Dershowitz presumed innocent in zero-sum defamation game (Update: Affidavit and Lawsuit)
Accuser and her lawyers need to prove their claims, not hide behind court pleading privilege.
Alan Dershowitz, along with others including Prince Andrew of Britain, were accused in a court filing involving convicted sex offender Jeffrey Epstein of participating in forced sex with a 17-year old.
The court filing was not criminal, and was not even under oath. It merely was a motion suing prosecutors for agreeing to a light sentence for Epstein, without any evidence accompanying the allegations.
I’ll let you in on a not-so-secret lawyer secret: When you want to smear someone without having to back it up, just put it in a court pleading. Statements made in court pleadings are absolutely privileged, meaning you can’t be sued for them. If you make the statements out of court, for example in a press release, then you can be sued. If you make the statements under oath, you could be subject to criminal prosecution. But keep it in the court pleadings, and you likely are home free.
Step two in the tactic is to make sure the media picks up on the court pleading, so that the smear gets out into the public domain while your hands are clean. In high profile or celebrity cases, local media typically will be alerted to new filings either from routine checks or a tip off from the clerk. If all else fails, the tactic may require a nod and a wink to local reporters by the lawyer.
It is the perfect smear tactic, which leaves the target short on options. The target is not a party in the case, and has no right to clear his or her name in the court case. All that is left is public denials that the accusations are false, but that also helps to spread the accusations.
Particularly in an age when we are used to public figures lying about sexual escapades only to be proven otherwise, the louder the target protests his or her innocence, the less he or she is believed.
That’s the situation Dershowitz finds himself in.
And he’s doing the only thing he can, going on offense, trying to force the accuser and her lawyers to go on record in a forum and manner that is not legally protected — forcing the accuser to go under oath or file criminal charges, and the lawyers to defend their claims publicly.
He’s also framing the issue correctly — it’s zero sum. He’s either guilty as hell, or the accuser and her lawyers are. No middle ground.
According to the Daily Mail, Dershowitz has filed defamation lawsuits in London and the U.S., although it’s unclear how liable the accuser’s lawyers will be even if the allegations are false:
The case could fail because attorneys are advocates for their clients, not arbiters of fact, so they are entitled to believe their clients, experts said.
Amy Mashburn, a professor at the University of Florida’s Levin College of Law said: ‘The statement by the victim that it happened, without a strong reason to question it, would be sufficient.’
Stephen Gillers, a professor at NYU School of Law said: ‘Being false alone is not enough.
‘What a disciplinary committee would have to show is that they either knew the allegations were false, or they were reckless in making the charge.’
Mr Gillers said there was no firm standard for what it meant to be reckless. While attorneys have an obligation to investigate allegations before making them, such an investigation need not be as thorough as the fact-finding that later happens in court, he said.
Cassell and Edwards would be more likely to face punishment if a disciplinary board concluded that they knowingly lied. Ms Mashburn said that would be a very serious fraud that would be a breach of several ethical rules.
Even then, she said, they might only face suspension.
(Prince Andrew also absolutely denies the charges.)
Because we are all so jaded, I can’t say definitively that Dershowitz is innocent.
I can say that Dershowitz should be presumed to be innocent until the accuser and her lawyers stop hiding behind the privilege that attaches to court pleadings, and put themselves at legal risk should the accusations be false.
UPDATE: Dershowitz has filed a Motion to Intervene and Affidavit in the Florida case in which the allegations were made. The full motion and affidavit are embedded below. He completely denies the allegations with great specificity.
Dershowitz also makes a point I made above about the tactic of using court filings as a shield:
9. I believe and allege that Jane Doe #3’s lawyers deliberately inserted this false and defamatory charge, which they knew or should have known to be false and defamatory, in a legal pleading that does not seek an evidentiary hearing or provide for any other opportunity for me to respond to, rebut or disprove their knowingly false charge. They placed it in a legal proceeding, in a public filing, in bad faith in an effort to have the media report it, while they attempt to hide behind claims of litigation and journalistic privilege. I believe and allege that their bad faith purpose was to have this false charge made public, while attempting to deny me any legal recourse. There is no realistic possibility that this pre-New Year’s filing would have been picked up by the media had they or someone on their behalf not deliberately alerted the media to its existence.
