Men At Work

2pm UPDATE: Wone Trial Date Moves Again

We’ll have more from Moultrie, but get out your calendars – and erasers – as the start date for the Wone civil trial has been pushed back once again.  It will now begin October 17 at 9am.

At least, for the time being.

And Ladies too

Today’s 1:30pm status hearing popped up with little notice.  Readers may recall that one had been scheduled for Friday, Spetember 10, and that it was postponed at nearly the last minute.  Luckily our schedules are flexible enough so that a couple of us are able to get to Moultrie 517 for the hearing.

We’re still feeling pretty blue from this week’s loss, but have no choice other than to soldier on.  We’ll try for a short update after today’s gavel if events warrant, otherwise Friday’s post will have the status hearing developments, which we expect will involve scheduling issues (which we thought had already been ironed out).  Maybe updates on the Twitter too.

In addition to this status hearing cropping up, a monster document hit the clerks office yesterday as well.  It tipped the scaled at 196 pages.  A peek inside after the jump.

Motion to Compel Production of Third-Party Documents Withheld by Defendant Price. Filed.  Submitted. 09/14/2010 . ncv. Attorney: RAZI, Mr BENJAMIN J., ESTATE OF ROBERT E WONE (PLAINTIFF)

This is a beast of a filing with fourteen attachments.  There are probably 100 pages of Joe Price’s Arent Fox email logs alone, communications between Covington and the defense counsel on what is priviledged and lastly, the defendants’ responses to the first set of interrogatories.

We’ll start posting that next week.

64 comments for “Men At Work

  1. CDinDC (Boycott BP)
    09/16/2010 at 1:39 PM

    Craig,

    You teased us a week or so ago about a Joe Price sighting and said that you would possibly post something on it. Is that sighting going to be shared with all? Do tell. I’ve been waiting for that juicy tidbit.

  2. Doug
    09/16/2010 at 2:15 PM

    CD;
    Patience, my dear. We haven’t forgotten.
    -Doug, co-ed

    • CDinDC (Boycott BP)
      09/16/2010 at 3:35 PM

      Oh, goody. 😀

      • Nelly
        09/16/2010 at 10:16 PM

        Could it be that Joe was spotted in the bowels of a nasty old office building doing document review for $20/hour?

        • Clio
          09/17/2010 at 9:29 AM

          Say it’s not so, Joe! Oh the humanity!

  3. David
    09/16/2010 at 2:35 PM

    Here is a quick tidbit from the hearing. The defendants bench asked for a shortened discovery period, and Judge Brooke Hedge didn’t cotton one bit to that suggestion. She snapped, “This case is complicated; discovery will be extended.” The chastened defense accepted her decision and didn’t push after that.

    David, co-ed

    • Bruce
      09/16/2010 at 2:47 PM

      Wow! You mentioned that the filing includes defendants’ responses to interrogatories as an attachment (or exhibit). It is probably only through this exercise (being attached as exhibits to filed motions) that we will actually be able to see this type of discovery, which can be (but not necessariy will be) very revealing.

      Waiting with bated breath for those attachments/exhibits!

      • Doug
        09/16/2010 at 3:11 PM

        Bruce; we will have them up as soon as we can. Suddenly there’s a lot on the plate.
        -Doug, co-ed

        • Bruce
          09/16/2010 at 3:18 PM

          Thanks, Doug. You guys do a wonderful service for us all. Don’t mean to rush anyone.

          • Bruce
            09/16/2010 at 3:21 PM

            And Doug:

            Annette Benning called.

            She wanted me to let you know that she still doesn’t have to take any insulin! 🙂

  4. Kate
    09/16/2010 at 3:07 PM

    Sigh, a very, very long wait.

    Looking forward to that big ol’ filing.

  5. Craig
    09/16/2010 at 4:34 PM

    We’ll try and get something up a little later tonight or first thing in the morning on the hearing. It was short and sweet and offered a good glimpse at the cheerful Judge Brook Hedge.

    Other than the trial date shift, the headline may be feisty plaintiff counsel Pat Regan talking tough in the hallway afterwards.

