This thread continues a hijack-type discussion that JDM and I were having in the George W. Nixon thread.
In it, JDM posted a work-in-progress commentary on the “Clinton Is A Perjurer,” refrain, which offered several reasons that, in his view, Clinton was not a perjurer. I responded, offering what I felt were needed corrections, and after several exchanges - cordial ones, I might add, lest this sound like Celebrity Death Match III or something - JDM wisely noted that we were really playing in someone else’s sandbox, and opining that a new thread was in order.
With that backdrop, I’ll pick up the discussion with JDM’s last post.
There is considerable room between Jones’ saying she’d “…go ahead and fill out an application maybe or something…” and “There is no record of plaintiff ever applying for another job within AIDC, however.”
Ms. Jones doesn’t claim she submitted the application. Perhaps she felt that, after filling it out, that there was no need to submit it, it light of she saw as discouraging reactions. Perhaps she was referring to applications in agencies other than AIDC. Or perhaps she did submit applications, and evidence of that was not part of the discovery record.
I find that sometimes the phrase “There is no record of that,” is confusing. In an opinion, it merely means that no evidence concerning it has been offered. I can think of plenty of reasons: Jones’ side may not have wanted to offer an application that was rejected for a valid reason - say, not enough work experience - and Clinton’s side may not have wanted to offer the same application out of concern that it would be perceived as a pretextual rejection. Those issues wash out in trial, but it’s not at all uncommon for them to not be part of a pre-trial record.
In short, I’m saying you can’t place much store by the words “no record of” - it doesn’t mean the referenced event never happened, just that there was no evidence offered at that stage of pre-trial proceedings.
Same deal for the “downgraded” business… I’m not clear if she meant “degraded” in general at work, and was confusing that with the word “downgraded,” or that she meant that her job was supposed to be elevated to a 13, but instead was only elevated to an 11. Again, trial is the time to flesh out these apparent inconsistencies and for the fact-finder to determine the truth. Summary judgement accepts her statements as true.
Nor is it fair to characterize her as “lying” in order to bring a suit. She simply may have put a different spin on events. As I said earlier, her complaint merely has to allege that a job detriment happened. It’s in the discovery that she has to explain specifically what the job detriment is. If she claimed she was discouraged from applying to other jobs, and that she “filled out an application” and she doesn’t say anything more, then the judge will quite correctly say that “there is no record” that supports her claim. It doesn’t mean what you think it means.
No, that’s not how civil procedure works. A judge cannot “refuse to hear a case” because it closely resembles another case that lost.
Very basically: an aggrived party files a complaint. A complaint is a simple declaration that sets forth the legal theory under which the complainant believes he was wronged by the defendant, and sets forth the basic facts supporting that claim.
The defendant must then answer the complaint. If he believes that the complaint fails to state a claim on which a court may grant relief - if there is no such legal theory, for example, as the plaintiff describes - the defendant may ask the judge to dismiss the claim. This is known in legal shorthand as a 12(b)(6) motion. There are other reasons that may ve offered to quickly dismiss a case: lack of subject matter or personal jurisdiction, bad service of process, and the like.
Assuming the claim is, on its face, valid as to these sorts of objections, and it’s sufficiently complex, it proceeds. The Judge may not simply refuse to hear it until a motion is made, showing in detail why he should not. While a judge may make his own motion (the term for that is sua sponte, which may sound familiar) he may not simply decide that a case sounds like a similar losing case. Apart from placing the judge in the role of an advocate, it’s simply not possible, at that early a stage, to confidently assume that a claim which states a valid cause of action can’t be sustained.
Where the Clinton team won is with a “Rule 56” motion - summary judgement. After a certain amount of discovery, they were entitled to say, in essence, “Look here, Ms. Jones: you claimed you could prove, at trial, that you suffered a job detriment. But when we asked you about details, all you could come up with was that you were made to feel discouraged. Even if that happened - which, just for the purpose of this motion, we’ll agree that it did, just as you say - that’s not what the law means by ‘detriment.’”
“We don’t need a trial,” they’d continue. “If we go to trial, the worst thing that could possibly happen for us is that the jury believes every word she says, and disbelieves every word we say. And even if that happens, she still hasn’t shown a job detriment. So let’s just skip the trial, because it won’t change anything.”
Now, you do raise one point that’s worth considering a little deeper, and I’ll requote you:
If she had been detailed in her complaint, and said that she was only going to allege the things she did… you’re right; the Judge would likely have entertained a summary judgement motion sooner. Her pleadings suggested that she was going to make a stronger case, but she ultimately did not.
This is not perjury - it’s not even necessarily dishonest. I think it’s a little shady, but when you sue someone, you don’t approach it with a “let’s make reasonable concessions to the other side” strategy. That’s not good lawyering.
There are two possibilities: one benign, the other not-so-benign.
In the benign corner, Jones’ team could have had a good-faith belief that they were pushing the law in the right direction. New law gets made by cases like this: they say to themselves, “Hey - we know she didn’t actually apply and get turned down. But just the fact that the top guy in the state propositioned her, she turned him down, and she started to feel discouraged by her bosses - just that, and nothing more, should be sufficient for sexual harrassment.”
That’s not the law – but as I pointed out earlier, the Ellerth case pursued a seemingly untenable theory as well… and the Supreme Court bought it. Lawyers that defended Miranda, Mapp, and Escobedo all argued theories that did not reflect the law - and by so doing, pushed the law into new protections of those accused of crimes. Sexual harrassment law has been constantly evolving, and I can easily picture Jones’ lawyers thinking they had a good chance of carving out a new view of harrassment - especially if they were following Ellerth, which I’m sure they were.
Not-so-benign: in this view, Jones’ lawyers cynically advanced untenable claims on behalf of their client, knowing their end goal was a political embarrassment of the defendant, not to advance the meritorious claims of their client.
I don’t buy this latter view, but I’ll admit that there did seem to be a certain amount of “we’re in bed together” closeness between Starr’s team and Jones’ team. Even if, however, this latter cynical view is the correct one, it doesn’t translate to perjury for Jones. Indeed, Jones’ case could have survived much longer if she had perjured herself. All it would have taken was her claiming that, privately, her boss told her that Governor Clinton had ordered she not be promoted. That would have been impossible to disprove, and it would clearly created a “genuine issue of fact” for the jury to resolve, and made her safe from summary judgement. Instead, she told the truth at her deposition, damaging her case beyond repair and giving the judge grounds to enter a summary judgement.
- Rick
{Fixed italics. --Gaudere}
[Edited by Gaudere on 11-06-2001 at 03:33 PM]
