John Morgan to depose Casey

[Intermezzo]

She can take the 5th, but unlike in a criminal case there will be consequences for taking the 5th.

For example one time I was handling a case for a business whose 3 accounting employees conspired to embezzle millions of dollars. While the crim case was ongoing, we filed a civil lawsuit and took their depositions. They took the 5th, we won the case because they didn't deny anything....

Can she take the 5th now that she has counter-sued?
I think I heard John Morgan say she couldn't because of the counter suit?

 

[MD MOMMY]

Can she take the 5th now that she has counter-sued?
I think I heard John Morgan say she couldn't because of the counter suit?

That is what I heard from JM as well, b/c of the countersuit it's either depose her or she drops her counter suit. That is the two options he gave I believe.

 

[AZlawyer]

That is what I heard from JM as well, b/c of the countersuit it's either depose her or she drops her counter suit. That is the two options he gave I believe.

My understanding of the way 5th Amd rights work in a civil case is that she wouldn't have to answer questions in a deposition even if it's on her own claim, but then it would be a pretty easy job to get the claim dismissed.

 

[Chezhire]

The way it typically works is this: person under depo is asked a question, and, if they/their attorney thinks their answer might incriminate them in any way, the response is "On the advice of counsel, I invoke my 5th Amendment rights."

Then the attorney taking said deposition has 2 choices: (1) object to said taking of the 5th, and later on file a Motion to compel the witness to answer, and try to continue on with the questioning, or (2) call the presiding judge in the civil matter, who may, if he or she's available, get on the phone to rule on the invocation of the 5th Amendment rights. The court reporter will be taking all comments down, so if either side wants to take it to a higher court on appeal, the transcript is there.

Personally, if I were taking Casey's depo (and I've been down the path of deposing civil litigants who tried to invoke the 5th,) when scheduling the deposition, I'd call the civil judge's chambers FIRST to get his available dates, cause you know he'll be needed, before floating possible dates to Jose Baez.

That way, you ensure that the judge is available to rule as these issues arise, which is the most expeditious way to handle this potential issue.

Another option: since Casey's already under arrest, and being kept in the jail, her deposition could easily be set up to take place in the civil courtroom (more of a scheduling hassle, but would be well worth it in this case) with the judge either present during the entirety or, as mentioned, available to come in and rule whenever necessary.

 

[lastchance]

John Morgan--my new American Hero!! Go, John, and depose her RIGHT NOW!!! Sorry,
I got a little excited. I love how tactful he was about the silliness of JB's rationale for ZFG's lawsuit. She's suing Casey because John Morgan wants publicity?? A classic case of projection (in my increasingly less humble opinion.)

 

[MiraclesHappen]

As the case was originally filed... ZFG vs. Casey she could have enacted her 5th amendment rights...

HOWEVER

Now that a counter suit has been filed by Casey, she CAN NOT enact her 5th amendment rights... she must testify which is why Morgan claims the counter suit may hurt her more than anything.

It is just my humble opinion but I believe that the issue is leaning more towards Casey's lawyer making some strategic moves which will give her more legal headaches to contend with and more exposure to questioning. She maintains her right to invoke her 5th amendment rights via the US Constitution, no matter what lawyer files what document in this case. I honestly doubt a civil filing in a minuscule lawsuit (for that is what it would be if the players were different people) has the power and authority to usurp the 5th amendment.
As for deposing Casey, it is my understanding that if the deposition takes place, she can invoke her 5th amendment rights but the deal is she has to make objections, invoke rights not in a blanket way to cover everything but on a per question basis and per question objection...just like during a trial where you cannot object to a hundred questions at a time.
Meanwhile, once Casey invokes, and then refuses to answer, JM can ultimately drag JB and Casey into Court and argue why she should be compelled to answer by the Court.
This would create yet another transcript under oath, potentially, which could be used against Casey during the murder trial.

The above is my opinion and is not intended to argue or do anything other than add to the discussion.:blowkiss:
And yes, I think JM is annoyed enough at this point to go to all that trouble even with expectations of never collecting a dime.

