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some ruminations on settlements
Topic Started: Sep 30 2010, 07:37 PM (649 Views)
Quasimodo

Quote:
 
In the area of civil law, nothing is more questionably moral than settlements. . .
While in some cases they do indeed reflect the best interests and personal wishes
of the parties to the action, in most situations they merely serve to silence the story
in return for a cashier's check. The reflexive impulse towards settlements has turned courtroom
lawyers into backroom negotiators. It has removed face to face, direct encounters
between the parties. And it has robbed the legal process of the therapeutic, healing
potential of bringing together the community in the search for the truth.

The problem is that lawyers who encourage settlements mistakenly presume that the telling
of the story is of no consequence to providing relief.

(The Myth of Moral Justice)


Of how much value to the plaintiffs would public questioning of Brodhead, Steel, Burness,
Trask, Wasiolek, and others be?

And in the presence of the plaintiffs? And where the community could hear it?

How much would this advance their feeling that justice had been done?

How much will their healing be retarded if this is not done?
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Quasimodo

Quote:
 
Settlements are silent affairs. Usually they take place only between lawyers who rarely meet.
Settlement negotiations hardly ever include the parties to the action. The lawyers become
their surrogates and proxies, except that the lawyers aren't feeling the same emotions,
because the case is not personal to them and they are not exactly disposed to become
emotionally involved.

For this reason, these negotiations take on all the dispassion of a business deal.

Once settlement discussions are underway, the whole point of having an opportunity to express
the underlying grievance is completely undermined. That's because the settlements--explicitly
or implicitly--pretend that the story was never important enough to tell.


A settlement already assumes that you're not going to get what you want. Whatever principles
were once elevated to sacred positions have suddenly been brought down and deflated. They have
been negotiated away, and all that remains is a bank check that presumably settles the issue
once and for all.


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Quasimodo

Quote:
 
A settlement amounts to an entirely lawful, economically efficient bribe. It is a gag order
without a judge issuing an actual order.

It is the whole noise of the judicial system drowning out the heartache.


What a settlement says between the lines... is the following:

If you sign this agreement and cash this check, you can no longer carry a public grudge.
You cannot speak ill of me. I know you came here to speak, but I am paying you to shut up.
You cannot tell the world what I have done to you, or how I have failed you. In fact, the
receipt of this check is in no way an admission of any fault on my part at all. It is simply
offered to make you go away, along with your story, which I never wanted to hear anyway.
Enjoy your money, because that's all the satisfaction you can take away from this lawsuit.
And never, absolutely never, complain about this matter again--to me or to anyone.


What is moral about such a resolution?


(The Myth of Moral Justice)

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Quasimodo

Quote:
 
In the film A Civil Action, John Travolta plays a lawyer who represents the surviving
families of children who died from drinking contaminated water. In a voice over,
he explains that settlements are what lawyers and judges work toward. The victory
is in the settlement itself, almost regardless of the outcome. According to [Travolta's
character], a lawyer who fights to bring the case to trial is out to prove something--
not about the case, but about himself. There is no other reason for a trial, because
no sensible attorney actually believes that going to trial in any way serves the client's best
interests.

[This] captures the prevailing mindset quite well. But not going to trial forecloses any relief,
other than money. . . It's not just less money that the client accepts in signing a settlement
agreement. The client must also surrender his story and abandon any hope of achieving
moral justice.

One of the mothers of the dead children in A Civil Action says specifically and pointedly
to her lawyers that money is not what she wants out of the lawsuit. Indeed, none of
the parents is focused on money. What they particularly want is truth--the truth
of what happened to their children.
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Quasimodo

Legal note:

Parties in a suit do not have to agree to confidentiality;

or, they can limit what aspects (such as dollar amounts) shall be confidential;

and they do not have to agree not to speak about issues relating to the suits, or about each other.

Those may be "common" clauses in suits which Duke settles; but they are not legally obligatory.

(IOW, plaintiffs need not be bound to keep silent and not tell their stories, or publish anything about
their experiences, because a defendant wishes that to be a condition of a settlement.)

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Quasimodo

Quote:
 
http://durhamwonderland.blogspot.com/2007/10/why-civil-suit-matters.html

MONDAY, OCTOBER 29, 2007

Why the Civil Suit Matters

(snip)

Around six minutes into the segment (which is available in streaming video, and so can only be linked to at the start of the broadcast—scroll around three-quarters of the way through), former Globe columnist Eileen McNamara brought up the media’s handling of the Duke case. The following exchange occurred:

McNamara: We’re not going to get an answer [about Jena] until we have the facts. I mean, let’s remember the Duke case. [Putting herself in the mindset of reporters from spring 2006]: It is easy enough to speculate what might have happened, but something did happen, let’s find out what it was before we rush to judgment

Rooney: We don’t know what happened in the Duke case. We never will.

