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| The Boeheim defamation lawsuit has been resurrected |
Editor's note: The following is a quick post about today's Court of Appeals decision while I'm on an extended lunch break during a jury trial. Yeah. That's how much I care about you people!
Today, New York's highest court -- the Court of Appeals -- issued a decision reversing the lower court's finding affirming the trial court's order of dismissal. In layman's terms: back on.
Procedurally, we know this case never went to trial. Boeheim's lawyers filed a notice of appeal very early in the process -- even before discovery. The trial judge dismissed the suit, ruling that the suit filed on behalf of Bobby Davis and Mike Lang did not allege facts sufficient to meet the legal threshold. That dismissal order was appealed to the mid-level appeals court in New York -- the Appellate Division -- which upheld the dismissal in a close 3-2 decision. The Court of Appeals took the case, and after oral arguments last month, considered arguments of both sides and determined, based on the law, that the lawsuit should be reinstated.
The gist of the Court of Appeals' decision is that Davis & Lang sufficiently alleged that the statements of Boeheim in the hours and days after the Bernie Fine allegations were made public, were of such a nature that they constituted "mixed fact and opinion," which makes it at least sufficient to survive a motion to dismiss. Boeheim making statements that "they had done this before" in regards of Davis & Lang making these sex abuse allegations, as well as Boeheim's reference to the investigation that found no proof of the abuse, are what did Boeheim in. Those facts were special facts that the public -- the reasonable listener/reader of Boeheim's statements -- had no knowledge of prior to Boeheim stating it. Because Boeheim's statements of opinion are based upon those special facts not previously disclosed, the Court found they were mixed fact & opinion, which are the proper basis of a defamation lawsuit.
But wait, this isn't the end of the road. The Court of Appeals is merely stating that the allegations in the lawsuit are sufficient for the case to move forward. That means, the case can proceed through the discovery process, depositions of witnesses, other legal wranglings, and ultimately a jury trial. A jury could still find that those statements were not defamatory. A jury could find that the statements of fact upon which Boeheim made his opinions were actually true -- and most of us know that the truth is a defense to defamation.
So, Boeheim could still walk away from this unscathed. Or, a jury could rule against him and find that he did defame Davis & Lang. Or, maybe this doesn't even get that far -- maybe all the parties reach a settlement, the terms of which we'd probably never know. Stay tuned, we'll walk you through any future developments.
Labels: Defamation Lawsuit, Jim Boeheim, Orange44 Lawdogs
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| How will the Court of Appeals rule? |
It's been a while since I wrote a #lawdog article, and an equally long while since we've talked about the Bobby Davis & Mike Lang lawsuit against Jim Boeheim and Syracuse University. The last update was when the Fourth Department of the Appellate Division affirmed the trial court's ruling dismissing the defamation suit we're all too familiar with at this point. However, as you may recall, that was not a unanimous decision. The dissent in that case left the door open for New York's highest court -- the Court of Appeals -- to hear the case. And it did just that on September 9, considering oral arguments between Davis/Lang's lawyer and Boeheim's lawyer.
If you don't know how this works, here's a quick primer: the lawyers from each side must submit what are called briefs to the Court. They're not underwear, nor are they short, so I really don't know why they're called briefs. Nevertheless, these briefs lay out the legal arguments supporting the argument(s) that side is putting forth, along with citations to the case record (filings, motions, evidence, testimony, etc. that was submitting in prior proceedings in the case). The appeals judges review the briefs from each side (OK, more likely their law clerks do that) and thus familiarize themselves with the facts of the case, and the legal issues being argued. This is all done in preparation for oral arguments.
Oral arguments is an opportunity for the attorneys to highlight the main points of their arguments to the justices, but more importantly, for the justices to poke and prod at the attorneys. The justices will often times interrupt the attorneys mid-sentence, or even the other justices, to either point out a flaw in an argument or to play devil's advocate. This is really when an attorney's ability to maintain poise and think quickly on his/her feet become vital. A bad performance during oral arguments likely won't torpedo one's case, but let's face it, it doesn't help.
