New Order

As It Is When It Was

On August 17, about six weeks after the verdict in the criminal trial, Judge Brook Hedge signed a scheduling order and chose June 13, 2011 as a trial date for the wrongful death civil case.

That didn’t last very long. On September 10, the trial date was pushed back and set for September 12, 2011.

Then at the September 16 status hearing, another change: the trial date was pushed back again and set for October 17, 2011.  With the new trial date comes a new scheduling order.

According to an earlier proposal by the plaintiffs, now moot, “Counsel for all parties have been unable to agree, despite their best efforts, on all dates to be contained in a revised schedule…”

Judge Hedge went ahead and laid down her own set of dates anyway.  Valentine’s Day, February 14, is the deadline for discovery requests and for the exchange of fact witnesses.  June 14 at 9:00am has both sides sitting down for ADR mediation.  It was nice of Judge Hedge to plug that in, but can anyone honestly imagine a mediator making any headway?  The order with additional deadlines follows.

October 17 remains the trial date.  It may seem far away, but just like the criminal trial, we used to think that day would never come, either.

47 comments for “New Order

  1. Kate
    10/06/2010 at 10:00 AM

    Good Morning All – in reading the Revised Scheduling Order, I have a legal question:

    Why are all three defendants not listed, rather than “Joseph R. Price, et al., Defendants”?

    Is this standard procedure or is the Price defense team the lead on the proceedings?

    I realize this may be a silly question to all the wonderful legal minds here, but as a law novice, I’d appreciate your insights.

    Regards,
    Kate

    • Hoya Loya
      10/06/2010 at 10:13 AM

      Standard procedure. It prevents the case caption from taking up the whole page and the defendants, by now, know who we are. Joe is listed first because he was listed first on the complaint.

      I think the new discovery deadlines are much more reasonable and wouldn’t be surprised to see further changes down the road as discovery moves forward. I’d love to be a fly on the wall during the ADR sessions.

      Also, love New Order, esp. Bizarre Love Triangle, which would seem to be an appropriate theme song for 1509 Swann Street.

      • Doug
        10/06/2010 at 11:38 AM

        @Hoya: while you’re probably right, the idea of further delays leaves me a little “Shellshocked”
        -Doug, co-ed

        • denton
          10/07/2010 at 9:04 PM

          Doug,

          I hope Judge Hedge will still preside the case up until October 17, 2011, 9:00 a.m.? Any (more) news about that, editors? (I have not been catching up, perhaps, I miss some part of it.)

      • Kate
        10/06/2010 at 12:34 PM

        Thanks, Hoya!

        Now off to listen to New Order.

      • Craig
        10/06/2010 at 12:35 PM

        I can just imagine that ADR meeting: Razi and Regan arrive at 515 5th Street for the 9:00am session and say to the cab driver, “Double park right here and keep the engine running. We’ll only be a minute or two.”

  2. Laura
    10/06/2010 at 11:56 AM

    Thank you for the New Order name drop…I will now go play their music as background whilst catching up on my reading here… 🙂

  3. Craig
    10/06/2010 at 2:23 PM

    Hoya – By ‘further changes,” do you mean a continuance or tweaks to the other deadlines?

    According to my dimestore legal education, the dispositive motions can be ones that dismiss the entire case, certain counts, motions for summary judgment and the like. Do I have that right?

    • Bea
      10/06/2010 at 2:39 PM

      Hey Craig, I assume Hoya means further extensions for discovery, etc. And your dimestore legal education is spot on – ‘dispositive’ motions are those which, if granted, ‘dispose’ of the entire case (as with your example, Motion for Summary Judgment). There aren’t many dispositive motions.

      • CDinDC (Boycott BP)
        10/06/2010 at 2:50 PM

        Not that they would, but does the trifeca have the option to settle pre-trial at any time (i.e, forego discovery, etc.)?

        • AnnaZed
          10/06/2010 at 5:39 PM

          Wouldn’t that (in part) be why the damages that Mrs. Wone is seeking are so high? What she is asking for seems far in excess of a 100% insurance payout?

          In effect isn’t she saying “it’s not about the money guys” by demanding a sum that would have to attach future earnings under almost any circumstances of collection as opposed to a sum that the insurance company, the parties themselves and their families might conceivably be willing or able to simply offer up and forgo the proceeding entirely?