    Referring to defendant’s repeated pleading the 5ths in the first round of interrogatories (and perhaps in depos and the trial), he said, “Defendants don’t assert their fifth amendment rights if they are not guilty of something.”

    Fasten your seatbelts…

    • Kate
      09/16/2010 at 5:14 PM

      And to think I almost pulled the emergency escape slide and grabbed a couple of beers on my way out … sorry for the impatience with this long process.

      Seatbelt now fastened and patiently waiting. I do love a nice and dramatic hallway diatribe.

      • Clio
        09/16/2010 at 8:44 PM

        Yes, Kate, this Mobius strip of delay after delay can only be relieved by bitchy nonsequitors from each of the defendants. Short of an exquisite meltdown by Culuket at a Lady Gaga concert, though, we probably won’t get those providential gifts. But Brook’s further delay may enable Covington to gather enough evidence and to connect enough dots to either settle or to win! Fingers still crossed!

        • Kate
          09/17/2010 at 10:27 AM

          Hear, hear, Clio – the mental image of Mr. Price “vogue-ing” the night away at a Lady Gaga concert has now been seared into my wee brain.

          Funny stuff.

  6. boofoc
    09/16/2010 at 4:48 PM

    I’ll be pleasantly surprised if, as Bruce understands it, the defendants’ answers to interrogatories are “filed” with the Clerk of Court (thus available to the public). Do DC’s rules of procedure require that? (Need you, Chilaw??) Or did the judge’s pretrial order require it? In most jurisdictions, the Clerk is simply “noticed” for the docket that answers have been “served” on the the other party; the answers themselves don’t appear in the record unless/until there are objections that need to be ruled on by the judge. Sure hope Bruce is right! Now the Motion to Compel may provide interesting informaton (in the attachments to/argument in support of); presumably JP’s counsel are refusing to supply information concerning his e-mails and/or phone calls made during the course of his employment (confidential attrney’s work-product). This is probably all academic on my part inasmuch as the Editors will let us know today or tomorrow or on Monday what has actually feen “filed.”

    • Bea
      09/16/2010 at 5:24 PM

      Would have to check DC law’s peculiarities (Hoya?) but in many jurisdictions (and under the Federal Rules which would likely apply here absent that DC peculiarity exception), the “answers” are simply served on those requesting but are not filed with the court. That said, this being a Motion to Compel, there will likely be copies of what was “served” as exhibits along with the “answers” provided (not that they’ll say much) – including, as the post noted, logs of what privileges are being claimed to keep out particular emails.

      For those non-lawyers, usually the “privilege log” (the communications NOT produced) in chart form, saying as little as possible about the communication for which the privilege is being claimed.

    • Bruce
      09/16/2010 at 5:40 PM

      Hi boofoc:

      I didn’t make my post clear. I didn’t mean to imply that answers to interrogatories are “filed” with the court. I assume, as Bea very ably explains below, that they would simply be “served” on the attorneys and not “filed” with the court.

      Because they are usually served/not filed, the public can’t see them as they don’t become a part of the “court file.” My excitement in my post was due to the fact that we WOULD be able to see them if they were attached as exhibits to a motion FILED with the court, thus becoming a part of the “court record,” which is what Doug suggested.

      I’m afraid my initial excitement is now crushed by the news that plaintiff’s counsel was complaining about 5th amendment objections by the defendants in the hallway after the hearing.

      This most likely means that those answers to interrogatories by defendants that we should be able to see will probably just be filled with lawyer’s objections (yadda yadda yadda)and 5th amendment objections, and there may be no meat with those potatoes.

      But we will have to see……:)

  7. boofoc
    09/16/2010 at 4:57 PM

    Oh, Craig’s remarks just posted while I typed. If it’s the defendants’ refusal to answer interrogatories because of their 5th amendment rights; very interesting.

  8. Rich
    09/16/2010 at 5:10 PM

    Dear Craig:

    How did yu get this posting up before 1:39pm. We weres till standing outside in front of Moultrie at 1:39pm. Did yoou do it in the cab onb the way to the doc?

