Yo, Lawyer Types! Frame the key legal issue(s) in a possible Leach v Tt action.

[TUSooner]

I'm not a litigator; I deal almost exclusively with "pure" legal issues. I'd like to hear from the practicing bar about how they would approach the case from a legal standpoint, assuming that Leach sues Tt for money due after Tt fired him without cause. I realize there will likely be a pre-trial settlement, but assume you are preparing the case for trial. Look at the Legal issues only, and how you'd formulate them.

There's lots of noise about, basically, "whether Leach was an a-hole for punishing AJ inappropriately" or "who is the biggest jerk?" If that is the issue presented to a factfinder, Leach could be in trouble. And if that's "cause" for firing, few coaches are safe. Future court intereference with routine disicplinary decisions would be likely.

Leach should be candid about wanting to punish AJ. But he should show - as I think he could - that there was no real risk of harm. I think the issue has to be limited to whether Leach showed "deliberate indifference" to AJ, or some similar standard. I know delberate indifference is the standard for civil rights violations against cops and prison guards, and other state actors, etc., and that would likely be the showing AJ would have to make if he was suing Leach. But I'd think a court would have to afford similar deference to a coach unless the coach's action was more than just "mean", put rather presented some palpable risk of serious physical harm "or something" What's the "or something"?

[MiccoMacey]

bump until it's answered.

[adoniijahsooner]

bump

[Leroy Lizard]

What's the "or something"?

Unnecessary duress?

[TUSooner]

Let me add this while shamelessly bumping my own thread:
There's no dispute that Tt could fire Leach for any reason or no reason ('cept for being a man or being white, of course :rolleyes: ) So firing him for being a knot-hole is OK as far as firing goes, as long as they pay him according to their contract. The question is whether he was fired "for cause" under the contract such that Tt can avoid paying him. That is all.

[OUHOMER]

i am not a lawyer, and I dont think the treatment of AJ would constitute "cause".

But I think when he tried to sue TT, that is where the insubordination came from.

He does/did have a contract I am sure it states he has to go by the TT hand books, so if he refused to sign anything else, I would have to assume they would have to but it in his contract.

If i was on a jury, I would be hard pressed to agree with TT.

No physical harm came to AJ, Aj stories seems to have been embellished to the point that they are lies.


:pop:

[TUSooner]

Unnecessary duress?

That's as vague as "being an @$$hole." ;) Under that standard, coaches could be fired for cause for cussing or calling for too many windsprints.

[Leroy Lizard]

Okay, how about "mental distress"?

I dunno. I'm just throwing out ideas.

[Soonerus]

I am waiting on a retainer...

[Leroy Lizard]

Yeah, can we even give out this legal advice without a license? :D

[TUSooner]

I am waiting on a retainer...

Hey, we all know what free advice is worth, but bring it on, Rus! :D

[OUHOMER]

I am waiting on a retainer...

Maybe if you offer something up, they might retain you or maybe they wouldn't.

i guess we will never know

[TUSooner]

Yeah, can we even give out this legal advice without a license? :D

Great. The lawyers want to get paid, and the perfessers want immunity. :rolleyes: :D

[StoopTroup]

Anyone who is going to school where Leroy is teaching should sue IMO.

[Leroy Lizard]

Gee, why is that? (This ought to be good.)

[rainiersooner]

It's breach of contract, pure and simple imo. I believe the reason TT asked Leach to sign the policy document/letter they presented him with was so that they could in turn state that he violated a policy he had acknowledged; obviously that's why he did not do that. TT will claim they fired him for cause.

See Leach's contract, linked below:

http://i.usatoday.net/sports/graphics/2009/coaches-contracts/pdf/leach_texastech.pdf

So the University will claim that the treatment of James violated the provision to:


assure the fair and responsible treatment of student athletes in relation to their health, welfare, and discipline.

I personally think that TTU will have a difficult time convincing a jury that James' treatment was not fair or responsible. Evidence will be admitted from both sides as to what NCAA standards are for discipline or medical treatment from similarly situated Division One programs. I think though that this will be a fascinating case, and I hope it goes to trial.

Leach's initial lawsuit seeking an injunction against the school would probably not be cause, I think public policy would prevent that - but I'd defer to lawyers more familiar with Texas law with respect to that issue.

If I were Leach's attorney, I would also sue for defamation, false light, and various other privacy torts, just to ratchet the claims up.

[Flagstaffsooner]

Gee, why is that? (This ought to be good.)Because you are a nitwit.

[Leroy Lizard]

I personally think that TTU will have a difficult time convincing a jury that James' treatment was not fair or responsible.

I'm not so sure. I could see it go both ways.

[Dan Thompson]

I don't understand why Leach did not kick him off the team.

[Leroy Lizard]

Because you are a nitwit.

And a good day to you too.

[StoopTroup]

Gee, why is that? (This ought to be good.)

Mental Anguish...I'm just throwing out ideas.

[TUSooner]

Because you are a nitwit.

Just to clarify, I believe that is meant to suggest that Leroy Lizard's wit is as tiny as the egg of a louse. YWIA! :D

[TUSooner]

****

So the University will claim that the treatment of James violated the provision to:

[provide fair or responsible treatment to srtudent athletes]

I personally think that TTU will have a difficult time convincing a jury that James' treatment was not fair or responsible. Evidence will be admitted from both sides as to what NCAA standards are for discipline or medical treatment from similarly situated Division One programs. I think though that this will be a fascinating case, and I hope it goes to trial....

This is zeroing in on the crucial issue, methinks. "Fair and responsible" is obviously open to interpretation and will need some fleshing out. Fun fun fun!

[Sooner Eclipse]

This is zeroing in on the crucial issue, methinks. "Fair and responsible" is obviously open to interpretation and will need some fleshing out. Fun fun fun!

^^this - but fair and responsible does not mean exactly equal. Someone around here cant comprehend this.LL

[StoopTroup]

My thoughts as a juror....

If I was +exas tech....I'd give Mike a couple of Million minimum to just say....''can't we get along without having to apologize to each other?''

[85Sooner]

It's breach of contract, pure and simple imo. I believe the reason TT asked Leach to sign the policy document/letter they presented him with was so that they could in turn state that he violated a policy he had acknowledged; obviously that's why he did not do that. TT will claim they fired him for cause.

See Leach's contract, linked below:

http://i.usatoday.net/sports/graphics/2009/coaches-contracts/pdf/leach_texastech.pdf

So the University will claim that the treatment of James violated the provision to:

.

I personally think that TTU will have a difficult time convincing a jury that James' treatment was not fair or responsible. Evidence will be admitted from both sides as to what NCAA standards are for discipline or medical treatment from similarly situated Division One programs. I think though that this will be a fascinating case, and I hope it goes to trial.

Leach's initial lawsuit seeking an injunction against the school would probably not be cause, I think public policy would prevent that - but I'd defer to lawyers more familiar with Texas law with respect to that issue.

If I were Leach's attorney, I would also sue for defamation, false light, and various other privacy torts, just to ratchet the claims up.

and name espn and craig james as co defendents along with tt

[IronHorseSooner]

and name espn and craig james as co defendents along with tt

Here. here! Maybe this will help ESPN keep their mouths shut. Oh, wait....

[rainiersooner]

I'm not so sure. I could see it go both ways.

Typically if a contract term is vague or not expressly defined in the contract itself, you would look at the intent of the parties and if that wasn't clear, you would introduce evidence of community standards, etc. Not your or my community, but the NCAA Division One football community.

If TT could introduce any evidence that Leach had jeopardized James' health, I think it would be game over for Leach. If they could introduce evidence that Leach had told the trainers to put James there so that other players wouldn't complain about getting their bell rung, again game over for Leach. But I would question what sort of evidence TT can introduce to show that Leach's conduct was unfair and unreasonable. The best they've done so far is to produce affidavits from (1) a trainer who said he disagreed with the action and (2) a team doctor who said he didn't instruct Leach to place James there, but in the same affidavit admitted such action did not cause any medical harm to James.

[rainiersooner]

and name espn and craig james as co defendents along with tt

Leach could add tortuous interference with a business relationship against Craig James.

[StoopTroup]

I smell money

[Rogue]

I'm not a lawyer type, and I didn't even stay at a Holiday Inn Express this week.


If they could introduce evidence that Leach had told the trainers to put James there so that other players wouldn't complain about getting their bell rung, again game over for Leach.

This is, I believe, the strongest point that TT could make.
It's what I think I heard Craig James say early on about wanting to prevent the same treatment for other players.

The "evidence" would be any player(s) saying it would make them not want to be shamed/humiliated for being injured and leading the judge/jury to believe that any reasonable person would conclude the same thing...meaning Leach's treatment of AJ had the result, intended or not, of discouraging players from laying out of practice for a legitimate injury.

The timing is in favor of making this the "cause" with all of the attention given lately to concussion type injuries.

Now on Leach's side, if'n I'm lawyerin' him up, I would assassinate the character of AJ...sounds like there would be witnesses lined up around the block.

[westcoast_sooner]

Still, why didn't Leach just terminate the kid's scholarship or suspend him and be done with him. Doesn't have much to do with the legal aspects of whatever litigation may occur, but it would have simplified his life. Sounds like AJ was known to be lazy and a malcontent.

[soonerlaw]

Everything will be governed by the employment contract. It should define under what reasons or causes either party could terminate the agreement and if there will be any penalties. I'm sure with a multi-million dollar contract like Leach's, everything will have been laid out pretty well.

I did hear where his contractual termination actually takes place 10 days after they give him notice of his firing, thereby he would be entitled to the $800K, but this really doesn't make sense to me. I would think it would be effective immediately.

One thing Leach did say was that he was not afforded process. I am wondering if he had something in his contract where he had to have an adminstrative hearing before they could terminate him.

My firm has had a case in the past with the firm representing Leach, and they are good attorneys who know what they are doing. So who knows what could happen, but its probably in everyone's best interest to forge a settlement (a la Mangino) and move on.

[StoopTroup]

I think Leach should also ask that the Stadium be called "The Shed" as any part of settlement.

[TJKDone]

Major institutions don't usually fire guys unless they have legal ducks in a row. Not that it can't happen, but I don't recall ever seeing it.

He'll get a buy out for part of the contract and do infomercials somewhere.

Hook'em

[JLEW1818]

good thing anal sex is now legal in texas


cause i know a couple guys that would be in trouble on the horns team....


nvm, same sex (male), sex is illegal in texas

[htownsooner7]

Here's the basic argument that will be advanced by Tech:

(1) A contract is one of mutual obligations. Once one party materially breaches that contract, the other party is discharged from their obligations. In this case, Tech will argue that Leach breached by not "assuring the welfare of this players" and that such breach was material to the contract. Not that far off when you consider what a coach's number 1 priority should be. Leach will argue that this whole James situation was simply a manipulation of facts intended to obviate the contract and release them from their bonus obligations, not too different from a restaurant customer trying to walk out on a bill;

(2) For the most part, I believe Tech's arguments about falling below established standards are fact issues and accordingly will be decided by a jury. Assuming this case ends up in Lubbock County, I think the juror pool will favor Leach.

Obviously, this is just a few thoughts and is incomplete. That being said, I could see Leach digging in and telling Tech they have to pay the 800k and 400k for the rest of the yrs on the contract. Of course, these cases are an extended negotiation, so he will likely compromise some, but may not relinquish much.

[JLEW1818]

oh sorry yall... thought yall were talking about something else

[htownsooner7]

I should also add that the prevailing party in breach of contract cases in Texas is entitled to attorney's fees, so you can expect that Leach will demand that Tech pays for all his legal bills as well, which will be very substantial if this gets far (read in excess of 250k).

[rainiersooner]

Major institutions don't usually fire guys unless they have legal ducks in a row. Not that it can't happen, but I don't recall ever seeing it.

Yeah, right....

http://seattletimes.nwsource.com/html/huskies/2002199496_webneuheisel07.html

Firing Slick Rick didn't work out so well for the University of Washington.

[rainiersooner]

That being said, I could see Leach digging in and telling Tech they have to pay the 800k and 400k for the rest of the yrs on the contract. Of course, these cases are an extended negotiation, so he will likely compromise some, but may not relinquish much.

Something tells me Leach is going to be one of those pain in the a** clients that will care less about the money than about the principal. I envision a long, ugly legal process. Well, ugly for the participants. I for one am relishing it!!! Strap your seatbelts on, this is going to get nasty!!!

[StoopTroup]

Rick sold insurance to the Ravens after that.....lol

[StoopTroup]

Something tells me Leach is going to be one of those pain in the a** clients that will care less about the money than about the principal. I envision a long, ugly legal process. Well, ugly for the participants. I for one am relishing it!!! Strap your seatbelts on, this is going to get nasty!!!

I hope your right....lol

Something tells me we'll definitely get to see a really good "Outside The Lines" on ESPN.....lol

[Crucifax Autumn]

I hope this just keeps blowing up. We need something to keep us occupied until spring practice besides fire evurbuddy threads.

[TUSooner]

It'd be intersting to see some law made on "fair and responsible", but juicy legal issues go away when people settle.

I don't necessarily like Leach, and I certainly don't give a tinker's damn for Tt, but the thought of the @$$hole Jameses coming out of this deal ahead in any way makes me wanna puke. When people like that win, justice loses. Sorry, those last 2 sentences were off topic. I'll return the thread to the lawyerly minded.

[AlbqSooner]

Okay, I will take the TUSOOONER bait.

Rainier nailed the critical issue in any litigation resulting from this brouhaha. Did the University fire Leach "for cause"?

The Letter of Termination states that Leach is being fired for cause in violating Article 4 of the Contract. In pertient part, that states:
"Coach shall assure the fair and reasonable treatment of student-athletes in relation to their health, welfare and discipline."

"Fair and resonable treatment" is a litigious term. That is, a term which encourages litigation because it can only be determined by a finder of fact in a legal proceeding. Reasonable minds can disagree as to the meaning of the term.

In terms of fair and reasonable treatment in relation to health, the team physician, Dr. Phy, stated to Leach's representatives that the treatment was not harmful to vAJ's health. He then executed an affidavit (no doubt prepared by legal counsel for TTech) which reiterates that vAJ was not harmed by these actions.

In terms of fair and reasonable treatment in relation to welfare, this might be the strongest argument that TTech has. Leach's actions might have damaged the ego of an individual who has been demonstrated to have problems with a fragile ego. (DADDY, DADDY, MAKE THE MEAN MAN STOP!)

Because in the law, you take your victim as you find them, and Leach knew that vAJ was a sniveling little wuss with an outsized ego, Leach should have treated him with greater compassion than those players who bucked up and acted like MEN!.

Good freakin luck finding a jury that will buy that bag o' crap.