          I think one of her motivations is to secure a legitimate structure for keeping tabs on these men indefinitely. With that motivation she has no reason to consider settling, right?

        • Bea
          10/06/2010 at 7:25 PM

          The defendants can always ‘default’ and take the full judgment against them – meaning the whole $20M AND the insurance would likely NOT pay the policy amount since they have no way of knowing from default whether or not the defendants’ acts fall within the policy. BUT that guarantees that Kathy Wone will forever be on them no matter what or where, much like how the Goldman family chased OJ (and obviously that took its toll on him).

          Whether they would do that seems doubtful – but it does keep them from having to answer discovery/be deposed/have friends be deposed. And with such a sizeable judgment, Kathy may be able to take Joe’s condo and whatever money and cars they have accumulated. It’s unclear to me just what game the defendants are playing here, and how far they’ll take it.

          • Craig
            10/06/2010 at 10:46 PM

            If the defendants default or if the jury finds them liable, are they stiill on the hook for continuing legal bills in the out years, in addition to the actual award? In other words, do they have to pay for the judgment to be administered?

  4. Cat from Cleveland
    10/07/2010 at 1:53 PM

    Question for a lawyer or insurance professional:

    All matters of strategy (for Joe and Victor) are being controlled by the insurance company. The insurance company is providing a defense, and paying all costs of defense. In exchange, Joe and Victor have a contractual duty to cooperate with the insurance company, and the lawyers it retains, in the defense of the action.

    The question I have is this: Do Joe and Victor breach the duty to cooperate by refusing to testify? Does anyone know the answer offhand?

    A breach of the duty to cooperate can void the policy altogether, meaning that Joe and Victor will have to pay their own lawyers and their own costs of defense.

    • Cat from Cleveland
      10/07/2010 at 2:04 PM

      I’ll answer my own question – ten minutes on Lexis says that unless the insurance company waives it, the company has a right to void the policy because of Joe and Victor’s refusal to give testimony.

      So, if Joe and Victor’s attorneys withdraw soon, we might know why. . .

      • Rapt in MD
        10/07/2010 at 2:20 PM

        Cat – thanks so much for this research and explanation. Very interesting.

      • 10/07/2010 at 2:33 PM

        Am I being overly optimistic in thinking that the vise is tightening? It feels to me as if their options are being closed down, one by one. (Or maybe, only as we think of new strategems and weigh the consequences of each.) To say nothing of their being disabused that they could wait out the pro bono lawyers, hoping the pro bono lawyers would mount a lite, good faith only effort for the estate of Robert Wone.

      • KiKi
        10/07/2010 at 3:01 PM

        Hi Cat,

        That is fascinating to me. I would have put money down on the opposite being true. I would think that a private actor could not take away a property interest because of the defendant’s invocation of a constitutional right. Can you send be the citation, as con law geek I am interested what/if any constitutional arguments were made in the case.

        By the way, thank you for such a great post (and answering it to). It was so nice to see a thought provoking post, after the several days of bickering. THANKS.

        • carolina
          10/07/2010 at 4:31 PM

          I know that there is a vast gulf between taking the 5th in criminal vs. civil trials and that pleading the 5th can be used by the jury to draw inferences, but like Kiki, it makes me uncomfortable that the insurer can refuse to represent because their client invokes their Constitutional right.

          That being said, doesn’t their responsibility to represent JP and VZ evaporate if they are at fault? And since pleading the Fifth Amendment can be assumed to indicate guilt, is this their “out”?

          • Bea
            10/07/2010 at 5:13 PM

            Really interesting stuff!

            Devil’s advocate though – put this in context of a terrible car wreck and the driver/insured saying that he won’t say what happened for fear of criminal charges (takes the 5th). He still has to cooperate with the insurance company and provide testimony, otherwise the insurance company (and I am loathe to stand up for them) would just sit around issuing checks all day.

            • carolina
              10/07/2010 at 7:02 PM

              Also, as I said below, maybe the whole thing boils down to this: The (ex) Trouple has every right to invoke the Fifth Amendment, but the insurance company has the right to refuse to furnish a defense if they do. Sort of in the same vein as an employee who relies on the First Amendment when they trash their employer, only to find out their freedom of speech doesn’t include to right to employment.