Alan Dershowitz Motion to Intervene and Affidavit
And, further UPDATE 5:55 p.m.:
Via The Wall Street Journal, the accusers lawyers have sued Dershowitz for defamation:
Alan Dershowitz has vowed to slap a defamation suit on the two lawyers who claimed in a court document that Florida financier Jeffrey Epstein arranged sexual liaisons for him with an underage prostitute.
Those lawyers have beaten him to the punch.
Paul Cassell and Bradley Edwards, who represent a woman claiming she had “sexual relations” with Mr. Dershowitz at Mr. Epstein’s direction, have filed a defamation lawsuit against Mr. Dershowitz in Florida circuit court, according to Mr. Cassell.
States the lawsuit:
Immediately following the filing of what the Defendant, DERSHOWITZ, knew to be an entirely proper and well-founded pleading, DERSHOWITZ initiated a massive public media assault on the reputation and character of BRADLEY J. EDWARDS and PAUL G. CASSELL accusing them of intentionally lying in their filing, of having leveled knowingly false accusations against the Defendant, DERSHOWITZ, without ever conducting any investigation of the credibility of the accusations, and of having acted unethically to the extent that their willful misconduct warranted and required disbarment
It cites an interview that Mr. Dershowitz gave to CNN International in which he called Messrs. Cassell and Edwards “sleazy, unprofessional, unethical lawyers” who should have known that their client is “lying through her teeth.”
Told of the lawsuit on Tuesday, Mr. Dershowitz told Law Blog that he was “thrilled” by the development, “This gives me a chance to litigate the case. I can expose their corruption,” he said. “I can show how fraudulent the allegations are. This makes my day.”
Mr. Dershowitz said the lawsuit will allow his lawyers — among other things — to depose Messrs. Cassell and Edwards and their client, a woman identified in court papers as Jane Doe #3.
The Complaint against Dershowitz is here.
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The defamation case may fail, but what about the disciplinary action?
I would go after somebody’s license. Ostentatiously.
On what predicate? That you like Da Dersch, and invest in him YOUR faith?
There is NOTHING unethical about a lawyer working off the claims of his/her client IF they find those claims credible. We make allegations “on knowledge and belief” in most every lawsuit filed. That’s what they are for…determining the evidence according to law that supports or refutes our “knowledge and belief”.
Last I checked, it was considered unethical to bring a frivolous claim, and at least when I sign a paper, my signature constitutes an assertion that I have investigated the claim, including the underlying statements of fact. That means there had better be some evidence.
If “information and belief” is a perfect shield to this ethical obligation, then the law as applicable to defamation cases, which involve some of our most serious personal torts, is distinctly different from ordinary business law, such as that relating to patents. In that case, it is high time defamation law was conformed to an existing, higher standard.
I’ll ask…or demand if you like…again.
On what predicate? You’re sliming lawyers you don’t know on pure ASSumptions, from all you’ve said.
And you’re howling for their bar cards when you have jack-spit for YOUR evidence.
Aren’t you? Ostentatiously.
“On what predicate? That you like Da Dersch, and invest in him YOUR faith?”
On the predicate that such a libelous statement was made in a court pleading where he’s legally immune instead of a criminal complaint or civil lawsuit. That’s a cheap tactic scumbags use when they don’t want to be held accountable.
If the scumbag holds a license in New York he certainly can have his license yanked under moral turpitude and ethics violations. I’m guessing that Floriduh doesn’t have the same restrictions and can’t be touched in that manner.
What the HELL are you talking about?
I can say anything I want to in a civil lawsuit, provided I have a reasonably investigated basis to believe…BELIEVE…I can DEVELOP the evidence I need to substantiate it.
