Look Who’s Talking

Defense Fires Back on Interpreting the 5th

The level of tension in Covington’s conference room on November 10, for Dylan Ward’s deposition, must have been off the charts.

Plaintiff’s counsel Ben Razi hammered away at Ward with question after question, while defense counsel Robert Spagnoletti did all the talking for his muted client. 

Razi wanted Ward to directly claim his 5th Amendment privilege but Spag was having none of it.  All the while as this pas de trois was playing out, Robert’s widow Kathy Wone was looking on and listening in.

Judge Brook Hedge was conferenced in to try and break the impasse.  Unable to reach agreement on the phone, she scheduled a status hearing to argue the point and asked each side for paper. 

The plaintiffs responded with a Motion to Compel Deposition Testimony from Ward, and the defense has just filed their Joint Opposition to that motion.

Defense counsel argues that DC Civil Rules [30(d)(1)] allows for Spagnoletti to do the talking while his client stayed silent:

“Regardless of who asserts the 5th Amendment privilege, the key component is that the assertion be apparent under the circumstances in a manner that fairly brings it to the attention of the Court. There can be no doubt that the manner in which Mr. Ward asserted his 5th Amendment rights was unambiguous and apparent on its face, and the manner in which he invoked the privilege was appropriate.”

Defense maintains that precedent is on their side and quotes a criminal case, People v. Apodaca, 16 Cal. App. 4th 1706, 1714, 21 Cal. Rptr. 2d 14 (CA 1993):

“…the Court expressly held that an attorney may assert the 5th Amendment privilege on behalf of his client, noting that the fact that the privilege is a “personal” one does not bear on the issue.  Declining to accept the argument that the 5th Amendment privilege may only be invoked by the privilege holder, the Court held:

If the lawyer is clearly acting under the authorization of the client, and invokes the client’s privilege, there is little point or sense in insisting that the client also personally invoke the privilege.”

Before next Wednesday’s arguments, the plaintiffs have one more opportunity to respond and a reply memorandum will be filed shortly by them.  The subsequent depositions of Ward’s co-defendants Price and Zaborsky will no doubt be shaped by her ruling on this matter.  Those sessions had been scheduled and were supposed to have concluded, but this dust up postponed those visits to the Covington offices.


79 comments for “Look Who’s Talking

  1. Roger Sherman
    12/01/2010 at 1:04 PM

    “…There can be no doubt that the manner in which Mr. Ward asserted his 5th Amendment rights was unambiguous and apparent on its face, and the manner in which he invoked the privilege was appropriate.”

    I’m not a lawyer, but it seems to me that statement is pretty unambiguous: Ward took the 5th.

    Could it be that little Dyl is so fragile that his attorneys are concerned that once he starts speaking he will go off-script with respect to 5th amendment privilege, break down and start saying things he shouldn’t?

    I just don’t understand the strategy or what’s going on here.

    • Cat from Cleveland
      12/01/2010 at 10:09 PM

      Like much of what happens in the practice of law, lawyers are billing tens of thousands of dollars, wrangling over technicalities and using rules in a manner completely nintended by their drafters, in an effort to gain an unfair tactical advantage and avoid an adjudication on the merits. But I’m not frustrated or anything.

      • Clio
        12/02/2010 at 5:45 AM

        Amen. Keep on telling the truth, sisteh!

      • Kate
        12/02/2010 at 11:56 AM

        Thanks for that, Cat.

  2. xxx
    12/01/2010 at 1:38 PM

    I also do not understand what the impact is. What difference does it make whether Mr. Ward’s counsel or Mr. Ward actually articulates invoking the 5th Amendment privilege? In either event, the result is the same: we don’t receive testimony from the witness.

    • dieter
      12/01/2010 at 3:23 PM

      pretend you are a juror. remember that the dep is being filmed. imagine a court room. roll tape…(think drama)…

      • 12/01/2010 at 8:30 PM

        exactly–roll the tape
        do you think Bill would have known how bad it would look to see him on tape defining what is. Come on D and just manUP. How sad to see this mute object was VP’s dream.

    • Hoya Loya
      12/01/2010 at 3:30 PM

      Roger and xxx:

      The potential impact is on the trial itself. In a civil case, when the Fifth is invoked, the jury is permitted to draw an adverse inference, unlike in criminal cases.

      Many of the lawyers here, and apparently Razi at Covington as well, suspect that if the defendants do not personally invoke the privilge, that defense counsel might object to a jury instruction allowing the adverse inference to be drawn — one logically assumes that the silent client is following counsel’s advice to “take the Fifth” but without a verbalization, how can one be sure?

      In the opposition memo, defense counsel assures the court that Dylan was indeed invoking the privilege, yet, in footnote 9, notes that the issue of an adverse inference instruction “is not presently before this court” and that it will not argue that the privilege has not been invoked, but that the defendants reserve the right to “assert any other arguments that may be available to them.”