        • 10/07/2010 at 10:31 PM

          Just to be clear in my head. Is “cooperation” only defined as testifying in a court of law or might it be sufficient as a show of good faith, for the defendants to “cooperate” in every way with the insurance company employed attorneys (but still invoke the Fifth in front of the court)?

      • Kate
        10/07/2010 at 5:00 PM

        Many thanks Cat, like othesr above, I find it disturbing that the insurance company can cancel if the defendants use their Constitutional right. That’s an uncomfortable thought.

        But then again, an insurance company can cancel a long-term health care policy holder when they get sick! (Pardon the rant.)

        Regards,
        Kate

      • Bill Orange
        10/08/2010 at 8:26 PM

        IANAL, but that doesn’t make sense to me. I would guess that Price and Zaborsky are contractually obligated to co-operate fully WITH THE INSURANCE COMPANY, but not with any (other) opponents in litigation. The insurance company has a right to know what happened that night, because I don’t think they have to pay for intentional acts.

        Refusing to co-operate with them can and should void the insurance contract. Furthermore, I would guess that filing a claim with the insurance company for an intentional act is very likely insurance fraud. But I can’t imagine that the insurance company can require you to co-operate with other litigants, particularly in a civil arena.

    • Craig
      10/07/2010 at 5:08 PM

      Cat: Is this dependent on whether the civil trial is three silos like the criminal?

      We were told Schertler called the shots in the criminal case. So, based on that and despite the fact that his partner Robert Spagnoletti is taking a back seat in the civil, why wouldn’t that firm still be guiding the overall strategy? Spagnoletti may yield much of the Ward defense to Ralph Spooner, but can we honestly believe he’ll turn over the reins to him?

      You dance with the one that brung you, right? Or am I completley misreading what you’re saying here?

  5. boofoc
    10/07/2010 at 5:22 PM

    Can’t wait to read the authority for the proposition that the insurer can elect to deny coverage if the insured refuses to testify in a civil case being defended under the terms of the policy, when that refusal is based on his constitutional right under the Fifth Amendment. Surely the presumption of guilt of an intentional tort can’t be the basis.

    • carolina
      10/07/2010 at 5:55 PM

      Maybe the real issue is that they have every right to plead the Fifth, but if they so choose, the insurer has the right to refuse to pay for their defense?

      • Bea
        10/07/2010 at 9:27 PM

        Thinking it through – if the defendants were merely negligent, they should say so and there would be coverage. If they need to take the 5th, implying criminal acts, then perhaps the insurance co. is clearly on to something since intentional acts aren’t covered. An ass-backward review, I understand, and not one which addresses Con Law rights as being above all. But practical plays a part here.

        • KiKi
          10/08/2010 at 8:23 AM

          I can see that argument Bea, but even admitting negligence opens you up to possible criminal penalties. I am not sure the intent needed for manslaughter in DC, but in other jurisdictions negligence is the mens rea for involuntary manslaughter. (as I believe it is in the model penal code).

          So in essence the defendants are put in a situation where they can choose to invoke their constitutional rights and give up a pretty substantial property interest or “cooperate” and risk giving up a liberty interest.

          This is fascinating.

  6. boofoc
    10/07/2010 at 5:30 PM

    Interesting point, Bea; obviously there’s insurance law on this. If I weren’t so lazy, I wouldn’t wait for Cat to answer.

    • Bea
      10/07/2010 at 9:24 PM

      LOL. Yeah, come on, Cat.

  7. Clio
    10/07/2010 at 10:30 PM

    Does Brook’s moving back of the trial date take into consideration her court room’s cleaning staff members possibly being present at Oktoberfest and Arbor Day celebrations in October 2011? Besides, everyone has to pick out their Halloween and/or Day of the Dead costumes before the end of that month. In other words, will more scheduling conflicts from the most lesser of players guarantee a 2012 trial? Another triple-sigh!