    Yes, Regan’s comment about the 5th was most riveting news of the day. Other than Spangoletti clearing the way for new counsel (Ralph Spooner) to take over for Dylan Ward. Spangoletti will stay on the case, but, in a backseat. (CC BIggs: The last time the term of art, “Backseat,” was used by me, it was toally misinerpreted. I truly mean, “Backseat,” here. :))

    yes, Regan will be quite entertaining in the cvil case. He seems awfully sure of his case when he said the mater was, “Pretty Clear Cut,” and not challenging at all. I guess, he feels all of the evidence to date serves itself well.

    Unrelated: One of, “Youse,” Attorneys will have to step up and carry on for Chi Law as she serveds a wonderful role in explaining everything. I’m sure the ediors will appreciate the counsel.

    • Kate
      09/16/2010 at 5:18 PM

      Glad you were able to attend Rich. I’m local, as well, but was otherwise engaged in a far less interesting endeavor.

      Cheers,
      Kate

      • Kate
        09/16/2010 at 5:20 PM

        Oh and by the way Rich – your use of the word “Youse” – sounds like Philly to me? Hometown?

        • Rich
          09/16/2010 at 5:35 PM

          Native New Yorker, here, but, in DC and the area since 13 years old.

          High School in Rockville. Richard Montgomery. 20 years downtown. Now, in Silver Spring.

          Just returned from Honduras and met an American from Pittsburgh who said, “Youn’s,” referring to where James and me.

          I told him, he would be hard pressed to get a Central American to undersatand him yet alone someone from Provo, Utah.

          • Kate
            09/17/2010 at 10:22 AM

            I was born and raised in the Burgh, but fortunately had parents who never permitted the use of the word “yuns.” However, a proper use of the term follows:

            “Are yuns guys Stiller fans?” (Stiller = Steelers)

            Proper response: “Yuh-huh.”

    • Doug
      09/17/2010 at 7:31 AM

      Rich: We have our ways.
      -Doug, co-ed

  9. Rich
    09/16/2010 at 5:50 PM

    By the way, I keep going on record for the past six months that there will be further delays.

    I still believe there will be even more.

    Look to New Year’s 2012.

    Easy.

    Now, everyone has to think about how they will structure thier lives over the next 15 months, as there is no way we can continue to invest the time in this matter that we already have.

    For me? I have no clue.

    I just know, I’ll be here.

  10. dlpetersdc
    09/16/2010 at 7:39 PM

    May I ask, ‘what is an interrogatory?’ (obviously, i’m a non-lawyer type.)

    • Bea
      09/16/2010 at 8:16 PM

      Hey dl. In a civil case, there is a period of time called “discovery” well before the actual trial during which both sides can get information from the other side. Written questions which must be answered under oath are “interrogatories”; requests for materials, collateral, writings are called “requests for production of documents” (also have to be verified as to completeness/accuracy). The only other written request employed often is “request for admissions” which is used to “put to bed” particular facts – but it’s not easy to get full admissions what with lawyerly fog in responses.

      Other than these written discovery requests, the most important is the deposition. Any party and almost any “non-party witness” can be summoned to appear in front of a court reporter and be forced to answer questions by the adversary’s attorney. Often these last for many hours – sometimes several days. There is no way to NOT appear for the deposition (no similar mechanism as in criminal cases where there is an explicit right that defendants need not testify) BUT in this case the defendants in both written discovery answers and likely in depositions will hide behind the 5th (that they will not answer on the grounds that their answers may incriminate them – even though the conspiracy trial is over, there’s still a shot to bring murder charges).

      Crazy what our system protects – but it’s the system we have, warts and all. Sorry to answer more than you asked but it didn’t make sense standing alone.

      • Craig
        09/16/2010 at 9:56 PM

        Before there was a Chilaw, there was a Bea. Great summary, but I dare you to teach me what estoppel is.

        I was supposed to work on a recap of the status hearing, but Hypnos (God of catnaps) came to visit. Yawn. Look for something tomorrow, bright and early-ish.

        • Nelly
          09/16/2010 at 10:03 PM

          Wiki has a pretty good explanation of it. Are you still applying to law school? You’re a real trooper to keep going to these hearings. Thanks again, Craig!

