Saturday, January 15, 2022

Harry Dunn Update: Family Takes One Step Back From Civil Settlement Money, Criminal Hearing Cancelled

It wouldn't be another week gone by if I didn't have a post about the Harry Dunn case, would it? Well, here's what we know as of today.

The U.S. Court in Alexandria issued a denial of the plaintiff's request for prejudgement interest, and heard dueling motions on other matters.

My take, which is based on unreliable and unsourced UK Twitter gossip, is that the Dunn family is likely to lose its battle to exclude their first set of American lawyers from the insurance settlement boodle. As the firm of Cohen Milstein had already stated in an unsealed motion, their work achieved an initial settlement offer and that offer is proof of the monetary value CM brought to the plaintiffs, notwithstanding that the plaintiffs rejected that offer. So they'd like thirty percent of that amount, please.

As for the criminal case against the American driver that the Crown Prosecution Service has been impotently threatening, it hit a snag when the would-be defendant declined to go along. The CPS announced on Friday that the court hearing they'd had scheduled for next week has been cancelled. 

The BBC's Home Affairs correspondent reported:
A hearing was scheduled for Westminster Magistrates' Court on 18 January, but the CPS said this had been "vacated".

A spokesman for the CPS said: "This is to enable ongoing discussions between the CPS and Anne Sacoolas's legal representatives to continue."

Last month, Mrs Sacoolas's lawyers denied she would attend a court appearance via video link and said no such agreement had been made.

The CPS announcement was immediately spun by the Dunn family spokesman as a "postponement" of the hearing, a term that was repeated across the UK news media. Of course if it actually were a postponement, then there would be a new date for a hearing, whereas the CPS said the hearing date had been "vacated." As in, there is now no date set for a hearing on that matter.

More to come. Much more.

 

SecState Blinken to FSJ: A World of Risk


SecState Blinken was interviewed for this month's Foreign Service Journal, and he - meaning, really, his office and staff - showed he has been briefed on an initiative now underway to approach Congress for relief from some strictures on overseas security and risk acceptance that were imposed by legislation which was passed over twenty years ago.
FSJ: You said in the speech at FSI that you will seek authorities and policies that allow diplomats to manage risk more effectively and smartly. Can you tell us more about this new risk management platform and how it will be implemented?

Secretary Blinken: My first responsibility is to ensure the safety of our people and their families in the field. From the COVID-19 pandemic to anomalous health incidents, the risks facing U.S. diplomats overseas are as significant and complex as ever.

But we must find ways to address these threats and risks without losing the in-person diplomacy and public engagement that are at the core of our profession. That’s a message I’ve heard loud and clear from every part of our workforce, everywhere I’ve traveled, including at our highest-risk posts.

Over the last 20 years, we’ve moved many U.S. embassies, consulates and American Centers out of city centers and into more hardened facilities where they’re less accessible to the people they were created to reach. In some cases, there were good reasons for those moves. But there have also been some unintended consequences. It’s become immensely difficult to open new posts, even in low-threat environments; and it’s harder than it should be to adjust our presence to respond to crises and opportunities. Last year, China surpassed the United States in total number of diplomatic and consular posts. We make it harder to outcompete China when we are so hindered in how and where we can operate. We’ve got to fix that.

As our diplomats know, a world of zero risk is not a world in which we can deliver for the American people. We have to accept risk and manage it smartly. One way to do that is by working with Congress to update the legislation that governs our physical security requirements overseas and reforming the Accountability Review Board process. Here, too, there is bipartisan support to update our mindset and operations, focusing more on lessons learned and less on individual culpability when it comes to security incidents.

So I’m optimistic that we’ll be able to make some commonsense changes that will strengthen our diplomacy while continuing to keep our people safe.
Good on you, SecState Blinken. I'm keeping my fingers crossed that you can persuade Congress to acknowledge the reality that this is, unavoidably, a world of risk.

Thursday, December 23, 2021

Harry Dunn Case $ettlement Amount: What's the Over / Under?

We know from public announcements that the two sides have reached agreement on a financial settlement of some kind, and we also know from publicly available court records that there was an initial offer that was rejected. 

We further know that when the Dunn family accepted the final offer they did not understand that their first set of American lawyers would be entitled to a slice of the settlement pie. 

But nothing has leaked out so far as to the actual amount of money on the table. 