Mark Jurkowitz [panelist]: But history sort of rendered its verdict on that one.

Rooney: Something happened.

(snip)

In the end, nothing can prevent figures such as Feinstein or Rooney from allowing personal biases, prejudices, or simple journalistic sloppiness to override the facts. But the continued willingness of prominent media personalities to engage in the “something happened” charade has direct bearing on the three players’ civil suit against Durham, Nifong, and DSI. The comments of figures such as Rooney and Feinstein show the continuing harm to the three players that Durham’s improper actions caused.

For instance, would Feinstein, Rooney, and like-minded figures be able to engage in their ill-founded speculation if:

DPD Cpl. David Addison had not repeatedly made false statements about the evidence in the case;

DPD official spokesperson Kammie Michael had not, falsely, stated on March 28, 2006 that the DPD knew for certain that Kim Roberts had not made the first 911 call;

Nifong had not engaged in his slanderous pre-primary publicity crusade;

Nifong and Mark Gottlieb had not conspired to violate the DPD’s official policy on lineups and run a third, suspects-only, lineup;

Gottlieb’s superiors in the DPD had not stood aside as the lineup was implemented, and than rationalized the decision thereafter;

Gottlieb had not given false testimony to the grand jury, to the effect that Mangum gave consistent stories after her initial encounter with SANE nurse-in-training Tara Levicy on the night of March 14th;

Dr. Brian Meehan had not agreed to produce a report that specifically excluded mention of the multiple unidentified males’ DNA found in Crystal Mangum’s rape kit;

DSI owner Richard Clark had not sat idly by as Meehan prepared his report, which violated both state law and DSI company policy;

Nifong had not repeatedly lied to the court about the scope and content of his conversations with Meehan.


(snip)

Only a small fraction of the public accepting the Rooney/Feinstein version of events would mean that millions of people would occupy the “something happened” contingent. The responsibility for that outcome is Durham’s and Durham’s alone.

Quote:
 

http://johnsville.blogspot.com/2007/10/duke-case-driving-stake-thru-heart-of.html

MONDAY, OCTOBER 29, 2007

Duke Case — Driving a Stake Thru the Heart of the 'Something Happened' LBJers



KC Johnson points out today that a group of "Something Happened" lazy bones journalists (LBJers) is still circulating the bogus rumor that something very unsavory may have happened during the Duke lacrosse party.

The LBJers, as is their ilk, are still amazingly getting the Duke story wrong despite the Johnson/Taylor book about the rape hoax (Until Proven Innocent) and the North Carolina Attorney General's minute-by-minute report of the incident. Maybe a HBO docu-drama based on the book might straighten out this truth-challenged minority, maybe not. Any how, that's a ways down the road.

Also sending all these "something happened" folk a copy of the book Until Proven Innocent and asking them to read it (a remedy tried here at Johnsville) is not a valid option, given the fact that many of them apparently don't read very much. Asking them to read a book, would be like asking them to climb Mount Everest. They only ingest sound bites.

The only remaining remedy is that the City of Durham has to set the record straight.

The lacrosse players civil suit against Durham needs to be settled in their favor so that they can completely clear their reputations.

Durham must substantially pay up and publicly kill the 'Something Happened' hoax.

Because, until this done, the LBJ'ers will keep feeding their garbage to a public that includes a gullible group, who are willing to believe this junk.
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Quasimodo

Quote:
 
http://johnsville.blogspot.com/2007/09/duke-case-sleepy-hollow.html

THURSDAY, SEPTEMBER 20, 2007
Duke Case — Sleepy Hollow of Tobacco Road


Durham maybe a Wonderland, but the city also gives off a gothic horror tale vibe. Over the last eighteen months of the Duke lacrosse saga the city has seemed in the grip of classic gothic elements like darkness, decay, madness, secrets and hereditary curses.

One hereditary curse is that many Durhamites are blind to basic things like facts, evidence, and the truth. Their curse is then wrapped in a veil of madness as these blind Durhamites act as if they are the one-eyed man in the world of the blind.

More evidence that Durham is a creepy, scary place popped up in today's Herald-Sun.

-------
Ray Gronberg / Herald-Sun [reg. req.]:
E-mails mostly nays on lacrosse settlement -- A scan of city e-mail shows that Mayor Bill Bell and other elected officials are indeed hearing from a lot of constituents who want them to reject a $30 million settlement demand from the men falsely accused in the Duke lacrosse case.

Opposition to a settlement is coming from a variety of sources, including Durham political heavyweights and people with ties to Duke University.