        • Rich
          09/16/2010 at 10:04 PM

          Dear Craig:

          You already covered the Staus hearing at 2pm today. you’re done.

          I mentioned new counsel Ralph Spooner for Dylan Ward.

          Oddly, he is from Oregon.

          Seems, “Daddy Ward,” who has been financing Dylan’s defense is tired of DC bill rates and has hired a local boy (Daddy is in Washington State) to defend his son.

          He still has to pay air and housing for the 6 week plus trial. But, maybe, Spooner is accepting an Econo Lodge in Springfield, Virginia. 🙂

          Spooner and Much. Spooner is about 65 years old. (Daddy’s age). Spangoletti was probably too young, cute and gay for Daddy.

          Or, to cute, young and gay for Dylan. 🙂

          • Clio
            09/17/2010 at 9:59 AM

            With Spag apparently gone, Covington has an even better chance. Not only was/is Spag easy on the eyes, he was the best barrister of the Four Horsemen. Alas, therefore, I agree with you, Rich; I doubt that Spag would be single or looking for a middle-aged masseuse!

          • denton
            09/17/2010 at 10:09 AM

            re: Spooner, I browsed through Martindale-H and got to this link:
            http://www.smapc.com/attorneys/ralph_spooner.html

        • denton
          09/17/2010 at 10:15 AM

          re: Estoppel

          Craig, Hope this helps. I need to learn it too now that chilaw79 is not here to walk us through law school 101.

          http://en.wikipedia.org/wiki/Estoppel

          • Bruce
            09/17/2010 at 11:02 AM

            Boy, I am very sincere in this…..

            Believe me, you don’t want to know about “estoppel” unless you have to.

            I’m crossing my fingers and betting that there is about a 99.9% chance the word will not appear in this case (as estoppel is usually an equitable issue, not a law issue, and this civil trial involves law issues).

            Much like you don’t want to really hear about how sausage is made, let’s all lay low on estoppel unless we have to! 🙂

            • denton
              09/17/2010 at 11:08 AM

              eeeewwwwww, Bruce! Noooooo, I REALLY, REALLY, REALLY, don’t want to know how sausage is made. That explains it! No more “estoppel” for me (no wonder why Craig didn’t want to know).

      • Kate
        09/17/2010 at 10:16 AM

        Many thanks, Bea for your excellent response. With your insights and that of Bruce below, I believe I understand the process far more completely at this stage.

        Cheers,
        Kate

  11. Leo
    09/16/2010 at 7:57 PM

    Wash Post online just posted an article by Keith Alexander saying that the three defendants have already told the plaintiff that they will not provide written replies to discovery or testify at trial–all invoking their 5th Amendment privilege against self-incrimination. Judge Hedge noted that the 5th Amendment issue “was going to be the biggest issue.” The plaintiff plans to file a motion to compel them to testify. Doubt whether we will ever hear word one from these three about what happened–other than the MPD video taped interviews.
    http://voices.washingtonpost.com/crime-scene/update-on-the-news/wone-roommates-wont-testify-in.html?hpid=moreheadlines

    • Clio
      09/17/2010 at 9:52 PM

      Go, Keith, go! Dyl really may have pissed him off, after all.

      • AnnaZed
        09/18/2010 at 3:37 AM

        Yeah, I think the supremely entitled sex worker made a bit of a miscalculation in fucking with The Washington Post point man.

  12. Bruce
    09/16/2010 at 8:18 PM

    Hi dlpeterdc:

    Boy I wish Chilaw was here to answer your post!!!!!

    Interrogatories are written questions (or requests for information, not always with a ?) by one side to the other. They are a part of what is called “Discovery” in the life of a case.

    Discovery can go on for a number of months to a number of years, depending on the type of case or jurisdiction where the case is being tried (the Wone case is being tried in the District of Columbia “state” court).

    For example, in a simple auto accident case, the parties could probably finish up “discovery” in less than six months. In a complicated multi-party case like the Wone case, it is likely to be much longer.