In terms of fair and reasonable in relation to discipline, Leach did nothing that would compromise vAJ's post concussion complications. He did nothing that was physically detrimental to vAJ except as noted in the previous paragraph. If TTech focuses on this aspect, they run the very real risk of opening the door for Leach to present evidence of progressive discipline. Leach would be able to bring in all of the other methods that he tried to get through to this kid that his attitude sucked and needed to be changed. This would allow him to present a chronology of evidence of every transgression vAJ or his Daddy had brought to the table, how each was dealt with, and how each failed to achieve the desired result. The desired result being (A) to get vAJ to attain his full potential as a student-athlete; (B) to get vAJ to act in a more mature manner; and, (C) to stop the disruptive and morale debasing effect vAJ was having on the team and staff as a whole.

Couple that evidence with the affidavits which were executed AFTER Leach gave his televised interview in which he said that the trainer and physician had given statements to Leach's representatives, and which affidavits contradicted some of what they had told Leach's representatives, and a jury is likely to believe that TTech is playing an evidentiary shell game with them. Juries don't like that. They tend to think lawyers are weasels to begin with. Give them something to demonstrate that the other guys are and they will get pizzed.

Dr. Phy's affidavit again states that Leach's actions did not harm vAJ. However, it does say:

"In spite of the fact that James may not have been harmed by these actions, I consider this practice inappropriate and a deviation from the medical standard of care."

Cross-examination of the Dr. would establish that: 1. He did not give Leach's representatives any indication that he felt that the actions were inappropriate. 2. He did not write the affidavit in question, rather it was presented to him by TTech. 3. "Deviation from the medical standard of care" is a term that refers to actions by a physician which can result in a finding of medical malpractice.

Then you ask the Dr.:
You are not suggesting that a football coach should be held to the same standard of care as a licensed medical doctor are you?
At any time, in discussing the contents of the affidavit which was prepared by TTech for your signature, or during the discussions leading up to the preparation of that document, did ANYONE mention to you the possibility of your being the subject of a medical malpractice claim by vAJ or his Daddy for agreeing that the treatment rendered by Coach Leach was not medically harmful?

Another interesting point as far as damages. If Leach does not settle this claim, goes to trial, and wins, one result would be that he could demand to be reinstated with all back pay and allowances due and payable immediately. Since it is a given that TTech will replace him during the course of this litigation, they could find themselves in the untenable position of having to fire his replacement in order to reinstate him, PLUS having to pay both coaches pay and allowances in full. I do not see anything in the contract about Attorney fees being awarded to the prevailing party in litigation. Some states make that a requirement. In other states, contracts of employment automatically result in the prevailing party being awarded reasonable attorney fees and costs unless the contract provides otherwise.

*DISCLAIMER* I am not licensed to practice law in the State of Texas and any opinions or statments made here are made solely for the purposes of academic discussion.

[StoopTroup]

I have never thought that Lawyers are weasels.

I'd like to be on record for that. :D

[AlbqSooner]

I have never thought that Lawyers are weasels.

I'd like to be on record for that. :D

SUCK-UP!:D

[olevetonahill]

Ok Ima axe a question here also .

All this talkin about suing the School by Leach Brings me to think .
Why not vAJ suing TT ? after all as Daddy says "They are the Victims "

Im thinkin this might be a whole lot bigger can a worms than the School Admin anticipated :pop:

[BajaOklahoma]

I think everyone is overooking the importance of the trainer. I know that I did until one of my kid's shadowed a Division 1 trainer for several hours. I had no idea of the scope of the power and responsibility of the the Team Trainer until then.

The Team Trainer is one of several medical professionals, who are responsibile to the safety and health of the players. They are there on a daily basis, as opposed to the Team Doctors.
If the trainer thinks that it is not medically safe or appropriate for a player to do something, the trainer has to ensure that it doesn't happen. Trainers have been known to hide player helments on the the sidelines during a game. This a very difficult job - balancing what the coaches want, what is best for the players and keeping a job.

From a non-lawyer position, but with a small amount of medical knowledge, TTU weakened their position by not immediately firing the trainer after the affidavit. If the trainer had concerns about the orders, whatever they were, then he had a responsibility to state it and not comply. By accepting his actions and not firing him either before or at the smae time as leach, that would seem imply that TTU accepted them as reasonable. Or am I off base here?

[olevetonahill]

Baj sounds more like vAJ just got mo ammo for HIS Lawsuit against TT :D

[MamaMia]

Leach will get his money and then some and if Texas Tech has their way about it then this whole matter will be settled behind closed doors. The terms of the settlement will be sealed at the request of Texas Tech due to the fact that the university wont want to give the James family any ammunition for a lawsuit against them.

[Frozen Sooner]

Because in the law, you take your victim as you find them, and Leach knew that vAJ was a sniveling little wuss with an outsized ego, Leach should have treated him with greater compassion than those players who bucked up and acted like MEN!.

Re: Eggshell Plaintiff Rule referenced above.

The Eggshell Plaintiff Rule does not apply to emotional harm-at least not in tort, and this issue seems to turn on some tort principles. Gammon v. Osteopathic Hospital of Maine, Inc, holding that a defendant is only required to foresee emotional harm to an ordinarily sensitive man.

I don't know whether or not the Gammon rule is followed in Texas. Hang on and I'll Shepardize is to see if there's anything on point.

It appears that it is good law in Texas (I don't find anything contradictory, and there's a couple of Texas Supreme Court cases that mention Gammon favorably.)

Then again, if the argument is intentional infliction of emotional distress, the issue changes again.

Frozen Sooner is not licensed to practice law in any jurisdiction and does not purport to give legal advice on this or any other matter.

[I Am Right]

I am waiting on a retainer...

Now that is a lawyer!

[Soonerfan88]

Much thanks to Albqsooner for that. I'm obviously not a lawyer and never even made it through jury selection (although I would love to be on one) but that followed my own common sense of the situation.

Question about the statement Leach was requested to sign: I think I saw in one of LL's long diatribes that this could be considered the same as an addendum to the school's policy manual and not amending Leach's contract or admitting guilt. For that to be the case, wouldn't everyone else associated with the athletic department also be required to sign the same letter? Otherwise, it is a specific reprimand of Leach and an amendment to his contract?

[Breadburner]

What is more dangerous....Being supervised in a training room or playing 4 quarters of football......

[ashley]

My lawyer always always says I can't win because I don't like them, I have to show damages.

[VMG]

What I find interesting about this entire thread is the general presumption of malfeasance by Adam James. Lotsa opinions and reporting of 'he said...he said' and but that's about it.

What would the university have to do to prove Leach's decisions re: the son were retaliatory actions against the father, and how would that affect the case given university policy and the law?

[StoopTroup]

What I find interesting about this entire thread is the general presumption of malfeasance by Adam James. Lotsa opinions and reporting of 'he said...he said' and but that's about it.

What would the university have to do to prove Leach's decisions re: the son were retaliatory actions against the father, and how would that affect the case given university policy and the law?

I think it's really hard to think that Mike Leach would take the time out of his day to mess with Adam and especially just to get even with his Dad...however I guess I could maybe see Mike not having much love for anything ESPN especially Craig James. I'm betting he recruited his Son just to get even with them all. :rolleyes:

[Rogue]

ABQ's point about the doctor's blurb about it not being the medical standard of care reflect my exact reaction when I heard it, 'cept in fancier words. I thought to myself, "and who in the hell expects a football coach to know that?"
If he were a licensed physician then, yeah. But not the rest of us.

[Frozen Sooner]

ABQ's point about the doctor's blurb about it not being the medical standard of care reflect my exact reaction when I heard it, 'cept in fancier words. I thought to myself, "and who in the hell expects a football coach to know that?"
If he were a licensed physician then, yeah. But not the rest of us.

The issue there is that Leach defenders have tried to frame the issue as he was treating him for a concussion-that putting him in a dark room was consistent with practice for concussion.

If you're purporting to give medical assistance, you can be held to a malpractice standard of care. Most states have some sort of good samaritan protection for exigent circumstance, but that doesn't seem to apply here.

edit: Frozen Sooner is not licensed to practice law in Texas or any other state. The preceding statement is not legal advice and is intended for academic purposes only.

[VMG]

ABQ's point about the doctor's blurb about it not being the medical standard of care reflect my exact reaction when I heard it, 'cept in fancier words. I thought to myself, "and who in the hell expects a football coach to know that?"
If he were a licensed physician then, yeah. But not the rest of us.

They don't expect the coach to know that -- they expect the coach to rely on trained professionals who do, which makes Leach's intervention/involvement in a matter of medical treatment (which he doesn't dispute) unusual -- before we ever start talking about who the player happened to be.

[bluedogok]

I had read somewhere that Adam James had told Leach that the doctor told him something about the dark and that was why he was wearing sunglasses...so Leach sent him to a "dark place"

Not sure if that is the story but I read it somewhere.

[StoopTroup]

I had read somewhere that Adam James had told Leach that the doctor told him something about the dark and that was why he was wearing sunglasses...so Leach sent him to a "dark place"

Not sure if that is the story but I read it somewhere.

That bastage! I think Leach was being nice when he admitted that indeed Adam did have a penis.

[AlbqSooner]

They don't expect the coach to know that -- they expect the coach to rely on trained professionals who do, which makes Leach's intervention/involvement in a matter of medical treatment (which he doesn't dispute) unusual -- before we ever start talking about who the player happened to be.

The problem with this argument is this. Leach relied on trained medical professionals. He relied on the doctor and the trainer. Both said, in effect, get him out of the light. Leach followed that advice.

If, after hearing from the Doctor and trainer that vAJ should have been withheld from strenuous activity and protected from light, Leach had said, "You arrogant little wuss! Take those sunglasses off and drop and give me twenty", then Leach would have beein involving himself in a matter of medical treatment.

The whole point I intended by mentioning the Dr.s use of the phrase "medical standard of care' is that the term is a legal, moreso than a medical term. It connotes a suggsetion of medical malpractice. I can almost promise you that the TTech attorney put that phrase in the affidavit. I also strongly suspect that he or someone explained the significance of the term to Dr. Phy. If that is the case, I also suspect that Dr. Phy became more willing to sign the affidavit upon realizing the potential difficulty in defending the actions of a coach who followed his directions.

[AlbqSooner]

The issue there is that Leach defenders have tried to frame the issue as he was treating him for a concussion-that putting him in a dark room was consistent with practice for concussion.

If you're purporting to give medical assistance, you can be held to a malpractice standard of care. Most states have some sort of good samaritan protection for exigent circumstance, but that doesn't seem to apply here.

edit: Frozen Sooner is not licensed to practice law in Texas or any other state. The preceding statement is not legal advice and is intended for academic purposes only.

Actually the issue there is that TTech is trying to paint Leach as treating him for a concussion. The Leach camp has been fairly consistent in saying that he was following the advice of medical professionals.

[AlbqSooner]

Re: Eggshell Plaintiff Rule referenced above.

The Eggshell Plaintiff Rule does not apply to emotional harm-at least not in tort, and this issue seems to turn on some tort principles. Gammon v. Osteopathic Hospital of Maine, Inc, holding that a defendant is only required to foresee emotional harm to an ordinarily sensitive man.

I don't know whether or not the Gammon rule is followed in Texas. Hang on and I'll Shepardize is to see if there's anything on point.

It appears that it is good law in Texas (I don't find anything contradictory, and there's a couple of Texas Supreme Court cases that mention Gammon favorably.)

Then again, if the argument is intentional infliction of emotional distress, the issue changes again.

Frozen Sooner is not licensed to practice law in any jurisdiction and does not purport to give legal advice on this or any other matter.

I am not familiar with Gammon. I am no longer actively involved in practicing law. I was simply anticipating the argument that TTech might try to make in saying that the wlefare of vAJ was not being protected by Leach because he experienced emotional distress or some such crap from being called out in front of his teammates. Gammon makes sense.

[Frozen Sooner]

Actually the issue there is that TTech is trying to paint Leach as treating him for a concussion. The Leach camp has been fairly consistent in saying that he was following the advice of medical professionals.

My apologies, then, it's been my impression that the Leach camp has been saying that they put him in a dark room because that's what you do with the concussed, not that they were following medical advice. Were they following medical advice, then yeah, there you go.

[VMG]

I think it's really hard to think that Mike Leach would take the time out of his day to mess with Adam and especially just to get even with his Dad... :rolleyes:

Oh? Then why would Leach intervene in a matter of medical treatment (which he freely admits)? Does he typically do this with all players?

[Frozen Sooner]

I am not familiar with Gammon. I am no longer actively involved in practicing law. I was simply anticipating the argument that TTech might try to make in saying that the wlefare of vAJ was not being protected by Leach because he experienced emotional distress or some such crap from being called out in front of his teammates. Gammon makes sense.

I'm not involved in practicing law at all. ;)

My torts professor spent a TON of time on negligent infliction of emotional harm, so we went through a lot of little wrinkles like that. He distinguished it as a duty rule vs. the Eggshell Plaintiff Rule being a damages rule-there's no duty to avoid distress to someone who's a wussy, but if you can reasonably anticipate SOME physical harm, then just because the plaintiff is fragile doesn't mean you don't have to compensate him for his injuries.

Mainly I just like writing "Eggshell Plaintiff Rule" because it make me giggle.

[StoopTroup]

I remember running laps until I puked after me and another guy hit helmets head on in an Offense v. Defense Drill. The guy I hit had to be helped up and I was out on my feet and when I came to the Coaches were screaming at me to run for a TD!

Dark Room....

Makes me LMAO.

[TUSooner]

Thanks for the great stuff Albq (and you 2 jr lawyer Froz :D ). Albq nailed it IMHO.
I'd add that Leach should not even suggest that it was "treating" the brat by putting him in the dark. Rather they should freely admit that Baby AJ was being punished and that the punishment was consistent, or at least not inconsistent, with medical advice they received.

My hunch is that a claim of mental anguish suffered by a bratty 19yo who is allegedly a football player would get laughed at by a Texas jury, even one from Austin.

Soonerus, forget your retainer!

Now waiting for Homey and Lidi to chime in as well.....

[AlbqSooner]

My hunch is that a claim of mental anguish suffered by a bratty 19yo who is allegedly a football player would get laughed at by a Texas jury, even one from Austin.

I tried a case in Big Spring many years ago. Not that far from Lubbock. Jurors tend to be farmer/rancher/cowboy types. Of course you have your business folks from in town and such, but the independent attitude would probably be very evident in any jury you picked out there. As a result, any claim of mental anguish would be viewed with a ton of skepticism. When it is from a rough and tough football player type who, it turns out is a bit lazy and has a sense of entitlement, it would not play well to that audience.

TTech will never let this case get to a jury unless Mike, in his Leach fashion, refuses any offer less than full payment. He is just quirky enough and financially secure enough that I would not be all that surprised if he did. The fallout from airing dirty laundry in public would be a disaster for TTech.

[StoopTroup]

I'm pretty sure folks saw what kind of jury Adam would get in Lubbock.

[Curly Bill]

Talked to a soon to be TT graduate a few days ago, and she said she wouldn't be shocked if someone doesn't try to kill the lil bastage, or at the least beat him to a bloody pulp.

