my point is not that the guys shouldn't get something other than the NC AG's finding of innocence; my point is that civil litigation of this particular claim will not likely result in a conclusion satifactory to the laxers or to those of us who so passionately care for them/

inman said...

It seems to me that there is a fatal flaw in the defendant's argument. To wit, they state on page 11:

"Because the City cannot be “legally obligated to pay” losses arising from claims for
which it has immunity, it cannot exhaust its self-insured retention with those losses."

This argument assumes that litigation has established immunity and that as a consequence the city of Durham cannot exhaust its self-insured retention. The extent to which the purchase of insurance has established immunity is a red herring.

Assume first that the City of Durham had not purchased insurance. Then the city is either immune or not immune, based upon facts at issue. And further, if the city had no insurance, then a finding of immunity would expose it to no loss. In contrast, a finding of no immunity would expose the city to loss. This sequence -- a sequence of establishing immunity first without consideration of the ultimate source of funds in the event of a finding of liability -- surely must prevail.

As such, defendant's argument attempts to place a protective shield in battle that is, in effect, only available after the battle has been decided.

The shield is a chimera in anticipation of a quite uncertain outcome.

Debrah said...

TO 9:37PM--

"Rather, my point is that civil litigation is a horible way to try to remedy the type of wrong that the laxers suffered."

Everyone can agree with that.

I often wonder why things can't change. Since this procedure is indeed, draining, and the equivalent of running in place to see which side gets tired and gives up sooner, why do people in the profession continue to settle for doing things this way?

" Okay, in five months, the decisions on the motions to dismiss will come down."


I've never understand why months have to go by.

You can be methodical, accurate, and concise without taking this amount of time.

One has only to review KC's work on this blog---mesmerizing as it is---and see how much he was able to cover, to analyze, and to present to us each day when the case was in full swing.

Moving ahead and getting things done only takes a mindset ready to do it.

This is what frustrates me so about the law profession.

They take forever to do one thing which is simply a game which is enjoyed by those (lawyers) involved while someone else (the client) pays for it all.

As I said before, there are many good people practicing law who try to do right; however, my experience does not engender optimism.

The way the system works is so alien to my sensibilities.

So many attorneys, including those in my own family, can be quite self-serving and dishonest as they put on a charade of process.

Lastly, I'm sure that the scenario you've presented is accurate; however, one should always hold out for the possibility that someone on this case will demand that things be done more efficiently and actually do it!

KC Johnson said...

In this thread, I have twice received the same anonymous comment containing (multiple) unsourced allegations in defense of Senator Dole. I would urge the person making the comments to (a) identify himself or herself; and (b) provide substantiation for his/her statements. I would be happy to clear the comment at that point.

Anonymous said...

inman: You have missed the point of the defendants' argument. Your post seems to imply that the outcome of the litigation will establish or not the defendants' sovereign immunity. That is incorrect, at least on the state of the ploeadings to date. The fact is that the City of Durham is entitled to sovereign immunity unless it has waived it either expressly or by operation of law. The plaintiffs' position is that the City has waived its immunity based on operation of law. The plaintiffs' base their assertion on a North Carolina statute-- they assert that the City has waived its sovereign immunity because it purchased insurance to protect it against certain claims. The City has countered the plaintiffs' assertion by pointing to a case decided by the same court that is hearing the laxers' suit. The holding, while strange, is to the effect that, if the insurance only covers amounts in excess of a "deductible" that the City is "legally" obligated to pay, then the fact that the City has such an insurance policy is not sufficient to hold that it has waived its immunity by operation of law. The theory is that the City is not insured for the amount of the deductible and thus it cannot be viewed as having waived its immunity to be held liable for that amount. Because it has immunity for claims up to the amount of the deductible, it can never be "legally" obligated to pay such amounts and thus the insurance policy will never offer it protection and thus the City cannot be viewed as having waived immunity for anything. As I keep saying, the logic is strange-- if the City had purchased a policy with no deductible, it would be viewed as having waived immunity in its entirety; if the deductible was $1.00, the logic of the precedent case would say that the City had not waived its liability at all.
Your argument seems to be based on your view that the City may not have sovereign immunity for reasons other than the fact that it has insurance. If this is correct, would you please cite some North Carolina authority which would support a finding that the City has waived its sovereign immunity either expressly or by operation of law with respect to the claims asserted by the plaintiffs.

C. Thomas Kunz