A Great Article on The Cadets

[Jeff Ream]

11 hours ago, IllianaLancerContra said:

What part of DFTK is so hard to understand?

apparently the D

[craiga]

7 hours ago, Jeff Ream said:

here's where i can see DCI's stance. this supposedly happened at a corps party right? not an official corps function? So how was DCi responsible.

I believe so. Not only that, I've been told a New Year's Eve party in 1982...about as far away from a DCI event as you can get.

Here in Maine, one of the cases against a priest in the mid 80s was dismissed because the defendant was deceased, and the court held that it couldn't be prosecuted because that defendant was obviously unable to face his accuser.  Interesting finding, but I'm not sure I've heard of this happening anyway else.  (The Archdiocese was the codefendent and also had the case dismissed.)

[FormerXyloWhiz]

Former marcher here.  I work in Torts for a living and have for 22 years.  I’m the administrative guy, the paralegal attorneys hire to get everything done.  I have NOT done tort work in New Jersey and the rules vary from venue to venue.  However, the general processes and meanings are identical from state to state for how they tend to go forward.  To provide context for the discussion:

 

1 - DCI "Answer to Complaint" - do not read much into this response.  All Answers to all Tort Civil Complaints are exactly the same.  You generally answer a hard no to every allegation set forth against you in the complaint, even if you may reverse or concede later.  This is a timely filed required document and that's all.  The real nuts and bolts of DCI's position will be laid out in their discovery responses to the Plaintiff (Answers to Interrogatories, Production of Documents), and none of those will be available online as the Court doesn't want discovery documents on file - they are too voluminous.  They can only store so much at the Courthouse/records departments.

 

2 – Notice of Dismissal against Garfield Cadets:  Actions against a Defendant don't move forward unless that Defendant has been formally served the appropriate papers of the lawsuit in question (a Writ of Summons to Court, and a Copy of Complaint/Lawsuit are required to be served on the resident agent for companies/non-profits, etc.).  A notice of dismissal due to lack of prosecution is generally issued because the Court has no proof on record that the Defendant has been served the paperwork.  The Courts won’t let a case exist in limbo against a Defendant, so per the rules every “x” amount of days, the Court will give Plaintiff 30-day notice that they intend to dismiss the Defendant in question because there is no proof/affidavit of service filed with the Court.  Plaintiff usually has 3 options in response to this:

 

a.        Let the 30 days expire and the Defendant in questions will be dismissed from the suit;

b.       File a Motion with the Court showing good cause as to why the Defendant should NOT be dismissed yet;

c.        If the Plaintiff has exhausted all avenues of potential service and it is appropriate, file a Motion with the Court for some form of alternative service on the Defendant. 

 

At the end of the day it’s possible they can’t serve Garfield Cadets since technically it no longer exists.  Lord only knows who the last listed resident agent for service of their non-profit set up was (or if they are even still alive), so they may be flat out "un-servable" at this point.  This potential dismissal is for Garfield only, not the entire case.

 

3 – The Plaintiff in the Cadets suit is likely incurring zero attorney fees at this time. Plaintiff Tort Work is done on a contingency fee basis and the average around the nation is 1/3 if you can settle short of litigation (the filing of lawsuit) and 40% if you file a lawsuit.  At 40%, if they recover $10,000 for the Plaintiff, the attorneys keep $4,000.00.  If they recover $0.00, the attorneys get $0.00.  Because math.  All torts are inherently risky for Plaintiff counsel because it can never be guaranteed an attorney will get a fee.  From a standard auto accident or slip and fall, to a medical malpractice case, this is the reality of the nature of the action against CAE/DCI right now.  The Plaintiff attorney has to pursue every potential avenue of recovery (money) to do their job appropriately AND to get paid at the end of the day.  They leave no stone unturned, and if  there is no blood to squeeze, there will be no recovery and the attorney makes nothing on the case.

