Oo, Oo, Weckerly Woman -- PART 3

We now have a couple of reports on today's hearing.

Very interesting.

A few observations:

(1)  Defendants' attorneys repeatedly condemned the lawsuit as "lies."  Of course, a defendant who denies the truth of a pleading is going to take that position.  But as I've noted, the court is not going to assess the truth of the complaint at this point so that isn't going to get the Cowboys/Jones anywhere.  And it sounds like it didn't get defendants anywhere today.

(2)  Weckerly's lawyer made the argument that the statute of limitations should have been stopped during any period that the defendant is out of the state, as he alleged in the original complaint.  Defendants' lawyer argued that the law didn't apply because Jerry is very well-known and could have been found at any time, in or out of the state, to be served.  The judge was skeptical of this argument, suggesting that Jerry was arguing that he should be treated differently from any other defendant. 

Score one for Weckerly.  However, I don't see how this overcomes the Cowboys' statute of limitations argument.  The corporate "person" of the Cowboys never left the state.

(3) This site suggested in an earlier post that a better argument for stopping the statute of limitations involved the concept of "duress," illustrated by the allegations that Weckerly was subjected to a variety of pressures from defendants to keep quiet, which would prevent her from taking advantage of the court system while the statute was running.

Judge, it's like Dirty Harry said in Magnum Force:  "A man has got to know his limitations."

Now, Weckerly has explicitly made that argument.  From the account in the Observer:  "Weckerly, Bowers said, accepted the money, which she didn't want, under duress and without a lawyer.  'Having just been a victim of sexual assault, she was coerced by forced payments and threats,' Bowers said. 'We've got a mountain of intimidation and threats.'"

 (4)   Weckerly's lawyer has also added conspiracy allegations.  I don't know too much about this.  I don't think Jerry can conspire with the Cowboys, which is why Weckerly has now added the Cowboys' lawyer as a defendant.   (I'm not sure whether a lawyer can be held liable for conspiracy for actions in the course of representing his client.  Maybe, under particularly outrageous circumstances.  No idea on this one.)  The point of the conspiracy allegations is to allow Weckerly to argue that the statute is extended for an additional period measured from the last act of conspiracy -- in this case, the alleged forced payments.

Another hearing is set for October 16.  The judge said that the parties could argue the facts at that time.  It sounds like it may be an actual mini-trial limited to the limitations issue, where sworn testimony will be presented.  This seems a bit premature -- I would have thought that the parties would have been given the opportunity for discovery on the limitations issue, but sworn testimony is sworn testimony, I guess.  Might also be presented via affidavit.  Again, no idea on this one, although I would think that the pretty short hearing date might marginally favor Jerry.

It's hard to say, and we'll see what Weckerly can prove or credibly testify to on October 16.  On balance, I'd say this round went to her.  The judge could have ruled that even if Weckerly proved her allegations the statute would still have run out and he would have dismissed the case.  But it appears to my unschooled eye that the judge thinks that Weckerly's legal theories on the limitations issue are correct, and that if she proves what she's claiming factually -- the case will proceed.

Oo, Oo, Weckerly Woman -- PART 2

[[PRIOR RELATED POSTS:

        Oo, Oo, Weckerly Woman, She Got the Moon in Her Eyes

        Speculation AND a Rant]]

*     *     *

We learn today that Jana Weckerly has amended her complaint to allege that -- well, we're not entirely sure how it's amended because the Court has sealed the new complaint and imposed a gag order on the parties and counsel.

But the reports are that the amendment alleges that she was "coerced" not to disclose the events giving rise to the pathetic Jerry photographs by the forced deposit of money into her account.