 

[TexasLil]

It is just my humble opinion but I believe that the issue is leaning more towards Casey's lawyer making some strategic moves which will give her more legal headaches to contend with and more exposure to questioning. She maintains her right to invoke her 5th amendment rights via the US Constitution, no matter what lawyer files what document in this case. I honestly doubt a civil filing in a minuscule lawsuit (for that is what it would be if the players were different people) has the power and authority to usurp the 5th amendment.
As for deposing Casey, it is my understanding that if the deposition takes place, she can invoke her 5th amendment rights but the deal is she has to make objections, invoke rights not in a blanket way to cover everything but on a per question basis and per question objection...just like during a trial where you cannot object to a hundred questions at a time.
Meanwhile, once Casey invokes, and then refuses to answer, JM can ultimately drag JB and Casey into Court and argue why she should be compelled to answer by the Court.
This would create yet another transcript under oath, potentially, which could be used against Casey during the murder trial.

The above is my opinion and is not intended to argue or do anything other than add to the discussion.:blowkiss:
And yes, I think JM is annoyed enough at this point to go to all that trouble even with expectations of never collecting a dime.

I'm no legal expert... just trusting what the experts are saying. However I don't know their credentials either.

Legal experts say, if Casey files a countersuit, that means she will have to take the stand and that could be used against her in the criminal case. Morgan says he is surprised by the recent counterclaim Casey Anthony's attorney filed last week.

 

[Chezhire]

For the other lawyers here, read this case, Higgins v. Dankiw, Slip Copy, 2008 WL 2565408, D.Neb.,2008. , for how a Motion For Stay might be treated. I add that Casey's situation may be distinguishable, depending upon the court's treatment of the recently filed "counter claim" that may not be viewed as a counterclaim, but as a Motion to Dismiss... (Since I haven't read the counterclaim/motion dismiss, I can't give an opinion yet on that.)

For the non-lawyers here, the essence of this case is that a party defendant (who didn't file any counterclaims, to date) may invoke the 5th and seek a stay of all civil proceedings until resolution of the criminal charges.
SNIPPED: "...The court will grant the defendants a stay of discovery with regard to any testimonial evidence sought from the indicted defendants. Other discovery may proceed to the extent such discovery does not impair the indicted defendants' interests. Under these conditions, the plaintiffs' interests in obtaining discovery and pursuing their claims may proceed without undue hardship to the defendants. Similarly, the conditions will promote an efficient use of judicial resources while attempting to avoid prejudicial effects on any party or non-party...."

 

[AZlawyer]

For the other lawyers here, read this case, Higgins v. Dankiw, Slip Copy, 2008 WL 2565408, D.Neb.,2008. , for how a Motion For Stay might be treated. I add that Casey's situation may be distinguishable, depending upon the court's treatment of the recently filed "counter claim" that may not be viewed as a counterclaim, but as a Motion to Dismiss... (Since I haven't read the counterclaim/motion dismiss, I can't give an opinion yet on that.)


For the non-lawyers here, the essence of this case is that a party defendant may invoke the 5th and seek a stay of all civil proceedings until resolution of the criminal charges.

SNIPPED: "...The court will grant the defendants a stay of discovery with regard to any testimonial evidence sought from the indicted defendants. Other discovery may proceed to the extent such discovery does not impair the indicted defendants' interests. Under these conditions, the plaintiffs' interests in obtaining discovery and pursuing their claims may proceed without undue hardship to the defendants. Similarly, the conditions will promote an efficient use of judicial resources while attempting to avoid prejudicial effects on any party or non-party...."

Chez,

There are links somewhere to the Complaint and Answer/counterclaim/MTD/whatevertheheckJBthoughtitwas document. But the basics are that it looks like a (premature) counterclaim for malicious prosecution although it's tough to tell as it isn't helpfully labelled "Count One--Malicious Prosecution." It could be a motion to dismiss or motion for sanctions...or just a bunch of carp written by someone who has no idea what he's doing...

 

[AZlawyer]

The case you cited is interesting re: the potential for avoiding a deposition on ZFG's defamation claim til after the criminal matter is resolved. I don't think she could get away with asking for a stay on her own "counterclaim," though, do you?