 

4 – For a tort, in settlement or in judgment, insurance is what pays Plaintiff 9.99 times out of 10, usually in lump sum fashion.  I would wager that the attorneys for this Plaintiff did not know the realities of the dead-end they were facing when they took this and filed suit, nor could they.  They would only discover them as they moved along the process.  If they are doing it right, they are methodically exhausting every avenue of a potential insurance policy that could cover the damages (example - DCI being added in).  My office flat-out does not bother to pursue claims where we know there is no insurance because there is no point.  Again, it's blood from a stone.  Sue me for a million dollars and win, you’ve just wasted time and effort.  You will literally never get it, even if you garnish me through eternity (garnishment is a HUGE PITA).  Some cases eventually turn out to have zero route of recovery and in those cases, we don’t get paid per contract.  Again, all tort involves risk from Plaintiff’s attorney side. 

 

5 – Defense counsel for torts do not work on contingency.  They bill hourly rates.  When an organization is sued, they turn the paperwork over to their insurance carrier and per their contract of insurance, the insurance company assigns an attorney to represent them.  The insurance company usually pays all costs associated with the Defense including the hourly rates and costs.  The org being sued is usually not paying the legal fees themselves.  They may have their insurance premiums increased, but outside a few outliers under the rules, the org’s assets are usually not directly on the hook if they have the insurance. 

 

6 – Speculation: this particular case against CAE is an instance where the org likely is having to pay out of pocket and any assets are potentially on the hook as a result.  When CAE was established it would have purchased the required liability insurance.  However, I would have to imagine their insurance refused to be involved in this claim because the claim predates the insurance contract.  If you get in a car accident with Allstate insurance coverage today and switch to GEICO insurance coverage next week, GEICO will not cover the subject incident from last week.  It predates their contract.  Whatever insurance CAE has likely denied any coverage as the scope of the claim is outside the date range of the contract.  So CAE has likely had to directly pay ALL defense hourly billing for the claim against them.  DCI on the other hand, actually existed as a business entity and theoretically would have had insurance at the time this incident happened, so they may have insurance coverage for the legal fees.

[Terri Schehr]

2 hours ago, craiga said:

I believe so. Not only that, I've been told a New Year's Eve party in 1982...about as far away from a DCI event as you can get.

Here in Maine, one of the cases against a priest in the mid 80s was dismissed because the defendant was deceased, and the court held that it couldn't be prosecuted because that defendant was obviously unable to face his accuser.  Interesting finding, but I'm not sure I've heard of this happening anyway else.  (The Archdiocese was the codefendent and also had the case dismissed.)

Sounds like the other survivors have much stronger civil cases. 

[Jeff Ream]

3 hours ago, craiga said:

I believe so. Not only that, I've been told a New Year's Eve party in 1982...about as far away from a DCI event as you can get.

Here in Maine, one of the cases against a priest in the mid 80s was dismissed because the defendant was deceased, and the court held that it couldn't be prosecuted because that defendant was obviously unable to face his accuser.  Interesting finding, but I'm not sure I've heard of this happening anyway else.  (The Archdiocese was the codefendent and also had the case dismissed.)

yeah that it wasn't at an official corps function surprised me it made it this far. going after the individual fine. but how the corps can be looped in unless stuff happened at rehearsals, performances or on tour is surprising. Sure they could have fired the guy i guess is the angle they are going with.

[IllianaLancerContra]

1 hour ago, Terri Schehr said:

Sounds like the other survivors have much stronger civil cases. 

I would think so.  And he who I will not speak name of is likely to be named as a defendant.  I wonder if he is one of the John Does in the current case?

[Terri Schehr]

43 minutes ago, IllianaLancerContra said:

I would think so.  And he who I will not speak name of is likely to be named as a defendant.  I wonder if he is one of the John Does in the current case?

I couldn’t say but as we all know, their stories have been published in the Philadelphia inquirer.  Seems like pretty strong footing but I don’t even play a lawyer on tv. 