Oh, and that his underage person should not be seen in as many bars in Lubbock as he is. I'm sure daddy has a good explanation for that though. ;)

[Leroy Lizard]

I think he's over 21. (?)

[Leroy Lizard]

His bio:


Celina High School in Celina, Texas ... played football and baseball ... Three-Star Recruit (Rivals.com; Scout.com) ... No. 30 tight end nationally (Scout.com) ... caught 24 passes for 374 yards and four touchdowns as a senior ... District 13-2A first team ... timed a 4.6 in the forty at the Fort Worth NIKE Training Camp ... participated in the U.S. Army All-American Bowl ... outstanding blocking abilities ... first-team all-conference and all-state honorable mention as a junior ... offered scholarships by Boston College, Mississippi, Tulsa and Wisconsin

He was clearly a better recruiting prospect than people were casting him in here.

[Curly Bill]

Anyone that knows Texas high school football also knows he was likely paid more to play for Celina HS than he was likely earning at TT. That is possibly the root of this entire problem.

[StoopTroup]

His bio:



He was clearly a better recruiting prospect than people were casting him in here.

What is it with you and this "What people here are casting"?

The kid has gotten death threats from Red Raider Fans and you are here on Soonerfans trying to help his image as a recruit?

You're being a freaking tool.

[Leroy Lizard]

What is it with you and this "What people here are casting"?

The kid has gotten death threats from Red Raider Fans and you are here on Soonerfans trying to help his image as a recruit?

No, I was just under the impression that he wasn't a D-1 recruit and that Leach offered him a scholarship as a favor.

Don't have a cow, man.

[TUSooner]

Threats to kill Baby James = very very bad
Threats to call him and his daddy bad names until they disappear = perfect

[StoopTroup]

No, I was just under the impression that he wasn't a D-1 recruit and that Leach offered him a scholarship as a favor.

Don't have a cow, man.

Don't have a cow? We don't do cows around here. That's what they do in austin. Pay attention.

This is a Sooner Site. You don't act or post like you know **** about much of anything. We bull**** sometimes yes. Most of that goes on in the South Oval. You've flipped Flopped over every issue that you've been called on. You've been consistantly bothersome about taking opposite sides on every issue when other posters have tried to talk sensibly to you.

It's like you ran out of ritlin. Are you OK? Should we call and get you some help? Is this a cry for attention?

[Leroy Lizard]

This is a Sooner Site. You don't act or post like you know **** about much of anything. We bull**** sometimes yes.

http://www.apa.org/topics/anger/control.aspx

[soonerinabilene]

first and foremost should be techs failure to grant parley.

[Crucifax Autumn]

Don't have a lizard, man!

[Leroy Lizard]

You mock me.

[Frozen Sooner]

By the way, fellow law-types: if you have an active Westlaw or Lexis account (or just want to be amused and get the Atlantic Reporter) go ahead and look Gammon up. Nothing like a hospital sending over a bag of your deceased dad's personal effects and it turns out to have a severed leg inside. 534 A.2d 1282 is the cite.

IIRC, the hospital tried to argue that it shouldn't be liable for emotional harm because it wasn't actually DAD'S leg.

[Leroy Lizard]

So they sent his personal effects but someone else's leg. Sounds like bait-and-switch.

[Frozen Sooner]

They didn't even get dad's personal effects. Just a leg. But, you know, it wasn't dad's, so the really shouldn't have been THAT upset.

[Crucifax Autumn]

As far as body parts go, a leg isn't the worst thing they could have sent.

[Half a Hundred]

I just wonder if there's anything he can do to sue ESPN for defamation first (in CT court, and have it removed to federal court), then join TTU and James (common nucleus of fact), sending the case back to Texas (non-diverse)... but under Connecticut law (removing that little Tort Claims Act business limiting his potential punitive damages).

[Frozen Sooner]

I just wonder if there's anything he can do to sue ESPN for defamation first (in CT court, and have it removed to federal court), then join TTU and James (common nucleus of fact), sending the case back to Texas (non-diverse)... but under Connecticut law (removing that little Tort Claims Act business limiting his potential punitive damages).

Won't work. Can't remove to federal court in a diversity action if one of the defendants is a citizen of the state in which the federal court sits. 28 U.S.C. 1441(b). I like the way you think, though.

Leach could file originally in Federal Court for the District of CT, but then the court's proper action instead of remand would be to simply dismiss the action for both lack of personal jurisdiction over TTU and James and for lack of subject-matter jurisdiction. There's also the matter of the venue being improper: the defendants are not all citizens of CT, and the events giving rise to the cause of action took place in the Western District of Texas (I think that's where Lubbock sits-regardless, not in CT.) Of course, the Court could simply transfer venue to correct both the defects in venue and PJ, but then they'd still be faced with the subject-matter jurisdictional problem. The proper course of action for the court is to simply dismiss for lack of personal jurisdiction, lack of subject-matter jurisdiction, and improper venue and sidebar plaintiff's attorney to refile in state court in Texas. :D

[olevetonahill]

I tried a case in Big Spring many years ago. Not that far from Lubbock. Jurors tend to be farmer/rancher/cowboy types. Of course you have your business folks from in town and such, but the independent attitude would probably be very evident in any jury you picked out there. As a result, any claim of mental anguish would be viewed with a ton of skepticism. When it is from a rough and tough football player type who, it turns out is a bit lazy and has a sense of entitlement, it would not play well to that audience.

TTech will never let this case get to a jury unless Mike, in his Leach fashion, refuses any offer less than full payment. He is just quirky enough and financially secure enough that I would not be all that surprised if he did. The fallout from airing dirty laundry in public would be a disaster for TTech.


What I been sayin
Mike gots enough money . Now he he can just rub their noses in it

And I believe he will , Just to **** with em LOL

[TexasLidig8r]

My 2 cents worth...

First, remember your venue. The case, if any, will be tried in state district court in Lubbock. State district court judges in Texas are elected to 4 year terms. This means, they take election and re-election campaign contributions. Who is one of the largest employers in Lubbock with many employees? That's right.. Texas Tech. Now, does this mean the judge will be partial to Tech? No, of course not. But, in the course of ruling on evidence in hearings and trial, often, a judge can go either way with his ruling. The evidence you get in, shapes the issues for the jury to consider.

Second, the Texas Tort Claims Act limits the amount of punitive damages a party can recover when a state entity is named as a defendant in a lawsuit. However, this is a moot point in a breach of contract cause of action since ordinarily, punitive damages are not recoverable under a breach of contract cause of action.

Third, yes, Tech had the right to fire Leach. However, since he had a very specific written employment agreement, they could be liable for the amount Leach would have been paid under the contract,.. however...

Fourth, Leach has the duty to attempt to mitigate his damages. Does this mean he has to seek employment with another university? Will an analyst position at a network suffice?

Fifth, the timing of the firing is highly suspect. Remember last year when Leach was in essence, "holding up" Tech for more money when the Washington and Auburn jobs came open... Apparently, emails are coming to the public eye now from last year in which the chancellor and AD were very pissed about this situation. Tech's football program is not running a huge profit. Leach won his annual average of 8 games this year (84 wins in 10 years)... he was due to be paid $800K on Dec 31. The James' kid is going to be the sacrifical lamb... Tech used him as the excuse to pull the plug on Leach.

Sixth.. can the chancellor and AD be implicated as well. If I am Leach's attorney, I name the chancellor and AD in their individual capacity (based in part on the emails from last year and points 2 - 5) as party defendants under a civil conspiracy scheme to (1). breach Leach's contract, and (2). defame Leach. Remember over the course of the past few days, Tech has issued a number of press releases and affidavits attempting to win the start of the PR war. Why? What was the intent? Their is no current litigation. Obviously, it is an attempt to win the court of public opinion. If and when, factual inaccuracies and inconsistencies are shown in the affidavits, Tech (and presumably the AD and Chancellor) will have to answer as to why these affidavits were released other than to attempt to defame Leach since they knew or should have known that their actions would make it even that much moe difficult for any other school to employ Leach. For example, in the affidavit issued by the good doctor, he stated putting the James' kid in the equipment room was not following the standard of care. Well, the medical standard of care is not at issue in that respect. The good doctor already said that that conduct did not harm James or exacerbate any alleged injury. Therefore, the good doctor's opinion is completely irrelevant as to whether Leach's conduct violated any standard of conduct directed at athletes from coaches.

Seventh, if the AD and Chancellor are named in their capacity as Tech employees, but also, in their individual capacities, then, you have the likelihood of more insurance (errors and omissions, professional liability) being implicated thus, additional deep pockets.

Therefore, Leach sues Tech, the Chancellor and AD, both in their capacities as employees and in their individual capacity, for breach of contract, defamation, libel and slander, name John Doe defendants as possible defendants also involved in a conspiracy and continue the war.

[Half a Hundred]

Won't work. Can't remove to federal court in a diversity action if one of the defendants is a citizen of the state in which the federal court sits. 28 U.S.C. 1441(b). I like the way you think, though.

Leach could file originally in Federal Court for the District of CT, but then the court's proper action instead of remand would be to simply dismiss the action for both lack of personal jurisdiction over TTU and James and for lack of subject-matter jurisdiction. There's also the matter of the venue being improper: the defendants are not all citizens of CT, and the events giving rise to the cause of action took place in the Western District of Texas (I think that's where Lubbock sits-regardless, not in CT.) Of course, the Court could simply transfer venue to correct both the defects in venue and PJ, but then they'd still be faced with the subject-matter jurisdictional problem. The proper course of action for the court is to simply dismiss for lack of personal jurisdiction, lack of subject-matter jurisdiction, and improper venue and sidebar plaintiff's attorney to refile in state court in Texas. :D

Yeah, but there's got to be a way hidden in there - for example, I'd go after ESPN for everything involved with all sides of the issues, and wait for them to implead TTU and James on their issues, since that's a question of fact which would lead to whether or not the defamation claims are legitimate. Courts have held that non-diverse parties can still have such cases decided in federal court (man, I get grades today, so I really don't want to dig out the Civ Pro casebook), since it would aid judicial efficiency. Basically, if I'm Leach's attorney, I do everything I can to get this thing as far out of Texas as possible.

Thus, the equation would look something like this:

Leach v. ESPN - Defamation claim of $10 million in compensatory damages (lost value of the contract) plus $90 million in punitive damages (9x Constitutional limit) = $100 million total.

ESPN v. James - I wonder if there's an indemnification portion of his employment contract for agency liability. Heck, you could probably add a tortious interference claim by Leach if you can imply that James was exercising his power as an employee of ESPN (won't fly, but it's worth a shot)

Leach v. TTU is boring, unless the former wants to get creative and start slamming the latter with fraudulent misrepresentation in the contract formation process (which there is a lot of evidence for, since TTU clearly was not acting in good faith throughout these proceedings), leading to the contract being non-enforceable and then start going for fraud tort damages, along with reliance/restitution remedies (this was pretty much one of my contracts exam questions). That won't happen, since this is Texas and punitive damages are limited

[Frozen Sooner]

Yeah, but there's got to be a way hidden in there - for example, I'd go after ESPN for everything involved with all sides of the issues, and wait for them to implead TTU and James on their issues, since that's a question of fact which would lead to whether or not the defamation claims are legitimate. Courts have held that non-diverse parties can still have such cases decided in federal court (man, I get grades today, so I really don't want to dig out the Civ Pro casebook), since it would aid judicial efficiency

Under 28 USC 1367(b) the federal courts explicitly do not have jurisdiction in such a matter. A good case discussing this is Owens v. Kroeger (it's a fun case in any right-deals with a third party defendant who was thought to be diverse because of the evulsion of a river, then turned out to not be diverse after the plaintiff joined under Rule 20. Whole matter had to be dismissed as a result.)

28 USC 1367(b) states in relevant part: "In any civil action of which the district courts have original jurisdiction founded solely on on section 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims against persons made parties under Rule 14, 19, 20 or 24[.]"

Now, you're correct that the court would have supplemental jurisdiction over the third-party claim, but Leach could not then join his claim against the third-party defendant without destroying diversity.

Remember, also, that ESPN is not required to implead either TTU or James. They may choose to bring such action in another forum or not at all.

The best bet to get this removed to federal court is to find a federal question and plead it.

Now, since James is supposedly planning a Senate run, it's possible that there might be a cause of action under McCain-Feingold, but I really doubt that'd fly.

[prrriiide]

Leach won his annual average of 8 games this year (84 wins in 10 years)... he was due to be paid $800K on Dec 31. The James' kid is going to be the sacrifical lamb... Tech used him as the excuse to pull the plug on Leach.

Maybe those TTU stooges aren't as stupid as I thought...they use the vAJ situation to get rid of Leach before they have a big payout due. But if, as presented by Leach, Daddy James has been as big of a pain in the arse to the TTU admin as he has been to the coaching staff, then they have effectively cured two hemmorhoids with one suppository. By placing vAJ in a situation where his continued presence on campus and in the locker room might well jeapordize his physical well-being, they have effectively also gotten rid of James pere as the big bonus of the whole messy affair. With vAJ out of the TTU picture, Daddy-O has no more reasons to be flooding the admin with cries for late-night feedings and diaper changes.

[Leroy Lizard]

Why exactly are you having ESPN sued?

[StoopTroup]

Why exactly are you having ESPN sued?

That's back on page one.

Again...pay attention. Your focus might or might not come back....just quit eating the paint chips.

[StoopTroup]

Now, since James is supposedly planning a Senate run, it's possible that there might be a cause of action under McCain-Feingold, but I really doubt that'd fly.

If he wins....everyone should call him everyday and ask him when he gonna do something.

[Frozen Sooner]

Why exactly are you having ESPN sued?

Deep pockets.

Tortious interference with a contractual relationship.
Defamatory statements (though that one's pretty weak, as Leach is a public figure and he'd have to prove the Sullivan standard.)

[StoopTroup]

I'm not an attorney and I even know you sue the guys with the money. ESPN pockets>TTUpockets

Get both those and man...you can start your own Football Team or at the very least get yourself a run named after you in Crested Butte and Lifetime Ski Passes.

[Half a Hundred]

Under 28 USC 1367(b) the federal courts explicitly do not have jurisdiction in such a matter. A good case discussing this is Owens v. Kroeger (it's a fun case in any right-deals with a third party defendant who was thought to be diverse because of the evulsion of a river, then turned out to not be diverse after the plaintiff joined under Rule 20. Whole matter had to be dismissed as a result.)

28 USC 1367(b) states in relevant part: "In any civil action of which the district courts have original jurisdiction founded solely on on section 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims against persons made parties under Rule 14, 19, 20 or 24[.]"

Now, you're correct that the court would have supplemental jurisdiction over the third-party claim, but Leach could not then join his claim against the third-party defendant without destroying diversity.

Remember, also, that ESPN is not required to implead either TTU or James. They may choose to bring such action in another forum or not at all.

The best bet to get this removed to federal court is to find a federal question and plead it.