Civil lawyers don’t bring criminal actions.
You don’t know anything about this, do you?
>> I can say anything I want to in a civil lawsuit, provided I have a reasonably investigated basis to believe…BELIEVE…I can DEVELOP the evidence I need to substantiate it.
And if you didn’t have that basis, but went ahead anyway, how ought or should your opponents’ actions differ in form, substance, tactics, strategy from Dershy and friends?
I take no position on whether Da Dersh is culpable.
But to answer your question directly, I would expect someone like Dersh to fight back just as he is EVEN IF HE WERE GUILTY AS SIN.
And, as always, I suggest we let the process work before we call anybody names or call for their disbarment.
The question is: “Did the lawyers for ‘Jane Doe #3’ do sufficient investigation of the claim to have a good faith belief that it is true (or at least be able to claim that they did not know it not to be false, and were not ‘reckless’ in their pleadings with a straight face).
Comment NOTE: ‘reckless’ is a VERY loose term in the sense of ‘we want to make an example of somebody’ from a Bar discipline standpoint. It is whatever the Disciplinary Committee says it is. End Note.
This kind of thing would not fly in El Paso unless the lawyers making the claim could prove it with absolute certainty. A couple of attorney’s pulled a stunt like this in their pleadings, making false claims in pleadings, with one of the Judges last year and both were suspended for 6 months, and one ended up serving 30 days in jail for contempt.
Alan Dershowitz is a big enough fish that he can “encourage” the Disciplinary Committee of the Florida Bar to do something about this if the membership thereof want to keep their positions on said Committee. All he has to do is start attacking the Disciplinary Committee as ‘toothless’ and the Bar will start making heads roll for the bad press.
That being said, the Disciplinary Committee has four standards for imposing sanctions on these two lawyers: (1) Duties violated; (2) The Lawyer’s mental state; (3) the potential or actual injury caused by the lawyer’s misconduct; (4) the existence of aggravating or mitigating circumstances.
(1) – Injury would be to Alan Dershowitz (and others) who are members of the ‘public’ for the purposes of this discussion.
(2) – “Intent” is the conscious objective or purpose to accomplish a particular result. (directly from standard).
(3) – Potential or actual injury caused – Dershowitz and others have a very good claim for reputation damage if they can show that the pleading was false or a misrepresentation. See the NOTE above.
(4) – I don’t see any way that there could be a mitigating factor here, but maybe there is something.
Now, onto the potential violations themselves:
The charge against the lawyers by the Disciplinary Committee would be: VIOLATIONS OF DUTIES OWED TO THE LEGAL SYSTEM. Specifically section 6.1 FALSE STATEMENTS, FRAUD, AND MISREPRESENTATION
Absent aggravating or mitigating circumstances, and upon application of the factors set out in Standard 3.0, the following sanctions are generally appropriate in cases involving conduct that is prejudicial to the administration of justice or that involves dishonesty, fraud, deceit, or
misrepresentation to a court: 6.11 Disbarment is appropriate when a lawyer:(a) with the intent to deceive the court, knowingly makes a false statement or submits a false document; or (b) improperly withholds material information, and causes serious or potentially serious injury to a party, or causes a significant or potentially significant adverse effect on the legal proceeding.
As an example: In Office of Disciplinary Counsel v. Grigsby
, 493 Pa. 194, 425 A.2d 730 (1981), a lawyer was disbarred where he filed a false sworn pleading in connection with a pending garnishment proceeding. The pleading stated that the funds in the lawyer’s checking account belonged to clients and could not be reached. The lawyer’s action to save his money from garnishment was both intentional and damaging to his creditors.
Now, the Discipline may turn on the Committee’s reading of the word “party” to the suit (which may also partially be why Dershowitz is attempting to intervene, because then he gains “party” status to the suit).
“I can say anything I want to in a civil lawsuit, provided I have a reasonably investigated basis to believe…BELIEVE…I can DEVELOP the evidence I need to substantiate it.”
