“The job of local counsel is to make sure that the out-of-state-guy doesn’t screw the pooch on rules of procedure. And here, the rules of procedure were clear: It was unnecessary (and damaging) to have Melania confess her true motives of using the White House for profit, and unnecessary to potentially subject her to sanctions for an impermissible ad damnum clause.”
From blog post by New York Personal Injury Attorney Eric Turkevitz of the Turkevitz Law Firm. The post analyzes the statements on damages contained in the defamation lawsuit suit filed on behalf of Melania Trump in Manhattan, criticizing the attorneys’ decision to claim the loss of “multimillion dollar business relationships” and the “once-in-a-lifetime opportunity” to cash-in on being First Lady as unnecessary allegations that should have been avoided by local counsel due to the negative news coverage the statements received.
Winning a commercial collections case requires strong case management from the outset. Clients wishing to maximize the value of their case are integrally involved and view their time spent with us on their case as an investment in the future of their business. Our business clients’ time is helpful to us in many ways, and those that participate as outlined below truly maximize their outcomes and return on their dollars spent on attorney services.
We ask our business collections clients to begin by cataloging documents and other factual information: correspondence, business records, personal recollections. The business owner knows their operations better than we ever will. The business owner understands their records and can interpret them in ways we never could, and more efficiently than we are able. The client knows the context of the discussions around most documents. Using this initial set of documents and the client’s prepared “executive summary” (personal recollection and timeline), our office assists the client in identifying and gathering other important documents that may be in the hands of third parties (phone records, bank records, building department files, etc.) as we mount further evidence to build the commercial collection file.
We also ask that our clients assist in the early evaluation of the case by providing unfavorable information upfront. It will inevitably turn up later or be raised by the defense. Most commercial collection cases have some detrimental facts or negative components, whether it is an outright counterclaim, defense or simply a challenge to proving the amount owed (e.g., proof of work provided or goods delivered).
Sometimes raising the negative issues with us is embarrassing. But we understand from the outset that much of what is said in defense of a commercial collection claim is posturing. Our job is to help the business overcome those defenses, and maintain the value of the claim. The business owner may be embarrassed that they’re speaking with an attorney about a collection case at all. Because something went wrong, at some level, the company is owed money. The right business decision is in selecting efficient and experienced commercial collection counsel that can guide you through the process. We’re not looking back on such past mistakes, but looking forward for recovery and maximize return on the business investment in us. For clients that are interested we often debrief at the conclusion of the case or if other concurrent matters are ongoing, advise our clients as to how to change business practices to mitigate against the need to hire us the next time.
As to why the business needs to hire an attorney to collect a debt, we’ve seen virtually all reasons. Maybe the AR was let out too long, or too much work was performed without assurances of payment or proof of the company’s client’s ability to pay to begin with. Maybe there was doubt at the outset as to whether the customer or client could pay at all. Where these issues remain relevant in collection litigation and need to be revealed are in the focus on collecting a successful judgment. Even if there are no negative facts, we must realistically assess the ability of the defendant to pay if the dollars spent on litigation are to be viewed as an investment by the business client as they well should.
Examples of negative circumstances and facts that should be discussed at the outset are:
Whether there have been any allegations of defects or deficiencies.
Whether there has been any history of defects or deficiencies.
What were the discussions and representations made about the quality of the work or the amount of work to be performed.
Whether there are emails or text messages surrounding these discussions.
Above is just a small sampling of the issues that are important to discuss at the outset of the commercial collection litigation case. Our clients’ investment of their time, energy, and knowledge starts in the initial case evaluation—it is only by investment of these resources that makes the financial investment well-spent. It will not only help prove your company’s case, it will increase its overall value to be prepared and demonstrate confidence in the collection claim in light of any minor weaknesses.
News yesterday out of the Trump University litigation was that the “University” is requesting the judge to disallow “evidence and argument relating to statements made by or about Mr. Trump outside of the adjudicative process..”
What is Trump University Seeking to Preclude?
Some of the examples of the evidence in the civil case against Trump “U” that the defense seeks to preclude are:
Statements by campaign surrogates
Audio and video recordings made or publicized during the campaign…
Comments about this case or the Court…
What is a Motion in Limine to Precluded Evidence in a Civil Lawsuit:
The type of evidentiary motion filed in this civil case is generally called a “motion in limine.” In common vernacular, such “motions in limine” are a “a pretrial motion to limit or exclude evidence.” Bd. of Cty. Comm’rs of Cty. of Morgan v. Kobobel, 176 P.3d 860, 862 (Colo. App. 2007).
Why Are Motions Filed to Preclude Evidence?
Used primarily in cases that are heard before the jury, the parties request that the judge rule on certain evidence prior to trial before evidence (such as documents or testimony) is seen or heard, or even a peep uttered by the lawyers before the jury. Motions in limine are routinely filed in criminal and civil cases, including business litigation and other commercial cases. Applicable standards Colorado courts would apply to such request, which would be similar under the Federal Rules of Evidence in the Trump U case (set for trial in San Diego), are generally that the evidence is not admissible and will be precluded if it is irrelevant (under Rule 401), unduly prejudicial (under Rule 403), or improper character evidence (under Rule 404).