[IllianaLancerContra]

3 hours ago, FormerXyloWhiz said:

Former marcher here.  I work in Torts for a living and have for 22 years.  I’m the administrative guy, the paralegal attorneys hire to get everything done.  I have NOT done tort work in New Jersey and the rules vary from venue to venue.  However, the general processes and meanings are identical from state to state for how they tend to go forward.  To provide context for the discussion:

 

1 - DCI "Answer to Complaint" - do not read much into this response.  All Answers to all Tort Civil Complaints are exactly the same.  You generally answer a hard no to every allegation set forth against you in the complaint, even if you may reverse or concede later.  This is a timely filed required document and that's all.  The real nuts and bolts of DCI's position will be laid out in their discovery responses to the Plaintiff (Answers to Interrogatories, Production of Documents), and none of those will be available online as the Court doesn't want discovery documents on file - they are too voluminous.  They can only store so much at the Courthouse/records departments.

 

2 – Notice of Dismissal against Garfield Cadets:  Actions against a Defendant don't move forward unless that Defendant has been formally served the appropriate papers of the lawsuit in question (a Writ of Summons to Court, and a Copy of Complaint/Lawsuit are required to be served on the resident agent for companies/non-profits, etc.).  A notice of dismissal due to lack of prosecution is generally issued because the Court has no proof on record that the Defendant has been served the paperwork.  The Courts won’t let a case exist in limbo against a Defendant, so per the rules every “x” amount of days, the Court will give Plaintiff 30-day notice that they intend to dismiss the Defendant in question because there is no proof/affidavit of service filed with the Court.  Plaintiff usually has 3 options in response to this:

 

a.        Let the 30 days expire and the Defendant in questions will be dismissed from the suit;

b.       File a Motion with the Court showing good cause as to why the Defendant should NOT be dismissed yet;

c.        If the Plaintiff has exhausted all avenues of potential service and it is appropriate, file a Motion with the Court for some form of alternative service on the Defendant. 

 

At the end of the day it’s possible they can’t serve Garfield Cadets since technically it no longer exists.  Lord only knows who the last listed resident agent for service of their non-profit set up was (or if they are even still alive), so they may be flat out "un-servable" at this point.  This potential dismissal is for Garfield only, not the entire case.

 

3 – The Plaintiff in the Cadets suit is likely incurring zero attorney fees at this time. Plaintiff Tort Work is done on a contingency fee basis and the average around the nation is 1/3 if you can settle short of litigation (the filing of lawsuit) and 40% if you file a lawsuit.  At 40%, if they recover $10,000 for the Plaintiff, the attorneys keep $4,000.00.  If they recover $0.00, the attorneys get $0.00.  Because math.  All torts are inherently risky for Plaintiff counsel because it can never be guaranteed an attorney will get a fee.  From a standard auto accident or slip and fall, to a medical malpractice case, this is the reality of the nature of the action against CAE/DCI right now.  The Plaintiff attorney has to pursue every potential avenue of recovery (money) to do their job appropriately AND to get paid at the end of the day.  They leave no stone unturned, and if  there is no blood to squeeze, there will be no recovery and the attorney makes nothing on the case.

 

4 – For a tort, in settlement or in judgment, insurance is what pays Plaintiff 9.99 times out of 10, usually in lump sum fashion.  I would wager that the attorneys for this Plaintiff did not know the realities of the dead-end they were facing when they took this and filed suit, nor could they.  They would only discover them as they moved along the process.  If they are doing it right, they are methodically exhausting every avenue of a potential insurance policy that could cover the damages (example - DCI being added in).  My office flat-out does not bother to pursue claims where we know there is no insurance because there is no point.  Again, it's blood from a stone.  Sue me for a million dollars and win, you’ve just wasted time and effort.  You will literally never get it, even if you garnish me through eternity (garnishment is a HUGE PITA).  Some cases eventually turn out to have zero route of recovery and in those cases, we don’t get paid per contract.  Again, all tort involves risk from Plaintiff’s attorney side. 

 

5 – Defense counsel for torts do not work on contingency.  They bill hourly rates.  When an organization is sued, they turn the paperwork over to their insurance carrier and per their contract of insurance, the insurance company assigns an attorney to represent them.  The insurance company usually pays all costs associated with the Defense including the hourly rates and costs.  The org being sued is usually not paying the legal fees themselves.  They may have their insurance premiums increased, but outside a few outliers under the rules, the org’s assets are usually not directly on the hook if they have the insurance. 