So, on September 9, the attorneys in this case went to Albany and argued their case before the Court of Appeals. Led by Chief Judge Jonathan Lippman (pictured above), the Court tried determining whether Boeheim's statements were clearly opinion, or mixed fact and opinion. Another point of focus was what a reasonable reader/listener would believe based on all the context.
You can read the transcript of the entire proceeding here. If you would rather listen, you can download a video recording here. I suppose you can listen and follow along in the transcript, too. It's fun how the Chief Judge knows all about Jerry Sandusky, and has no trouble saying his name, but Jim Boeheim is somehow Bonheim.
Sometimes you can get a pretty good idea of which way the Court's leaning simply based on the targets of questioning during oral arguments. I'm no expert by any stretch of the imagination, but I couldn't get a good read on this Court either way. So, we'll just have to wait until they deliver their decision, which could come within a few weeks or a few months. Just remember, even if the David/Lang camp win this appeal, it doesn't mean they win the defamation suit. It just means that it was improper for the trial judge to dismiss the suit, and instead it would be reinstated and could ultimately go to trial before a jury. So, maybe we haven't heard the last of this case...
Labels: Defamation Lawsuit, Orange44 Lawdogs
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| Gloria Allred Loses Again |
This past Friday, the Appellate Division, Fourth Department, issued its Memorandum and Order deciding the appeal in the lawsuit filed by Bobby Davis & Mike Lang against Jim Boeheim & Syracuse University. As you will recall, the Supreme Court of Onondaga County granted a motion to dismiss -- pretty early on in the proceedings -- on that basis that the lawsuit did not allege a cause of action upon which the court could grant relief. Essentially, that dismissal stated that even if the allegations in the suit were assumed to be true, that they didn't amount to the level of proof required for defamation. The Davis & Lang legal team, led by publicity-hungry Gloria Allred, appealed that decision. Recently, lawyers filed their appellate briefs and appeared before the Court for oral arguments, and the Court recessed to deliberate and issue its ruling.
That ruling, which you can read on the Court's website here, upholds the Supreme Court's dismissal of the suit.
What it means
The lawsuit is dead. This could very well be the end of the road for these defamation claims. The appeals court, ruling 3-2, believed that Supreme Court justice Brian DeJoseph was legally correct when he granted the defense motion to dismiss the lawsuit. The appellate court cited to a number of cases mainly asserting that in determining whether the statements in question made by Boeheim were fact or opinion, the court must consider a number of factors, particularly the context in which the statements were made and what exactly was said. In concluding its decision, the Court writes:
The content of the statements, together with the surrounding circumstances, “ ‘are such as to signal . . . readers or listeners that what is being read or heard is likely to be opinion, not fact’ ” (Mann, 10 NY3d at 276). Based upon “the content of the communication[s] as a whole, as well as [their] tone and apparent purpose[, together with] the over-all context in which the assertions were made” (id.), we thus conclude that the court properly determined that defendant’s statements constitute opinion, not fact.However, there was also a dissenting opinion. Two justices voted to reinstate the lawsuit, asserting that the statements were mixed fact and opinion, and as such, should at least survive a motion to dismiss at this stage of the proceedings and move forward with discovery and other pretrial matters. However, since a minority of the five-justice panel voted to reinstate the lawsuit, the dismissal was upheld.
What happens now
Like I said, at the moment this lawsuit is dead. The only thing that can resurrect it is a reversal by the Court of Appeals -- New York's highest court. But getting the case there usually isn't easy. The Court is much more selective in the cases it hears, and therefore its docket is controlled by the Court itself -- or by permission from justices from the lower appeals court. In this case, two appellate division justices dissented, which means that an appeal to the Court of Appeals can be taken "as of right" -- in other words, the law gives them that automatic right, and no permission is required to get the case to the Court of Appeals.
If (and when) the Allred team appeals as of right to the Court of Appeals, there will be another round of appellate briefs being filed, and oral arguments before that Court, before a decision is rendered. At that point, the Court will either affirm the rulings below to dismiss the lawsuit -- ending the case once and for all -- or reversing the dismissal and reinstating the lawsuit. That wouldn't mean Davis & Lang win, it would just send the case back to Onondaga Supreme Court for the lawsuit to pick up where it was ended.