    Discovery includes interrogatories (written questions for the other side to answer), requests for production of documents (getting documents from the other side), requests for admissions (asking the other side to admit or deny certain statements relating to the issues in the case), and most importantly–depositions (where you ask the other side oral questions under oath, and a court reporter takes down the questions and the answers).

    Usually the first thing done in Discovery are interrogatories, to get basic information before going on to the other discovery devices described above.

    In interrogatories, you generally try to get basic information:

    (1) Who are the people (names and addresses) who claim knowledge of the facts of the case?

    (2) Who are the people (names and addresses) who have indicated opinions about the case, including any professional experts?

    [1 & 2 above are crucial, so you know what people to talk to or to take their depositions]

    (3) Set forth the facts below that support your claim that……

    (4) Set forth what evidence you have (including witnesses) to support your claim or denial that……

    (5) List below what documents or items support your claim or denial that…….

    These are kind of the general questions that you get. When I do interrogatories, I like to get more specific:

    “In paragraph 5 of your complaint, you claim that my Dr. client breached the standard of care for doctors in this area, in treating your client, by cutting off his perfectly healthy right leg rather than his diseased left leg in the operation. Please list below the names and addresses of all witnesses who will testify in this case as to the “standard of care” at issue, and list all documents which you believe support your allegation in this regard.”

    [There was actually a case like this once….the surgeon cut off the plaintiff’s healthy leg by mistake. The diseased leg still had to be cut off = no legs. Big verdict, and is one of the reasons hospitals are so careful now in marking and indicating the correct area of the body before operations!]

    Interrogatories are not limited at all to what I describe above.

    A huge limitation to interrogatories, however, is that answers are signed by the actual party (like Joe Price and Cathy Wone), but the answers are actually drafted by the attorney for that party, and can contain a lot of objections, lawyer babble and not really answer the questions.

    If the other side feels that the opponent has not answered any question or that an objection is not well taken, they will file a Motion to Compel against the other side, and have a judge decide if full answers must be given. This is very common.

    Most jurisdictions have limitations on the number of interrogatory questions that can be served on the other party. In my jurisdiction, that number is 25. Can’t speak for DC, but my guess is that it will be similar.

    I use interrogatories primarily to gain information so that I have a clearer picture to prepare for other discovery, especially depositions. The most important thing for me, as an attorney, is to find out who all the witnesses are for the other side, and take their depositions, so I know exactly what they will say at trial.

    Hope this helps!

    • Bruce
      09/16/2010 at 8:20 PM

      I didn’t see Bea’s response before posting mine. I like her’s better!

    • Kate
      09/17/2010 at 10:14 AM

      Great explanation, Bruce. The non-lawyer folk appreciate your insights and experience.

      It appears there are going to be quite a few Motions to Compel filed by the plaintiff, if the defendants continue to plead the 5th.

      A question: If the defendants hold to pleading the 5th, is there a point in the process where they can be charged with Obstruction or Contempt of Court?

      I realize this may be a silly question, but I genuinely don’t know about the workings in such a complex case.

      • Bruce
        09/17/2010 at 10:52 AM

        Hi Kate:

        It is not a silly question at all.

        This is a very unusual issue, and the judge may be “making law” when she has to decide the issue, possibly on the current pending Motion to Compel Production of Documents by Plaintiff against defendants.

        Good for Mrs. Wone’s attorneys! Get this out right now and force a decision on the 5th Amendment discovery issues.

        This is also good press for Mrs. Wone’s case.

        While lawyer-types would likely understand why the 5th is being used here, and not necessarily conclude that it is because the defendants are guilty of possible criminal murder charges, real normal un-corrupted people will likely think: “Plead 5th — you are hiding something and are guilty of criminal behavior in the death of Robert Wone!” Thus, plaintiff’s counsel’s statement in the halls after the hearing this week (if that is correctly reported).

        As to possible sanctions if the judge determines that the defendants can’t rely on the 5th Amendment, and they persist?

        They are essentially failing to follow an order of the court.

        It is quuite possible that the Swann 3 will try to take an immediate appeal of her decision to an Appellate Court if it goes against them.