 

6 – Speculation: this particular case against CAE is an instance where the org likely is having to pay out of pocket and any assets are potentially on the hook as a result.  When CAE was established it would have purchased the required liability insurance.  However, I would have to imagine their insurance refused to be involved in this claim because the claim predates the insurance contract.  If you get in a car accident with Allstate insurance coverage today and switch to GEICO insurance coverage next week, GEICO will not cover the subject incident from last week.  It predates their contract.  Whatever insurance CAE has likely denied any coverage as the scope of the claim is outside the date range of the contract.  So CAE has likely had to directly pay ALL defense hourly billing for the claim against them.  DCI on the other hand, actually existed as a business entity and theoretically would have had insurance at the time this incident happened, so they may have insurance coverage for the legal fees.

First off, let me thank you for posting this.  
 

Tort process questions - Assuming that there is a trial (no settlement ) will there there be witnesses, cross examination, etc like a criminal trial?  Or will evidence / testimony be via depositions?  Or some mixture of the two?

[FormerXyloWhiz]

17 minutes ago, IllianaLancerContra said:

First off, let me thank you for posting this.  
 

Tort process questions - Assuming that there is a trial (no settlement ) will there there be witnesses, cross examination, etc like a criminal trial?  Or will evidence / testimony be via depositions?  Or some mixture of the two?

Yes, a lot of the actual Court process would be the same.  Often testimony can be offered via "de bene esse" depositions, basically a videotaped deposition under oath for use as trial testimony - but this is often a feature of convenience for various parties.  In my state, it isn't required, basically an extra option available.  Either side can call whomever they want for testimony, testimony is given under oath, and then the other side may cross.  Unlike a criminal trial, the standard in a civil action is different.  It's not about "beyond a reasonable doubt."  The Plaintiff usually has to prove that something is more likely than not, based upon "a preponderance of the evidence," so not as strict as a criminal proceeding.

That said, generally the parties to lawsuits AND the Court would rather see these cases settle whenever that's a possibility.  In fact, Settlement Conferences/Mediations/etc. are often Court ordered prior to trial for 1 purpose:  try to keep the case off the Court Trial schedule.  Courts are slammed and any form of a Settlement Conference with a judge or Mediation are non-binding attempts to get the parties to settle so the court can clear up those trial days for other cases.  They are basically calendar management at the end of the day.  Just because you see a Settlement Conference listed does not necessarily mean that the parties "intend" to settle the case on that date.  Whether they are ever successful varies from case to case. 

Edited March 18 by FormerXyloWhiz

[cixelsyd]

4 hours ago, FormerXyloWhiz said:

5 – Defense counsel for torts do not work on contingency.  They bill hourly rates.  When an organization is sued, they turn the paperwork over to their insurance carrier and per their contract of insurance, the insurance company assigns an attorney to represent them.  The insurance company usually pays all costs associated with the Defense including the hourly rates and costs.  The org being sued is usually not paying the legal fees themselves.  They may have their insurance premiums increased, but outside a few outliers under the rules, the org’s assets are usually not directly on the hook if they have the insurance. 

 

6 – Speculation: this particular case against CAE is an instance where the org likely is having to pay out of pocket and any assets are potentially on the hook as a result.  When CAE was established it would have purchased the required liability insurance.  However, I would have to imagine their insurance refused to be involved in this claim because the claim predates the insurance contract.  If you get in a car accident with Allstate insurance coverage today and switch to GEICO insurance coverage next week, GEICO will not cover the subject incident from last week.  It predates their contract.  Whatever insurance CAE has likely denied any coverage as the scope of the claim is outside the date range of the contract.  So CAE has likely had to directly pay ALL defense hourly billing for the claim against them.  DCI on the other hand, actually existed as a business entity and theoretically would have had insurance at the time this incident happened, so they may have insurance coverage for the legal fees.

So if I am reading these two points correctly, what this means is that if an organization with skeletons in their closet retains their besmirched name, reputation and insurance coverage, and does not rebrand/reorganize as CAE did, they actually stand a better chance of both:

• organizational survival
• providing some compensation for victims