      The fact that the defense is hotly contesting this issue, and on such narrow grounds, inescapably indicates that it must have some significance to defense strategy — that it somehow matters whether or not Dylan speaks, even if all agree that he has effectively exercised his Fifth Amendment rights through counsel.

      • xxx
        12/01/2010 at 3:46 PM

        Yes, thank you. The answer is in footnote 9. I need to learn to read the footnotes!

      • Craig
        12/01/2010 at 3:55 PM

        Thanks Hoya. Very helpful. What do you think might be some “other arguments that may be available to them,” and would those seek to thwart an adverse inference instruction?

        Who’s strategy do you think this is? Price’s, Spag’s or the Baltimore defense team’s?

      • Bea
        12/01/2010 at 3:56 PM

        The footnote Hoya mentions is exactly what caught my attention as well; it essentially says “we don’t know how this ridiculous refusal to let Ward personally take the 5th may help us (him) down the road, but we want to reserve the right to make whatever arguments we wish on the matter including arguing against the jury instruction re adverse inference is improper since he never uttered the actual words.”

        • Roger Sherman
          12/01/2010 at 7:08 PM

          If uttering the words is a requirement, what happens in the case where someone is not capable of speech? Again, I’m not trying to be provocative, but this argument is nonsense to this non-lawyer, and the judge should put a stop to it. It’s these types of games that cause the average person to have very low regard for lawyers and the judicial process.

          • Bea
            12/01/2010 at 9:40 PM

            Hi Roger,

            A person who cannot speak can still sign or write and thus invoke his/her 5th amendment privilege. The issue here is pretty out there and it does make lawyers look bad – to me, the defense, in that they are playing technicalities in NOT allowing Ward to verbalize his invocation. Either he’s taking the 5th or he’s not – this is silly gamesmanship by the defense, and, frankly, seems a bit desperate. Certainly worthy of an eye roll from the Good Judge right before she compels Ward to either take the 5th (or not) by his own voice (and then takes defense counsel to task for misrepresenting the law).

            • Kate
              12/02/2010 at 12:00 PM

              Thanks, Bea.

              Your insights are very helpful to the non-lawyers, as always.

            • Roger Sherman
              12/03/2010 at 9:19 PM

              HI Bea
              I wasn’t happy with my post above, so to make sure there’s no misunderstanding: my comment about nonsense arguments was not directed at you but to the defense attorney tactics. I have always enjoyed your posts and I really appreciate the insight and explanation offered by you and the other lawyers that post here.

      • Roger Sherman
        12/01/2010 at 7:03 PM

        I understand what you are saying. However, Spagnoletti in the motion writes:
        “…the manner in which Mr. Ward asserted his 5th Amendment rights…”

        Again, it’s pretty clear to me that Ward took the 5th. I’m not trying to be dense.

        Are you saying the motion cannot be used as evidence in the trial to show that Ward did in fact assert his 5th Amendment rights?

        • Hoya Loya
          12/01/2010 at 7:36 PM

          The issue is not whether or not Dylan is exercising his Fifth Amendment rights. The issue is whether or not he must say so himself. Both sides seem to think it makes a difference or they wouldn’t be fighting over the issue. Spag would have told Dylan to go ahead and say so or Razi would have said “fine.” Razi indicates he is concerned about a getting a future jury instruction — not just that Dylan took the Fifth but that jurors may adversely infer from the Fifth plea that Dylan has something to hide.Footnote 9 indicates that is a concern of Spag as well. Petty though this may appear on the surface, there may be high stakes involved here.

      • Bruce
        12/01/2010 at 10:00 PM

        Hi All:

        I have now read over the notorious and popular footnote #9 several times, and I still just can’t really make sense of it.

        Here is a question: What possible harm or prejudice could there have been to Ward at Ward’s deposition for Ward either to: (a) acknowledge on the record by spoken word that he was, in fact, adhering and accepting his lawyer’s “instruction” to not answer; or (b) read from an index card the magic words that unambiguously show he personally is taking advantage of the 5th each time his lawyer objects and instructs him not to answer?

        I don’t see any possible harm or prejudice. Am I missing something?

        I am still convinced that defense counsel were trying to get away with something, and that something was to make the record of the dep. ambiguous as to whether Ward was in fact personally taking the 5th, so arguments could be made later by the defense that no adverse inferences could be made by the jury since it is not clear that he personally invoked the 5th.

        The attorney saying “I instruct…..” or “I will instruct….” could be viewed later by this trial judge or an appellate court as being just a statement of what the attorney is doing, or intends to do. Silence does not necessarily imply acceptance of that instruction. It was quite right, in my view, for Covington to follow up and not just let it go with the attorney’s words.

        I don’t think the rule cited by the defense really applies here. There is no question that an attorney can object, assert privilege and instruct his or her client to not answer a question, so that the client does not ACTUALLY ANSWER the privileged-associated question actually being asked. It is a horse of a different color, in my opinion, to apply that in this circumstance involving the 5th Amendment, without an acknowledgement that the instruction is being taken by the witness.