Now, since James is supposedly planning a Senate run, it's possible that there might be a cause of action under McCain-Feingold, but I really doubt that'd fly.

Oh, I know Kroger a little too well. The black-letter law isn't really helpful, but this is where you try to fudge the figures and hope you get a favorable court. The tortious interference is a good one, btw - lot more likely than the defamation suit.

You're right about 1367(b), but only if the original plaintiff joins the other two defendants. If the defendant impleads, like you mentioned, diversity is maintained (we went over this for about three days while studying for the Civ Pro final). ESPN doesn't have to implead TTU or James, but it's likely they would, either because of an indemnity clause in James' contract arising from defamatory statements, or simply fraud in the case of TTU (ESPN was operating in good faith supplying the information set forth by the University, who had been acting in bad faith).

Yes, I realize this is forum-shopping at its worst, and it is taking advantage of the federal system to take care of what should be done in the state-level forum, but it's not Leach's fault that Texas' tort laws succs

[Frozen Sooner]

Oh, I know Kroger a little too well. The black-letter law isn't really helpful, but this is where you try to fudge the figures and hope you get a favorable court. The tortious interference is a good one, btw - lot more likely than the defamation suit.

You're right about 1367(b), but only if the original plaintiff joins the other two defendants. If the defendant impleads, like you mentioned, diversity is maintained (we went over this for about three days while studying for the Civ Pro final). ESPN doesn't have to implead TTU or James, but it's likely they would, either because of an indemnity clause in James' contract arising from defamatory statements, or simply fraud in the case of TTU (ESPN was operating in good faith supplying the information set forth by the University, who had been acting in bad faith).

Yes, I realize this is forum-shopping at its worst, and it is taking advantage of the federal system to take care of what should be done in the state-level forum, but it's not Leach's fault that Texas' tort laws succs

The problem, though, is that even though the court maintains jurisdiction over the third-party action, as soon as Leach joins the third-party defendant diversity is ruined even if they were originally impled.

I think it's somewhat unlikely that ESPN impleads in this matter, simply because there's no real advantage to them having it adjudicated at the same time. There's some real disadvantages to impleading, in fact. TT and ESPN may wish to present different defenses, and TT may bring things to light as a defense at trial that ESPN doesn't want out there. Under Rule 24 the third party defendant can present any defenses against the original plaintiff as the original defendant may have but did not.

The main issue here is that absent a federal question, Leach cannot assert a claim in federal court against TTU or James (assuming that James is a domiciliary of Texas.)

It's possible that Leach could claim that he never intended to remain in Texas indefinitely, so was never a domiciliary of Texas. He could submit the e-mails already out there that he was job-shopping in other states almost as soon as he got there. That'd be a fun one to watch :D.

[StoopTroup]

The tortious interference is a good one, btw - lot more likely than the defamation suit.



I believe I ate a Tortious at the Game in El Paso. It was tasty and I'm not sure what kinda of meat that was.

[Crucifax Autumn]

mmmmm...Tortious with shredded beef, cheese, and sour cream are da bomb with some tasty hot sauce.

[prrriiide]

I believe I ate a Tortious at the Game in El Paso. It was tasty and I'm not sure what kinda of meat that was.

Scratching behind your ear with your foot would be a pretty good indicator as to the type of meat.

[Rogue]

...For example, in the affidavit issued by the good doctor, he stated putting the James' kid in the equipment room was not following the standard of care. Well, the medical standard of care is not at issue in that respect. The good doctor already said that that conduct did not harm James or exacerbate any alleged injury. Therefore, the good doctor's opinion is completely irrelevant as to whether Leach's conduct violated any standard of conduct directed at athletes from coaches.

Dingdingding. I don't get why they even trot the doctor out for that statement...seems to totally favor Leach, IMO.

ESPN is now piling on Leach...he's getting trashed right now.
I don't know that it's lawsuit worthy, but it's pretty one-sided.

[cvsooner]

As far as deep pockets, suing ESPN means you're suing Disney. I'd hope Mike could get lifetime passes to Walt Disney World, if nothing else.

[Frozen Sooner]

The problem, though, is that even though the court maintains jurisdiction over the third-party action, as soon as Leach joins the third-party defendant diversity is ruined even if they were originally impled.

I think it's somewhat unlikely that ESPN impleads in this matter, simply because there's no real advantage to them having it adjudicated at the same time. There's some real disadvantages to impleading, in fact. TT and ESPN may wish to present different defenses, and TT may bring things to light as a defense at trial that ESPN doesn't want out there. Under Rule 24 the third party defendant can present any defenses against the original plaintiff as the original defendant may have but did not.

The main issue here is that absent a federal question, Leach cannot assert a claim in federal court against TTU or James (assuming that James is a domiciliary of Texas.)

It's possible that Leach could claim that he never intended to remain in Texas indefinitely, so was never a domiciliary of Texas. He could submit the e-mails already out there that he was job-shopping in other states almost as soon as he got there. That'd be a fun one to watch :D.
I'm going to rephrase this, because I might be misunderstanding what you mean here.

Original action with original federal jurisdiction filed in federal court:

Leach(TX)---->ESPN(CT/DE)

ESPN impleads James and Tech

Leach(TX)---->ESPN(CT/DE)---->J&T(TX)

All well and good so far-and if that's where you were stopping, it works.

HOWEVER, as soon as Leach files an action under Rule 20 against J&T even after being implead by ESPN, under 1367(b) the federal courts lose jurisdiction, even though under 1367(a) it would appear the courts have supplemental jurisdiction. You cannot circumvent the requirements of diversity this way.

[Leroy Lizard]

I still don't see how ESPN is involved. Craig James may have called Leach asking for special favors. Can't sue over that. He may have called the administration, resulting in getting Leach fired. But I see no evidence of that at all.

Yes, some of our commentators offered their own opinions based on the news, but their statements are protected by the first amendment.

If I'm ESPN's lawyer, this should be an easy case to get thrown out of court. What evidence do you have against my client?

Sorry if I missed it, but I didn't see any explanation as to how ESPN can be legitimately sued. Sure, they can sued unjustly, but that is always true.

[sooner94]

My 2 cents worth...

First, remember your venue. The case, if any, will be tried in state district court in Lubbock. State district court judges in Texas are elected to 4 year terms. This means, they take election and re-election campaign contributions. Who is one of the largest employers in Lubbock with many employees? That's right.. Texas Tech. Now, does this mean the judge will be partial to Tech? No, of course not. But, in the course of ruling on evidence in hearings and trial, often, a judge can go either way with his ruling. The evidence you get in, shapes the issues for the jury to consider.

Second, the Texas Tort Claims Act limits the amount of punitive damages a party can recover when a state entity is named as a defendant in a lawsuit. However, this is a moot point in a breach of contract cause of action since ordinarily, punitive damages are not recoverable under a breach of contract cause of action.

Third, yes, Tech had the right to fire Leach. However, since he had a very specific written employment agreement, they could be liable for the amount Leach would have been paid under the contract,.. however...

Fourth, Leach has the duty to attempt to mitigate his damages. Does this mean he has to seek employment with another university? Will an analyst position at a network suffice?

Fifth, the timing of the firing is highly suspect. Remember last year when Leach was in essence, "holding up" Tech for more money when the Washington and Auburn jobs came open... Apparently, emails are coming to the public eye now from last year in which the chancellor and AD were very pissed about this situation. Tech's football program is not running a huge profit. Leach won his annual average of 8 games this year (84 wins in 10 years)... he was due to be paid $800K on Dec 31. The James' kid is going to be the sacrifical lamb... Tech used him as the excuse to pull the plug on Leach.

Sixth.. can the chancellor and AD be implicated as well. If I am Leach's attorney, I name the chancellor and AD in their individual capacity (based in part on the emails from last year and points 2 - 5) as party defendants under a civil conspiracy scheme to (1). breach Leach's contract, and (2). defame Leach. Remember over the course of the past few days, Tech has issued a number of press releases and affidavits attempting to win the start of the PR war. Why? What was the intent? Their is no current litigation. Obviously, it is an attempt to win the court of public opinion. If and when, factual inaccuracies and inconsistencies are shown in the affidavits, Tech (and presumably the AD and Chancellor) will have to answer as to why these affidavits were released other than to attempt to defame Leach since they knew or should have known that their actions would make it even that much moe difficult for any other school to employ Leach. For example, in the affidavit issued by the good doctor, he stated putting the James' kid in the equipment room was not following the standard of care. Well, the medical standard of care is not at issue in that respect. The good doctor already said that that conduct did not harm James or exacerbate any alleged injury. Therefore, the good doctor's opinion is completely irrelevant as to whether Leach's conduct violated any standard of conduct directed at athletes from coaches.

Seventh, if the AD and Chancellor are named in their capacity as Tech employees, but also, in their individual capacities, then, you have the likelihood of more insurance (errors and omissions, professional liability) being implicated thus, additional deep pockets.

Therefore, Leach sues Tech, the Chancellor and AD, both in their capacities as employees and in their individual capacity, for breach of contract, defamation, libel and slander, name John Doe defendants as possible defendants also involved in a conspiracy and continue the war.

Nicely done. Thanks for the post. I have two questions for you:

1. What is the % chance this gets settled without going to court?
2. What is the % chance Leach gets some $$ out of this?

I say 99.9% on #1 and >50% on #2.

[Frozen Sooner]

I still don't see how ESPN is involved. Craig James may have called Leach asking for special favors. Can't sue over that. He may have called the administration, resulting in getting Leach fired. But I see no evidence of that at all.

Yes, some of our commentators offered their own opinions based on the news, but their statements are protected by the first amendment.

If I'm ESPN's lawyer, this should be an easy case to get thrown out of court. What evidence do you have against my client?

Sorry if I missed it, but I didn't see any explanation as to how ESPN can be legitimately sued. Sure, they can sued unjustly, but that is always true.

For tortious interference with a contractual relationship. If you induce a party to breach a contract, the damaged party has a cause of action.

Read all about it here:http://en.wikipedia.org/wiki/Tortious_interference

Further, defamatory statements are not protected by the first amendment. In the case of a public figure, a high standard has to be met in that the tortfeasor must know their statements to be untrue and intend that the statements cause harm. That's why I think the defamation claim is sort of weak.

However, if Leach can show that ESPN was trying to get him fired, then he's got a good action for interference. That'll be a tough one-what he'll likely have to do is go after James for that, then prove that James was acting within the course and scope of his employment and hold ESPN vicariously liable.

[Leroy Lizard]

Tortious interference, in the common law of tort, occurs when a person intentionally damages the plaintiff's contractual or other business relationships.

Where was the intent to damage the contract between Leach and Tech? Did CJ demand that Tech fire Leach? If so, I haven't seen any evidence of it.

Filing a complaint to an employer about an employee is not an intent to have the contract breached.


Further, defamatory statements are not protected by the first amendment. In the case of a public figure, a high standard has to be met in that the tortfeasor must know their statements to be untrue and intend that the statements cause harm. That's why I think the defamation claim is sort of weak.

What defamatory statements have been made?

As far as I can tell, he complained to Tech that his son was mistreated. That's just his interpretation of actual events, and he has a right to do that (even though inappropriate).

[Frozen Sooner]

*sigh*

I'm laying out causes of action. I am not arguing that these causes of action would necessarily be proved by the preponderance of evidence. Leach can make a prima facie case by alleging that ESPN's purpose in falsely reporting mistreatment of Adam James was to get him fired-or, more to the point, that Craig James' purpose in falsely reporting mistreatment was to get Leach fired.

As it happens, if James went to Leach's employer and misrepresented his son's treatment with the intention that Leach be disciplined or fired, no, he doesn't have the right to do that. What his intent was is a matter for the finder of fact, not for us on an message board.

[AlbqSooner]

*sigh*

I'm laying out causes of action. I am not arguing that these causes of action would necessarily be proved by the preponderance of evidence. Leach can make a prima facie case by alleging that ESPN's purpose in falsely reporting mistreatment of Adam James was to get him fired-or, more to the point, that Craig James' purpose in falsely reporting mistreatment was to get Leach fired.

As it happens, if James went to Leach's employer and misrepresented his son's treatment with the intention that Leach be disciplined or fired, no, he doesn't have the right to do that. What his intent was is a matter for the finder of fact, not for us on an message board.

Save your breath Froz. Your points are well made but you are over Leroy's head.

Leroy, before you get your panties in a wad, I am not insulting you. I am simply stating that until you go to law school and are trained to think like a lawyer and to RESEARCH like a lawyer, you will not understand what Froz is saying. Somewhat like in Alice in Wonderland, when lawyers speak, the words mean what the lawyers say they mean. That is why you have to go to law school and pass the Bar exam. So you know what the words mean to lawyers. Otherwise you could simply pull down a Statute book, read the Statute and know what it means, as distinguished from what it says.

[Half a Hundred]

I'm going to rephrase this, because I might be misunderstanding what you mean here.

Original action with original federal jurisdiction filed in federal court:

Leach(TX)---->ESPN(CT/DE)

ESPN impleads James and Tech

Leach(TX)---->ESPN(CT/DE)---->J&T(TX)

All well and good so far-and if that's where you were stopping, it works.

HOWEVER, as soon as Leach files an action under Rule 20 against J&T even after being implead by ESPN, under 1367(b) the federal courts lose jurisdiction, even though under 1367(a) it would appear the courts have supplemental jurisdiction. You cannot circumvent the requirements of diversity this way.

Right, which is why if you think you can win the case against ESPN, you don't even bother with J&T (since you're not really going to get much in the way of damages). Better to take the action against ESPN first, and then see if you can win on some factual issues (which may then be res adjudicata depending on how the state judge views impleading federal law), before trying to get a settlement from TTU and James. It's probably the best way to maximize damages and remedies.

[AlbqSooner]

Nicely done. Thanks for the post. I have two questions for you:

1. What is the % chance this gets settled without going to court?
2. What is the % chance Leach gets some $$ out of this?

I say 99.9% on #1 and >50% on #2.

You didn't ask for my opinion, but that never stopped me before.:D

99% it gets settled AFTER going to court but before trial.
99% Leach gets some $$$.

[Frozen Sooner]

I don't think you can preclude litigation of a claim when the parties aren't identical. Howe v. Vaughn.

[Frozen Sooner]

Save your breath Froz. Your points are well made but you are over Leroy's head.

Leroy, before you get your panties in a wad, I am not insulting you. I am simply stating that until you go to law school and are trained to think like a lawyer and to RESEARCH like a lawyer, you will not understand what Froz is saying. Somewhat like in Alice in Wonderland, when lawyers speak, the words mean what the lawyers say they mean. That is why you have to go to law school and pass the Bar exam. So you know what the words mean to lawyers. Otherwise you could simply pull down a Statute book, read the Statute and know what it means, as distinguished from what it says.

Thanks for the kind words. Always good to get feedback from someone who's actually done it in real life. I'm sitting here waiting on my grades to be posted sometime this week....:D

[soonerboomer93]

Can someone turn on the "non-lawyer speak translator"?

