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Three ways to have better handled the lawsuits
Topic Started: Mar 16 2017, 09:33 AM (82 Views)

All hindsight, and with regret that we could not have proposed these ideas earlier...

1) When asking Durham for $30 million, a proviso could have been included that would have cancelled the suits
if there was a full-blown apology and confession; and if not, that any sums received (after attorney fees) would have
been donated to charity.

That would have removed the attempt to paint a portrait of greedy, grasping students and attorneys going after poor victimized Durham...

2) Forty separate lawsuits (ie, about one per player) should have been started in forty separate jurisdictions. (This was actually suggested by a knowledgable practitioner of the black arts of the law, well after the suits were being processed.)

One judge has the power to derail a case; with forty separate judges, and forty separate plaintiffs,
the odds are much better of finding one who will permit depositions and evidence collection to go forward;
and maybe even arrive at trial. The information gathered thereby
will be helpful then in the other suits.

Instead, all the suits were in one jurisdiction, and they were consolidated. That was the first ringing of the death bell...

3) Once the actual suits were under way, motions for mandamus should have been made. Such motions require
the judge to act -- to deliver his ruling, whatever it is (and not wait three years while considering the evidence...).
That kind of judicial horseplay is nonsense and imho grounds for removal from the bench. Such motions might
irritate or anger the judge, but what more harm could he do than he did to derail these cases? (MOO)

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Of course, the suits had arguably the best litigation lawyers in the country, so what could go wrong?

These were slam-dunk cases. Duke and Durham didn't have a leg to stand on.

These were firms which fought every case as if "it were nuclear warfare; there are no schoolyard fights".

Instead, they LOST.

Or, they CONCEDED.

They abandoned the playing field.

They sat quiescent for three years while two witnesses died and the plaintiffs were scattered around the globe;
and in the appeals court, were mum when the lie about Ryan's email was repeated
from the bench (a factual error, to boot --indicating the judge didn't know much about the case) and
as far as I could see, did little more than go through the motions.

There certainly wasn't an attempt at a pit-bull like offense.

Did they "throw" the case intentionally?

Don't know. (That can only be raised for discussion purposes.)

But at least that possibility could have been avoided if there had been more plaintiffs' attorneys
in the game, more judges, more jurisdictions.

We didn't know that then. We are wiser for the experience now.

(MOO: for discussion purposes only)

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Another tangential question:

Why didn't Duke sue Nifong?

Nifong's actions caused harm to the reputation of Duke, causing, among other things, contributions
to fall precipitously.

Nifong could mount a defense to that, that Duke was complicit.

But a lawsuit to recover some of what Duke lost would certainly seem to have been a matter for the Trustees,
as fiduciaries, to pursue.

And if they didn't sue, could the beneficiaries of the Duke trust (ie, the students and faculty) have sued
the Trustees for permitting Duke's reputation to fall, thus diminishing the value of their education (ie,
who would hire a graduate of Duke Law, after 2006?)

And for permitting the endowment to be decreased
(by, in addition, paying Jamie Gorelick a couple of million; plus other outside defense costs for Duke
employees, defending themselves)?

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