And no, an appeal to the Supreme Court of the United States (or, one of my favorite acronyms, SCOTUS), would be unlikely, if not impossible. An appeal to SCOTUS would have to involve a question of federal law or a federal/constitutional right, and really the only one I can think of here would be the right to free speech, which would be asserted by Jim Boeheim himself. But he would only appeal if there was a judgment/verdict against him, which wouldn't be until further proceedings in Onondaga Supreme Court.
So my official prediction is that we likely haven't seen the end of this case, because of course. This case is like the fembot in Austin Powers: The Spy Who Shagged Me -- Robin Swallows -- who was stabbed, shot multiple times, bazookaed out a window, fell several stories to the ground, and still wouldn't die.
And with that, I think I'm all done here.
Labels: Defamation Lawsuit, Orange44 Lawdogs
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| Eventually, the gavel will bang one last time on this Davis/Lang/Boeheim/Fine case |
The law prefers finality. Specifically, the finality of a court ruling. But, the law also prefers due process. So in that spirit, the law allows an aggrieved party to, in most cases, file an appeal of a trial court decision. Such is the case in Bobby Davis and Mike Lang against Jim Boeheim and Syracuse University. As none of us can forget, Davis and Lang filed a defamation lawsuit against Boeheim & SU for certain things the coach said in interviews and press conferences in the wake of the revelation of allegations against Bernie Fine.
That suit was originally filed in Manhattan. But a motion to change venue was filed by the defendants -- who won that motion -- and the case was moved to Onondaga County. This allowed a local court with a local judge to hear the case between local litigants. Prior to reaching trial, or even the discovery phase of the case, Onondaga County Supreme Court Justice Brian DeJoseph had an opportunity to rule on the defendants' motion to dismiss the case, arguing that the case should be ended right then and there because the lawsuit does not allege a cause of action upon which relief can be granted. In other words, "you ain't got no case."
On May 11, 2012, DeJoseph granted the motion to dismiss the suit. The Court wisely made reference to a recent appeal decided by the same court that would hear an appeal of this decision. And yet, Davis & Lang decided to appeal.
Today, oral arguments on that appeal were heard by the appeals court. The Appellate Division, Fourth Judicial Department, is based in Rochester, NY and is the mid-level appeals court for cases originating in an area of the state covering Corning and to the west, north to Buffalo, and east to Rochester, Syracuse, the Mohawk Valley, and the North Country.
Oral arguments are not the type of thing you see on TV or in the movies. There's a panel of appeals judges who sit at the bench at the front of the court room, and there is a podium where the attorneys stand to argue -- one at a time -- for 15 minutes each. Depending on the judges, the attorneys may get cut off to answer specific questions of the judges. Prior to oral arguments, the attorneys would file briefs, summarizing the procedural positions of the case in the lower court, and arguing, based on law, why the lower court messed up. So assuming the judges have read these briefs (or had their law clerks give them the condensed versions), the judges generally know what the case is about and what legal questions are at issue.
I quick look around the internet didn't produce copies of the appellate briefs or the recordings from today's oral arguments, so I have no way of knowing for sure what was argued. The Davis/Lang team surely argued that DeJoseph should not have dismissed the case and the matter should be sent back to his court to proceed to trial; The Boeheim/SU team surely argued that DeJoseph decided correct, has a solid legal backing, and this should be the end of it.
While there's no specific indication of when the appeals court may announce its decision, the court's website last listed its next scheduled decision day to be September 27.
Once the appeal is decided, the losing party does have the option to ask for permission to appeal to the Court of Appeals -- the highest court in New York. But it's not an automatic right -- permission must be given by one of the judges hearing this appeal, or from the Court of Appeals itself. Relatively few cases make it to the Court of Appeals, so chances are the ruling of the Fourth Department will likely spell the end of this case unless it is remanded back to Onondaga Supreme Court to go to trial.
But this case will be over, eventually. I promise!
Labels: Defamation Lawsuit, Orange44 Lawdogs
"An appeal gets us more publicity."
