the Race to the Bottom

CU lawyer Pat O’Rourke has often been maligned throughout this trial. He wasn’t as dramatic or amusing as David Lane; his closing arguments were boring; his witnesses were impeached so often court observers began to cringe when they testified. But the startling outcome of Judge Naves’ Order is the legal version of the Tortoise and the Hare, or more specifically—the story of the Clever Trap.

Back in 2007, O’Rourke saw ahead to the possibility of needing to use the quasi-judicial immunity defense. “I know that I’m never going to be able to beat David in terms of courtroom drama – he’s very good at what he does, so I’ve got to try to create some legal openings somewhere else in the case,” O’Rourke replied when I asked him about his strategy.

The parties agreed to allow CU to substitute itself as an entity for the individual Regents who were sued, with CU agreeing to not invoke 11^th Amendment sovereign immunity as a defense. Since quasi-judicial immunity generally only applies to individuals, Mr. Lane and associates seemed to not consider it a threat once the 11^th Amendment immunity was waived. But hidden in plain sight in the pre-trial Stipulation were the magic words: “reserving to the University the ability to present the same defenses that would have been applicable to any of its officials or employees acting in their official or individual capacities.” In other words, CU as an entity could now assert quasi-judicial immunity if it applied.

The sequence of presenting briefs to the Court is for the initiating party to file a Motion, to which the other party will file a Response addressing the arguments presented in the Motion, to which the initiating party will file a Reply as the final brief presented to the court. Part of the Clever Trap was to use this filing sequence to spring the trap.

Mr. O’Rourke’s initial Motion did not mention the Stipulation agreement to explain why quasi-judicial immunity applied in this case. If it had, Lane would have been alerted at that point and used his Response brief to try to counter the assertion. Mr. Lane’s Response to the Motion only noted, rightly, that CU had waived its 11^th Amendment immunity, and that quasi-judicial immunity applied to individuals, not to entities such as CU. No reference to the Stipulation, which infers that Churchill’s attorneys did not even then see the trap. It was not revealed until Mr. O’Rourke’s Reply when he quoted the phrase in the Stipulation agreement that gave the reason the usual limitation to individuals did not apply in this case. That would have been the last word in briefing arguments (and one can only think that Pat O’Rourke planned it that way) except that Judge Naves ordered additional briefs be submitted on the issue. The briefs did not offer any new arguments, but probably added protection to the ruling being overturned.

As we know now, in the end, the Clever Trap worked. While the details are probably only interesting to we geeky lawyer types, the strategy is a great lesson for budding litigators who can never hope to achieve David Lane’s courtroom flamboyance. There is always plain old thinking and planning ahead—far ahead.

When I read O’Rourke’s Reply, I sent him a personal question: “Do you play chess? And if so, do you always win?” He replied, “I do play chess, but don’t always win.”