 

[shotzie]

Please all you knowledgeable posters..don't give any info to Baez that would help him..let him fend for himself.:woohoo:

 

[Chezhire]

Chez,

There are links somewhere to the Complaint and Answer/counterclaim/MTD/whatevertheheckJBthoughtitwas document. But the basics are that it looks like a (premature) counterclaim for malicious prosecution although it's tough to tell as it isn't helpfully labelled "Count One--Malicious Prosecution." It could be a motion to dismiss or motion for sanctions...or just a bunch of carp written by someone who has no idea what he's doing...

Yep - I'm heading in that direction. I'd have a better idea if what's been filed will be deemed a waiver after I read same.

Here's another case that would seem to support the idea that if Casey insists on proceeding with any kind of claims against ZFG, she will be found to have waived her rights to invoke the 5th:

Eastwood v. U.S., 2008 WL 656074, E.D.Tenn.,2008, March 06, 2008 (Approx. 2 pages.)

For the non-lawyers here: SNIPPED: "...The Court acknowledges that with sufficient information and warning Plaintiff may waive her rights under the Fifth Amendment, see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that insistence in proceeding with the civil action in spite of a pending criminal prosecution may be deemed a sufficient waiver of these rights, United States v. Certain Real Property 566 Hendrickson Blvd., Clawson, Oakland County, Mich., 986 F.2d 990, 996-97 (6th Cir.1993) (holding that a civil plaintiff facing a concurrent criminal prosecution waived his Fifth Amendment Rights by failing to move for a stay of the civil case and by moving for summary judgment)...." (Emphasis added.)

So, I'll have to go read that filing by Baez in the civil matter to see what I think it is substantively requesting/praying for...

 

[Chezhire]

The case you cited is interesting re: the potential for avoiding a deposition on ZFG's defamation claim til after the criminal matter is resolved. I don't think she could get away with asking for a stay on her own "counterclaim," though, do you?

No, and although I know of ways around all of this, I'm NOT going to post anything helpful to the defense, if they're reading here. I figure they read the same books we read, eh?

 

[MiraclesHappen]

I'm no legal expert... just trusting what the experts are saying. However I don't know their credentials either.

Legal experts say, if Casey files a countersuit, that means she will have to take the stand and that could be used against her in the criminal case. Morgan says he is surprised by the recent counterclaim Casey Anthony's attorney filed last week.

She would most likely invoke her 5th amendment rights if taking the stand.

I am not saying she won't be called to the stand. I was referring to a different topic about the 5th.:wink:
I doubt Casey can be an honest person no matter where she is located...and she aint talkin, stand or otherwise

 

[Intermezzo]

John Morgan--my new American Hero!! Go, John, and depose her RIGHT NOW!!! Sorry,
I got a little excited. I love how tactful he was about the silliness of JB's rationale for ZFG's lawsuit. She's suing Casey because John Morgan wants publicity?? A classic case of projection (in my increasingly less humble opinion.)

How true and so laughable :crazy:

JM doesn't need publicity like JB does, IMO.
JM career and law offices are long established and JM ads play on local tv many times , everyday...

their slogan is imbeded in my mind LOL

Morgan and Morgan. For The People.

 

[Themis]

Chez,

There are links somewhere to the Complaint and Answer/counterclaim/MTD/whatevertheheckJBthoughtitwas document. But the basics are that it looks like a (premature) counterclaim for malicious prosecution although it's tough to tell as it isn't helpfully labelled "Count One--Malicious Prosecution." It could be a motion to dismiss or motion for sanctions...or just a bunch of carp written by someone who has no idea what he's doing...

He tried to list it as an answer and affirmative defense, but it appears more like a motion to dismiss based on failure to state a claim upon which relief can be granted or a common law demurrer. JM might file for a motion to clairify, but that just helps them. KC would have been subject to civil depo subpoenas just based on ZFG's original complaint but trying to file something that could look like a counter-claim means she has the burden to prove it up. No headings. Haven't yet seen any points and authorities. It's clearly a mess.