        Can’t say whether they can do this (most likely you could in Illinois, don’t know about DC). If they can appeal it, guess what

        ——further delay of the trial most likely (appeals can take up to a year or more, and discovery would be “stayed” until the appellate decision, meaning no discovery until AFTER the appeal).

        I don’t think a charge of “obstruction” is viable in this matter. That is a criminal charge, usually, not applied by civil courts.

        While it is possible that a “contempt of court” order could issue, I think that is doubtful.

        More likely, if the defendants refuse to follow the order of the court, and the matter is not allowed to be immediately appealed to the appellate court, it may be possible for the court to enter a “default judgment” against the Swann 3, meaning essentially that the court finds as a sanction for not following her orders that the jury is only to determine the damages to Mrs. Wone, and that all allegations are admitted.

        My best guess, since this is such an all important issue, is that an immediate appeal to an appellate court on the issue may be allowed TO EITHER SIDE if the judge does not rule in their favor.

        Now that I am thinking more on this, I think we are most likely saying bye bye to a trial in 2011; Hello 2012.

        But I would ask for help on this issue from those more “in the know” on DC appellate law, or more in the know as to general DC judge practice when a party fails to follow a judge’ order.

        Dear Chilaw, I know you are busy, but……

        • Kate
          09/17/2010 at 11:30 AM

          Many thanks for the clear and concise explanation, Bruce – I was indeed wondering about further delays in court dates due to the defendants stance with the 5th.

          I suppose Motions to Compel the defendants to be deposed will be forthcoming?

          • Bruce
            09/17/2010 at 11:49 AM

            Hi Kate:

            My guess is that the judge will need to confront the 5th Amendment issues before we get to Motions to Compel Depositions, as it appears to be raised in the Motion to Compel Production of Documents just filed. But, of course, we will need to see exactly what that motion says.

            My second guess is that her ruling on the pending Motion to Compel Production of Documents regarding 5th Amendment issues will apply to the subject of depositions as well as the production of documents, either explicitly or implicitly.

          • Rich
            09/17/2010 at 12:58 PM

            Count on it.

  13. susan
    09/16/2010 at 9:00 PM

    Men at Work?

    Who Can it Be Now? (Lyrics from the song by Men at Work)

    Who can it be knocking at my door?
    Go ‘way, don’t come ’round here no more.
    Can’t you see that it’s late at night?
    I’m very tired, and I’m not feeling right.
    All I wish is to be alone;
    Stay away, don’t you invade my home.
    Best off if you hang outside,
    Don’t come in – I’ll only run and hide.

    Who can it be now?
    Who can it be now?
    Who can it be now?
    Who can it be now?

    Who can it be knocking at my door?
    Make no sound, tip-toe across the floor.
    If he hears, he’ll knock all day,
    I’ll be trapped, and here I’ll have to stay.
    I’ve done no harm, I keep to myself;
    There’s nothing wrong with my state of mental health.
    I like it here with my childhood friend;
    Here they come, those feelings again!

    Who can it be now?
    Who can it be now?
    Who can it be now?
    Who can it be now?

    Is it the man come to take me away?
    Why do they follow me?
    It’s not the future that I can see,
    It’s just my fantasy

    Who can it be now?
    Who can it be now?
    Who can it be now?
    Who can it be now?

    Oh…Who can it be now?
    Oh…Who can it…Who can it…
    Oh…Who can it be now?
    Oh…yeah yeah yeah

    • Bruce
      09/16/2010 at 9:06 PM

      Thanks, Susan. Now I can’t get it out of my head.

      • Bruce
        09/16/2010 at 9:29 PM

        🙂

        • susan
          09/16/2010 at 9:54 PM

          “Can’t Get It Out of My Head” is a whole other song. A good one too.

          And now, Some serious questions for any atty/attys who want to answer:

          1. Is it pretty standard for defense to plead the fifth in these types of cases?

          2. Is it pretty standard in cases where there are more than one defendants for all the defendants to stick together on this position (pleading the fifth or not?) It looks conspiratorial to have all three plead the fifth.

          I agree with Regan here. Their lives have pretty much been dissected here and elsewhere. What are they afraid of–? As I typed that I realized the answer is right there in pleading the fifth: They choose to plead the fifth to avoid Self Incrimination.