They HAVE NOT FILED ANY LAWSUIT based on this woman’s accusations. That’s the WHOLE POINT of the article.
You don’t know anything about this, do you?
9. I believe and allege that Jane Doe #3’s lawyers deliberately inserted this false and defamatory charge, which they knew or should have known to be false and defamatory, ****in a legal pleading**** that does not seek an evidentiary hearing or provide for any other opportunity for me to respond to, rebut or disprove their knowingly false charge. They placed it in a legal proceeding, in a public filing, in bad faith in an effort to have the media report it, while they attempt to hide behind claims of litigation and journalistic privilege.
I hope that serves to dispel you frightful ignorance.
And, of course, they HAVE filed an action against Da Dersh now, haven’t they?
I’ve never heard “predicate” used as a noun outside reference to either grammatical critique or formal logic discussions, but assuming you meant something akin to “basis”, it would appear the “predicate” is that the lawyers in the case didn’t have a reasonable basis for their belief. Dershowitz is explicitly accusing them of knowing the statements were false or acting with reckless disregard as to their truth or falsity. That would be Dershowitz’s claim in a bar complaint, and if proven, it would be enough to warrant discipline.
“I would go after somebody’s license. Ostentatiously.”
Me: On what predicate? That you like Da Dersch, and invest in him YOUR faith?
I asked the question probing for HER thinking/evidence/support for her flaming character assassination.
This is one of the lawyers involved….
A former Federal judge, and current law professor who has had a very distinguished career, including clerking for Justice Scalia.
This does NOT suggest he is incapable of acting stupidly…even unethically. I certainly AUGERS in the direction of him NOT being “an idiot lawyer” who should be disbarred sans anything but rank opinion.
I use words very well. Expand your mind.
The legal version of “Put up or shut up” complete with the obligitory trip to the woodshed. Sounds like Dershowitz has picked out a nice strong stick and is going to tan somebody’s hide until it can be turned into a wallet.
Go Alan, go!
Only trouble is, he has declined to be deposed a number of times. He says he only turned them down once, but that’s not what they’re saying.
I also would like to see Legal Insurrection do a post on the federal prosecutors who are being sued in this case. How in god’s name did they get away with not informing the victims of the plea deal?
Source for this, Mercyneal? You’re making this allegation elsewhere on the web, I see, but you don’t include a URL or other documentation.
One cannot “decline” to be deposed. A deposition occurs as a result of a court order in a case — one attorney files the request and the judge orders it. If these attorneys had a reason to want a deposition and filed for it, Dershowitz would be deposed, like it or not.
Again: source for your allegation.
Actually, wrong, Doc.
In most jurisdictions, a lawyer can issue a subpoena for a deposition, totally independent from any court action.
And, in reality, most depositions are conducted by request and agreement.
But IF someone issues a subpoena for someone on “my side” of a case (to include a party, a witness, etc.) TRYING to compel them to be deposed, I fairly often quash that subpoena for good cause. THAT sets up the first time we bother a judge about the deal…if it ever gets that far even then.
So, long-to-short, and admitting I know nothing about the particulars of Da Desch’s depositions, there are LOTS of ways to “decline a deposition”, even if only to agree to another time and/or place out of convenience.
Any wonder why so many lawyers are considered slime balls ?
Dersh defended this guy, which lends some credibility to a claim of false accusations against him. Bill Clinton, not so much.
That fact adds a lot to the story. It would be hard to believe that someone just picked Dershowitz’s name out of thin air and decided to run with it. Clinton I can understand and Prince Andrew also but Dershowitz is not the first person that comes to mind when you hear about a sex scandal.
The filing in London is interesting. The UK has much looser defamation standards.
How dare he accuse someone of lying about rape! Regardless of whether he is guilty, he is a rape apologist by denying the “survivors” narrative.
As for the lawyers, someone comes in my office and claims to have screwed royalty, I would be, to say the least, skeptical. Bill Clinton a little less so.