        So, again, why didn’t defense counsel allow Covington to ask if the witness is following his attorney’s instructions, and get a simple “yes,” and move on to the next question? It appears from the transcript that Covington would have accepted that solution.

        Sorry, something doesn’t smell right, there are clicks off center, and I just don’t believe the defense’s post-dep posture in its brief that Covington is misguided to think the defense was trying to get away with something.

        In my opinion, I am convinced that the defense attorneys WERE trying to get away with something (and I am not saying that it was unethical or anything like that), which was to create an ambiguous or worthless record of the deposition.

        Would that be in their client’s best interest? You bet.

        I am now wondering if I don’t agree with the posters that think this whole affair on who can raise the 5th is a ruse, a waste of time or done for delaying purposes.

        • Craig
          12/02/2010 at 10:27 AM

          Depending on Hedge’s ruling on this, could there be an adverse inference trifecta? Can Razi or Regan remind the jury that the defendants refused to answer questions in the interrogatories, depos and at trial?

        • Kate
          12/02/2010 at 10:14 PM

          Why would they wish to delay? The longer this goes on, the more it will cost. Surely, the Defendants are not able to summon the cash loads of ancient kings?

          I thank you for your clear and concise explanation of the matter. Would you be willing to engage in some speculation as to why the Defendants would wish to delay proceedings, lay down a ruse or simply waste the Court’s time?

          In my humble line of work time is precious, time is costly, and time is History.

          I would value you and other legal experts thoughts/speculations on this matter.

          Cheers and regards,

          • Bea
            12/03/2010 at 3:10 AM

            Kate, it’s not a pretty truth, but the truth is that delaying is almost a standard practice. Often motions are filed for a genuine purpose, albeit some purpose which might seem ‘small’ but MIGHT turn out to be meaningful. On this one, I suspect that the defendants don’t expect to win, or even think that they have more than a 2% chance of winning, but a delay sounds good to them.

            It doesn’t make any real sense except that the defendants want to put this off as long as possible even if it costs money – here, the insurance company is footing the bill (well, except Dylan’s, and my sense is that Dylan doesn’t care how much of Daddy’s money he spends). From their perspective, the longer they don’t have their wages garnished the better, and the longer the trial DOESN’T shake loose any new information that might support criminal charges the better.

            I agree that most people would want to get this behind them – I’m sure Kathy Wone wants to move discovery forward so she can get the trial. But a long of defendants, not just these three, would prefer to drag things out and play all the angles, hope that the plaintiff’s anger (or whatever emotions) subsides over time so that a reasonable settlement can be reached (not that I think THIS case will be settled, at least not based on money – full disclosure perhaps).

            • Kate
              12/03/2010 at 12:10 PM

              Excellent points, Bea.

              Thank you!

              By the way, I love California!

  3. Jeana
    12/01/2010 at 9:56 PM

    I found it interesting that defense counsel would rely upon a 17-year old California state case to support their argument, so I googled People v. Apodaca. It was a witness, not the defendant, whose attorney asserted the 5th on her behalf. It was the defendant, who clearly thought the witness’ testimony would help him, who appealed. Thus the adverse inference jury instruction was not at issue in the case.

    • 12/02/2010 at 4:25 PM

      good work.

      • Bruce
        12/02/2010 at 6:39 PM

        Hi Jeana:

        Where I practice, if you are relying heavily on California state court opinions, you are likely dooming yourself and your client.

        Don’t understand it my self, but a number of judges around here seem to think that anything that comes out of California has a certain “kookiness” factor.

        Of course, the defense does not just rely on California state court law here, but even so…..

        Anyone else have this experience with citing California state law in their jurisdictions?

        • Bea
          12/02/2010 at 8:30 PM

          Lawyers in California cite California law because, well, it’s the law. We don’t cite DC law for the same reason it’s silly to cite California law in DC. As the lawyers here know, one only cites law from another jurisdiction is when there it purports to have a very similar fact pattern and/or when no law from the home jurisdiction is ‘on point.’ Even then, the other state’s law is not precedent – for nonlawyers, meaning that other state’s laws might be ‘helpful’ or ‘informative’ but the judge can ignore it if he/she chooses.

          As for California ‘kookiness’ being the ‘reason’ it is unwise for the defendants to cite California law – perhaps in Bruce’s home state he can cite case law from states other than California and have them be considered ‘precedent’ in his home state – though this is contrary to my understanding and would be amused to learn more. Perhaps it was just a way to bad-mouth California – I doubt if it had been a North Dakota case that it would have held any more weight (nor seemed any less obvious that the defense was r-e-a-c-h-i-n-g to find support).

          Too, for disclosure’s sake, most of my practice is Federal Court practice, so I don’t often rely on any state court case law.