          • Cat from Cleveland
            09/16/2010 at 10:13 PM

            First, let me say that this is a pretty unique case – thereby resulting in my complete facination. . . In 20 years of personal injury work, I’ve never seen anything like it. The closest you will find is ponzi scheme litigation, where the civil claim is filed before the criminal case plays out, and the defendant pleads the 5th. I was involved in one such case, and the judge fairly directly told the defendant’s counsel that she would grant default judgment if the defendant refused to testify in the civil case.

            Second – defendants usually do stick together, apparently adopting Ben Franklin’s position, “we must all hang together or we shall certainly all hang separately.” Seems to apply here.

            Finally, as for the application of the 5th A privilege in civil cases, this article is helpful-

            http://www.nldhlaw.com/CM/Articles/RTH%20JKF%20Article.pdf

            • Bruce
              09/16/2010 at 10:22 PM

              Hi Cat:

              Agree with you 100%. Very unusual. The OJ civil trial would not have had this problem because he was found not-guilty in the criminal trial, and I don’t believe that there were any other pending or possible charges relating to the deaths in that case.

              I think the judge in the civil case here is going to have to make some very difficult and interesting decisions as to the 5th Amendment issues.

            • Bruce
              09/18/2010 at 10:57 AM

              Cat:

              Your linked 5th Amendment article is an excellent preview of the issues that are bound to arise in this case.

              I would suggest that both legal beagles and the non-corrupted both read it.

              I am particularly intrigued with the possible consequences of the defendants’ 5th Amendment usage, including possibly allowing “adverse inferences” by the jury in a civil case.

              I think the items referenced in the article may be of general interest to the group with an expanded post.

              Would you like to expand upon those? If not, I would be glad to take a crack at it.

          • Bruce
            09/16/2010 at 10:26 PM

            Hi Susan:

            Great questions, but I am not a good one to answer as I don’t really know criminal law well.

            In the future (because I have been on here WAY to long today), I would like to discuss why and how the attorneys for the Swann 3 probably came to the conclusion of sticking with the 5th (if, in fact, that is what they are going to do).

            I think it would have involved a very interesting cost/benefit analysis, pitting the possible effect of a big civil judgment against the reality of possible further criminal charges.

            • susan
              09/17/2010 at 8:07 AM

              Thanks, Cat and Bruce.

              One more question: It seems pleading the fifth has come out in the discovery phase. Once the trial is actually underway with a live jury, will the defendants’ pleas be entered into the record before the jurors so they are aware of the pleas? If so, I would think this wouldn’t work well for the defendants as it would probably prejudice some jurors against them.

              • Bruce
                09/17/2010 at 2:18 PM

                Susan:

                That is also a great question. Have to give a best guess only:

                If the defendants are allowed to use the 5th Amendment (which I believe will likely be an appealed and decided issue before they are called to testify at trial)….

                I believe the judge would allow the plaintiff’s counsel to call each of the defendants separately and have each sit in the witness chair, and when asked the first question (beyond state your name and spell your last name for the record, please)….

                She will allow the jury to see and hear them each state that they won’t answer based upon the 5th Amendment.

                One of the reasons I think this is that it will preserve a proper and unimpeachable record (from their very lips) of their decision to utilize the 5th Amendment.

                So, my best guess is that the trial will go along as usual, the plaintiff’s attorney will call the defendants to the witness stand during the Plaintiff’s Case in Chief, and the 5th Amendment will be placed in the record by each defendant, before the jury.

                I don’t believe that there is any pattern or standard jury instruction telling the jury anything about pleading the 5th Amendment in a civil trial, and there will likely be a very interesting fight in jury instruction conferences with the judge over the instruction issue as to the 5th Amendment issues.

                Also, the judge may invoke some serious restrictions on what the attorneys can say in opening statement and closing arguments, and while before the jury, regarding the 5th Amendment issues, probably upon a motion in limine filed just before trial.

                Need help here as to my guesses from any lawyer or legal-types better in the know than me about these matters!