Good post! The analysis is spot on.
naming him bugged me, not a name you would just drop at random and being a well known big gun lawyer you would have to know he would fight back.
Alan has had to defend himself for even TALKING about sexual harassment:
AD is a professor, in class, and the “new” (at the time) laws about sexual harassment were being discussed.
He was discussing SH and false allegations, and even back in the early 90’s, a class feminist (or two – memory fades) said that even DISCUSSING false allegations, since they are so rare, advances SH, and emboldens harassers.
They wanted NO discussion of false allegations because, to them, they were so rare as to be not worth talking about, and it legitimized false allegations.
AD said no, it’s his class, and the discussion continued.
Then he was charged with sexual harassment, falsely, by the class feminist(s) for simply discussing false allegations of SH.
The very charge she (they) denied were ever made falsely, were falsely leveled at AD, BY HER (THEM), alleging that is was SH for simply DISCUSSING false allegations.
So – anyone who thinks the PC feminist insanity is a relatively “new” concept would be wrong – even 20+ years ago even DISCUSSING false allegations got one accused of whatever crime you said had false allegations.
An excellent example – I had read years ago – that even having a DISCUSSION of false allegation, where the feminists deny such false allegations exist or are so rare as to not be worthy of discussion.
Then – those same feminists MAKE A FALSE ALLEGATION to shut the person up.
Michelle Gretzinger, Tania Mortensen, and Bonita Rai at the University of Hawaii
For this story see Heterophobia by Dr. Daphne Patai, chapters 3 and 4 (p.72-87).
Ramdas Lamb was a well-liked professor and undergraduate adviser for the religious studies department at the University of Hawaii. A well-traveled Hindu monk (for which he took the name Ramdas), his genial personality and instructional skill had contributed to the department nearly doubling in size in a mere two years.
One day he asked his students to read several articles about sexual harassment and rape, one of which sparked a discussion about false accusations. This greatly disturbed Tania Mortensen, a sex-assault victim advocate for a group called CORE (Creating Options for a Rape-Free Environment) who ”vehemently denied that women ever lie about rape.” Michelle Gretzinger, who the semester prior had told other students she had been raped (and who would later make numerous false rape accusations against Dr. Lamb), as well as Bonita Rai, were also offended.
All three of them accused Dr. Lamb of creating a “hostile environment” by allowing false rape accusations to be discussed at all. When their accusations gained no traction, however, Michelle Gretzinger escalated the charges and falsely claimed that Dr. Lamb assaulted her “between ten and sixteen times in her own apartment after driving home from his once-a-week class,” something her attorney characterized as “mentor rape.”
Gretzinger’s false rape accusations drug him through the courts and the mud for three and a half years, which devastated his reputation among the faculty. It ended up in federal court, where it took a jury of four women and four men just a few hours to recognize that it was in fact Gretzinger who was the villain, and Dr. Lamb who was the victim.
There were numerous problems with Gretzinger’s accusations. The dates she specified did not even accurately fall on class days. Despite claiming to being traumatically raped ten to sixteen times, she never notified her husband of these horrid serial rapes that were allegedly going on. In addition, according to reports by other students, she had continued to demonstrate enthusiasm in class for Dr. Lamb’s lectures during the time she was supposedly being “raped.” She also signed up for one of his future courses during this “rape period” as well.
I’m more interested in how Epstein got a light sentence.
Patience. I am sure the New York Times has classically trained highly professional journalists with the highest ethical standards working that along with a detailed story about Epstein’s political connections and contributions.
They will even add more staff to the story as soon as they get done checking the color of rocks at Rick Perry”s hunting lodge.
I don’t. Same legal principle that kept Jon Corzine out of jai
These two idiot lawyers have now gone and done it. They attempted to sue Dershowitz for Defamation.
They’re toast. Dershowitz’s attorney will eat them alive in deposition.