[recemp]

Where were you guys when that guy threw the punch at me at the Fiesta Bowl?

[soonerboomer93]

Cheering them on

[recemp]

Thanks...

[StoopTroup]

lol

[OUinFLA]

Can someone turn on the "non-lawyer speak translator"?

if such a thing existed, the lawyers would get it declared illegal to use.


easy translation........
1 hour? oh....... $400 or so.
Oh? you want a real lawyer, make it $650

[Frozen Sooner]

Can someone turn on the "non-lawyer speak translator"?

Leach has various claims under which he may attempt to recover damages from ESPN, Texas Tech, and Craig James, each of which have varying degrees of likelihood of success. There's some strategic issues to decide in how to litigate the matter, many of which are controlled by the operation of Article III of the United States Constitution and Title 28 of the United States Code, as well as various cases interpreting Title 28 and the US Constitution.

The claims that seem to be the most likely for recovery are:

vs. Texas Tech
Breach of contract. Major issue is how certain contractual terms are to be defined, particularly the terms dealing with appropriate discipline of players.

vs. Craig James
Tortious interference with contractual relationship. Major issues are whether James intended to induce a breach of contract and whether he made misrepresentations in that inducement.

Defamation. Major issue is whether James knew statements he was making regarding Leach's treatment of Adam James were false and whether he made them with the intent to injure. Note: This is a higher standard than normally required for defamation, as Leach is arguably a public figure. Sullivan v. New York Times

vs. ESPN
Same two causes of action above, both directly and possibly vicariously if it can be shown that James was acting in the course and scope of his employment in making the defamatory statements or while interfering with Leach's contract with Tech.

The stuff about diversity jurisdiction and Title 28 and such is kind of inside baseball for where the suit gets filed and which courts can properly hear the action.

Please note that the claims I've identified are solely done as an exercise in issue-spotting. I am not arguing for or against any of these claims, but were this fact pattern to come up on an exam that's where I'd start my answers. I'm not going into the rules for any of these, and I'm damn sure not doing any analysis unless I get paid or a grade. ***, grass, or cash, nobody rides for free. :D

Frozen Sooner is not licensed to practice law in any jurisdiction. The foregoing is not legal advice and anyone taking it as such is a dumbass and deserves what he gets.

[Frozen Sooner]

if such a thing existed, the lawyers would get it declared illegal to use.


easy translation........
1 hour? oh....... $400 or so.
Oh? you want a real lawyer, make it $650

I did what I could! :D

[Leroy Lizard]

Defamation. Major issue is whether James knew statements he was making regarding Leach's treatment of Adam James were false and whether he made them with the intent to injure. Note: This is a higher standard than normally required for defamation, as Leach is arguably a public figure.

Which public statements that CJ has made do you think are the most likely to illicit a lawsuit?

[Frozen Sooner]

Which public statements that CJ has made do you think are the most likely to illicit a lawsuit?

James has publicly stated that Leach mistreated his son by locking him in a closet and singled him out for punishment as a result of Adam suffering a concussion. Whether those statements are defamatory or not is a matter for the fact-finder.

And you might want to change that to "elicit." James' illicit behavior elicits the lawsuit.

[TUSooner]

Leach has various claims under which he may attempt to recover damages from ESPN, Texas Tech, and Craig James, each of which have varying degrees of likelihood of success..... You can always spot the law student: He answers every question like an it was an exam question, and he fits in every bit of knowledge that could posibly be relevant. :D :D :D

I mean than in the nicest possible way !!! :D

[OUinFLA]

I did what I could! :D


I'll see what I can do to get soonerboomer93 to mail you a check.

[Frozen Sooner]

You can always spot the law student: He answers every question like an it was an exam question, and he fits in every bit of knowledge that could posibly be relevant. :D :D :D

I mean than in the nicest possible way !!! :D

Hey man, that half point could be the difference between top 10 and top 30, you know? :D

[Leroy Lizard]

I went looking for actual quotes by Craig James. Found this, but it doesn't look very alarming.


"Mr. and Mrs. James took the step with great regret and after consideration and prayer to convey to the Texas Tech Administration that their son had been subjected to actions and treatment not consistent with common sense rules for safety and health," the statement said. "The James family believes this is a matter important to protect all the fine young men involved in Tech football and the University's reputation for developing and educating young men and women.

"Over the past year, there has been a greatly enhanced recognition of the dangers of concussions and the potential for long-term physical damage to players. At virtually every level of football coaching, cases where children and young men have sustained concussions have generated serious discussion of the importance of correct treatment and diagnosis. The entire James family is supportive of the University and looks forward to a resolution of the matter."

What else has he said?

[Frozen Sooner]

Whether those statements are defamatory or not is a matter for the fact-finder.

Again, this is framing the issues for litigation, NOT trying them. Without substantially more information, none of the issues presented hold up-but that's why we have liberal discovery in the American judicial system. You're not required to prove your case on the pleadings (Twombley and Iqbal somewhat to the contrary.)

I have neither the time nor the inclination to scour the internet to attempt to prove Mike Leach's case. Neither do I have time or inclination to take depositions from people to whom Craig James may or may have not made defamatory statements regarding Mike Leach. This is nothing more than a thought exercise to discuss what issues are likely to be raised by the presumably pending litigation, not an exercise in determining liability. Leach has plenty of money to hire his own lawyers who actually have licenses to practice in Texas to investigate these matters.

[Frozen Sooner]

In other words, I give no opinion on the validity of any of these claims. Each and every one of them is likely to lead to several depositions, reams of documents produced, and endless wrangling between the two sides. I have no idea what evidence may or may not be adduced at trial, nor do I have any idea what a hypothetical juror may think of the evidence. There does appear to be legitimate issues of fact, so it's quite unlikely that a motion for summary judgment would be granted.

[Leroy Lizard]

No one has mentioned it, but how likely is it that Adam James can sue Mike Leach? In terms of defamation, Mike has said the strongest words of any in this and they were directed at Adam. And Adam did endure the electrical closet.

Also, Craig James could sue Leach for defamation as well.

Man, the lawsuits might never end.

[Soonerus]

You guys are all dangerous...

[Frozen Sooner]

No one has mentioned it, but how likely is it that Adam James can sue Mike Leach? In terms of defamation, Mike has said the strongest words of any in this and they were directed at Adam. And Adam did endure the electrical closet.

Also, Craig James could sue Leach for defamation as well.

Man, the lawsuits might never end.

This is true. Depending on the laws of the state where the suit is filed, CJ's defamation suit would likely be a compulsory counterclaim-he'd have to litigate it at the same time as Leach's initial suit and in the same forum or lose his right to litigate it at all. The problem with his suit (and Adam's suit) would be proving damages.

[Soonerus]

This is true. Depending on the laws of the state where the suit is filed, CJ's defamation suit would likely be a compulsory counterclaim-he'd have to litigate it at the same time as Leach's initial suit and in the same forum or lose his right to litigate it at all. The problem with his suit (and Adam's suit) would be proving damages.

...and proving liability...

[Frozen Sooner]

You guys are all dangerous...

That's right, I AM dangerous Ice.....man....

http://caution.files.wordpress.com/2008/04/val_kilmer_006.jpg

[Frozen Sooner]

...and proving liability...

I don't think there's any doubt that Leach has said some nasty things about the Jameses. Whether said statements were untrue and whether they caused damages would be problematic. So yeah, no damages, no liability. :D

[Soonerus]

But Truth is a defense...seems plausible to me everything he has said is true...Leach has a little training too so I doubt he would be too reckless with his words...

[Frozen Sooner]

Heh. We're talking about the same guy, right? Of "Fat little girlfriends" and "If they get to be soldiers we get to be pirates" fame? :D

But yes, the truth of his statements would be an issue. In this case, I think you'd work on damages first as dispositive.

[Soonerus]

We disagree, I think what he has said about the James' is likely all true...thus, never get to damages...

[soonerboomer93]

Leach has various claims under which he may attempt to recover damages from ESPN, Texas Tech, and Craig James, each of which have varying degrees of likelihood of success. There's some strategic issues to decide in how to litigate the matter, many of which are controlled by the operation of Article III of the United States Constitution and Title 28 of the United States Code, as well as various cases interpreting Title 28 and the US Constitution.

The claims that seem to be the most likely for recovery are:

vs. Texas Tech
Breach of contract. Major issue is how certain contractual terms are to be defined, particularly the terms dealing with appropriate discipline of players.

vs. Craig James
Tortious interference with contractual relationship. Major issues are whether James intended to induce a breach of contract and whether he made misrepresentations in that inducement.

Defamation. Major issue is whether James knew statements he was making regarding Leach's treatment of Adam James were false and whether he made them with the intent to injure. Note: This is a higher standard than normally required for defamation, as Leach is arguably a public figure. Sullivan v. New York Times

vs. ESPN
Same two causes of action above, both directly and possibly vicariously if it can be shown that James was acting in the course and scope of his employment in making the defamatory statements or while interfering with Leach's contract with Tech.

The stuff about diversity jurisdiction and Title 28 and such is kind of inside baseball for where the suit gets filed and which courts can properly hear the action.

Please note that the claims I've identified are solely done as an exercise in issue-spotting. I am not arguing for or against any of these claims, but were this fact pattern to come up on an exam that's where I'd start my answers. I'm not going into the rules for any of these, and I'm damn sure not doing any analysis unless I get paid or a grade. ***, grass, or cash, nobody rides for free. :D

Frozen Sooner is not licensed to practice law in any jurisdiction. The foregoing is not legal advice and anyone taking it as such is a dumbass and deserves what he gets.

you do realize i said that just to **** with you? :pop:

[Frozen Sooner]

I'll defer to your greater knowledge and experience. The way I'd analyze it is simply to say "Yeah, you don't have any damages, so the issue is moot." That's just the way my torts professor said to do it-the first question you should always ask in a tort claim is whether there were damages. If no damages, no recovery. May not be the way things actually work in practice.

[soonerboomer93]

I'll see what I can do to get soonerboomer93 to mail you a check.

I would, but the last czeck i sent him he sent back for being a sweater instead of a moaner and groaner

[Frozen Sooner]

you do realize i said that just to **** with you? :pop:

No. That'll be $450.

[Soonerus]

I'll defer to your greater knowledge and experience. The way I'd analyze it is simply to say "Yeah, you don't have any damages, so the issue is moot." That's just the way my torts professor said to do it-the first question you should always ask in a tort claim is whether there were damages. If no damages, no recovery. May not be the way things actually work in practice.

Two parts in any case, you cannot have one without the other, but my first analysis is always liability, if no liability then no case...but the converse is true too, regardless of the facts, if no damages probably no case, except maybe nominals...who wants nominals except the ACLU...

[Leroy Lizard]

Suppose CJ's lawyer came in with his own claim:

"It doesn't matter what my client, a devoted family man who only cares about the well-being of his children, said. Mike Leach's problems with the Tech administration far predate anything my client, an upstanding citizen who is a PILLAR of the sports community, has done in this regard, and it is clear that these problems had a lot to do with his dismissal. The chancellor himself said on national tv that it was Leach's insubordination, not my client's words, that caused him to be fired. In fact, he was not fired initially and was only suspended from coaching in the bowl game, which amounted to no monetary damage. He was fired only later after he met with the chancellor--a meeting my client did not even attend because he was at home, distressed over the harm this whole situation has caused the college football community.

Also, Leach has a history of treating players cruelly (having a student study outside in extreme weather), so how can my client be faulted for believing his son when told he had been treated cruelly by that animal, that... that BEAST of a coach? There is no defamation, because the horrors of Mike Leach's reckless practice of torturing his players was already established publicly in news articles."

Strong? Weak?

[Crucifax Autumn]

Heh...Pillar of the sports community who broke the very basic foundational rule of "AMATEUR" athletics. Good one.

[prrriiide]

The claims that seem to be the most likely for recovery are:

vs. Texas Tech
Breach of contract. Major issue is how certain contractual terms are to be defined, particularly the terms dealing with appropriate discipline of players.

Then there's also the possibility of showing that the contract was not negotiated in good faith to begin with. The e-mails from that time certainly seem to point in that direction. That opens a whole 'nother can o'worms.

Just as a matter of law...if an employer is shown to have negotiated in bad faith, what is typically the recompense for the employee? Value of the contract + punitive damages?

[Frozen Sooner]

Then there's also the possibility of showing that the contract was not negotiated in good faith to begin with. The e-mails from that time certainly seem to point in that direction. That opens a whole 'nother can o'worms.

Just as a matter of law...if an employer is shown to have negotiated in bad faith, what is typically the recompense for the employee? Value of the contract + punitive damages?
I'll take a stab, but Contracts is definitely my worst 1L subject-I haven't taken a lick of it yet, so I don't know a durn thing. This is my take, though:

Bad faith negotiation means that you never intended to strike a deal at all. This is a concept that you see in collective bargaining all the time: either the union or the employer is bringing demands to the table that are just unreasonable with the intent of derailing negotiations. I don't believe that there is a remedy for bad faith negotiation in the context of a regular employment contract: if the other guy doesn't bring terms to the table that are reasonable, you just walk away as your remedy.

It think what you're getting at is bad faith in performance: that Texas Tech never intended to fulfill their end of the contract. That's certainly an issue Leach might raise, and the e-mails give some credence to that. However, Tech has the argument that they performed under the terms of the contract until Leach breached, so they have a defense to bad faith in performance.

Leach also has an argument that the contract specified progressive discipline which he was not afforded-and that Tech failed to follow that progressive discipline scale shows that they were simply looking for a pretext to fire him.

Again, I may be entirely wrong on all of this. Better to get someone who knows something about Contracts on the stick here.

[Leroy Lizard]

"My client, Craig James, has a sterling reputation that was so above reproach that ESPN, the world leader in sports, hired him to be a sports analyst.

These vile attempts to denigrate the high character of my client are absurd. Absurd, I tell ya'! My client is an angel who would nevah have broken NCAA rules while at SMU. Besides, even if he had, he was young... young I tell ya. He was just a kid. And what kid doesn't make a mistake? Why, there was one football player that stole a laptop computah, and everyone at SoonerFans forgave him no problem."

[Leroy Lizard]

My understanding of bad faith, and I have the least experience in law of anyone here, is that it describes a situation where deliberate deception was employed in striking the deal. Sure, the contract says X, and the party technically delivered X, but clearly X was not what the other party was expecting and the first party knew that.

In essence, contracts are designed as a shield for both parties, not as a sword for one.

Is that even close?

[Frozen Sooner]

My understanding of bad faith, and I have the least experience in law of anyone here, is that it describes a situation where deliberate deception was employed in striking the deal. Sure, the contract says X, and the party technically delivered X, but clearly X was not what the other party was expecting and the first party knew that.

In essence, contracts are designed as a shield for both parties, not as a sword for one.

Is that even close?