Thots:

(1) While the Musers thought that if the Cowboys' payment to Weckerly could be proven through bank records it would be bad for Jerry's case -- with which I agree -- I'm guessing that this may have more to do with attempting to beat back Jerry's statute of limitations defense.  Remember my account of this from the prior post.  She's got statute of limitations problems with her case unless she can show that she was somehow "unnaturally" prevented from acting -- subjected to "duress" -- during a time that the statute was running (or, as she alleged, Jerry was out of the state during a long-enough period of time that would get added to the end of the limitations period).  This would account for the odd locution that the money was "forced" on her to buy her silence.
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(2) There's something else that no one is focusing on, which is that the first complaint alleged that the Cowboys forced her to sign a document, not described in her original complaint.  What was it?  Was it a document where she agreed either not to disclose the events, or possibly even not to file a claim, in return for the payments (i.e., a release)?  If so, that's bad news for a "duress" defense against the statute of limitations argument, unless, as her first complaint alleged, she was also unnaturally pressured to sign the agreement, which would be hard to prove if she accepted handsome cash for it. 

One way or the other, she has got to get around the Cowboys' facially appealing statute of limitations argument, although she doesn't need to show an extremely long period of time either of "duress" or Jerry being out of the state, in order to extend it past a period that would postdate the filing of her lawsuit.

If that document was a release, then it also could be a good defense by the Cowboys/Jerry to the substantive claim of assault and the other torts alleged.  But if it was only a nondisclosure agreement, then it would not preclude the civil liability claim (although the claim itself might breach a promise of nondisclosure -- will be interesting to see if the Cowboys file a counterclaim for breach of either a release or nondisclosure agreement).

(3) What effect will the sealing of this amended complaint and the gag order have on Roger Goodell's no-doubt energetic and fearless investigation of Jerry's misconduct?  Will he say to the Cowboys, "uh, what about these payments and the records she says she has?"  And will the Cowboys say to him, "Geez, sorry Rog, court says we can't talk about it"?  And would that be a good argument for stonewalling an NFL investigation?  I don't know how far a gag order extends, but I don't think it would trump an independent obligation of an NFL owner to cooperate with an internal investigation.  Don't know.

(4) OK, Roger Goodell, you pusillanimous pretender.  You're probably going see evidence pretty soon that Jerry paid off a stripper/hooker either to keep her quiet about something worth keeping quiet, possibly even the sexual assault of a drunken or drugged woman.  Wachoo gonna do about it?

(5) OK, Gene Jones, you laughingstock to some and object of pity and derision to most of the rest of us, wachoo gonna do about it?

"I read me some MTC 'cause I loooove me some redheads."

(6) OK, Dallas sports and news media (finally, an MTC connection), wachoo gonna do about it?  Gag order doesn't extend to investigative reporting.  Who will be the first to understand the potential dynamite this case represents and investigate and report it accordingly -- starting, perhaps, with what reporters "know" about similar Jerry behavior with other women?   

Who will be the first to ask Roger Goodell how he is investigating the sexual assault claim against one of his biggest supporters?

Who will be the first to ask the new "consultant group" of women whether they've been asked to consult on the Jerry Jones charges?

Who will be the first news organization to petition the court to unseal the record, and to appeal it if it is denied?  (Picture the Dallas and Fort Worth papers and every local TV and radio outlet and ESPN seeking this, and what effect this might have on how the judge -- who is elected -- rules on it.)

And who will be the first to ask  -- even if only theoretically at this point -- whether an ongoing drumbeat of unsavory details of Jerry's underground activities could affect the management or ownership of the Cowboys?

Waiting for the next pictures, the next hooker, the next lawsuit.

Or, more likely, the next payoff and interment of another sordid Niffle scandal.

Oo, Oo, Weckerly Woman, She Got the Moon in Her Eyes

A couple of posts back I threw out the thought that those photos could, under certain circumstances, affect the ownership, control, or management of the Cowboys.  Or, at the very least, this possibility should be considered by the commentariat (other than Your Plainsman).  It did not get much traction.

I would now like to revisit that topic in view of Weckerly v. Jones, et al., Civ. No. 14-10061, District Court for Dallas County, Texas.