  8. denton
    10/08/2010 at 9:09 AM

    Dear Editors or whoever controls this site,

    When some of my posts were removed, which I notice quite often now, my messages were distorted/altered/twisted/hidden/broken and I was/am misunderstood. Is there anyway that my message doesn’t have to be manipulated this way so I can “stay clear” of any types of “misunderstanding.” Do you “exclude” an “Asian” blogger to join this site?

  9. boofoc
    10/08/2010 at 1:58 PM

    But……I am so lazy; waiting for Cat’s enlightening response. On the answer to this question: whether the insurer may decline coverage on the basis of the refusal of these three defendants to testify, could perhaps depend the entire outcome of the civil case.

    They can’t afford to risk testifying, but they are unlikely to be able to afford a robust (if any) defense without the insurer’s provision of competent counsel. If the insurance company (ies) pulls out, and the defendants are unable to proceed onn their own, the Wone Estate may prevail. However, a default judgement is not really what Ms. Wone most desires; it will not provide the answers she needs and deserves.

  10. Cat in Cleveland
    10/09/2010 at 10:07 AM

    Just wanted all to know I digested a few cases on the insurance issue. It was too long to post, so I sent it to the eds. They will post during a slow news period (I do not anticipate they will post over the weekend). As I understand it, the issue boils down to this-generally, if defendants give full and truthful answers to their insurance lawyers, who then advise them to plead the Fifth in the case, the insurance company can’t claim failure to cooperate. If they refuse to answer the insurance company’s questions, well, then they have a problem.

    • CDinDC (Boycott BP)
      10/09/2010 at 10:27 AM

      So how they respond to the civil case’s interrogatories and/or questioning at the trial has no bearing on the insurance issue?

      the way I read your post is that they should also have “insurance lawyers” that will counsel Joe and Victor re the insurance claim and any insurance claim will result in the insurance company requesting a full disclosure of the details of the night of the crime.

      So, it sounds like it’s apples and oranges. What they do re the civil case has no bearing on the insurance claim?

  11. Cat in Cleveland
    10/09/2010 at 1:20 PM

    Sorry, I wasn’t clear. The lawyers representing Joe and Victor in this case, as I understand it, are being paid by the insurance company. Joe and Victor must cooperate fully with those attorneys or they may be in breach of the duty to cooperate. I was pointing out two scenarios. In one, Joe and Victor tell their lawyer (and the insurance company paying the lawyer) everything, and that lawyer advises them to take the fifth. They have fulfilled the duty to cooperate with the insurance co. In the other, they refuse to answer the questions of the insurance company(and the lawyers they hired), and instruct them that they will take the Fifth. This would be a breach of the duty to cooperate.

    • susan
      10/09/2010 at 4:40 PM

      Cat,

      Past this phase, where the defendants have pleaded the fifth in the interrogatories (if I’ve got that right), at a civil trial, do the defendants have the right to refuse to take the stand? Does that exist whether a case is civil or criminal?

      Thanks.

      • Cat in Cleveland
        10/09/2010 at 9:53 PM

        Usual disclaimer-I do not know the law of the jurisdiction. Yes, they can refuse. The court cannot compel them to testify. In most jurisdictions, however, in a civil case, the jury can infer that the defendant won’t testify because his testimony would hurt him. A jury could decide that if a defendant were innocent, he would testify. And the jury can decide the case in the plaintiffs favor on that basis.

    • Bea
      10/09/2010 at 10:45 PM

      Thanks, Cat – now if Victor and Joe, in giving full disclosure to the insurance company-paid attorneys, say something which reveals itself to be an intentional act resulting in Robert’s death, what would your take be – would the insurance company then say “it’s not covered because the policy doesn’t cover intentional acts”? Hypothetically, of course, not only because I have no knowledge, but also, if true, I doubt Joe & Co. would be averse to lying (if one does murder, it seems likely lying is passe).

      • Cat from Cleveland
        10/10/2010 at 9:51 AM

        So many issues there! If they told the attorneys that they engaged in an intentional act resulting in Robert’s death, the attorneys could not say or do anything that would perpetrate a fraud on the court. How did they answer the Requests for Admissions? Now I’ll have to go back and look.