Sort of but not really. As near as I know (and again, Contracts isn't something I have anything more than layman's knowledge of) it doesn't matter what's subjectively going on in either party's brain-it matters what, objectively, the contract says. There's a bunch of folderol about terms of art and such, but that's what it boils down to.

"The making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs--not on the parties' having meant the same thing but on their having said the same thing."-Chief Justice Holmes.

The seminal case for this is Frigaliment Importing Co. v. B.N.S. International Sales Corp., 189 F.Supp 166 (S.D.N.Y. 1960) (Sorry, I just happen to have my contracts casebook on the coffee table right now). The plaintiff in this case claimed that they clearly contracted for fryer chickens and the defendant should have known it, whereas the defendant claimed that the objective meaning of "chicken" meant both fryer and stewing chickens. The court held for the defendant based on the objective meaning of "chicken."

The situation changes in what's called a contract of adhesion-a boilerplate contract where the parties don't have equal bargaining power. In that sort of contract, all undefined terms must be construed in favor of the party with the least power. Leach's contract was not such a contract of adhesion-he had the power to individually negotiate each line.

[Frozen Sooner]

And seriously, anyone with any knowledge of K at all please feel free to correct the above.

[Frozen Sooner]

Oh, here we go. The doctrine of promissory fraud-imposing punitive damages on promissors who at the time of promising do not intend to perform on their promise. This, again, goes to bad faith to performance, not bad faith in negotiation.

[Leroy Lizard]

First of all, I find it odd that anyone would use a contract law book as their coffee table book. You're supposed to have a book with pictures of farmhouses, or Norway.

The chicken case seems to align pretty closely with my definition of bad faith.

[Crucifax Autumn]

So we're supposed to only have books with shiny pictures in them and not those silly words and stuff? lol

[Frozen Sooner]

I'm taking Contracts II this semester, and I have some reading to do before Monday. Thus, the Contracts book is on the coffee table. Yes, I'm taking Contracts II without taking Contracts I. Don't ask.

As I understood your definition of bad faith, it seems to directly contradict what you said. Maybe I just misunderstood what you were getting at, but my understanding of what you wrote was that it doesn't matter if the terms of the contract are technically fulfilled, it's what the parties were subjectively thinking. Frigaliment directly contradicts that-it's the objective meaning of the terms that's the key, not the subjective meaning ascribed to them by the parties. If I misunderstood you, my apologies.

[Leroy Lizard]

In the chicken case, the first party did fulfull the contract. It delivered chickens. But they weren't the chickens the second part expected, and the first party knew that when the contract was signed. Is that pretty much what happened?

[Frozen Sooner]

Right. And the court held for the party delivering the chickens, because the objective meaning of "chicken" included stewing chickens. Under your formulation as I understand it, the court would have held for the plaintiff, stating that what the plaintiff MEANT was fryers, not stewers, and since the defendant should have known that then the defendant was in breach or acted in bad faith.

Edit: I should say that the plaintiff argued that the defendant knew that the plaintiff wanted fryers when the contract was signed. This is why the objective standard is used-unless you define terms in the contract, it's pretty near impossible to prove subjective meaning and courts give it VERY short shrift.

[Crucifax Autumn]

At least the contract didn't ask for "c*cks". That coulda been ugly.

[AlbqSooner]

You can always spot the law student: He answers every question like an it was an exam question, and he fits in every bit of knowledge that could posibly be relevant. :D :D :D

I mean than in the nicest possible way !!! :D

Sooooo true. After several years of being a trial practicioner you get your law clerk (usually a law student) and junior associates busy answering the exam questions in a memo to you and sit back and ponder the penultimate inquiry for a judge and jury to understand: "Who's F****ing this Chicken?"

[Crucifax Autumn]

What's wrong with frying chicken?

[TexasLidig8r]

So, anyone wondering why Leach has not filed the suit against sand aggy yet?.................


Leach's attorney and sand aggy attorney are negotiating a possible settlement agreement.

One of two things SHOULD happen this week.

Now, why this week you may ask? Because the eyes of the nation are on college football with the Fiesta Bowl last night, Orange tonite and the national championship game on Thursday. What better time to do one of two things... file a newsworthy suit with the attendant press release or... two, issue a press release saying the parties have reached an accord.

First, it is in Leach's long term and short term interest to obtain a favorable resolution sooner rather than later. He will be coaching somewhere again.. probably in 2011 and needs to start to get this behind him. The best way to obtain this is to settle all complaints and move on.

With Leach being due approximately $12 million over the term of the contract, look for a settlement amount in the $7 million dollar range. (about $2 million more than Mangino received). The payout will probably be structured over a few years because of.... a mandatory non-disparagement clause for both parties. If Leach violates this term, which will be designated a material term of the agreement, Tech can withhold payment of the remaining amounts due and owing.

If a lawsuit is necessary, it should be filed no later than Friday of this week to get the maximum "exposure." It would behoove Leach to not sue ESPN or James at this point.. but.. to schedule a deposition of James after Tech files its answer and counterclaim. Leach can get sworn testimony from James and better discover the facts from which any possible claims against ESPN and James can be decided.

[Crucifax Autumn]

I don't think Leach gives a crap about anything more than making Tech administration and the James's look bad right now and I think since he has plenty of money and assets to live on for awhile he'll drag it out as long as possible unless they offer something HUGE to make him go away. If that happens, in Leach-like fashion, he will manage to JUST push it enough to make everyone see the implication that he won and is right without violating the settlement agreement.

Just my take on how he thinks.

[Crucifax Autumn]

And Lid...Aren't your total numbers WAY off? I thought the actual contract was less. I may be wrong though since I haven't slept!

[boomermagic]

I want some fried chicken..

[Leroy Lizard]

It would behoove Leach to not sue ESPN or James at this point.. but.. to schedule a deposition of James after Tech files its answer and counterclaim.

I don't see Leach going after ESPN or James. Not only is their case weak, but dredging up past abuses of players won't look good at a time when Leach is going to be job shopping. His best bet would be to do everything he can to get as much money as quietly as possible.

[AlbqSooner]

So, anyone wondering why Leach has not filed the suit against sand aggy yet?.................


Leach's attorney and sand aggy attorney are negotiating a possible settlement agreement.

One of two things SHOULD happen this week.

Now, why this week you may ask? Because the eyes of the nation are on college football with the Fiesta Bowl last night, Orange tonite and the national championship game on Thursday. What better time to do one of two things... file a newsworthy suit with the attendant press release or... two, issue a press release saying the parties have reached an accord.

First, it is in Leach's long term and short term interest to obtain a favorable resolution sooner rather than later. He will be coaching somewhere again.. probably in 2011 and needs to start to get this behind him. The best way to obtain this is to settle all complaints and move on.

With Leach being due approximately $12 million over the term of the contract, look for a settlement amount in the $7 million dollar range. (about $2 million more than Mangino received). The payout will probably be structured over a few years because of.... a mandatory non-disparagement clause for both parties. If Leach violates this term, which will be designated a material term of the agreement, Tech can withhold payment of the remaining amounts due and owing.

If a lawsuit is necessary, it should be filed no later than Friday of this week to get the maximum "exposure." It would behoove Leach to not sue ESPN or James at this point.. but.. to schedule a deposition of James after Tech files its answer and counterclaim. Leach can get sworn testimony from James and better discover the facts from which any possible claims against ESPN and James can be decided.

What's that sound? Ahhh it is the sound of ice forming in hell. I agree with Lid for the most part.

The only thing I would point out is that he has completed one year of the five year contract. Therefore, he is owed a remaining $9.6 mill. I suspect a settlement between $5 - $7 mill. But we will never know, because there will, in addition to a non-disparagement agreement, be a non-disclosure agreement. My opinion.

[prrriiide]

Rumor on the Taco Tech board is that Hance and TTU's legal beagles are going to plead Sovreign Immunity if Leach tries to sue. Specifically looking at this case:

http://www.houston-opinions.com/files/Tex-2007-Texas-AandM-University-v-Sefa-Koseoglu-by-Green-sovereign-immunity-ILA-plea-juris-opp-to-amend.mht

involving the TAMU system. In that case, the Texas Supreme Court held that a breach of contract claim against TAMU was barred by Sovreign Immunity.

What about it, Lid? Can the slime balls actually get away with it? Was this likely part of the plan all along? Fire him and then say "nanny-nanny-boo-boo, you can't sue?"

[Leroy Lizard]

I found this page to be especially relevant. Check out the links on the right.

http://www.faculty-rights-coalition.com/Sovereign_Immunity_Doctrine_in_Texas.html

[MiccoMacey]

As I understood your definition of bad faith, it seems to directly contradict what you said. Maybe I just misunderstood what you were getting at, but my understanding of what you wrote was that it doesn't matter if the terms of the contract are technically fulfilled, it's what the parties were subjectively thinking.

So, what you were thinking Leroy was saying was different than what Leroy actually wrote.

Great way to show an example of what you were referring to!

[MiccoMacey]

So, anyone wondering why Leach has not filed the suit against sand aggy yet?.................


Leach's attorney and sand aggy attorney are negotiating a possible settlement agreement.

One of two things SHOULD happen this week.

Now, why this week you may ask? Because the eyes of the nation are on college football with the Fiesta Bowl last night, Orange tonite and the national championship game on Thursday. What better time to do one of two things... file a newsworthy suit with the attendant press release or... two, issue a press release saying the parties have reached an accord.


And three, steal some national attention away from Texas. Might be ancillary, but still a side benefit none the less.

[Leroy Lizard]

So, what you were thinking Leroy was saying was different than what Leroy actually wrote.

Great way to show an example of what you were referring to!

The fixation continues.

[Half a Hundred]

Rumor on the Taco Tech board is that Hance and TTU's legal beagles are going to plead Sovreign Immunity if Leach tries to sue. Specifically looking at this case:

http://www.houston-opinions.com/files/Tex-2007-Texas-AandM-University-v-Sefa-Koseoglu-by-Green-sovereign-immunity-ILA-plea-juris-opp-to-amend.mht

involving the TAMU system. In that case, the Texas Supreme Court held that a breach of contract claim against TAMU was barred by Sovreign Immunity.

What about it, Lid? Can the slime balls actually get away with it? Was this likely part of the plan all along? Fire him and then say "nanny-nanny-boo-boo, you can't sue?"

Wow, that's stupid. They've just given Leach his federal question (7th Amendment). The question then is whether the District Court would remand subsequent action after its holding or whether it would allow the proceedings in federal court in the interest of judicial efficiency.

[Leroy Lizard]

What waiver from sovereign immunity does Tech provide for those wanting to sue the university? I would think that would be important.

According to wiki: "Unlike most of the Bill of Rights, the Supreme Court has not incorporated the amendment's requirements to the states under the Fourteenth Amendment."

Since Leach would be suing Tech in a state court, not Federal court, would the seventh amendment even apply?

Sorry, I'm not much of a lawyer.

[olevetonahill]

Sorry, I'm not much of a lawyer.

Or Anything Else
I KEED :D

[Frozen Sooner]

Since Leach would be suing Tech in a state court, not Federal court, would the seventh amendment even apply?

That's the federal question that gets the case into federal court. Is the seventh amendment incorporated by the 14th Amendment against the several states?

HaH wants to file this in a Federal Court that sits in Connecticut to get around Texas' tort laws. The substantive laws of the state where the District Court sits are followed in state law claims. Erie. Then, he wants to have the Federal Court transfer venue to Texas in order to get personal jurisdiction over Texas Tech and to correct what is now a defect in venue, since Texas Tech likely doesn't meet the International Shoe v. Washington test for minimum contacts with the forum state. When a case is transferred to a District Court sitting in another state, the substantive law of the state in which the original District court sits is followed. Ferens v. John Deere.

My personal opinion is that the Federal Court for the District of Connecticut would just dismiss the action for lack of personal jurisdiction and subject-matter jurisdiction and tell Leach to file in Texas. A Texas court would likely have personal jurisdiction over ESPN under Calder v. Jones (a defendant never physically present in the state nevertheless directed their activities to the forum state by broadcasting defamatory statements into the state about a resident of the state, knowing that the damage would likely take place in the state) and would certainly have personal jurisdiction over Texas Tech and Craig James under International Shoe's contemplation of general jurisdiction.

Initially, his thought was that he could file in Federal Court (or file in State Court then remove to Federal Court) based on diversity of citizenship under Article III of the US Constitution and 28 USC §1332. Unfortunately, the removal wouldn't work because under 28 USC §1441 you can't remove an action based on §1332 if one of the defendants is a resident of the state. Filing initially in federal court gets around this, but then when you join the non-diverse defendants you lose complete diversity, as required by Strawbridge v. Curtiss to maintain a §1332 action. HaH recognizes this, but wants the federal court to remand to a Texas state court. Effectively, you've got a Texas state court deciding a Texas contract claim under Connecticut law. The problem, though, is that he can't remove from Connecticut state court under §1441, and if the action was initially filed in Federal court the proper course of action is to dismiss, not remand.

That's the summary of the inside baseball stuff HaH and I have been discussing so far. He's thinking very tactically to get a favorable set of laws for Leach, which is good lawyerin'.

Worth noting for non-lawyer types:

In order for a court to issue a binding judgment in any action, three conditions must be met.

First, the court must have subject-matter jurisdiction over the case. In the context of the federal court system, that generally either that the case or controversy arises under a federal law, the US Constitution, or a treaty of the US; that the case is between citizens of different states; or that admiralty is involved. Subject-matter jurisdiction is a non-waivable defect: that is, it can be raised at any time and the court even has an obligation to raise it itself if the court happens to notice there's a problem. If the court does not have subject-matter jurisdiction, it MUST dismiss the action or remand it to a court that does have subject-matter jurisdiction (if it was initially removed from a court of competent jurisdiction.)

Second, the court must have personal jurisdiction over the defendants. A court can't just issue judgments willy-nilly over people who have no idea they were even subject to a suit in the forum state. States have what's called "long-arm" statutes that lay out the jurisdiction of their own courts over non-residents. However, those statutes CANNOT exceed the limits of personal jurisdiction laid out by International Shoe and other interpretations of the 14th Amendment. Generally, the District Courts will follow the long arm statutes of the states in which they sit. Personal jurisdiction is a waivable defect, and if the defendant fails to raise an objection to personal jurisdiction in their initial answer or before making any motions under Rule 12 then they are deemed to have consented to personal jurisdiction.

Third, the venue must be proper. Like personal jurisdiction, venue is waivable and the defendant has to raise it in their answer or joined with another Rule 12 motion. If either a Rule 12 motion or an answer is filed before an objection to venue, it's lost forever. In the context of the federal courts, venue is proper in (a) any judicial district where a defendant resides IF all of the defendants reside in the same state (b) where the transaction or occurrence giving rise to the claim occurred or (c) if neither (a) nor (b) apply, in any district that can obtain personal jurisdiction over all of the defendants. Please note that (c) can ONLY apply if the events happened outside the United States AND at least one of the defendants doesn't live in the same state as the others.