          • Bruce
            12/02/2010 at 9:50 PM

            My hate for California knows no limits! Thus, I take every opportunity to bash it to hell. Damn you, California.

            Isn’t that just typical of me?

            Of course my intention was not to “bad mouth” California, and I made clear in my post that I did not agree with how the judges here view its state law.

            Whenever you use out of your state cases, you go outside of precedent for your court. Whether it be North Carolina or California, it is a stretch to get the court to accept that case or that case’s reasoning.

            My point was to simply point out a phenonenom that I have seen in my state where I or others have cited California state cases, particularly since the Swann 3 defense cites a California state case in its brief, to which I don’t agree: that you are likely to be more successful in citing out of state law if you cite just about any state rather than California. And I was just curious if anyone else had confronted that.

            • Clio
              12/02/2010 at 10:13 PM

              Bruce, “all the leaves are brown
              and the sky is grey
              I’ve been for a walk
              on a winter’s day

              I’d be safe and warm
              if I was in L.A.
              California Dreamin’
              on such a winter’s day

              stopped into a church
              I passed along the way
              well, I got down on my knees
              and I pretend to pray

              you know the preacher likes the cold
              he knows I’m gonna stay
              California Dreamin’
              on such a winter’s day

              all the leaves are brown
              and the sky is grey
              I’ve been for a walk
              on a winter’s day

              if I didn’t tell her
              I could leave today
              California Dreamin’
              on such a winter’s day x3”

              Wouldn’t it be wonderful if we could all be gentlemen (and ladies at the same time) of leisure shuttling beteen coasts, capitals, and resorts, confident in our dad’s ability to pay for the best legal counsel available? It’s a wonderful life (for the privileged few,) after all.

              • Rich
                12/02/2010 at 11:26 PM

                California Dreamin doesn’t sound very, “Washington, DC WMRW On Topic?”

                Wouldn’t it be wonderful if we could all be gentlemen (and ladies at the same time)and stay focused on the business at hand.

                Buh-Bye, Clio.

                • Clio
                  12/03/2010 at 9:33 AM

                  Hi, Rich. I am heartened to see that you have restrained yourself recently, except for this unfortunate outburst. Keep up the good work, dear!

                  • Rich
                    12/03/2010 at 10:35 AM

                    Just following your consistent lead. Not outburst here.

                    And, Craig, if we’re going to sing songs on the site, we should make appropriate attributions.

                    California Dreamin was written and produced by John Phillips of The Mama & the Papas and then reproduced by dozens of artists including the Beach Boys and REM.

              • Craig
                12/03/2010 at 8:05 AM

                That’s a timeless classic Clio. Not surprisingly, the Beach Boys did a worthy cover of it and so has REM.

                I’m not sure who the proto-vaudvillian is in the pic, but the Internets have bushels of those tintypes, each creepier than the next. Waylon Flowers and Madame just didn’t seem appropriate.

                In a few hours we’ll post the third round of paper filed on the 5th, Cov’s reply; their final word on the issue until next week’s oral arguments.

                • Bruce
                  12/03/2010 at 12:31 PM

                  Thank you, Clio, for the lyrics of California Dreamin. Now, of course, I can’t get it out of my head.

            • Bea
              12/02/2010 at 11:41 PM

              I’d be curious to know if any others have the experience of having California law being ‘less than’ across all areas of law and by all judges.

              Silly me, I suppose, in thinking that citing out-of-jurisdiction is more about it not be PRECEDENT than anything else, not to mention that it’s essentially saying ‘no, I don’t have any law to cite from here that would be precedent.’

              • Rich
                12/02/2010 at 11:47 PM

                I’ve seen California law often cited in Washington, DC, Maryland, Delaware and New York.

                The judges were fine with it the defense lawyers made their points.

                • Bruce
                  12/03/2010 at 3:07 PM

                  Hey Rich:

                  Are you an attorney?


                  I thought you were one of the un-blemished, and don’t remember you referencing your actual profession earlier…although I do remember the awards, etc.

                  • Rich
                    12/03/2010 at 3:49 PM

                    Dear Bruce:

                    The resume is extensive. The editors asked me in July to address the employment prospects for the Swann 3 because I have an Executive Search firm. My legal experience includes working with a High Falutin Criminal Attorney in Beverly Hills for over 20 years. I support him on his cases, which is one reason why I have been so glued to WMRW. I take a great deal of pride in not being an attorney and do not engage in all the legal discussion here, but, trust me, I can carry my own.
                    I have been involved in cases like Snoop Dog, who got community service, on Weapon, Drug, Assault charges. Rihanna, Eddie Murphy, Ryan O’Neal and his son, Redmond, Matthew McConaughey, Nick Nolte, Hugh Grant, Robert Downey, Rosario from Will and Grace (Shelly Morrison), Fran Drescher, Charlie Sheen and many others.

                    While I supported Bea on CA Case Law being used outside of California, I failed to say, most judges will only address and use law that pertains to their jurisdiction and if they went outside, it would be to a, “Sister Court,” in another jurisdiction.

