Today, Bobby Davis and Mike Lang filed a civil lawsuit against Syracuse University and Jim Boeheim for defamation. It was one of those "Well we're really not surprised because anything can and will happen in this case" moments. And when this whole Bernie Fine thing broke -- still less than four weeks ago -- many were concerned about Jim Boeheim's comments and assertions to the press. The concerns haven't resulted in criminal liability for Boeheim or a firing by the University, but we've now seen Boeheim dragged into a courtroom. Him, before Fine, who may never see a courtroom in this case.First, the suit itself. It was filed in New York County's Supreme Court. If you've seen an episode of the original Law & Order, this is the same court Jack McCoy prosecuted his cases. While the Boeheim lawsuit will obviously be in the civil part, not the criminal part, let's not lose the bigger picture here; this is Manhattan. This is a state suit under state law, so any county in New York has jurisdiction over this case. The specific county in which the suit is filed is the issue of venue, and by choosing Manhattan over Onondaga County, Davis & Lang (i.e. their attorney) is making a deliberate choice. Let's face it: money in Manhattan is a lot different than it is in Syracuse. The jury pool is the county of the lawsuit; think about who lives in Onondaga County versus who lives in New York County. Certainly not an indictment on what type of person lives in Onondaga County; they're regular people who understand regular things. But the type of people living in New York County are not farmers, are not blue collar workers, are not teachers, are not social workers, are not bank tellers, are not ... well, you get the picture. They're CEOs, bankers, lawyers, socialites, actors. You might say the now-infamous 1% lives there. You're gonna get a bigger jury verdict from a Manhattan jury than an Onondaga jury. No doubt Jim Boeheim & Syracuse University will be moving for a change of venue in the near future.
The lawsuit itself is for defamation. Defamation is a civil cause of action for damage caused by untrue statements being published. Slander and libel are two forms of defamation. The suit basically alleges Boeheim went to the press with false information about Davis & Lang -- by calling them liars and saying they came forward for money -- and that they have suffered damages as a result. The legal questions here will be: did Boeheim act intentionally or recklessly in making the assertions about the truthfulness & motivations of Davis & Lang? Did Davis & Lang actually suffer damage? Was that damage caused by Boeheim's assertions?
As I've mentioned on twitter, many times before today and again today, Boeheim said what he said when he said it because be believed it to be true based on the information he knew at the time. He knew these allegations about Bernie Fine had been brought several years ago about alleged acts in the 1980s & 1990s. He knew the police never brought charges against Fine. He knew the University investigated it. He knew that nobody brought to the attention of investigators could corroborate Davis' story. And he knew that the Jerry Sandusky story at Penn State had just recently broke. It was within that context of knowledge that Boeheim said what he said. When his context of knowledge changed -- i.e. with the Laurie Fine tape -- Boeheim backed off his earlier comments and, in an emotional press conference following the Florida game, offered an apology. If this case ever gets to a jury, that jury will have to examine Boeheim's words over the course of the past less than four weeks, and determine whether he knew or disregarded evidence in making his assertions about the accusers lying and being in this for money. They'll also have to weigh his First Amendment right to freedom of speech -- his right to express his opinion. Were his words assertions of truth, or expressions of opinion? That's a blurry, gray line.
Not to be lost on this development of a lawsuit is who the attorney at the forefront is: Gloria Allred. I'll be nice and not say anything about her, other than to say her reputation precedes her. Now, she was merely the speakinghead at today's press conference. At this point, she's not even the attorney of record on the case, because she's not licensed to practice in New York. According to the last page of the lawsuit, she will be filing for admission pro hac vice, which means that she will ask to be permitted to practice in NY for purposes of this case, with the assistance of NYS bar admitted counsel. I'm sure that will be approved, but Gloria Allred is not on this case for her courtroom prowess. She's on this case for things like today: the public face of the case.
In terms of where the case goes from here, we're at step #1. An index number has been purchased in the County Clerk's office in NY County. That allows the plaintiffs to file their suit with the Court. They then have to acquire jurisdiction over the defendants Syracuse University and Jim Boeheim by effectuating service of the complaint upon each of them. The attorneys will then file answers, demands for discovery, motions, depositions, etc. That can take months or even years. A settlement could happen at any time, but I honestly don't see a settlement coming anytime soon. The stakes are too high on both sides; I mean, it's Gloria Allred for Christ sakes! This whole thing really jumped up several levels with Allred's involvement.
What can ultimately happen if there's a finding of liability? The suit asks for special, compensatory, and punitive damages. Special & compensatory damages are designed to make the plaintiff whole, to put him back in his prior position and compensate him for the damage inflicted by the defendant. In a personal injury case this can be rather easy to figure out: medical bills, lost wages, loss of future earnings if unable to work again, etc. In a defamation suit, these damages are much more speculative. It'll be interesting to see exactly what is claimed by Davis & Lang outside of the "difficulty to now work in the Syracuse community and even to leave their homes." Punitive damages are those assessed to punish the defendant, severe enough to change their behavior. Most famously is the fight over punitive damages in the Exxon-Valdez case. 22 years later, that fight still rages.
We're obviously on day one of a civil suit that will go on for weeks, months, or even years. A lot can happen. If the last few weeks is any indication of what's to come, a lot WILL happen. What we can't deny is that the dynamic, the conversation has now changed. I know personally, I have gone from disbelief of the allegations against Bernie Fine, to recognition that Bobby Davis is probably a victim, to now having the belief that, yeah, this is all about the money, even if Bobby Davis is a victim. The sad thing is, I don't even get the impression from Bobby Davis that he wants it to be about the money. I truly think he just wants Bernie Fine to not abuse children. But he's gotten so caught up in bringing his story forward, so caught up with Mark Schwarz, and now so caught up with Gloria Allred, that he's just going along with what people are telling him to do. Which, unfortunately, may have been what got him wrapped up with Bernie Fine in the first place.
Labels: Bernie Fine, Jim Boeheim, Orange44 Lawdogs
i was in belief of davis now after tommaselli and this, I think he full of it.
So, this being filed in NYC officially makes NYC part of Syracuse, no?
Cut the pious crap. I've lived in New York, I've lived upstate. The only significant difference in the pools of potential jurors you'll get in New York County and in Onondaga County is that in New York you won't have as high a percentage who "bleed Orange." And since college athletics are already "about the money," it only makes sense to hit these clowns where they live.
Thanks JBren, this was helpful!
Thanks for the feedback! JustThisGuy, your point about Onondaga jurors "bleeding orange" is well taken. Certainly would be more sympathetic to SU & Boeheim. But my point was that New York County is notoriously known for its favorable jury verdicts. Sure, the suit wasn't filed in Onondaga because that might be prejudicial in favor of SU/Boeheim; but it wasn't filed in Clinton County, or Erie County, or Chemung County, or Nassau County for a reason.
It's called due diligence. It's what a lawyer is supposed to do: get the best deal he can for his client.