        This issue comes up in employment cases, where the employer is covered for negligent acts but not intentional discrimination. Employee sues, claiming he was fired because his manager engaged in intentional discrimination, and the company is liable because company negligently hired/retained the manager who was a known discriminator (thus invoking the insurance coverage on this claim). Often, in these cases, the insurance company does 2 things 1) hires an attorney to represent the insured company and defend it on the merits of the claim; and 2) hires an attorney to represent the insurance company itself, to prove that there was an intentional act that voids coverage. In those cases, the insurance company intervenes in the suit as a third party. I’ve been wondering if that might happen here, and I’m surprised it hasn’t.

        • Cat from Cleveland
          10/10/2010 at 10:25 AM

          Looked at discovery responses (I must have been thinking of the Interrogatories, I don’t think there were reqeusts for admissions.) Defendants answered nothing at all, so they neither admitted nor denied anything, and thus their lawyers would not have a problem regardless of what they know.

          Bea, I’ll assume your hypothetical: an insured defendant in a civil case tells his lawyer (hired by the insurance company to defend him) that he engaged in intentional, criminal misconduct that caused the death in question. That lawyer is ethically prohibited from disclosing that information to the detriment of the insured, because the insured, not the insurance company, is his “client” for the purposes of the ethics rules. So, the lawyer cannot tell the insurance company and cause the coveraged to be voided.

          As I understand it, the question of coverage is determined by the scope of the complaint. If a claim is asserted that, if proven, would be covered under the policy, then it would not matter that the insured engaged in intentional misconduct as well.

          The lawyer in this hypothetical will defend the defendant by arguing that the plaintiff cannot prove her case (as the defense is doing in this case, notably), not that the plaintiff cannot prove negligence because the act was really intentional. That argument, if its to be made, is made by the insurance company in its third party claim, through a lawyer who is representing the insurance company directly.

          In this hypothetical, the insurance company is paying two separate lawyers from two separate firms, to essentially litigate against each other. One is trying to prove that the defendant is not legally responsible, but if he is found to be liable, then the claim is covered by insurance; the other laywer is trying to prove that if the defendant is liable, his conduct giving rise to liability was intentional and therefore not covered by the insurance policy.

          Happens all the time.

          Finally – my note about lying. I would imagine that a guy who gets a rush from torture and control might very well find it to be a complete turn on to tell his lawyer that he committed a murder, knowing that the lawyer has to keep it confidential and continue to defend him. He might just enjoy watching his lawyer twist.

          • susan
            10/10/2010 at 11:04 AM

            Unless, hypothetically, the lawyer of that type of guy is a Daniel Ellsberg-type, who makes the decision that it is ethical to forego his more than a dozen swore statements of secrecy and allegiance to the government in order to bring to the public that the government is lying.

          • Bea
            10/10/2010 at 7:18 PM

            Very well thought through and written, Cat. I agree that it’s odd there hasn’t been a second set of lawyers hired. It’s a head scratcher to me how the insurance company is viewing the 5th – would seem to be tantamount to consideration of denying coverage, at least past the reservation of rights angle.

          • Jeana
            10/10/2010 at 7:31 PM

            Thanks for doing the research – and for your cogent explanation of the insurance company’s role in the Fifth Amendment issue. Question, though: Since my understanding is that a jury would never be told of the existence of an insurance policy, how would the insurance co. be joined as a third party? Wouldn’t the role of the insurance co. have to be determined pre-trial? Or post-trial, assuming damages are awarded, and Kathy attempts to collect on the policy?

  12. boofoc
    10/11/2010 at 5:36 PM

    Thanks, Cat, for the research and for the labored explanation of the law as you understand it. I do hope the Editors will see fit to post the case digests you submitted to them (much work). Somehow, I’m still confused by the insurer’s inablity to assert non-cooperation on the part of the insureds – and thus breach of contractual obligation under the policy – by reason of insureds’ refusal to testify and/or to fully respond to discovery (especially if such non-cooperation can be shown to be the reason for the plaintiff’s success in the dispute). We may have to wait for it all to play out, viz., plaintiff’s motion to compel, defendants’ refusal and the judge’s ruling.

  13. boofoc
    10/11/2010 at 5:41 PM

    I agree with Jeana that the insurer’s obligation under the policy will likely be determined pre-trial.

Comments are closed.