                    • CDinDC (Boycott BP)
                      12/03/2010 at 6:01 PM

                      In what capacity did you “support,” Rich?


              • Jeana
                12/03/2010 at 7:17 PM

                Hey Bea, I certainly didn’t mean to diss CA in my post. My point,as you know, was that Apodaca was merely a state (any state) decision as opposed to one rendered by a federal appellate court which would have significantly more weight – and one that was not precisely on point. That said, I agree with Kiki’s later post (12/3 at 2:16 p.m.) that citing a less than perfectly similar case and/or one from another jurisdiction is standard fare – especially when you’re grasping at straws. 🙂

                • Bruce
                  12/03/2010 at 7:48 PM

                  Hi Jeana:

                  No one in their right mind would think that you or anyone on here has “dissed” (as you say)CA.

                  The “bad mouth” comment by the poster was just a small shot across my bow to question my credibility.

                  It was ridiculous and meaningless, and I should have known better than to even respond to it.

            • KiKi
              12/03/2010 at 8:19 AM

              I have actually seen the same situation in several of the criminal jurisdictions I practice in. Not so much with the CA state cases but certainly the 9th circuit. I will usually cite any other circuit before the 9th even if the point is better made by the 9th. I wouldn’t say the judges I have dealt with see it as kookiness, more liberalness.

              • Bruce
                12/03/2010 at 10:48 AM

                The 9th Circuit includes California.

                And I agree, my use of the word “kookiness” is better expressed with the word “liberalness.” And this is coming from a liberal (me).

              • Bea
                12/04/2010 at 7:39 PM

                Jeana, no way did I take your comments wrong. I agree with KiKi that in Federal Courts, the 9th Circuit is seen as the most left-leaning in some areas, and thus others hesitate to cite it. But, again, you raised the question of citing a non-precedent California state court case. Absent on commenter, I think most of realize that citing a case from out of jurisdiction is that it’s not going to be precedent and often signals that one can’t find good law to cite from the jurisdiction.

                And for those who care, the 9th Circuit includes these states (and some territories):
                Alaska, Arizona, California, Montana, Nevada, Oregon and Washington.

    • AnnaZed
      12/03/2010 at 11:54 AM

      Wow Jeana, as a non-lawyer I am impressed.

      • CDinDC (Boycott BP)
        12/03/2010 at 12:46 PM

        I’ll say. I haven’t read the reply yet, but did C&B address this inaccurate use of case law. It’s almost like the defense went and found the first case in which SOMEONE invoked the 5th for someone ELSE.

        • AnnaZed
          12/03/2010 at 1:48 PM

          Thanks for asking this CD. I was wondering this myself. I was wondering if the defense could have fucked up so royally and that the opposition could have fucked up equally monumentally by not calling them on it. Did neither party actually read the case (like the impressive Jeana did)? I was starting to conclude that it just had to be my own ignorance of legal matters that caused me not to comprehend this given that some of our resident lawyers are more concerned with the correct attribution of intellectual property today.

          For the record the correct way to indicate attribution of lyrics or poetry is to simply put the last name or names of the lyricist or lyricists in parenthesis after the quoted lyrics. Production credits refer only to particular instances of recorded performance (the producer of the Mamas and the Papas recoding being different from that of say the REM version) and do not require attribution regardless of which version one might be hearing in one’s head.

          • KiKi
            12/03/2010 at 2:16 PM

            I am a little confused by the confusion.

            To answer CDs question the plaintiff’s did address Apodaca.

            But I don’t think using Apodaca is an inaccurate use of case law or screw up by the defendants. Most of the time when you are writing motions you will not find a case directly on point, meaning there are few cases that have the same exact facts as yours does so you must analogize the other cases to yours. In a sense this becomes a logic problem.
            i.e. you are arguing A+B=C. So you find a case that supports A and then you find a case that supports B and then you say the only possible conclusion is C.

            That is what is being done here with Apodaca.

            It seems the defendant uses the case to support the proposition that requiring a person to specifically state they will plead the 5th is wasteful and repetitive. The fact that the person pleading the 5th is a non-party witness and not the party, is irrelevant, according to the defense, because the legal principle remains the same.

            The plaintiff responds that the facts in Apodaca are too distinguishable from this case as to apply that same rule. i.e. there are reasons to require the defendant’s to respond that are not wasteful, thus a different situation.

            I agree with the plaintiffs here that the legal rule stated in Apodoca is likely distinguishable based on these facts.

            But I do not think the defense reliance on this case is that far out in left field. I think that the facts are similar enough that reliance on the case is well with typical legal reasoning.

            Also just one quick point on the age of cases: It is always better to have more recent case law, but there are many times where this will not be possible. In our common law legal system we have a doctrine called stare decisis, which means that judges must follow the previous case law. So it often happens that a case is decided and because it is the law of the land there are no further published cases on the issue, thus requiring the attorney to rely on ‘old’ law. But if the case has not been overturned there is nothing wrong with relying on case from 20,50,100 years ago.