“Why?” you might ask. I’ll tell you: Now it means that Messrs BRADLEY J. EDWARDS and PAUL G. CASSELL will have to detail exactly what they did to investigate the claims of “Jane Doe #3” prior to filing their pleading in that case. They can’t hide behind “attorney-client” privilege (the Court will order it waived for the limited purpose of investigating the claim of defamation. Edwards and Cassell have just opened the door to their own beat-down.
My guess is that if they can’t prove that Dershowitz and “#3” were in the same place at the same time at least once, they’re going to be paying a settlement in the 7-figure range.
“Immediately following the filing of what the Defendant, DERSHOWITZ, knew to be an entirely proper and well-founded pleading, DERSHOWITZ initiated a massive public media assault on the reputation and character of BRADLEY J. EDWARDS and PAUL G. CASSELL accusing them of intentionally lying in their filing, of having leveled knowingly false accusations against the Defendant, DERSHOWITZ, without ever conducting any investigation of the credibility of the accusations, and of having acted unethically to the extent that their willful misconduct warranted and required disbarment.”
“Jane Doe #3, a woman seeking to join the lawsuit, says Mr. Epstein ordered her to have “sexual relations” with Mr. Dershowitz on the businessman’s private plane, on his private Caribbean island and also his homes in New York City and Palm Beach. The same document also links Prince Andrew, the son of Queen Elizabeth II, to the prostitution ring, eliciting a strongly worded denial by Buckingham Palace.”
What if your ASSumptions are backwards?
Why are THEY “idiot lawyers”, and not Da Dersh? What if he’s dirty here?
Or, what if they impled Da Dersh on their best information and belief after a “reasonable investigation”? Is he better than other civil defendants?
Perhaps, Ragspierre, you could be civil for a while. Seeing as, you know, you’re a lawyer. Everyone else here is discussing this calmly.
Now then: Chuck Skinner is actually making the same point as Prof. Jacobson. Now that these two lawyers have sued Prof. Dershowitz, they’ll have to demonstrate that their allegations are credible — not necessarily true, but credible enough to allow for a court filing. If not they’re in some serious trouble, either in a civil suit from Dr. Dershowitz or from the Florida court for a false pleading (these two possibilities are not mutually exclusive).
If the lawyers have the documentation to sustain the credibility of their charges then they’ve played the game of chicken with Prof. Dershowitz extraordinarily well. But right now it seems that they have done exactly what Prof. Dershowitz wants them to do — get this into a proceeding where he can depose them and Jane Doe #3.
Prof. Jacobson is correct: it’s a zero-sum game. One side or the other is going to be ruined by this.
I’m being perfectly civil, Doc.
I’m just not going with the groupthink here, which is kinda my forte, you may have noticed over the years.
You might try it some time. I know what the Prof. said, and…NOT for the first time…take some exception to it. I figure he can deal with it.
When I ask pointed questions, if those make you or anyone else here squirm, tough shit. Chuck and I are doing what lawyers who are friends do (at least the ones I’m friends with), and that’s NEVER let friends’ bullshit go unchallenged.
I’m not telling you to engage in group-think, agree with everyone else, or agree without noodling the problem through.
You’re in Prof. Jacobson’s (very nice and handsomely appointed) house as a guest. Act like it.
Seems like YOU are the one making a scene here in the parlor, Doc.
What? Are you all micoaggressed? I’ve asked some pointed questions. If you find that rude, you need some man-pants.
And any time Prof. Bill wants to object to anything I post here, he has my email. So how ’bout you let HIM police his parlor?
It is possible that my assumptions here are wrong, but I don’t think so, and here’s why:
This whole thing stinks too much like an extortion / punishment play. Dershowitz was involved in the negotiations for the plea to the light sentance in the prior criminal case. Jane doe #3 (or her attorneys) go to Dershowitz and say “pay up or I’ll claim you had sex with me underage.” Dershowitz can’t go public with an extortion claim (that would be defamatory and open him up to proof issues, as everybody here is smart enough NOT to put anything in writing), but he can attack back if she follows through on the threat.