[Leroy Lizard]

HaH wants to file this in a Federal Court that sits in Connecticut to get around Texas' tort laws.

Which case are we discussing? If Leach is suing Tech, why would Connecticut even be involved?

If Leach is suing ESPN, okay. But how does sovereign immunity play a factor in that at all?

[MiccoMacey]

The fixation continues.

You're reading into that wrong.

It had much less to do with you than it did with Frozen.

[Leroy Lizard]

Sorry for the confusion.

[MiccoMacey]

No problem...just didn't want you thinking I was attacking you.

Until I decide to attack you. ;)

[Frozen Sooner]

Which case are we discussing? If Leach is suing Tech, why would Connecticut even be involved?

If Leach is suing ESPN, okay. But how does sovereign immunity play a factor in that at all?

The strategic move is to sue ESPN first, then join Tech. However, if Tech can't be sued under sovereign immunity, then there might be a seventh amendment issue. The case can still be joined under the Rules, since it arises out of the same transaction or occurrence.

[Frozen Sooner]

You're reading into that wrong.

It had much less to do with you than it did with Frozen.

Yet another good example. :D

Though I'm still having a hard time figuring out how what Leroy wrote initially was consistent with what he wrote later. No big deal.

[Leroy Lizard]

Let me ask another question:

Craig James apparently called and complained about Leach's treatment of his son. Craig's views were based on comments made by his son. Parents complain all the time to schools based on what their children claim. In fact, we certainly want them to do that at the public school level. At the university level there are better ways of handling it, but we still allow parents to file complaints on behalf of their children.

Tech had plenty of time to establish whether the chargers were true or not. If not true, they had the opportunity to publicly refute the charges and retain Leach's services.

They did not.

How can Craig be liable? Craig's words alone could not have caused Leach's dismissal, because there was adequate time and evidence to investigate the complaint and come to a just decision.

[Frozen Sooner]

Let me ask another question:

Craig James apparently called and complained about Leach's treatment of his son. Craig's views were based on comments made by his son. Parents complain all the time to schools based on what their children claim. In fact, we certainly want them to do that at the public school level. At the university level there are better ways of handling it, but we still allow parents to file complaints on behalf of their children.

Tech had plenty of time to establish whether the chargers were true or not. If not true, they had the opportunity to publicly refute the charges and retain Leach's services.

They did not.

How can Craig be liable? Craig's words alone could not have caused Leach's dismissal, because there was adequate time and evidence to investigate the complaint and come to a just decision.

And that's a good argument to make at trial if you're Craig's lawyer. If I were Leach's (or TTU's) lawyer, I would argue that James' status as a commentator on college football allowed him to bring inordinate pressure to bear-to wit, that he could use his position to negatively impact Tech's reputation if they did not do what he wanted.

Don't know how either argument would fly.

[Leroy Lizard]

The strategic move is to sue ESPN first, then join Tech. However, if Tech can't be sued under sovereign immunity, then there might be a seventh amendment issue. The case can still be joined under the Rules, since it arises out of the same transaction or occurrence.

Okay, I see the strategy. But how can Leach join ESPN and Tech? Leach's complaint against ESPN is for defamation; his complaint against Tech is for breach of contract. The two defendants have completely different responsibilities to the plaintiff.

[Frozen Sooner]

Okay, I see the strategy. But how can Leach join ESPN and Tech? Leach's complaint against ESPN is for defamation; his complaint against Tech is for breach of contract. The two defendants have completely different responsibilities to the plaintiff.


Federal Rules of Civil Procedure 20(a)(2): Defendants.

Persons — as well as a vessel, cargo, or other property subject to admiralty process in rem — may be joined in one action as defendants if:

(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and

(B) any question of law or fact common to all defendants will arise in the action.

Basically, as long as there's some common question between the suits and the same events are involved, you can join defendants. This rule is generally interpreted very liberally by the courts in the interests of judicial efficiency and consistency: if there's some matter of fact that is essential to both cases, it's best to have them adjudicated at the same time so you don't have to keep recalling witnesses and so that you don't run into constitutional issues about reexamining factual issues.

[Leroy Lizard]

And that's a good argument to make at trial if you're Craig's lawyer. If I were Leach's (or TTU's) lawyer, I would argue that James' status as a commentator on college football allowed him to bring inordinate pressure to bear-to wit, that he could use his position to negatively impact Tech's reputation if they did not do what he wanted.


I would think that such a threat would have to be explicit. Otherwise, we are suggesting that any highly public figure cannot file a complaint against a school's treatment of their children without risking a lawsuit. Sounds like a bad precedent.

I just don't see how any suit against Craig James or ESPN would get past an initial hearing. Nothing that ESPN has aired has been factually incorrect from what I have seen. The First Amendment should protect them here.

[Frozen Sooner]

:shrug:

Again, we're not really arguing the merits of the issues here, simply laying out what issues are likely to arise. The US judicial system is very very invested in getting past the pleading stages and getting into discovery. You are correct that if they haven't broadcast anything untrue then a defamation charge won't stand up in court (FWIW, defamatory speech is not protected by the First Amendment. However, to be defamatory it must be untrue.) There is a genuine issue of fact, though, so a motion to dismiss for failure to state a claim probably wouldn't be sustained and we'd get to discovery at the least. Once they get past discovery and Leach hasn't gotten any evidence that ESPN hasn't said anything untrue, then ESPN can probably get a motion for summary judgment at that point.

Basically, you can't win on the pleadings by just saying "No I didn't!" Arnstein v. Porter.

[Leroy Lizard]

(B) any question of law or fact common to all defendants will arise in the action.

This is where I think joining the defendants fails. The question of law in the suit against Tech is contract law, the facts of which are completely unrelated to ESPN.

If Leach was suing Tech for defamation and not breach of contract, then I could see it. But Leach's claim against Tech for defamation is even weaker than his claim against ESPN.

Ultimately, if Tech can claim sovereign immunity, then I think Leach is TSOL.

[Okla-homey]

The last time I checked, Texas Tech University is a governmental entity, therefore, and I haven't read the pleadings so I don't know the basis for the lawsuit, Leach's claims, or TT's possible defenses. That said, if I were defending TTU, I'd figure out way to color the suit as barred by TTU's sovereign immunity as a governmental entity and seek a dismissal on that basis.

Regarding Leach's contract claim, I'd fenagle some way to avoid paying him the balance owed by claiming he breached it when he violated its terms by heaping humilitaion and shame on that fine institution.

And I'd point out to the Court Leach likes pirates. A lot.

[Frozen Sooner]

This is where I think joining the defendants fails. The question of law in the suit against Tech is contract law, the facts of which are completely unrelated to ESPN.

If Leach was suing Tech for defamation and not breach of contract, then I could see it. But Leach's claim against Tech for defamation is even weaker than his claim against ESPN.

Ultimately, if Tech can claim sovereign immunity, then I think Leach is TSOL.

You've misinterpreted the Rule.

A common question of law or fact does not mean the same theory of recovery.

Just an example of one common question of law or fact that would permit joinder of parties here:

Did Texas Tech breach their contract with Leach based on defamatory statements made by James?

In order to adjudicate this issue, it is first necessary to determine whether James made defamatory statements.

Easy-peasy, you've got a common question of law or fact.

[Frozen Sooner]

The last time I checked, Texas Tech University is a governmental entity, therefore, and I haven't read the pleadings so I don't know the basis for the lawsuit, Leach's claims, or TT's possible defenses. That said, if I were defending TTU, I'd figure out way to color the suit as barred by TTU's sovereign immunity as a governmental entity and seek a dismissal on that basis.

Regarding Leach's contract claim, I'd fenagle some way to avoid paying him the balance owed by claiming he breached it when he violated its terms by heaping humilitaion and shame on that fine institution.

And I'd point out to the Court Leach likes pirates. A lot.

Yeah, that's what it looks like TTU is going to try on both. Except for the pirate part.

[Leroy Lizard]

"What’s wrong with lawyer jokes? Lawyers don’t think they’re funny, and nobody else thinks they’re jokes."

Couldn't resist. You can respond with a joke about college profs. We're not so thin-skinned. :D

[Leroy Lizard]

A common question of law or fact does not mean the same theory of recovery.

Just an example of one common question of law or fact that would permit joinder of parties here:

Did Texas Tech breach their contract with Leach based on defamatory statements made by James?

In order to adjudicate this issue, it is first necessary to determine whether James made defamatory statements.

Easy-peasy, you've got a common question of law or fact.

Okay, I see it. It does appear to be quite a stretch though.

[TopDawg]

I've thoroughly enjoyed this thread. Great job, people.


I would think that such a threat would have to be explicit. Otherwise, we are suggesting that any highly public figure cannot file a complaint against a school's treatment of their children without risking a lawsuit. Sounds like a bad precedent.

But that's not really the issue. I'm no lawyer, but I studied journalism and journalism law (albeit years ago), so I'll chime in here and the rest of you can correct me in the highly likely case that I'm wrong.

The lawsuit wouldn't be a result of Craig James filing a complaint against a school's treatment of Adam...it would be a result of Craig James going on air/ESPN allowing Craig James to go on air to publicly defame Mike Leach.

If Leach won, it wouldn't be a suggestion that highly public figures shouldn't file complaints against schools, rather, that highly public figures shouldn't use the mass media to defame the person they think is mistreating their kid in the hopes of getting that person fired.

You're right. The question still remains as to whether anything he said/ESPN broadcasted is false. I'm just saying that I don't think the "suggestion" behind a favorable ruling for Leach in this instance is consistent with what you have claimed it would be.

[TopDawg]

Hey, now that we have all these lawyers around...any of y'all watch Raising the Bar?

[Leroy Lizard]

I've thoroughly enjoyed this thread. Great job, people.

You forgot the obligatory "(except you Lizard)" :D

I agree with most of what you said.

[StoopTroup]

What's funny is now your arguing about yourself being an idiot and then following that up with a post about why you were wrong about it.

[Leroy Lizard]

What's funny is now your arguing about yourself being an idiot...

With you, there is no argument. You are an idiot.

[prrriiide]

You're right. The question still remains as to whether anything he said/ESPN broadcasted is false. I'm just saying that I don't think the "suggestion" behind a favorable ruling for Leach in this instance is consistent with what you have claimed it would be.

I would think that if:

a) it can be proved that something broadcast by ESPN was false and defamed Leach

AND

b) that the information leading to that broadcast arose from conversation with James (formal interview or casual conversation)

AND

c) the person broadcasting said falsehood knew it was (or could reasonably be expected to be later proved) false

AND

d) ESPN as an entity endorsed/encouraged the broadcasting of the falsehood

Then you would have grounds to go after ESPN and James. That's a ton of burden of proof to lift.

[StoopTroup]

With you, there is no argument. You are an idiot.

I'm not gonna take offense to that because in an hour or so you'll be back on here posting how smart I am.....

[Leroy Lizard]

I'm not gonna take offense to that because in an hour or so you'll be back on here posting how smart I am.....


There is a better likelihood of seeing Leach and James walking down the street, arm in arm, singing beer songs.

[S008NER]

Motion to dismiss denied
http://news.yahoo.com/s/ap/20100120/ap_on_sp_co_ne/fbc_texas_tech_leach_lawsuit_hearing

[Leroy Lizard]

Sowder also ruled that the state's motion to dismiss the case on grounds of sovereign immunity — which means a state agency or entity cannot be sued without permission from the Texas Legislature or without a waiver based on a defendant's conduct — will be taken up at a later date.

So on what grounds was Tech wanting the case dismissed? Or was this just the usual procedure?

[King Barry's Back]

Save your breath Froz. Your points are well made but you are over Leroy's head.

Leroy, before you get your panties in a wad, I am not insulting you. I am simply stating that until you go to law school and are trained to think like a lawyer and to RESEARCH like a lawyer, you will not understand what Froz is saying. Somewhat like in Alice in Wonderland, when lawyers speak, the words mean what the lawyers say they mean. That is why you have to go to law school and pass the Bar exam. So you know what the words mean to lawyers. Otherwise you could simply pull down a Statute book, read the Statute and know what it means, as distinguished from what it says.

Hmmm. That's really interesting. I was once advising a legislator as to how he might should vote on a bill. I had the bill in front of me. It was a short bill, half a page or so, and I walked him through it and explained what it meant.

He looked at me and said, "Are you sure that is right? Are you sure that is what it does?"

I replied, "Sir, this is the bill, and what I said is what it clearly means. But I have no idea what a lawyer could twist it into."

The implications of normal people writing laws to be twisted by lawyers is for another discussion, but I do find it troubling, to say the least.

[OU_Sooners75]

Maybe I misread the affidavit, but didnt the lead trainer just say that Leach told him to put in the darkest place possible and not to have him sit down?

The trainer is the one that put the kid in the trainer shed and later in the press room....where he instructed Adam James not to go into the electrical closet...and the kid did anyway.

And didnt it state that the lights were dimmed but not completely pitch black?

[Collier11]

Yep, the lead trainer has been inconsistent with his statements as well, just like TT has been in general while dealing with the situation

[Leroy Lizard]

I was once advising a legislator as to how he might should vote on a bill. I had the bill in front of me. It was a short bill, half a page or so, and I walked him through it and explained what it meant.

Gee, that's a great story.

[King Barry's Back]

I don't see Leach going after ESPN or James. Not only is their case weak, but dredging up past abuses of players won't look good at a time when Leach is going to be job shopping. His best bet would be to do everything he can to get as much money as quietly as possible.

Leroy, normally, I would agree with every word you wrote there. But Leach is a particularly unique individual. I think his behavior is very difficult to predict, and he may have both the financialy resources AND the demeanor to give up half of his settlement to get his revenge.

Most people can't, and even more would not, take that path -- but Leach might.

[OU_Sooners75]

Yep, the lead trainer has been inconsistent with his statements as well, just like TT has been in general while dealing with the situation


I am just saying what I thought it stated on one of the affidavits.

Seems to me that TTech was playing Chicago-type politics with their employees.

[AlbqSooner]

Hey, now that we have all these lawyers around...any of y'all watch Raising the Bar?

I wastch it occasionally. I relate to parts of it. Not a bad show at all.

[Okla-homey]

Hmmm. That's really interesting. I was once advising a legislator as to how he might should vote on a bill. I had the bill in front of me. It was a short bill, half a page or so, and I walked him through it and explained what it meant.

He looked at me and said, "Are you sure that is right? Are you sure that is what it does?"

I replied, "Sir, this is the bill, and what I said is what it clearly means. But I have no idea what a lawyer could twist it into."

The implications of normal people writing laws to be twisted by lawyers is for another discussion, but I do find it troubling, to say the least.

Whle I agree with my brother Albq., let's be clear on something. Lawyering and statutory interpretation isn't rocket science. Like he said, its just a form of mental conditioning involving being taught to review a piece of text for its entire range of meanings and all its implications applied to a set of facts.