Today in a 30-page decision by New York State Supreme Court Justice Brian DeJoseph, the defamation lawsuit filed by Bobby Davis and Mike Lang against Jim Boeheim and Syracuse University was dismissed. The decision followed oral arguments two weeks ago, as well as written submissions by each side citing to relevant case law and how it applies to the facts of this case. I took the time out of my busy Friday afternoon schedule to read through the entire ruling, and so here are my thoughts.
DeJoseph got it right. We've made no secret here at Orange::44 that we believed the suit would be dismissed. We believed that the defense motion hit the nail on the head, cited to some very compelling case law, and would stop this case in its tracks. Good thing we were right; I didn't feel like printing a retraction.
For those of you brave enough to sift through the 30-pages of legalese, let me try to give you the Cliff's Notes, everyday version (though, to be honest, I think it's a pretty easy, common sense read). DeJoseph begins by recounting the background of the case: the November 17 breaking news of the allegations, the reactions by the University and Boeheim, the filing of the lawsuit, and the specific statements alleged to be defamatory. The decision then launches into a lengthy discussion of the law and how it applies to these facts.
The discussion is the meat and potatoes of this decision. DeJoseph begins by describing the standard he must apply: "On a motion to dismiss for failure to state a cause of action, the Court is obligated to accept the material allegations as true and the Complaint is deemed to allege whatever can be fairly and reasonably implied. If upon reasonable view of the stated facts, Plaintiff would be entitled to recover for defamation, the cause of action must be upheld." In other words, for purposes of the motion, the Court assumes the allegations are true and, under that assumption, must apply those allegations to relevant law to determine if the facts meet the elements of the defamation cause of action. Or, more succinctly, "is this defamation?" After a review of the evolution of the law of defamation, DeJoseph then gets a little more specific: "In making this determination the Court must determine whether the reasonable reader could have believed that the challenged statements were conveying facts about the plaintiff," and that "New York's approach requires an analysis of the full context of the challenged speech whereas the federal approach requires a determination as to whether the precise words express or imply a provably false fact."
This New York approach provides more protection to the speech, recognizing the context in which words are spoken/printed give those words their intended meaning. Therefore, DeJoseph determined that "the threshold issue...is whether the alleged defamatory statements constitute expressions of opinion which are not actionable or assertions of fact which may form the basis of a viable claim." Further, "the dispositive inquiry...is whether a reasonable [reader] could have concluded that [the statements were] conveying facts about the plaintiff." To that end, the factors the Court must use are: (1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal readers or listeners that what is being read or heard is likely to be opinion and not fact.
Much attention is then given to the context of Boeheim's statements. First, DeJoseph writes, "the broader context of the Penn State scandal is highly relevant here as Defendant Boeheim was naturally placed in a defensive posture, attempting to defend himself and co-defendant Syracuse University from being compared to the allegations waged against Penn State, then Penn State head coach Joe Paterno, and former Penn State assistant football coach Jerry Sandusky." Boeheim is not a "disinterested observer," as the Plaintiffs argue, but rather was defending himself on an accusation that he personally witnessed Davis in Bernie Fine's hotel room; and also personally vouching for someone he has known personally and professionally for over 45 years. "Boeheim's statements appear to be a 'product of passionate advocacy' as opposed to 'careful, logically developed reason'" (i.e. Boeheim spouting out at the mouth). "The reasonable reader," DeJoseph writes, "would conclude that Boeheim was providing a biased and personal opinion on the accusations against Bernie Fine, not fact."
Second, on the context argument, DeJoseph reasons that the reading of the full text of the statements (the entire interview or the entire newspaper article) "clearly puts the reasonable reader on notice that Boeheim is boldly asserting his loyalty to a longtime colleague, and is frustrated by what he believes to be yet another opportunity for the Plaintiffs to accuse Bernie Fine of sexual abuse." It would not be sufficient, for purposes of determining whether the statements are defamatory, to simply parse the words you want out of a larger context and give them the meaning you want; rather, the words must be given the meaning within the context published.