The most prominent person to weigh in publicly against the idea of settling with lacrosse-case figures David Evans, Collin Finnerty and Reade Seligmann is former City Councilwoman Sandy Ogburn.

She wrote Bell and other officials on Sept. 9, soon after The Herald-Sun reported the $30 million figure, to say she was "unwilling to give those boys a single penny."

"While a court case would be costly, it would be worth the money to me as a taxpayer," Ogburn wrote. "At least then we will be able to hear the entire case -- and have the evidence in the public view. All we know right now is what the defense attorneys have parsed out -- oh, as well as their million-dollar PR campaign."

Ogburn -- a former director of community affairs for Duke and recent N.C. House candidate-- added that she believes "the last thing" the families of the three players want "is for the evidence to be heard."

Interviewed on Tuesday, Ogburn hadn't changed her mind.

"I don't want my tax dollars to pay off what I consider to be harassment and absolute extreme political maneuvering by the families," she said. "That's it. It's an exorbitant amount of money."
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Quasimodo

Quote:
 
http://triangle.johnlocke.org/blog/?p=1064

City Council hears from not-reality-based crowd

Posted September 19th, 2007 at 1:47 PM by Jon Ham

Maybe it should tell us something when the most “prominent” person The Herald-Sun could find opposed to settling with the Duke lacrosse players is Sandy Ogburn:

(snip)

This puts Ogburn squarely in the “something happened that night” category. Now I’m wondering where she buys her headgear?

And then there’s Bob Healy, identified as a “former professor in Duke’s Nicholas School of the Environment.” He falls into that category of professors at Duke who seem to hate the students they teach:

“I think that this extravagant financial claim is consistent with the general Duke student belief that ‘we’re special’ and ‘don’t mess with us,’” Healy wrote. “I don’t think this should be encouraged, and certainly not at the expense of the population of Durham.”

The Herald-Sun says most of the City Council members say they hear similar sentiments. Well, it’s no wonder. Look who they travel with. If you went to a porch party in Trinity Park that’s what you’d hear there, too. Doesn’t mean it’s right.

(snip)


More reason why the truth has to come out...
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Quasimodo



Classic question from John in Carolina when the suits and their demands for reforms were first announced:



"Who’s fighting tonight for justice in Durham?"




It remains as true now as it did then.
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Quasimodo

http://www.pbs.org/wgbh/pages/frontline/shows/burden/interviews/neufeld.html

Interview with Peter Neufeld

Quote:
 
One of the most important reasons for civil lawsuits, for civil rights lawsuits, is not just to get compensation for somebody who's been wrongly convicted, but to publicize the causes of that miscarriage of justice. That's why people sue -- to bring about change, to bring about reform. It's not just about compensation.

Q. Give an update on the cases of Ron Williamson and Dennis Fritz.

Fritz and Williamson is not over yet. You have to remember, the civil lawsuit never went to trial. It settled. There's no order preventing people from talking about what we learned in discovery. There's no order that would prevent us from going to the U.S. attorney and saying, "As a result of what we learned in discovery in the civil case, certain public officials past or present should be indicted and criminally prosecuted."

We have an obligation as members of this community -- not just to represent our clients and get them compensation, but to do everything we possibly can to bring those people who engaged in those misdeeds to justice; to do everything we possibly can to see that these communities change their laws, change their law enforcement methodologies and techniques; to reduce the likelihood of other innocent people being wrongly convicted in the future. Our job wouldn't be done unless we went all the way. ...
--Peter Neufeld...
Edited by Quasimodo, Oct 22 2010, 10:26 AM.
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Quasimodo

MORE from the same Neufeld interview:

(snip)

First of all, you can let him [the wrongly-imprisoned] know that the state really cares about him, that they want to give him a substantial amount of financial compensation, that they want to give him an education, that they want to give him therapy, that they want to give him a good job -- not a garbage job, but a good job. That would be a beginning: [to] recognize him as a victim just like people have been victims of terrorism, of torture, of genocide. He's no different from those people. ...

(snip)

The whole theory of tort law in America is that you can never make somebody whole. Obviously you can't turn the clock back. ... Think about it. These young men, their peers during those 10 or 15 years got married, went to college, started careers, had kids. And what did they do? They sat in prison and punched license plates, or they were shipped down to Texas to a border jail. ... I can't imagine anything worse. ... My God, we should do as much as we can to reduce the pain, the horrible pain and suffering that these guys endure for the rest of their lives. That's the duty we have -- to give them a cushion.

Q. Neil wants his record to be expunged.

I would hope that one day Neil's records can be expunged so it will be easier for him to get employment. But, you know, expunging the record doesn't answer the question, because if your record is expunged and an employer says, "Have you ever been convicted of a crime?" you can honestly answer the question "No." But then the next question is, "OK, so tell me what you've been doing for the last ten years of your life?" What's he going to say? "I had an address at Walpole"? That's the reality.