I see this all the time in the construction law contractor /subcontractor context: pay ransom or we’ll file a lien for 10x the amount we’re owed. It will take 2x the amount of the CLAIM to strip the lien from the property, and the Owner demands you do so per contract. Yes, you have a good case, but the opposing party is usually judgment-proof, and you,be tied up 20x the amount it would cost to simply pay up for 2 years or longer. The time-value of the money ends up being worth more than the extortion.
Now here’s the other issue: my guess is Dershowitz can somehow disprove her stated claims (maybe he ws never on the private plane without other witnesses). Maybe even better he can somehow prove he and she were never on the plane together at all. Perhaps Dershowitz can somehow prove out where he was at any given time. With somebody as public as he is, it maybe possible to forensicly reconstruct where he is on any given day going back decades.
Also notice doe’s statements are very, very vague. The private island, plane and Dershowitz’s two houses, all easily identifiable places, and engaged in “sexual relations.” Dershowitz’s are reasonably specific.
Like I said, I could be wrong, but I don’t think so.
Sent from my I-phone. Apologies for errors.
Just count the number of times you say “my guess” and “perhaps” or close variations on those themes.
Like I said, I suspend judgment…and groupthink…on this issue pending MUCH more illumination.
“I see this all the time in the construction law contractor /subcontractor context…”
Next time you see anything LIKE that, get in touch. I’ll have you a summary judgment in no time. Lien law in Texas is pretty clear, and any specious claim is just FUN!
Side Discussion on extortion lien practice not related to thread – skip if not interested:
The problem that I often run into in the construction extortion-racket is that the claim is not quite entirely specious. Example:
Subcontract corporation is hired for a specific term construction contract to manage a site and other subcontractors thereon. Agreement is drafted with loose terms of $1,000 per week plus certain expenses and reimbursements.
Subcontract Corporation Employee performs contract. In the course of the performance, he makes several errors (has electrical sub put conduit in wrong place, has dry-wall sub close up walls prior to installation of electrical or plumbing that then have to be torn open again, etc…).
During the course of the Contract, $4,000 worth of owner’s provided equipment for future business is stolen. General Contractor (my client) says “site security is a responsibility of sub, and we rented him a roll-off trailer with lock to secure items, which he failed to do.” Sub, unsurprisingly says “Not my problem. I filed a police report.”
Sub-contractor also generates certain expenses from equipment rental which General pays due to subcontractor inability to finance, but then sub demands amount not be held from his own payment.
Sub is owed approximately $5,000, but has incurred approximately $5,000 in injury to GC by negligence and failure to perform and costs that sub should have borne.
Sub then files lien, claiming owed $23,000, claiming owed $5,000 in reimbursement, various payments for items rented or fees incurred, and payment for 237 hours of “overtime” at approximately $46/ hour (1.5x). GC objects to overtime claim, as it considers sub an independent contractor, and hired a corporation, not an individual at a set rate.
Owner, citing main contract, gives notice to GC that GC is now in breach for suffering lien to be placed and withholds statutory retainage until such time as lien is removed. GC then has to post $46,000 bond to remove lien, tying up said amount for the length of the case, as no bond company will write indemnity bond without full collateral in hand.
With a small construction business, if you have two or possibly three of these happen at once, you suddenly have tied up all your short-term operating capital and have to eat the extortion because you can’t have $200k tied up, as that is your ability to front-finance and take on the next $1.5 or $2 million dollar project. When you only have 3 of those projects a year on a 15% margin to cover your own business expenses.
Anyway, that’s what I see. You and I do need to sit down at some point to compare notes. If there’s a way to whack that sort of thing I’d be happy (and my clients would be financially pleased) to hear it.
GC then has to post $46,000 bond to remove lien, tying up said amount for the length of the case, as no bond company will write indemnity bond without full collateral in hand.
See TPC 53.160. In your scenario, the bogus lien has to be supported by affidavit, which is readily attacked as a fraud on the Court.