Justice DeJoseph then has a long discussion of the word "liar" and when he believes its use becomes actionable defamation. This is a distinction I believe was not really mentioned much before now, outside of the legal filings and the arguments in court. The main idea here is that to call someone a liar, in and of itself, is not actionable; rather, the assertion that someone is a liar must also be accompanied by specific allegations of criminal conduct of the Plaintiff. DeJoseph finds that Boeheim's statements "do not include any specific allegations of criminal conduct" by Davis or Lang; that "Boeheim never uttered the words 'extortion' or 'blackmail' or any specific criminal act" when he said this was all about money. To be sure, the context of Boeheim's statetments -- in the immediate aftermath of the Penn State scandal -- and the staleness of the allegations of Davis, clearly indicate that Boeheim was asserting his opinion. Boeheim never stated he knew of any plan or scheme for Davis or Lang to get money; it was rather just his conclusion based on the context of how the story was evolving: "A full and thorough review of the statetments made by Boeheim and the articles in which they were published clearly show that Boeheim never claimed knowledge of any demand for money, but, again, Boeheim simply surmised, with the use of generalized speculation and suspicion that Plaintiffs' claims were possibly financially motivated."
Dismissing one of the last arguments in Allred's bag of tricks, DeJoseph argues against the assertion that Boeheim's statements implied that he knew facts that his audience -- or the general public -- did not know. Here, the allegation was that Boeheim had "unique access" to SU's 2005 investigation and internal report. Initially, DeJoseph notes that Plaintiffs failed to even allege this in its complaint. But more importantly, DeJoseph debunks the argument that we didn't know of this investigation: ESPN reported it when the story broke on November 17. So, you know, thanks, Mark Schwarz. DeJoseph reasons that "The ESPN story is relevant on this issue because it shows that Boeheim was speaking on an even playing field with his audience," that "when Boeheim commented on those facts, and used those facts to form the basis for his opinion, he was not drawing from any unknowns or any secrets, unique only to him."
This is important.
DeJoseph seems to believe that this is a vital piece of information. That Boeheim did not have unique facts, unknown to the public, to serve as the basis for his opinion, makes his opinion unactionable in a defamation suit. This is a holding from the recent Fourth Department case of Gisel v. Clear Channel Communications, Inc. This was a defamation case dismissed, and decided by the appeals court that would hear any appeal of this Boeheim suit. So for DeJoseph to cite directly to this case is him telling the appeals court that this case is similar to that one, and that the appeals court should come to the same conclusion that he did: that this is not defamation.
DeJoseph also seems to take the Allred legal team to task for its exaggeration of the situation and its claim that Boeheim was withholding information he knew about SU's investigation. I enjoy this gem: "The Plaintiffs seem to ignore that Boeheim is the head coach of the Syracuse University basketball team. He is not the District Attorney, not a private investigator, and not a police officer."
Finally, on page 30, DeJoseph gives his conclusion: "The content, tone, and purpose of Boeheim's statements would clearly signal to the reasonable reader, that what was being read in the articles published in the days after the initial ESPN report were likely to be an opinion - a biased, passionate, and defensive point of view of a basketball coach - rather than objective fact. Thus, Plaintiffs' defamation claim against Boeheim fails as a matter of law." Since the claim against SU was based on the same statements, the suit against SU was also dismissed.
While Syracuse University declined comment other than to state it was pleased by the ruling, Gloria Allred went on her usual over-the-top tirade. In an email to the Post-Standard, Allred said the following: "When Bobby Davis came forward years ago and complained about sexual abuse, he was ignored. When the allegations were made public he was attacked. It is difficult enough for victims of childhood sexual abuse to come forward. This decision sends the message that you can attack the alleged victim and call him a liar with impunity. It makes it even harder for victims to come forward."
Allred just doesn't get it. She thinks that by this suit being dismissed, it makes it OK for an accuser to be called a liar. That some blanket policy was just announced that gives victims no recourse. She, of course, worries about the chilling effect that such language could have on a potential victim to come forward; but, of course, she ignores the context. For his part, Jim Boeheim apologized for what he said, and acknowledged that his intent was not to discourage victims to come forward; rather, he was commenting specifically on a case that hit home to him, a case that he thought was cold and unfounded.