Just some random thoughts upon reading the complaint.  Bearing in mind that your simple Man of the Plains is no expert in sexual assault lawsuits, statutes of limitations, and the like.  But I think there are some things an observer can take away from this with a little effort.  (Since I haven't heard these thoughts elsewhere, it tends to suggest to me that, um, I may be missing something.)

First, it's interesting that this was filed in Texas state court.  If Weckerly is presently a resident of Oklahoma, she could have filed it in U.S. District Court here.  Maybe she no longer lives in the Ardmore metro and has moved to Texas.  But if she does still live in OK and she could have filed in federal court, I wonder how her lawyer decided to file in state court.  One possibility is that a state court judge would be more likely to be sympathetic to the local team.  But the local team ain't making too many locals happy lately, so maybe the calculation is t'other way around -- a state court judge would be inclined to hammer Jerry to please his restless constituents.  Also, if it gets to trial, a state court jury might be more plaintiff-oriented.  The law the two courts would apply would be the same -- state law, because they are state law claims.  But, fairly or not, the bar widely believes that the federal bench (unelected) is more learned and more likely to apply the law somewhat more expertly than a state court judge (elected).  Would that favor one side or the other?  DNK.  (Also, some state-court plaintiff practitioners are less comfortable with the federal procedural rules.)   Don't have a strong conclusion on this -- just an interesting strategy move.

Second, I just heard Intentional Grounding read from some motions filed by Jerry's team earlier today, asking for a temporary restraining order and dismissal on the grounds that the lawsuit is unbelievable and scandalous and a money grab.  In the absence of any factual record whatsoever, and in the presence (in the judge's mind, if not the record) of those pathetic photographs, the dismissal ploy is unlikely to work.    (I thought Texas didn't have a strict motion to dismiss, but rather an archaic form of pleading called "special exceptions."  I need to track down those filings.)

Third, at present it does appear that the technical issue is going to be the statute of limitations.

The lawsuit has several claims, each a tort:  (1) Sexual Assault; (2) Intentional Infliction of Emotional Distress; (3) Negligence; and (4) Conspiracy to Cover Up Sexual Assault.  The complaint alleges criminal conduct, but violation of the Criminal Code does not give rise to a civil claim beyond the torts described by the alleged conduct (I think; not sure about that).  The statute of limitations for tort claims in Texas for personal injuries caused by torts is two years UNLESS the conduct involves violation of the Penal Code in certain respects, in which case it is five years.  I understand that the encounter in question took place more than five years from the filing of the suit.  But, if the conduct took place in 2009, not a whole lot longer than five years.  Hold that thought.

So, is Weckerly sunk?

Her lawyer has thought about this, and alleges that the statute has been "suspended" pursuant to "TCPRC sec. 16.063."  (That's "Texas Civil Practice and Remedies Code.")  Well, let's Google that and take a look.  It states:  "The absence from this state of a person against whom a cause of action may be maintained suspends the running of the applicable statute of limitations for the period of the person's absence."  In other words, the limitations clock stops while the defendant is out of the state, starts up again when he gets back.  Well, that would not work against the Cowboys, the other defendant, which hasn't left the state as a corporate entity.   But Jerry?  The incident was alleged to have taken place in "May or June of 2009," so the deficiency is not going to be more than about four months.  Could she show that Jerry was out of the state in the aggregate longer than that since the incident?  A month per year?  Dunno.  But if I were the court I think I might at least let her proceed with discovery on Jerry's whereabouts at all times between the assault and the filing of suit.  Maybe there are some technical interpretations of that statute that make this all more complicated than I'm making it seem, but they haven't jumped out at me in my Internet reading.  So -- maybe not a bad argument for Weckerly.  Maybe.

But there's something else that really, really intrigues me that I haven't heard mentioned anywhere, at least as far as this limitations issue is concerned:

       --  Paragraph 26 states that Jerry and the Cowboys "threatened Plaintiff so that she would not tell the police." 

       --  Paragraph 27 states that they "intimidated Plaintiff and told her to keep quiet and not tell anyone else 'or else.'"