            • CDinDC (Boycott BP)
              12/03/2010 at 4:43 PM

              Ahh…thanks for that clear explanation, KiKi.

              So, for example, you sue your neighbor for mowing down your tulips, and the neighbor finds case law that says it’s okay to mow down roses in some jurisdictions. The point being the mowing, not the flower.

          • Rich
            12/03/2010 at 3:35 PM


            Moving on…

  4. Clio
    12/02/2010 at 9:36 AM

    As an historian, I love foot-long footnotes and other such antiquarian delights. Yet the defense footnotes are not peppered with clarifying examples or wry observations. They seem to be Spag’s doodling made public. More to the point, Footnote #9 is written, or perhaps should be written, in the artificial language of the Hall of Mirrors of Versailles rather than in the unvarnished patois of the common people. That deliberate obscurity, I think, is a good omen for the citizen-pundits of this “Island of the Flies.” After Spag is finally finished conducting this Fifth (Amendment) Sonatina in a particularly flat and minor key, the deluge of depositions will follow. Let then the real games begin!

    Editors, who is the ventriloquist pictured above? It seems to be an especially fey coupling of performer and dummy (circa the building of 1509 Swann in 1886.) How appropriate the photo is to headline a post referring to the Jekyll and Hyde pairing of St. Spag and Lil Dyl!

  5. Bill Orange
    12/02/2010 at 6:43 PM

    “If the lawyer is clearly acting under the authorization of the client, and invokes the client’s privilege, there is little point or sense in insisting that the client also personally invoke the privilege.”

    Exactly. Go back and read the deposition transcript. At no point do Ward’s lawyers say that they are invoking Ward’s 5th Amendment rights. They simply say that they are ADVISING HIM to do so. (In fact, I’m not even sure that they’re even going that far. They’re actually advising him to remain silent in order to preserve his right to remain silent, if that makes any sense.) Furthermore, they are not “clearly acting under the authorization of the client”, since Ward himself refuses to state whether or not he is following his lawyer’s advice. This looks like a classic dodge to me. I suspect that the defendants are all going to say that they never invoked their 5th amendment rights at trial, either; they were simply never called to testify. Covington is right to call them to the carpet on this.

    • Bill Orange
      12/02/2010 at 6:43 PM

      P.S. to Craig. Thank you for busting me out of spam jail. 🙂

    • Roger Sherman
      12/03/2010 at 2:06 AM

      The attorneys may be able successfully argue that Ward et al did not explicitly claim their 5th amendment rights in the depositions, but each them most certainly will when on the witness stand in the trial. Again, why these silly games?

    • KiKi
      12/03/2010 at 8:23 AM

      Hoya I think this point supports the theory I proposed in the “sounds of silence” thread yesterday. That maybe this is less of a legal strategy and more of a subtle jury strategy. Get it in the jury’s head that the lawyers are advising them to take the 5th. It is also such a great combatant to the adverse inference instruction. Brilliant trial stratetgy!

      • KiKi
        12/03/2010 at 8:26 AM

        The beginning sentence of the post got cut off: “I agree with Bill O and Hoya.”

        • Bruce
          12/03/2010 at 8:44 PM

          Bill O, Roger S. and Kiki:

          Agree with you all.

          As Kiki says, the defense may just be trying to set a pattern here and now in how the defendants invoke their 5th Amendment rights, to apply both in depositions and at trial, so that someone on the jury might, during deliberations, say: “Well, they are just following their attorney’s instructions or advice…” to lessen the blow of adverse inferences that the plaintiff’s attorneys will emphasize greatly in closing arguments.

          I tend to opine that I think that this defense strategy was a bit more involved, more going to the viability of, or ability for, Covington to use adverse inferences, rather than just lessening the effect of them, but Kiki is more knowledgeable in that area than me.

          I do think that the defense strategy was to create a standard or a pattern for how the 5th is invoked, both at depositions and at trial, with the goal being to try to make all of the invocations of the 5th ambiguous or worthless, possibly knocking out any adverse inferences to be allowed to Covington at trial.

          Either way, I don’t think that there is anything unethical about this and the defense is simply trying to lay the ground work for later arguments that can assist the defense of their clients, and possibly help them win at trial.

          In a way, I agree with Kiki that this can be considered brilliant strategy for the defense.

          However, this strategy depended upon Covington not smelling a rat, and the strategy failed at the beginning of the first dep., due to the carefulness of Covington.

          Now Covington is not going to let that strategy continue by filing its current motion regarding the Ward dep. and having the judge rule in their favor and make Ward and the others expressly take the 5th or say “yes” to the question: “Are you taking your attorney’s advice and/or instruction?”