Gloria Allred should give credit to Jim Boeheim for his apology, and for his work and contributions in protecting children and helping the victims of abuse. But that all seems to be lost on her. That doesn't keep her in the headlines. On that note, the caption to the picture above is not a quote from Allred. I am not saying that she said that; she certainly did not say that publicly. But, it's my opinion that she thought it!
An appeal is evidently on the way. By law, Davis and Lang have 30 days (well, probably 35 days) within which to file a Notice of Appeal with the Onondaga Supreme Court. The notice is simply a one-page statement stating they intend to appeal. The appeals court -- The Fourth Department of the Appellate Division, based in Rochester -- will then set the timetable for submission of briefs or other arguments, and set oral argument, if necessary. Appeals can take a year or two.
So, don't expect an end to this anytime soon. But it's my opinion that, just as the defense motion to dismiss was on solid legal ground, that Justice DeJoseph's decision is also on solid legal ground. Especially with its citation to the appeals court's recent defamation decision. Good luck, Allred. You should just give up and go home.
Labels: Bernie Fine, Defamation Lawsuit, Jim Boeheim, Orange44 Lawdogs
When Do We Close the Book on the 2011-12 Basketball Season?
0 Comments Published on 4.24.2012 by John Brennan
As I sit here composing this story on April 24, it has been exactly a month since the SU Men's Basketball season ended with a 77-70 loss to Ohio State in the Elite Eight. Brian did his usual postgame recap after that game. And we've sort of moved on to lacrosse (to the extent a Syracuse fan can care about this season...). But we've done no end-of-the-season recap. Nothing that looks back and says "This is what the season was, now let's move on to the next thing." It hasn't been apathy. Not being too busy to do it. And surely not that we didn't want to talk about it. I think because, in many ways, it's because it still doesn't feel like the season is over.
Yes, the playing of the games is done. Not just for Syracuse, but for all teams. Kentucky is your National Champion, and will return to the court next season a completely different team. Teams are busy figuring out next year's rosters: seniors graduating, underclassmen leaving for the NBA, transfers, and recruits coming in. This is the talk of college basketball right now.
But I'm not ready to close the book on the 2011-2012 basketball season. No, not for Syracuse, anyway. Because this season - one that began with an exciting Midnight Madness back in the Carrier Dome on a Friday night in October - was unlike any other Orange fans have ever seen. On the court, and off. And until both of those things have met their conclusions, this season carries on.
This season saw many great accomplishments for the basketball team: a school-best 20-0 start; undefeated at home; Big East Regular Season Champions; #1 seed in the NCAA Tournament; Elite Eight appearance; the emergence of Dion Waiters and Fab Melo as college basketball superstars; and I could go on. As a fan, what you saw on the court was almost always a pleasurable and exciting experience. These guys could play, and at times, it seemed as though they were unstoppable.
And yet, it was all against the backdrop of horrible allegations that we still don't fully comprehend. After three games -- and not even one week into the regular season -- news broke that Bobby Davis and his step-brother Mike Lang were accusing longtime assistant coach Bernie Fine of past sexual abuse. From that pivotal point forward, this season -- and every part of it -- was seen in the context of these allegations. It went from "How will the team react to these allegations?" to "How will the team react to Bernie Fine being fired?" to "How is the team able to continue performing at such a high level despite these allegations?" Through it all, the players were able not only to "talk the talk" ("When we put on the uniform and step out onto the court, it's all about basketball"), but also to "walk the walk" (it really was just all about basketball when the jersey was on and the ball was tipped). The players were unfazed.
Jim Boeheim, though, different story. He was different. He had to be different. He's the face of this program - has been for 36 seasons now. He's also the spokesman of the team, one who speaks his mind more bluntly than your old school grandfather who cares nothing about political correctness. But it's that bluntness, that candor, that has ultimately has served as the basis for keeping this season alive in my mind.