  14. boofoc
    09/17/2010 at 1:12 PM

    Before Judge Hedge makes those “difficult and interesting decisions as to the 5th Amendment issues,” as Bruce rightly suggests, I do hope she decides to stay on the case – beyond “retirement” – until its conclusion; these early decisions on procedural matters of immense importance will affect the course of the entire trial and its ultimate conclusion, and would bind any judge who took over the case in mid-stream.

    • Bruce
      09/17/2010 at 2:37 PM

      Boofoc:

      Agree with you 100%.

      Could someone give us a very short explanation of the appellate system in DC for its “state” courts?

      I expect that DC would have its own Court of Appeals. What is above that? A “Supreme Court of DC”????????? Sounds a little odd to me.

      Also, lets assume for a minute that the parties are allowed to take an appeal by either side of the judge’s decision on the 5th Amendment issue. Once the appellate court decides, can they go up the Appellate ladder any further? And would acceptance of such an appeal by such court(s) above the Appellate Court be discretionary or by right, under these circumstances?

      Hate to make things more complicated than they are. I would assume that the DC courts would handle all appeals.

      But…..

      Since we are dealing with a federal right with the 5th Amendment, is it possible for a federal court to get involved in any way, such as by being given a certified question by the DC appellate court, to answer??????

      My best guess on that is that the DC appeals court would handle the whole thing, although it might be possible for the highest DC appellate court to certify a question to a federal court, if necessary.

      Once we get those things down, I think we can make more intelligent “guesses.”

      May I again, as I have in the past, congratulate all of you who made the wise decision to forego law school. 🙂

      • Rich
        09/17/2010 at 2:52 PM

        Dear Bruce:

        Based on all the legal discussion that has taken place on this site to date, I couldn’t agree with you more.

        We do over think a bit, here.

        • Bruce
          09/17/2010 at 3:18 PM

          Yes, Rich:

          And over thinking more….

          I guess there is a possibility that the parties won’t be able to immediately appeal a decision by the trial court on the 5th Amendment issue. It is possible then that the case would have to go through verdict before the 5th Amendment ruling could go before an appellate court.

          In Illinois, you can only get an immediate appeal of something like this if:

          (1) The trial judge “certifies” the issues and agrees it should go up for immediate review; or

          (2) The trial judge refuses to “certify the issues” for immediate appeal, and the party wanting the appeal goes directly to the appellate court and requests review despite the judge’s decision not to “certify.”

          In either case (1) or (2), the appellate court is not required to accept the appeal, even if the trial judge “certifies” the issues. It is discretionary as to whether the appellate court will accept the issues for review.

          And, if the appellate court, in its discretion, does not accept an appeal under (1) or (2), then the case must go to verdict before an appellate court will hear any appeal on the issue.

          While I am sure this is boring and complicated to non-legal types (hell, it is complicated to me), this is the type of situation that appellate lawyers just dream for.

          A little excitement in the offing? If the defendants are not allowed to immediately appeal a decision not in their favor on the 5th Amendment issues, I wonder if they might take a very gutsy move and go knocking on a federal court’s door, claiming their federal rights are being harmed by the state court actions.

          If that would even be an option, the best they could get would be a stay order by the federal court, to stop the state court action from proceeding, until the federal court can decide the federal questions involving the 5th Amendment.

          Over-thinking more, I don’t think the federal court would be too interested in this matter because it is a state court case, and doesn’t involve a criminal defendant in a criminal case.

          But who knows. Do wish I had not slept through my Appellate Procedure course in law school.

          Over-thinking stopped.

          • Rich
            09/17/2010 at 3:53 PM

            Dear Bruce:

            Too Funny.

            Having absolutely nothing to do with this last post and everything to do with every legal posting to date on this site, including our beloved Chi Law, it’s more than over thinking.

            It’s way too much over talking. 🙂

            But, it comes with the territory, I guess.

            Keep Lawyering.

            • Bruce
              09/17/2010 at 4:30 PM

              It’s like we are being paid by the word, I know. Listen! I’m being quiet now! 🙂

              • Rich
                09/17/2010 at 4:37 PM

                You and every other attorney on this site KNOWS-

                that cannot be done.

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