          Sorry, but I still do not believe the belated post-dep. statements in the defense brief that they are being unfairly misunderstood in what they tried to do at Ward’s dep., poor things (How could you!?), and had no intention at all of trying to make adverse inferences at trial of no or lesser effect by these manuevers.

          Bill O, I agree with your sentiments. However, I would point out that rather than using the word “Advise….,” if I remember correctly, I think that Ward’s counsel more used the word “Instruct” or “Will Instruct” in their objections. To me, whether they used “Advise” or the “Instruct” word or phrase, any of those words or phrases still leaves some ambiguity, but the word “Advise” would certainly help the defendants in later saying that this advise was never verbally accepted or rejected by the defendant.

          Roger S., you are certainly correct and wise to note that what really matters is how the defendants raise the 5th at trial, not at a deposition.

          But as I said earlier in this post, I do believe that the defense was trying to create a standard or pattern usage, usable both in deps. and at trial.

          All of the above are just my opinions.

          • susan
            12/03/2010 at 8:52 PM

            Though I’m a non-lawyer, I’d have to disagree that this is a “brilliant” strategy in that it “depended on Covington not smelling a rat.” As a non-atty on this site, the thing stunk when I first read it and I’m sure other non-attorneys thought it looked odd too. Sure this is the deposition phase, so the lay person might not have known about diff. policies re the trial and this phase, but I’ve never heard an atty take the 5th for his or her client.

            Most jurors (if it happened during a trial which it apparently could not) would think it was odd. Every atty who has posted here has commented on how unusual this strategy is so why wouldn’t the Covington attorneys?

            • Bruce
              12/04/2010 at 2:32 PM

              Hi Susan:

              Your opinion that this was not a “brilliant strategy” makes a lot of sense, considering the outcome (which we anticipate, but do not know as the judge hasn’t ruled yet on the motion).

              Some of us referring to the defense moves here at the Ward dep. (if the defense was thinking like us about the adverse inferences issue), is much like the surgeon saying: “The operation was a complete success, we removed the gall blader without a hitch, but the patient died.”

              How can it be “brilliant” if it didn’t work?

              I think that what I was saying, and I can’t speak for Kiki, was that if the defense did have the strategy we have assumed, it was a pretty darn smart thing to try, even though it ultimately failed upon Covington’s discovery.

              A legal case like this includes many skirmishes and small wars and battles, with the ultimate battle royale being the trial. We are watching one of those smaller battles now.

              You can bring or defend a case brilliantly (raising every argument, every defense, having all witnesses you need and a very well planned strategy), and still lose the case. Many variables are involved, much you may have no control over.

              Here the defense likely devised a plan that could be considered “brilliant,” but Covington smelled it and now is going to stop it. Everything comes with risks.

              • CDinDC (Boycott BP)
                12/04/2010 at 2:40 PM

                Did they have any other options? Was there any other way they could have dealt the “5th” issue?

                • Bruce
                  12/04/2010 at 8:42 PM

                  Hi CD:

                  Looking at the plaintif’s side, they could have accepted the defense attorney’s statement as a valid claim by Ward for 5th Amendment protection.

                  With a less experienced attorney for the plaintiff, that could have happened. The argument that the attorney is agent for the client, in general and not as to this particular issue, and that the attorney speaks for his/her client is a fairly accepted principle.

                  Certainly, an option for the defense would have been for Ward to simply have said “yes” when asked if he was taking his attorney’s instruction.

              • susan
                12/04/2010 at 4:49 PM

                Thanks, Bruce.

            • KiKi
              12/06/2010 at 11:05 AM

              Actually, susan, I think that in this case the non-lawyer’s might have “thought it looked odd” more so than the lawyers. I say this because it is really not uncommon for the lawyers to speak for the client. At least in the criminal context. As I said in my post on Sounds of Silence, the only time my client has to respond is when the judge asks if he is giving up his right to testify. Other than that I usually will be the one who advises the prosecution, law enforcement and court that my client is represented and he is not going to answer any questions.

              It is not the attorney invoking the right for the client, as Bruce explained, it it is the attorney as the agent of client representing the client’s position. There are many reasons that the attorney would be the one who speaks the invocation, for me it is mostly because I want my clients to speak as little as possible.

              So, if our imputed reasoning is the actual reasons that the attorneys voiced the 5th Amendment answers, I do think this was a good strategy because a lot of lawyers would have just assumed this was normal procedures. However, once Covington started to push that Ward actually answer and the defense attorney still would not budge, I think it was clear to all that this was something more than normal procedure. So as readers we saw the final summary, after the defense attorneys dug their heals in and the depo was called off. The fact that Covington “smelled the rat” right away, shows some spectacular lawyering.

  6. kiprian
    12/02/2010 at 7:45 PM

    Please, legal eagles & beagles, help me to understand the extent to which these maneuverings are typical or not!