       --  Paragraph 28 states that they "bullied Plaintiff into believing that she would somehow be in trouble if she told anyone about the sexual assault." 

       --  And most intriguingly, she drops this nugget:  Paragraph 29 states that they "intimidated her into signing documents against her will, without giving her a copies (sic) or access to legal counsel."

       --  Finally, she concludes in Paragraph 30 that those actions "placed Plaintiff in imminent fear of her life, safety and well being."  

I only know what I read in Google search results.  But I am pretty sure that statutes of limitations clock gets stopped or delayed, or "tolled," as it is called, if the plaintiff has been subject to "duress" during that period that tends to discourage her from filing suit within the proper period of time.  

These four paragraphs describe situations where plaintiff was pressured not to take legal action, and may have been pressured under threat or fraud to sign a release (guessing at what the "legal documents" might have been, if they exist at all), all of which would have served artificially to have caused her to refrain from filing suit while the statute was ticking away.

However -- Weckerly has not alleged duress as a ground for delaying the operation of the statute of limitations.  An oversight?  Or something that her attorney thinks he cannot prove?   I think I might say more about that "document," if there was one, even if she doesn't have a copy.   DNK.  But if he's smart, he'll find some other ground for tolling the statute, and based on what he's alleged, that ground should be duress.  Which is something that itself would be subject to "discovery" before a court would rule on whether it were a factually supportable theory for beating back the limitations defense.  At the every least, I would think it would serve to keep the lawsuit alive.

The point I wish to make is that no matter what you think of Weckerly, her motives, or her truthfulness, the wisdom of Google suggests that there may well be enough in this complaint to survive the initial technical challenges.  Again, the complaint is very, very unlikely to be dismissed just because it seems crazy, as seems to be Jerry's initial legal position.  (Really -- does it seem all that crazy?  Or, in light of those photos, does it ring highly possible?)

Fourth: What if it doesn't go away?   The suit could go on and depositions would be taken and it would devolve into the classic he said-she said, and maybe these "legal documents" surface, and maybe more pictures, and lurid accounts of Jerry's misconduct.  Maybe it gets settled; maybe the court grants summary judgment against Weckerly based on the discovery in the case (i.e., her case turns out to be factually deficient based on the sworn record in discovery); or maybe it goes to trial.

A whole lot more interesting is what Roger Goodell -- or his successor -- will do.  If Jerry is accused of sexually assaulting a drunken young woman, with photographic evidence that something happened, and that case lingers with her allegations potentially subject to a jury's decision, his hand may be forced.  Irsay.  Rice.  Rampant NFL thuggery.  A tsunami of disgust over the Niffle's handling of criminal conduct of its constituents has got to have them running scared in the executive suite.

All kinds of other things could happen aside from NFL discipline (or worse).  Gene cannot be happy that a jury will be asked to decide if her husband f-f'd a young woman and got fellated while requiring -- or even inviting -- Weckerly to admire the performance.  What's her level of tolerance for thoroughgoing mortification?  Fans could vote with their season tickets (as they're already starting to do). 

"So, set 'em up, Joe  .  .  .  . "

Again, my sports-radio-related point in suggesting that the complaint may not be as cartoonish as it seems is that at some level this is a sports story because, now more than ever, it could impact the operation, if not the ownership, of the Cowboys.  That it happened five years ago is irrelevant.  The Niffle consumer (and his spouse) are in an ugly mood, and Jerry looks, acts, and sounds like the corrupt face of big-time American sports -- and incompetent in the bargain.  He'll probably survive, but if this story turns out to be her word against his -- that is, if this case not thrown out on limitations or other technical grounds and is headed to trial, whether it gets settled or not -- it's hard to see how Jerry can continue to be the ubiquitous public face of his team and influential in the inner sanctum of the NFL.  And that would be a big change for the Cowboys even if he doesn't sell the team or move out of management.

And, finally -- what if this isn't the only time something like this has happened?

Even that insufferable jocksniff Papa John might stop calling.