girl ipsa loquitur: Free at Last? Email me!

Friday, September 03, 2004

Free at Last?

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As I am sure you must know, unless you live in a cave with no outside contacts to the world (rather like Girl Ipsa without cable), the criminal charges against Kobe Bryant have been dismissed. He has to be relieved. After all, the threat to him now is just to his wallet, and not to his freedom to play basketball at Staples Center. Is this a good outcome? I'm really not sure how relieved the rest of us should be. I still think a trial was warranted, to sort the facts from the distortions...

I took a look at the civil case, filed by Jane Doe, against Kobe and found it rather disturbing. There are some practical differences between the criminal procedure and the civil procedure which warrant a closer look.

For instance, in a criminal case, the prosecution is not the representative of the victim but represents the people of the jurisdiction in which the crime occurred. The victim is just like any other witness in that case.

On the other hand, in a civil case, the victim becomes the plaintiff; a party to the lawsuit, represented by counsel. She is no longer merely a witness. The civil complaint process in federal court (as it is here) subjects the plaintiffs attorney to some fairly stringent rules regarding what may be alleged. This tends to lend merit to the truthfulness of the plaintiffs allegations. Under the Federal Rules of Civil Procedure, the attorneys can be sanctioned for any number of misdeeds (whether intended or not) and this would seem to compel the attorney to be certain that she** can prove what she assisted her client in alleging.

For instance, FRCP Rule 11 requires the attorney to attest to the truthfulness of the contentions and to the belief that they can be supported, by admissible evidence (I started evidence class last night and it has kicked my torrid affair with the law up a notch or two...), after the attorney has made a reasonable inquiry. It puts that responsibility on the attorney directly. It works like this:

The federal court says to the attorney "Hey, you better make sure that what you are telling me is going to be supported by evidence 'cause if your client is a liar, I'm gonna spank you good!"

A Rule 11 violation can be very bad news for the attorney. The court can make her pay all of the other sides fees and costs, can make her pay a punitive fine and can subject her to professional discipline which includes the possibility of suspension from practice or even (GASP!) disbarment.

Really makes you wonder what would possess Ms. Does attorneys to allege, on information and belief, after a reasonable inquiry, that they will be able to show:

"...Defendant Bryant has a history of attempting to commit similar acts of violent sexual assault on females he has just met and has thereby established a pattern and practice of such unlawful acts."

At the risk of a Rule 11 violation, 3 separate law firms have signed this allegation. That means that all those attorneys are pretty darn sure they can come up with evidence to prove that Bryant has tried to do this before. PROOF. I know it's just conjecture, but imagine along with me... What would prove such a fact?

So, there is my problem with this whole sad affair. We are left with only our imaginations to sort out what really happened. Notwithstanding Girl Ipsas being a newly minted Lakers fan, I am uncomfortable with the idea that Bryant has escaped culpability for a violent crime. On that other hand, though, it is no better resolution to leave a cloud of suspicion lingering over an innocent man. The criminal case outcome is unsatisfactory all the way around.

We are not done with this subject, intrepid reader, as I am certain there is more on the horizon. Dork (back in his proper seat, ready to fulfill his appointed duties) contends that this case will never get to trial either. But I hope it does. So we can see what PROOF the plaintiff has to offer.

Or, if there is no proof to offer, we can watch the federal court make 3 law firms go fetch a switch.

**I use the feminine pronoun because I am a "she" and I just like it better. It is totally discriminatory and I will not apologize to offended masculine pronouns but only say "Grow up.", it's just a word.


Blogger Christopher Chopin said...

Don't overestimate the importance of Rule 11. The due diligence required isn't tantamount to full investigation. Just the existence of any most likely admissible evidence tending to support the conclusions advanced by a highly sympathetic client.

And besides. No one really expects this case to go to trial, do they?

6:54 PM  
Anonymous Anonymous said...

Rule 11 sanctions are not predicated on a trial... besides, I'd like to know what Ms. Doe's attorneys have by way of "the existence of any most likely admissible evidence tending to support the conclusions advanced by a highly sympathetic client." Wouldn't you?

11:24 AM  
Blogger Girl Ipsa said...

I somehow just made an anonymous post... see comment above. That was me. Mystery solved.

11:25 AM  
Blogger Christopher Chopin said...

Sure. I can answer that. She said he did it. Should they have thrown her out in the street? (and avoided all that yummy fame and money?) Evidence enough, motion denied.

7:13 PM  

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