    I live in Baltimore City. This means that every eighteen months I have to sit through one or two voir dire. We are usually told that the trial, even in civil cases, will take only two or three days. Now if I assume that the amount of pre-trial action (used in a non-technical sense here) to trial time is roughly constant, scale from the expected length of this trial to the typical trial time, it would suggest that there is very little of this time of time-wasting maneuvering occuring on a day-to-day basis. True or not? Or is there a great deal of this type of maneuvering going on which all gets sorted out by trial time?

    My thanks to all those whose explanations and arguments cut through to the core of events!

    • Bea
      12/02/2010 at 8:33 PM

      Sadly, these maneuverings are typical when the stakes are high and there are deep pockets. This trial will likely take several weeks or more depending on the number of expert witnesses and whether the defendants take the 5th on every question (doubt the Judge will allow that). Most of the ‘maneuvering’ gets sorted out before trial, and in fact most cases settle before trial, though this does not appear one in which the plaintiff appears to be seeking a financial package so much as getting the truth.

  7. carolina
    12/02/2010 at 8:09 PM

    I find myself hoping that someone is struck dumb. Or maybe just struck.

  8. Cat from Cleveland
    12/03/2010 at 11:12 AM

    This story caught my eye – about a single man, who lived alone with his dog in Fla. and is described by his neighbors as having lived a “high risk lifestyle,” being found murdered on his kitchen floor. Police announced it was murder right away, but will not disclose the cause of death or any details. I’m just very curious as to whether he was stabbed. . .


    • Bruce
      12/03/2010 at 11:43 AM

      Hi Cat:

      I wonder what a “high risk lifestyle” actually is in a Disney town. Missing church one Sunday?

      • Kate
        12/03/2010 at 12:09 PM

        Could it be that he adopted one of Michael Vick’s poor doggies?

        Nah, must be missing church on Sunday … or the discovery that he owned no Mickey Mouse ears.

        In this day in age , it’s rather sad.

        • Bruce
          12/03/2010 at 12:24 PM

          Hi Kate:

          I think we can knock out the theory that adoption of one of Michael Vick’s dogs could be a “high risk lifestyle” for the victim in the Florida murder case. Another news report said that the victim lived alone with a chihuahua.

          Yet another new report said they had found the victim’s black corvette. Driving a black vette in a Disney town could by a “high risk lifestyle,” I would imagine.

          The victim also had an ethnic name, Matteo Patrick Giovanditto, which has a magical and musical tinge when you repeat it fast 3 or 4 times, but could also be a little out of line with the Disney town.

          Did Ward have a hatred of chihuahuas or black corvettes, anyone?

          • Clio
            12/04/2010 at 10:51 AM

            No, but the lack of any pets and/or sports cars at 1509 Swann has always made me uneasy. What gay family does not have any pets!!!

            Dyl’s sojourns in Thailand and Florida do merit scholarly, if not legal (let’s hope for Diane’s sake!), attention, however. In what specific ways, if any, has the quirky sidekick tried to forget his checkered pasts? Who are the unsuspecting or forgiving couples, friends, and clients who have helped Dyl to “move on?” And, will an older Dyl end up like Bosie of the Wilde trials: as a lowly waiter in Chicago? Only time will tell.

            • AnnaZed
              12/04/2010 at 1:21 PM

              Interesting that you mention Alfred Lord Douglas whom Little Dyl has always reminded me of ~ manipulative, corrupt and without conscience.

              • susan
                12/04/2010 at 1:34 PM

                Except the papa here, Needham Ward, seemed to embrace his son’s keeper. Didn’t he give him the equivalent of a butt-slap at the trial, a kind of “atta boy” pat on the back?

                For whatever reason, this comparison has me seeing LD whining in a petulant voice to his father, “Daddy! I want a pony!”

                • Clio
                  12/04/2010 at 6:14 PM

                  But, according to his latest ad, Mr. Ward uses such adjectives as “caring”, “gentle”, “intuitive”, and “intense” to describe himself. No where are “petulant”, “bratty”, and/or “service top.”

            • CDinDC (Boycott BP)
              12/04/2010 at 1:24 PM

              Dylan was the pet.

              • Clio
                12/04/2010 at 3:49 PM

                Oh yes, “Sparkly Cat” was the pet, and what a lucky pet that he was with his own room and toys. I wonder if he habitually exercised at home, as most cats do.

    • denton
      12/03/2010 at 7:20 PM

      Cat and Bruce,

      “Paradise Lost” was on Brian Williams, NBC 7 p.m. evening news as we speak re: murder in Celebration, FL. No further discovery! Amazing!

    • AnnaZed
      12/03/2010 at 7:21 PM

      I think that the detail that Mr. Giovanditto was found deceased but solicitously covered by a blanket would pretty much rule out any of the Swann St. three as potential suspects. We know that none of them would have the impulse to be so solicitous of a decedent.

  9. Rich
    12/03/2010 at 6:51 PM

    So, not quite!

    Direct client contact in all capacities,

    • CDinDC (Boycott BP)
      12/03/2010 at 7:54 PM

      Accounts payable? LOL

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