The Nebraska court seems to have reached for a simple solution; to delay the civil case, but perhaps not so easy here where appeals could go on for 15 years. A judge couldn't delay a civil case that long because it would be equivalent of denying the right to bring and prosecute the civil case.

Oh, who was it who was impugning expert legal credentials? Not telling. The experienced legal experts reading and posting here already know by the writing, the correct expression of the issues and law and quality of the statements who to rely on here. Others will get the idea sooner or later. (Carry on "Dream Team.")

 

[Themis]

Yep - I'm heading in that direction. I'd have a better idea if what's been filed will be deemed a waiver after I read same.

Here's another case that would seem to support the idea that if Casey insists on proceeding with any kind of claims against ZFG, she will be found to have waived her rights to invoke the 5th:

Eastwood v. U.S., 2008 WL 656074, E.D.Tenn.,2008, March 06, 2008 (Approx. 2 pages.)

For the non-lawyers here: SNIPPED: "...The Court acknowledges that with sufficient information and warning Plaintiff may waive her rights under the Fifth Amendment, see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that insistence in proceeding with the civil action in spite of a pending criminal prosecution may be deemed a sufficient waiver of these rights, United States v. Certain Real Property 566 Hendrickson Blvd., Clawson, Oakland County, Mich., 986 F.2d 990, 996-97 (6th Cir.1993) (holding that a civil plaintiff facing a concurrent criminal prosecution waived his Fifth Amendment Rights by failing to move for a stay of the civil case and by moving for summary judgment)...." (Emphasis added.)

So, I'll have to go read that filing by Baez in the civil matter to see what I think it is substantively requesting/praying for...

Nice post. Very helpful.

 

[zoey]

question:

is or isn't JB working pro-bono? if so how can he go after atty fees?

 

[Intermezzo]

question:

is or isn't JB working pro-bono? if so how can he go after atty fees?

When a local reporter asked JB that question many many weeks ago he answered that he was getting paid. HMMMM

 

[Themis]

It is just my humble opinion but I believe that the issue is leaning more towards Casey's lawyer making some strategic moves which will give her more legal headaches to contend with and more exposure to questioning. She maintains her right to invoke her 5th amendment rights via the US Constitution, no matter what lawyer files what document in this case. I honestly doubt a civil filing in a minuscule lawsuit (for that is what it would be if the players were different people) has the power and authority to usurp the 5th amendment.
As for deposing Casey, it is my understanding that if the deposition takes place, she can invoke her 5th amendment rights but the deal is she has to make objections, invoke rights not in a blanket way to cover everything but on a per question basis and per question objection...just like during a trial where you cannot object to a hundred questions at a time.
Meanwhile, once Casey invokes, and then refuses to answer, JM can ultimately drag JB and Casey into Court and argue why she should be compelled to answer by the Court.
This would create yet another transcript under oath, potentially, which could be used against Casey during the murder trial.

The above is my opinion and is not intended to argue or do anything other than add to the discussion.:blowkiss:
And yes, I think JM is annoyed enough at this point to go to all that trouble even with expectations of never collecting a dime.

Very helpful, MH. Carry on.

As this points out, KC's just claiming the 5th during the depo doesn't stop the issue there. The next move is what happens after that to compell her to answer. What if she claims the 5th to too many questions and the answer to some specific questions would not tend to incriminate her? A trial just would order her to answer. There are many sanctions a trial judge can take; however since KC has no money or property, fines would not be very effective. Since KC is already in jail and is most likely going to spend a long time behind bars, threatening to jail her until she answers won't be very effective. But, dismissing her motion, affirmative defense, counterclaim or whatever, might leave her with a huge money judgement that would follow her after she leaves prison. She might then declare bankruptcy. However, if the judge crafted a money sanction, sanctions cannot be bankrupted. So, it goes on and on. As most experienced lawyers understand, they have to think ahead to many moves down the road so they don't get boxed in and make matters worse for their clients. KC was essentially judgment proof anyway. (Wondering what JB's prospective tactics included when he filed this. :waitasec