Applicable Law of Evidence for Civil Litigation:
As this case is essentially claiming fraud and misrepresentations about the offerings of Trump University, the theories for precluding the types of evidence listed above if under similar doctrines of Colorado law are that:
Rule 401: “Evidence is relevant, in the logical sense, as long as it is ‘evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ ” Id.. People v. Martinez, 74 P.3d 316, 322 (Colo. 2003) (quoting CRE 401)
Rule 403: “[R]relevant evidence must be excluded, if “its probative value is substantially outweighed by the danger of unfair prejudice.” Id.. People v. Martinez, 74 P.3d 316, 322 (Colo. 2003) (quoting CRE 403).
Rule 404: Guided by the principles above, the application of Rule 404 (Character evidence) is trickier as it tends to help a judge or jury determine what whether the evidence (that is relevant) ought to be believed. Frequently, this type of evidence appears, on its face, to be wholly irrelevant as to substance, but its relevancy may be admitted to assist the jury in evaluating the credibility of a witness.
In general, we favor the admission of relevant evidence but exclude evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury ….” CRE 403. Consistent with this principle, evidence of a person’s character or character trait is barred under Colorado Rule of Evidence 404(a) for the purpose of proving that on a particular occasion the person acted in conformity with his character or character trait. CRE 404(a). Exceptions to CRE 404(a) apply for limited purposes and in limited circumstances. See People v. Gaffney, 769 P.2d 1081, 1085–87 (Colo.1989). As relevant here, the exception provided by Rule 608 permits the admission of opinion or reputation evidence to bolster or impeach the credibility of a witness.
The long, slow grind of civil litigation was recognized decades ago by the Colorado General Assembly in enacting Section 13-1-129, C.R.S. (originally enacted in 1990). Things have only gotten worse.
Recent statistics I’ve reviewed from the U.S. District Court for the District of Colorado in Denver reveal that the average civil litigation docket involving at least one discovery dispute is over two years from filing to trial. I estimate no less than ten months to trial for business litigation in Colorado state courts assuming the case can get underway and months are not consumed on the front end dealing with motions to dismiss. My experience is that the Colorado judiciary’s goal to get a civil cases to trial in Colorado state court within a year is merely aspirational, particularly in complex civil litigation requiring trial settings of greater than 5 days of trial. In such cases I expect 12 – 14 months out for a trial date.
The statute referenced above, titled “Prudential trial Dates,” directs the district courts in Colorado to set a civil trial date no more than 119 days out for individuals in the following categories:
individuals at least 70 years of age upon a finding of the court that the claim brought in the civil litigation is meritorious (in such cases the court “may” grant the motion);
individuals able to demonstrate by “clear and convincing medical evidence” that that raises a “substantial medial doubt of survival of that party beyond one year” and the court is otherwise satisfied that an expatiated trial setting serves “interests of justice” (in such cases the court “shall” grant the motion).
While the above applies only to individuals, such may be implicated in Colorado commercial litigation where principals, owners, or individuals doing businesses under a “d/b/a” are parties to business lawsuits. Once the trial date is set, the case is on a pure rocket docket, the Colorado General Assembly specifically directing that all accelerated litigation and procedural deadlines be held firm:
The court shall establish an accelerated discovery schedule in all such cases. No continuance shall be granted beyond the one-hundred-nineteen-day period except for physical or mental disability of a party or a party’s attorney or upon a showing of other good cause. Any such continuance shall be for no more than one hundred nineteen days, and only one such continuance shall be granted to a party.
The RICO Act (Racketeer Influenced and Corrupt Organizations) is used in private civil litigation though its original construction and enactment was under the federal criminal code (Title IX of the Organized Crime Act of 1970). The statue provides a private right of action including recovery of treble damages (3 times damages) and attorney’s fees to any person or business injured by reason of a violation of RICO. Its use in business litigation is often complex—sometimes overly complex—and typically avoided in favor of common law claims of fraud, breach of conduct or other business torts such as breach of fiduciary duty.
Lawyers are often attracted to adding RICO claims to commercial litigation because the ability to collect, or at least threaten, the recovery of attorney fees and treble damages (typically not available in a standard fraud or breach of fiduciary duty case) . The statute’s express ability to be utilized by a person injured in their “business or property” precipitated its use in business litigation. Personal injury claims are expressly excluded by the statute.
State and Federal courts have concurrent jurisdiction over private (civil) RICO claims, meaning one can bring a federal RICO claim in state court. However, Colorado maintains its own organized crime act under the acronym COCCA (Colorado Organized Crime Control Act), which like its federal counterpart RICO, also contains a private civil right of action. Where RICO is used in Colorado lawsuits, it is typical that violations of COCCA are also raised in the same case.
