Monday, December 15, 2008

Durham's Punctuation Thesis

Durham attorneys have made another filing—in the process, of course, upping the “defense costs” under which the city’s insurance policy kicks in and Durham loses its qualified immunity—reiterating the city’s demand to toss out all state claims.

The filing is a peculiar one. City attorneys Reginald Gillespie and Roger Warin admit that they filed a factually incorrect brief, omitting a comma when quoting the city’s insurance policy. The omission distorted the meaning of the city’s policy but had the convenient effect of exactly aligning the city’s policy with that of a recent North Carolina (Pettiford) decision that upheld a city’s immunity claim.

Remarkably, Gillespie and Warin don’t apologize. Instead, they mock the lacrosse players’ attorneys for pointing out their error, and reiterate their original argument as if they hadn’t filed a brief containing a significant factual error. The duo: “The City’s policy here is similar to the one in Pettiford.” Well, it is, provided that the vanishing comma remains vanished, and the city’s convenient use of ellipsis dots be allowed.

The filing has two other intriguing elements. First, Gillespie and Warin again cite the assurance of Durham’s Risk Manager, Darwin Laws, regarding “the scope of insurance coverage potentially available to the City in this case.” Yet, as the Ekstrand filing pointed out, Laws provided at best an . . . incomplete . . . summary of arrangements into which Durham has entered that might pierce the city’s immunity. Perhaps Laws, now chastened, has provided a comprehensive account in his new assurances to the court. But it’s hard to imagine why his words, having been impeached once, should be taken at face value now.

Second, Gillespie and Warin claim that “well established” principles of law bolster their argument about how to interpret the language of the city’s insurance policy. That assertion sounds pretty impressive—until a look at their filing’s citation. This “well established” principle of law, it turns out, has been articulated in just one case—a 2001 decision in the Missouri Court of Appeals.

Why a federal court in North Carolina should consider an intermediate state court 1000 miles away as the barometer of “well established” principles of law Gillespie and Warin do not discuss.


Anonymous said...

These guys charge millions for their service? Perhaps Durham should sue their lawyers to obtain the necessary funds to pay their losses. Reminds me of a calico cat thingy.

skwilli said...

I guess this is no different than the poker player holding nothing, bluffing by throwing it "all in". Let's hope the judge is Brunson. (or Stuey Unger in his good days!) No bracelets for Durham's lawyers.

Anonymous said...

Well, it seems to me the case is at least well outside of summary judgment territory...a big step.


Sid said...

We may yet hear the comical cliche used in court yet. I would not be surprised if the Durham team profers the classic "dog ate my brief" at some point in this case.

Quite seriously, we are witnessing the absurd played out in this case. Settle it. The facts are against you. Your clients participated one of the most high-profile cases of framing in recnet history. They compounded this misdeed by obfuscating the evidence as much as possible. Settle it. The numbers are growing bigger not smaller.

Anonymous said...

Is Warin a Communist?

Jhn1 said...

too bad they can't apply SLAPP laws against defendants.

Anonymous said...

This case started with numerous misrepresentations of fact. That this pattern continues in Federal court is no surprise.

I'm amazed that the silver-hairs in the city's defense firms didn't apologize in person to the Judge.

MOO! Gregory

Anonymous said...

I'm not a lawyer, so one aspect of this case has me lost. It sounds like the city could have immunity from a certain kind of claim if it has the right insurance to cover that claim. But if they have insurance, why do they need immunity? And if they have immunity, why do they need insurance? I seem to be stuck in a Catch 22.

Mike S

Anonymous said...

The next filing by Gillespie and Warin will doubtless claim that even KC Johnson agrees with their interpretation. That assertion will be something like:

"KC Johnson posted his assessment on his site of the Gillespie and Warin brief that stated that the City's policy here is similar to the one in Pettiford. His conclusion was : 'Well, it is ....' "

Anonymous said...

This case has always proceeded with the assumption that the fix is in. In the case of the Lacrosse players the
fix was in to wreak justice on them for something they were purported to have done. I brought this up with an aquaintance of mine who is a lawyer whose daughter is a G88 member and I could get no rational arguments or even a discussion going on the case.
I think the suits are very important to get to the truth of the conspiracy otherwise those actions will just be written off, ignored, and repeated.

Anonymous said...

They cannot settle. The plaintiffs do not want just money. They want change in the way Durham does things. Durham will never willingly agree to change anything. They have to be forced by the courts. In some ways, it is like the courts forcing desegregation of the schools. Even if it is the right thing to do, no local politician can afford to do it voluntarily.

Anonymous said...

"We must denounce any code of solence, which seeks to inhibit ascertaining the facts." This is exactly what they did do. That was the action of the NAACP, the Duke faculty, the Duke Administration, the Duke president, the Board of Trustees, the damn District Attorney, the Duke Police, the Durham Police Department, and the City of Durham, the local media, and the main stream media . . . all of these people worked overtime to railroad a lynching. Their record is not one of openess but one of intimidation to silence . . . to silence any suggestion that they were wrong in their own racist assumptions . . . what a fraud, but that is what a lynching is . . . I have even read these people and their ilk arguing that you cannot use the word "lynching" with respect to "white boys." The fact of the matter is that with few exceptions these racist and fearfing people were threatened by one another into what is the indefensible behavior of a lynch mob, period.

sister of physics brothers said...

The plaintiffs are at least entitled to discovery on all the insurance (all of it), the communications about those policies and the officials' understanding of, and actions taken based on, the policies, both related to the facts of this case and any similar cases the city has faced.

The evasion is unbelievable, as well as the defense costs during this type of economy. So I say no way to SJ. Taxpayers should write in and ask the city to settle, if for nothing else, to ensure residents get city services in this downturn; rather than the city lawyers making $500/hour writing briefs which, even if legally based, are unethical garbage!