So the problem is it's not enough to expunge a record.
These guys are not going to get jobs, because people don't want to hire somebody who spent the last 10 or 15 years in prison. They think, whether it's justifiable or not, that even if they're innocent, they're now damaged goods, because they were in prison. They picked up those bad habits, they hung out with those kinds of people, they don't have a good work ethic, they don't have the prior psychological composition that we want in an employee in this company.

They may be right about that. So that's just another level of damage ... and why we have to compensate them financially. I mean, the truth is that a lot of these folks won't be able to work again. We have to accept that reality. It's our fault, and we have to pay for it.

[How about those who were falsely charged with rape and became the subject of international news coverage and a Newsweek magazine cover? How do you ever erase that? Won't employers consider that there are enough other applicants around to not want to have to take on the burden of a controversial employee?

Do you put "member of Duke lacrosse team" on your resume?

Exposing the full truth about what happened is one way to help lessen that burden--in fact, likely the only
real way to do so.]


Q. Compensation is the remedy?

I think substantial financial compensation is a beginning of a remedy. Obviously, the most important remedy is reducing the causes of wrongful convictions, prospectively. But how else do you take care of these people? It's not even about legal issues or political issues. It's morally;

if a guy didn't do anything wrong, and the state denies him his freedom, denies him his love life, denies him his children, denies him a career for 10 or 15 or 20 years, how can the state not want to take care of him for the rest of his life now? How can they not want to give him money to at least make the remaining years of his life a little bit less painful?

[OK, Brodhead, Duke, Wasiolek, Durham--time to step up.]

I don't see how any just and humane society would refuse to do that. It doesn't make any sense to me.

Q. But they don't.

Well, maybe there are elements in the society that aren't as just and humane as I thought they were.
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Quasimodo

MORE from the same interview:

Quote:
 
It may take a number of years to get states to pass compensation bills, although I would hope that, since there is no logical, rational reason to oppose compensation, that states will eventually come to their senses.

Passing these bills, it's not a fiscal issue where they can say, "Oh, we can't afford it." That's not what it is at all. It's a question of moral responsibility. That state has to assume that moral responsibility, and once it does, then these people will be compensated.

[Duke and Durham and North Carolina have to be willing to admit their moral responsibility.

If they don't, then Brodhead, and Burness, and Wasiolek, and all the rest, can shut their mouths about
morality for the rest of their lives, IMHO. A bribe to keep quiet (settlement) does not erase their moral
obligation to help make whole those they have injured.]


Prison, for them, is not the same as prison for a guy who is guilty. It isn't. It's qualitatively different.

[So is being prosecuted for a crime which you know you didn't commit, and which you know never even happened.]

So think about that torture, think about that state of mind that they were living with day in and day out. I don't think you could put it in words.

Edited by Quasimodo, Oct 22 2010, 10:25 AM.
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Quasimodo

The Scottsboro boys were certainly no angels--before or after their case.

But when people saw them, they said, "there go victims of injustice".

When people hear someone was a Duke lacrosse player, how are they going to react?

If the framers and others have their way, people might say,
"There goes a rowdy, strutting, arrogant, privileged bad actor, who could easily have committed a rape".

If the full truth comes out, then people will say, "there goes a victim of injustice".

It's going to make a world of difference for the future of these people whether the truth wins out or not.

And asking for the truth from a court is not really asking too much, is it?



(JMOO. For discussion purposes only)
Edited by Quasimodo, Oct 22 2010, 10:49 AM.
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Quasimodo

Henkelman statement:

Quote:
 
So why with this outcome should we bring this lawsuit today?

Because no one in Duke’s leadership has been willing to accept real responsibility for
their wrongful conduct. Because no one in Duke’s leadership has taken any action
against those at Duke who violated the University’s own policies specifically designed to
prevent the type of abuses and harassment inflicted on our sons.

Because no one in
Duke’s leadership has had the integrity to look these young men and their parents in the
eye and personally apologize. And because no one in the City agencies of Durham has
acknowledged their responsibility for their inexcusable efforts to circumvent justice.


Only with this lawsuit may it be possible for the full truth to come out, to hold Duke’s
leadership accountable, to help further the restoration of our sons’ damaged reputations
and to hopefully make it less likely that other parents and their sons or daughters at Duke
or any other school will have to go through something like this again.
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Quasimodo

Robert Bork, Jr. (son of the might-have-been Supreme Court justice) :

Quote:
 
They are walking a fine line between trying to live normal lives in the wake of an unspeakable trauma and at the same time trying to get answers to questions that remain unaddressed by their university.

They need to have peace to heal, but there can be no healing without accountability.

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