Your contractor puts up $23,000 in the Court registry, and that strips the lien and all contingent liability for the owner and contractor who release retainage funds.
I do it in a suit for declaratory judgment on the lien, with a breach of contract and fraud action, which seems to work.
THEN I file a hybrid Motion For Summary Judgment, since, if they filed a lien, they have…or DON’T have…evidence to support it when they file it, and they’ve made a false sworn set of allegations. They don’t get…or can even claim…they need more time for discovery.
IANAL, and FWIW, after reading all these comments, and the post, I say again what I may not have said as clearly before: IMO, this anonymous commenter signing as Ragspierre is a leftie troll. His or her abruptness, coarseness, glibness, belligerence and unceasing dedication of their keyboard makes me think that.
Today, “Jane Duh-Doe” is 30 years old. And, she’s got 3 kids. Since the claim is “she was only 17” when she participated in orgies. And, Epstein had cameras going behind the walls of his mansions. This became evidence when the government got warrants to “look around.” (How, they looked behind his walls, I have no idea.)
But orgies with young lovelies is nothing new. (And, when they’r homosexual parties, the males are even younger, sometimes, than 14.)
I think the nightmare for men is that this stuff is OLD! And, yet this woman had access to the press. (In some odd shot that is looking to tear down Hillary … through Bill’s sexual shenanigans. And, this isn’t just a “shot across the bow” … it’s a demolition squadron!)
Public’s appetite for “sex scandals” is enormous. And, here? It overlooks how a teenager, “below some age of consent” has been screwing her brains out at least since she was 12.)
I guess the idea is that the “old morality” never dies. It just gets repackaged. But Doe-duh must be laughing her head off.
Meanwhile, Monica really loved Bill.
And, there’s no such thing as “free sex.” Heck, before penicillin it often led to brain damage, as the consequences of syphilis.
icymi, this is Coulter on the subject. She seems to think at least one of the lawyers representing the “sex slaves” is top notch, and that “this is not a frivolous case”. I have no clue, but can’t imagine any lawyer haphazardly going after Dershowitz, Clinton, and royalty, unless they had a death wish.
During the Clinton Impeachment hearings Mister Dershowitz testified, and I recollect that the gist of his testimony was twofold — that the impeachment was a partisan attack, and that lying under oath (perjury) was excusable when it is about sex, because sex is a private matter. Do I have that right?
In which case, if that is so, of what probative value should Mister Dershowitz’s claims of innocence, even if be means of sworn deposition, be given?
Shall we ask a Paula Jones or a Kathleen Willey or a Juanita Broaddrick to serve on the jury, grand or petit in the case? Of course not, They are not Mister Dershowitz’s peers.
But who are his peers? Bill Clinton? Jeffrey Epstein?
A man has to be careful with his chosen circle of friends.
From Dershowitz’s testimony to the House Judiciary Committee:
Much of the public debate about President Clinton and possible perjury appears to ignore the following important lessons of history:
1. that the overwhelming majority of individuals who make false statements under oath are not prosecuted;
2. that those who are prosecuted generally fall into some special category of culpability or are victims of selective prosecution; and,
3. that the false statements of which President Clinton is accused fall at the most marginal end of the least culpable genre of this continuum of offenses and would never even be considered for prosecution in the routine case involving an ordinary defendant.”
If President Clinton were ever to be prosecuted or impeached for perjury on the basis of the currently available evidence, it would indeed represent an improper double standard: a selectively harsher one for the president (and perhaps a handful of other victims of selective prosecution) and the usual laxer one for everyone else.”
Plaintiff Doe has motive to slime Dershowitz for his role in crafting the sleazy deal for Epstein, but I suspect (for no good reason I can point to) that Dershowitz is a guilty party in this matter.
Just for the record, this is another of those areas on which I STRONGLY disagree with Prof. Bill.
Lynch is NOT a good AG candidate, regardless of her past association with our worthy host.