We all know the story by now: when the allegations against Bernie Fine broke, Jim Boeheim made statements in the media to the effect that Davis & Lang were liars who were in it for the money. And while the attention eventually diverted away from Bernie Fine himself, mostly due to statute of limitations issues -- and, to his credit, his virtual disappearance from the face of the earth -- this entire story has turned into a focus on what Jim Boeheim said.
A defamation lawsuit filing and too many Gloria Allred press conferences later, the drama drags on. Brian and I have offered our legal insight to the defamation case -- both on this site and on twitter -- and we both think it's heading to a dismissal. A defense motion to dismiss is scheduled to be heard this coming Friday in Onondaga Supreme Court, so maybe that will get us closer to being able to close the book on this season.
Outside of the lawsuit, we were also dealing with the constant train-wreck that was known as Zach Tomaselli. Without getting into the very discussion-worthy story behind how Tomaselli even became a part of this drama, we know that the direction of the story -- and people's views of it -- were shaped by Tomaselli's involvement. At the end of the day, he was a character who did nothing but muddy the waters. His grasp of the ideas of truth and veracity are fumble-worthy. As if almost feeling the tempo of the country and knowing when he wasn't being talked about quite as often, he would inject himself back into the story -- with another allegation, or a change in his story, or a new accusation, or a recanting of his allegations, or a recanting of his recantation, or a recantation of the recanting of his recantation oh and now I've gone cross-eyed. This all, of course, leading up to his being imprisoned last week to serve a 3+ year sentence on sexual abuse charges for which he pleaded guilty.
This season had no chance of ending unless and until Zach Tomaselli was silenced. Quite frankly, knowing how obviously troubled he was, I didn't think he would make it to report for his imprisonment. But evidently he did, and now he won't have access to twitter, to telephones, or to anything else where he can interject himself into the Bernie Fine story at his every whim. Then again, I'll be the first to put money on Mark Schwarz being granted the first on-camera prison interview.
And so, we wait. We wait for the last few pages of the 2011-2012 Syracuse Basketball season to be written. The typical fan will get a sense of closure, once the lawsuit is concluded and a sufficient time has passed without hearing from Tomaselli. But we'll never know the whole story. Bernie Fine won't be writing the epilogue. He doesn't need to. We just need a basketball season where we're just talking about basketball.
Labels: Bernie Fine, Defamation Lawsuit, Jim Boeheim, Orange44 Lawdogs, Syracuse Basketball
When I say "home cookin'," I don't mean that there was some undue influence in a Supreme Court Justice's decision to change venue of the Jim Boeheim defamation case from New York County to Onondaga County. I simply mean that if the case goes to trial, Boeheim will get to stay around town and enjoy Juli's delicious home cookin'. She has a great recipe for a cheesy ranch dip!
But seriously, Justice DeJoseph's ruling on Wednesday is a huge victory for the Boeheim/SU team. All "home court advantage" references aside, you always want to try cases in a friendly court. Now, by and large, this case involves a bunch of out of town lawyers, who probably have little or no experience in Onondaga Supreme Court. So there is no advantage there, on either side. But I think this ruling better meets the ends of justice, since a local court (with a local jury) can solve a local dispute.
The fact of the matter is, nobody outside the parties, lawyers, and some Syracuse fans care about this case. If I'm on a Manhattan jury hearing this case, I'm thinking it's a waste of my time. I'm thinking "Why am I hearing this case? This has nothing to do with NYC." And that, at its core, was the argument of the defense: venue was not proper in NYC. No parties reside there. The alleged tort (defamation) didn't occur there. The law in New York states that venue is proper in the county in which at least one party resides. If you're keeping score at home: Onondaga - Boeheim, SU, Davis; Oswego - Lang; New York County - zero.
So really, the burden was on the plaintiffs -- Davis and Lang -- to show that they could not get a fair trial in Onondaga County, where venue would otherwise be proper. And this is exactly what the Court zeroed in on: could they prove they would not get a fair and impartial jury? Not a probably. Not a maybe. Justice DeJoseph said in his decision that the arguments against venue in Onondaga County "equate to nothing more than mere beliefs, suspicions, and a feeling of possible bias. This is insufficient to retain venue in New York County."