Section 1962 of RICO identifies four types of conduct that give rise to a civil RICO claim, the most common in the case of business or commercial litigation are found in subsections (c) and (d). Subsection (a) of 1962 makes it unlawful for any person who has derived income from a “pattern of racketeering activity” to use or invest the income in an “enterprise.” Subsection (b) makes it unlawful to acquire or maintain an interest in an “enterprise” through a “pattern of racketeering activity.” Subsection (c) makes it unlawful for a person employed or associated with an “enterprise” to participate in the conduct of the enterprises affairs. And Subsection (d), a catch all of sorts, makes it illegal for any person to conspire to violate any of subsections (a) through (c).
A common element of all types of RICO claims is the racketeering conduct must be part of a “pattern” defined by statute as two or more “acts of racketeering activity.” These underling illegal acts are called the “predicate acts” and generally consist of separate crimes, such as violations of the criminal code, controlled substances, fraud, obstruction of justice, bribery, etc.
COCCA and RICO claims in business lawsuits can be a potent tool or additional claim added to a case in addition to claims of fraud or other wrongful conduct. Proving a RICO claim in business litigation involves proving the individual “predicate acts” as well as the elements of RICO including meeting the definitions of proving an “enterprise” and “racketeering activity.” As with any litigation tool, its use should be well thought out and strategically deployed. Defense of these claims typically focus on defeating one or more of the individual elements, but only rarely and for specific purposes are civil RICO claims brought in isolation.
The general definition of a deposition is: a witness’s sworn out-of-court testimony. It used to gather information as part of the discovery process and, in limited circumstances, may be used at trial. The witness being deposed is called the “deponent.”
The Deposition Notice:
The deposition is scheduled in good faith between the attorneys in the case at a time and place that is agreed upon. Once the date is chosen, a formal deposition “notice” is issued by the attorney that is taking the deposition. An important and sometimes overlooked aspect of the notice is the manner in which the deposition will be recorded. A deposition where a video is being taken in addition to a court reporter’s transcript involves a different type of preparation for the witness.
The oath is given to the witness. Questions are asked. Answers are given. The testimony is transcribed. It is a formal process of interviewing a witness or a party to the case to understand what they know, the basis of their knowledge, and their positions in this case. The central purpose of a deposition as part of the discovery process in litigation is to get at the facts and circumstances underlying the case. Of equal importance in the deposition is the ability of the examining attorney to gauge the credibility and demeanor of a witness in evaluating how the witness will present at trial.
The deposition transcript can be used in court for a variety of purposes, most commonly to call into question the credibility of a witness (impeachment) such as when their story changes between the deposition and trial. Portions of the transcript can also be used as attachments to court pleadings as evidence when seeking the judge’s ruling on a question or claim by one of the parties prior to trial.
The duration of the deposition is limited to “one day of seven hours” which can be expanded or reduced by an order of the court or agreement by the parties.
The attorney for the witness and attorneys for other parties in a multi-party case can make “objections” on the record during the depositions. These objections are noted by the court reporter and appear in the transcript, but the testimony continues. There is no judge that can rule on the objections. If the transcript is used in court the judge can later decide whether the objections are founded and rule accordingly.
Today in the Safe Streets Alliance RICO lawsuit in Colorado, the Bank of the West was dismissed as a Defendant. Under Rule 41(a) of the Federal Rules of Civil Procedure, a plaintiff can unilaterally dismiss a defendant by filing a “notice” without needing an order of court if the notice is filed before the opposing party files an answer or motion for summary judgment. Such a notice was filed dismissing the bank in the second of the two RICO cases seeking to dismantle the Colorado marijuana industry filed in Denver [1:15-cv-00350-MSK] involving co-plaintiff New Vision Hotels Two, LLC (owner of the Holiday Inn in Frisco, Colorado). The dismissal is “without prejudice,” meaning that the Plaintiffs, should they find out more information later, could potentially rename Bank of the West as a defendant.
The full text of the notice of dismissal reads as follows:
Pursuant to Federal Rule of Civil Procedure 41(a), Plaintiffs dismiss without prejudice Defendant Bank of the West. Plaintiffs are taking this action based on Bank of the West’s written representation that its policy is never to offer accounts to recreational marijuana businesses, that it did not knowingly provide an account to the recreational marijuana conspiracy that is the focus of this litigation, and that the Bank of the West account that was linked to the recreational marijuana conspiracy at issue in this case has been closed.
The Plaintiffs had originally alleged in their Complaint that:
46. Since at least October 2014, Defendant Bank of the West has maintained a business bank account for Summit Marijuana. On information and belief, Bank of the West is aware that Summit Marijuana’s account is used by an illegal marijuana business and that proceeds from that business are being deposited in Summit Marijuana’s account. Bank of the West is also aware, on information and belief, that Summit Marijuana is developing property at 1121 Dillon Dam Road for the purpose of growing and selling recreational marijuana. Accordingly, Bank of the West conspired with Summit Marijuana, Olson, Katz, and John Doe 1 to assist in the enterprise’s drug crimes, thus violating 21 U.S.C. § 846, which is racketeering activity under 18 U.S.C. § 1961(1)(D).