In fact, the whole area of consitutional law, and much of criminal law practice, involves reading the words on paper, understanding what they fully mean and imply, and working hard for your client to prove what he did or wants is or was allowed under the language on paper, or, as often in the case of criminal defense, what the cops did wasn't allowed under the Constitution. At the end of the day, lawyers get paid to do three things; read; write, and; talk.

That said, sometimes lawyers, like the rest of the human race, overthink things. The good news is, good judges are mindful of that tendency and work hard to ensure the right thing happens. And the system generally works because the right outcome usually occurs.

[TexasLidig8r]

And this thing, for the lay people, is about to go into the "snooze - no new, news" zone.

Tech has an immediate right to appeal the denial of their motion to dismiss (one ofthe few times you can take an interlocutory appeal in Texas)... and it is certainly in their best interest too.

Leach wanted consent from the judge to engage in immediate discovery, including depositions... that was denied.

So, the Notice of Appeal will be filed, the court of appeals in Lubbock will take it up..and this thing becomes "not newsworthy" until the court of appeals decides... many months from now.

In the meantime, negotiations behind the scenes will continue.

[Frozen Sooner]

In support of Homey up there...

Periodically there's movements to ensure that all bills are written in so-called "Plain English," which is a laudable goal. There's a couple of problems, though.

First, when documents are written in "Plain English" they open themselves up to interpretation. For example, a statute making illegal either driving under the influence of alcohol or being in actual physical control of a vehicle will naturally lend itself to hours upon hours of litigation on the meaning of actual physical control.

Second, when you attempt to foreclose such interpretation, you wind up with monstrous statutes that contain page upon page of definitional language.

Generally, as Homey noted, judges will attempt to interpret the statute as closely to the fair interpretation of the words-but it's your ethical duty as an attorney to convince the judge that the fairest interpretation of the words is the one most favorable to your client.

[Okla-homey]

For example, a statute making illegal either driving under the influence of alcohol or being in actual physical control of a vehicle will naturally lend itself to hours upon hours of litigation on the meaning of actual physical control.



The devil's always in the details. That is also precisely why you can be passed out drunk in your parked car in many jurisdictions and still get charged with a DUI unless you thought to throw your car keys in the bushes before you passed out.

[Frozen Sooner]

Heck, in Alabama even if you threw your car keys out the window you can still get popped for DUI. Cagle v. City of Gadsden specifically addressed that scenario.

[MeMyself&Me]

I keep hearing stories like that and I got to ask why a cop would even arrest someone if they were doing the right thing, ie choosing NOT to drive drunk?

[Frozen Sooner]

I keep hearing stories like that and I got to ask why a cop would even arrest someone if they were doing the right thing, ie choosing NOT to drive drunk?

The purpose of drunk driving legislation is to reduce the risk of accidents on the road. The person in actual physical control of a vehicle has either recently operated a vehicle while drunk or poses a substantial risk to do so.

If you are intent on doing the right thing, take a taxi home or have someone else drive you to the bar.

[Crucifax Autumn]

My wife sends me to the car for the night every time I get shatfaced.

[MeMyself&Me]

The purpose of drunk driving legislation is to reduce the risk of accidents on the road. The person in actual physical control of a vehicle has either recently operated a vehicle while drunk or poses a substantial risk to do so.

If you are intent on doing the right thing, take a taxi home or have someone else drive you to the bar.

As far as the recently operated part, that's an assumption that I can understand if the car is somewhere along the side of a road with the guy in it.

As far as the poses a substantial risk to do so, man I'm not on board with that at all.

[Crucifax Autumn]

Drive stoned so all crahes are 3 MPH fender denters.

[Frozen Sooner]

As far as the recently operated part, that's an assumption that I can understand if the car is somewhere along the side of a road with the guy in it.

As far as the poses a substantial risk to do so, man I'm not on board with that at all.

And that's where the analysis part of it comes in. A proper prosecution for APC will brief the issue of how likely it was this person was going to drive soon. At least in Alabama it will.

[Collier11]

The purpose of drunk driving legislation is to reduce the risk of accidents on the road. The person in actual physical control of a vehicle has either recently operated a vehicle while drunk or poses a substantial risk to do so.

If you are intent on doing the right thing, take a taxi home or have someone else drive you to the bar.

Yea but sometimes a cop needs to use his better judgment, it is one thing if you parked your car on the side of the road after a night out, its a whole other thing if you hide your keys and go to sleep in the back seat

[Frozen Sooner]

Yea but sometimes a cop needs to use his better judgment, it is one thing if you parked your car on the side of the road after a night out, its a whole other thing if you hide your keys and go to sleep in the back seat

Which is why position of the drunk is one of the factors generally considered.

Leaving things up to the discretion of the cop is a really bad idea, by the way. That's an excellent way to have a statute invalidated for vagueness. See Kolender v. Lawson

[Half a Hundred]

The purpose of drunk driving legislation is to reduce the risk of accidents on the road. The person in actual physical control of a vehicle has either recently operated a vehicle while drunk or poses a substantial risk to do so.

If you are intent on doing the right thing, take a taxi home or have someone else drive you to the bar.

That seems far too close to preponderance of the evidence by my estimation.

[Collier11]

Which is why position of the drunk is one of the factors generally considered.

Leaving things up to the discretion of the cop is a really bad idea, by the way. That's an excellent way to have a statute invalidated for vagueness. See Kolender v. Lawson

I get what you are saying and when I say leaving things to discretion obviously I mean if the keys are on the person or in the ignition it is pretty obvious they probably had intent to drive, if they are in the glove box and you are sleeping in the backseat, you most likely didnt.

[Frozen Sooner]

That seems far too close to preponderance of the evidence by my estimation.

Circumstantial evidence does not equal preponderance of the evidence. When using circumstantial evidence, the evidence must not only be consistent with a guilty hypothesis, but be inconsistent with any reasonable hypothesis of innocence. APC is necessarily a circumstantial case.

[TexasLidig8r]

As far as the recently operated part, that's an assumption that I can understand if the car is somewhere along the side of a road with the guy in it.

As far as the poses a substantial risk to do so, man I'm not on board with that at all.

Me: "So, Officer, how far did Mr. Dean drive this car while impaired?"

Copper: "I don't know."

Me: "Officer, what signs of inebriation did you see while Mr. Dean was driving this car?"

Copper: "Well... I didn't see him drive."

Me: "hmm.. well, that's interesting. Now, how far around the car did you conduct an exhaustive search to determine if there were any empty alcohol bottles or beer cans?"

Copper: "Well.. I didn't really do any type of search."

Me: "So, how much did Mr. Dean have to drink at the spot where he was found asleep in his car?"

Copper: "Well.. I don't know if he had anything to drink there."

Me: "In fact, sir, you simply don't have any independent recollection of the events that night without consulting your notes and talking with the district attorney isn't that true?"

Copper: "uh.. well.. uh..."

Me: "In fact Mr. Dean was sound asleep in his vehicle when you woke him up wasn't he?"

Copper: "Yes. he was passed out!"

Me: "Come now officer... please tell the jury then the physiological differences that exist between a person who is in deep REM sleep and a person who is passed out."

Copper: "uh.. well.. I'm not a doctor."

Me: "So, you wake Mr. Dean up out of a deep sleep.. you shine your bright flashlight in his eyes, you force him to submit to your roadside tests, on gravel at 3 a.m. and you presume he was driving his car while drunk, sir?"

Copper: "uh.. well. yes."

Me: "So you have no proof that he was going to wake up from this deep REM sleep.. or.. passed out, in your words.. and in fact officer.. persons who are passed out usually stay passed out for hours isn't that true?"

Copper: "well.. yes...depending on their weight, blood alcohol content.. "

Me: "Uh Uh Uh Officer.. you just said you werent a doctor so you can't testiify to those things."


Jousting with witnesses is fun.! :D

[Crucifax Autumn]

Yuo guys really are a slimy and slippery profession aren't you? Oddly I like it and find it amusing, particularly when used against the po-lice!

[TexasLidig8r]

Yuo guys really are a slimy and slippery profession aren't you? Oddly I like it and find it amusing, particularly when used against the po-lice!

We're only slimy and slippery when we represent the other side.

[Leroy Lizard]

Me: "So, Officer, how far did Mr. Dean drive this car while impaired?"

Copper: "I don't know."

Me: "Officer, what signs of inebriation did you see while Mr. Dean was driving this car?"

Copper: "Well... I didn't see him drive."

Me: "hmm.. well, that's interesting. Now, how far around the car did you conduct an exhaustive search to determine if there were any empty alcohol bottles or beer cans?"

Copper: "Well.. I didn't really do any type of search."

Me: "So, how much did Mr. Dean have to drink at the spot where he was found asleep in his car?"

Copper: "Well.. I don't know if he had anything to drink there."

Me: "You're honor, I have at this point drained my client of every last dollar he has. May I be excused from the case?


Fixed.

:D

[Half a Hundred]

Circumstantial evidence does not equal preponderance of the evidence. When using circumstantial evidence, the evidence must not only be consistent with a guilty hypothesis, but be inconsistent with any reasonable hypothesis of innocence. APC is necessarily a circumstantial case.

I can't think of a circumstance where it would be 100% provable from surrounding evidence alone whether a person had used a vehicle beforehand. Someone else could always have left the person there.

[Frozen Sooner]

I can't think of a circumstance where it would be 100% provable from surrounding evidence alone whether a person had used a vehicle beforehand. Someone else could always have left the person there.

Beyond a shadow of a reasonable doubt <> 100%. Circumstantial only cases get convictions all the time.

[Collier11]

Ok, back to the Leach v TT lawsuit, why was it ordered to mediation?

[Frozen Sooner]

Ok, back to the Leach v TT lawsuit, why was it ordered to mediation?

Because mediation usually leads to quicker outcomes. The judge knows this case is going to be a circus and doesn't want it in his courtroom.

[Collier11]

Kinda what I thought, knowing that Leach is a lawyer as well do you think this is what he wants or does he want it going to trial?

[Leroy Lizard]

I was going to ask that. Does anyone think that Leach wants this played out in court so that he gets maximum exposure?

[TexasLidig8r]

Ok, back to the Leach v TT lawsuit, why was it ordered to mediation?

In Texas, although there is not a rule in the Texas Rules of Civil Procedure, every state district court judge requires every case to go to mediation before it's tried. The reasons are many.

First, it clears out the court's docket. The vast majority of cases are settled at mediation. The judge, in his/her re-election campaign can use the "resolution of cases" numbers to justify their existence on the bench as being an effective jurist.

Second, it reduces the costs and attorney's fees incurred by all parties. If a case can be resolved at mediation and one side believes they paid too much and the other side believes they did not receive enough, the belief is that the settlement is fair.

Third, the art of negotiation has been lost. Kids coming out of law school today are not taught how to negotiate.. it is a subtle skill.. part art, part human nature, part bravado. 20 years ago, mediation was for the most part, unknown.

I went to court in December to try a case. Administrator calls us down to start the case. We show up as does the other side. Judge calls us up to the bench and asks if we are ready for trial. I respond "Yes, your Honor." the judge asks if the case has gone to mediation. We respond, "No, sir." The judge says, "Then, you are not ready for trial."

Judge looks at me and says, "Mr. D.. you have been practicing for what now.. 20 - 25 years?" He says the same thing to the other attorney. The judge then says, since this is a jury case, there is not enough involved in this case to waste a Dallas County jury's time, especially 10 days before Christmas. Go outside in the hallway and settle the case. If you do not, I am ordering you to mediation this afternoon!"

We settled.

No one tries cases any more. :mad:

[boomermagic]

edited had already been posted sorry..

[Half a Hundred]

In Texas, although there is not a rule in the Texas Rules of Civil Procedure, every state district court judge requires every case to go to mediation before it's tried. The reasons are many.

First, it clears out the court's docket. The vast majority of cases are settled at mediation. The judge, in his/her re-election campaign can use the "resolution of cases" numbers to justify their existence on the bench as being an effective jurist.

Second, it reduces the costs and attorney's fees incurred by all parties. If a case can be resolved at mediation and one side believes they paid too much and the other side believes they did not receive enough, the belief is that the settlement is fair.

Third, the art of negotiation has been lost. Kids coming out of law school today are not taught how to negotiate.. it is a subtle skill.. part art, part human nature, part bravado. 20 years ago, mediation was for the most part, unknown.

I went to court in December to try a case. Administrator calls us down to start the case. We show up as does the other side. Judge calls us up to the bench and asks if we are ready for trial. I respond "Yes, your Honor." the judge asks if the case has gone to mediation. We respond, "No, sir." The judge says, "Then, you are not ready for trial."

Judge looks at me and says, "Mr. D.. you have been practicing for what now.. 20 - 25 years?" He says the same thing to the other attorney. The judge then says, since this is a jury case, there is not enough involved in this case to waste a Dallas County jury's time, especially 10 days before Christmas. Go outside in the hallway and settle the case. If you do not, I am ordering you to mediation this afternoon!"

We settled.

No one tries cases any more. :mad:

And why hasn't this gone in front of a federal judge for gross violations of the Sixth Amendment right to jury trial and Fourteenth Amendment right to procedural due process?

[TexasLidig8r]

And why hasn't this gone in front of a federal judge for gross violations of the Sixth Amendment right to jury trial and Fourteenth Amendment right to procedural due process?

Not enough money involved to make it interesting.

[AlbqSooner]

Mediation is also de facto required to get a case on a jury docket in Florida. All of Lid's points about reasons for mediation are accurate. One additional factor is that it removes the uncertainty. When clients asked whether we would win at trial, my answer was, We have a very good chance of winning. Sometimes the client would persist and say they wanted to know IF we would win at trial. My answer was, tell me who is on the jury panel and I can almost give you a guarantee one way or the other.

As Lid said, it is very difficult to get a case to a jury. The judge may effectively force you into a settlement in the manner Lid described. OR, at some point the other side makes an offer that the client is unwilling to turn down.

In my opinion, Leach wants this case to go to trial and air all the dirty laundry for prospective employers to see. That way, they will understand that he was not the big bad wolf in this and is not a dangerous hire. (Assuming that to be the case)

HOWEVER, if TTech ponies up enough reasons ($$$) Leach will settle.

[Leroy Lizard]

Here's my prediction:

Leach and Tech will settle out of court for an undisclosed amount. We will be flooded with posts from fans who have "secret knowledge" about the terms of the settlement. It will go like this:

"I talked to one of the assistant coaches. He said that Leach got $24,000,000 out of the deal."

"Serves Tech right!"

"Payback, baby!!"

"I know a source in the Tech administration, and she said was it was only $200,000"

"Do you have a link? If not, STFU!"

"Yeah, we don't need to spread unsubstantiated rumors."

[MamaMia]

I stand by what I said ages ago in the beginning of this long drawn out tired old thread which was...


Leach will get his money and then some and if Texas Tech has their way about it then this whole matter will be settled behind closed doors. The terms of the settlement will be sealed at the request of Texas Tech due to the fact that the university wont want to give the James family any ammunition for a lawsuit against them.