Though plaintiff's attorney Gloria Allred, when reached for comment, said that the change of venue doesn't change her resolve, and that they will continue to fight on, it's clearly a big blow to her case. She wanted to try this case in the big lights of the Big City. She wanted to be able to wake up at 8am, call an 11am press conference, and have a ton of cameras there. Not quite so easy to do that when she's in Syracuse. She wanted to take advantage of NYC juries, who typically award a much higher amount of damages than other counties. That in large part is due, of course, to the different standard of living.
But really, let's not kid ourselves. This case will never be in front of a jury. The change of venue, while important, will ultimately have no bearing on this case. Next up is the motion to dismiss, filed by the defense with the Court in NYC. All papers filed there will be transferred to Onondaga, to be scheduled there. If this case survives that motion to dismiss, which we've surmised it won't, then I would imagine the parties step up the efforts at discussing a settlement. The terms of any settlement will never be made public -- whether or how much money exchanged hands, or anything else. Or, at least, I assume that would be the term of any settlement reached.
But what do I know? Sean Keeley and his commenters at NunesMagician.com have this all figured out!
Labels: Defamation Lawsuit, Orange44 Lawdogs
Though I wasn't there personally, it appears the oral arguments made this morning were essentially rehashing the arguments the attorneys made in their written submissions. And we know the arguments on each side of the issue.
This morning, in between my own court cases, it occurred to me that there may be an even quicker way to get updates in this case than twitter -- shocking, I know! The New York State Court System has this online system called "eCourts," which gives the public a wealth of information on cases pending in many of the Courts in the state. Among its features is the ability to search by a case's Index Number and find out the parties, the attorneys of record, past court appearances, future court appearances, and the posting of judicial decisions. On top of all that, anybody can register for an eTrack account, which can send you an immediate email update anytime a case's information is changed in the state-wide computer system: when a new court date is scheduled, when a motion is filed, or when a decision is released. And so, I created my own eTrack account and registered for updates on this case.
For those of you looking to do the same thing, here's a quick tutorial:
- Point your favorite web browser (i.e. Chrome and nothing else) to http://iapps.courts.state.ny.us/webcivil/ecourtsMain
- Click on the link to WebCivil Supreme
- Enter the code displayed to confirm you're not a bot. If you're a bot, figure out how to mask your identity.
- On the left bar of the screen there should be a link to eTrack. Click on that.
- You're now on a page asking you to register for an account (unless you already have one). Do that.
- Once you've created an eTrack account, log in to eTrack with that information.
- Next, under the Civil Supreme Court Cases, click "Add an existing Civil Supreme Court Case"
- After probably typing in another "I'm not a bot" code, you'll then be brought to WebCivil Supreme and can search for a case a number of different ways. I suggest Index Search.
- Enter 000255/2012, select Onondaga County, and search away.
- You should now see the case you're looking for with some familiar names. Click on the linked Index Number, and you'll get a pop-up with more case information. At the bottom of the pop-up, click Add to eTrack. Boom!
If Justice DeJoseph grants the motion to transfer venue, that means the case will be heard not in "New York, Concrete Jungle," but rather in Onondaga County, home of the bustling DestiNY USA. That's still a thing, right?
If the motion is denied, then venue stays where it's been asserted (Manhattan) and the judge there will rule on the Boeheim motion to dismiss next month.
Either way, the venue issues and the motion to dismiss will really dictate whether this case settles (or rather, how soon). Of course, if it's dismissed, there's nothing to settle. That would be best case scenario for the Boeheim camp. Allred & Co. certainly want the case to go forward in New York County with the motion to dismiss being denied. I think at that point, this case goes away real fast, via settlement. Even with this case and these facts, I don't think I chance it in NYC if I'm Boeheim. Too much financial exposure. Just my opinion.
Once the change of venue motion is decided tomorrow, check my twitter (@jbren) for immediate reaction. Since I'll be in Syracuse for the USF game, you'll want to check back here for more in-depth analysis of the decision at some point on Thursday.
Labels: Bernie Fine, Defamation Lawsuit, Jim Boeheim, Orange44 Lawdogs