The U.S. legal code might give us a hint about how much or how little money could be involved. 28 U.S. Code § 1332 - Diversity of citizenship; amount in controversy; costs tells us that the minimal amount is likely to be $75,000, since that is the least amount that must be involved in order for a U.S. District Court to have jurisdiction in a civil action when dispute is between citizens of different states:
(a)The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between— (1)citizens of different States;
The settlement negotiated by the American driver's insurance company was most likely a good deal more than $75,000, I'm guessing, but it must have been at least that much. 

Then, 28 U.S. Code § 1332 has some irrelevant legal mumbo-jumbo, followed by this most interesting provision:
(b)Except when express provision therefor is otherwise made in a statute of the United States, where the plaintiff who files the case originally in the Federal courts is finally adjudged to be entitled to recover less than the sum or value of $75,000, computed without regard to any setoff or counterclaim to which the defendant may be adjudged to be entitled, and exclusive of interest and costs, the district court may deny costs to the plaintiff and, in addition, may impose costs on the plaintiff.
If I read that right, it means that the Dunn family could, under the right circumstances, end up with nothing and might even be assessed costs. That would go over great with the UK public and government, I'm sure.

Recall that UK financial settlements for fatal road traffic accidents rarely reach more than about $25,000, and that this case is being adjudicated under UK laws. What's more, one and possible two sets of lawyers will have to be paid before the Dunn family sees a penny. 

My best guess is the settlement amount was around $100,000. Even if it was twice that amount, once it gets cut up three ways the Dunn could be walking away with only $75,000. If so, it would be better than they'd have gotten from a UK court, albeit they would have gotten a UK settlement two years ago.

The next court action in the case will take place on January 12 (rescheduled from December 21 due to the holidays) and will address the lawyers' claims on the settlement money.

Wednesday, December 15, 2021

Harry Dunn Update: Virtual Court Appearance? Not So Fast.


That breathless tweet by PA Media two days ago was repeated, word for word, by every single UK news outlet I checked with the sole exception of the BBC, which waited until there had been a public comment by the American driver's lawyers that refuted the notion she will appear in court ("While we have always been willing to discuss a virtual hearing, there is no agreement at this time"). 

PA Media's post was self-refuting, anyway. First, CPS had not said anything about this in any public forum; if "the Crown Prosecution Service said" any such thing to PA Media, it must have been anonymously. Second, the driver had immunity from the criminal jurisdiction of the UK, and could not appear in court to answer charges without a waiver of that immunity approved by the Secretary of State. Therefore, the CPS can't force the driver to return to the UK, and CPS itself has already said that UK law does not permit virtual court appearances by parties who are not physically in the UK and subject to a court's jurisdiction. 

So what is the CPS playing at? One possibility is that the American driver may be negotiating a plea deal that could involve a reduction in charges and a minimal penalty which could be served in the U.S. That would make sense, especially coming on the heels of the settlement of the civil case. If that's so, then the negotiations are going on still, since evidently no such appearance has been agreed to yet. 

One other tea leaf to read here has to do with the venue for that 'CPS said' court appearance. First, why would it be set for the Westminster Magistrates' Court, which is in London, rather than in the West Midlands where the fatal traffic accident occurred? 

Well, according to Wikipedia, extradition matters are handled by the Westminster Court, and that might explain it. For another thing, I think a Magistrate's court is not one where a trial in absentia could occur, although it is one where CPS might seek a reduction in charges and any other changes that are necessitated by that sticky wicket of unwaived diplomatic immunity. 

If the Dunn family's spokesman and all-around Svengali were at all prudent and well-intended, he would hold off on doing any media victory laps until we know what's going on. But he is neither of those things, so he continues to encourage the family's false hopes. Still, if he is half the con man I think he is, he should be able to conjure up an image of "justice" that is scaled down to the paltry reality which is coming to them.

 

Thoughts On Listening to SecState Blinken's Playlist: May Your Enemies Always Be As Soft as Your Power


If the Chinese haven't already been sufficiently awed by the U.S. Navy's 'freedom of navigation' patrols through contested waters, then surely this Spotify play list of SecState Blinken's will finish the job of strategic deterrence. 

Ha! Just kidding. Seeing "Penny Lane" in the #1 spot will only incite Chi-Com aggression. 

I assume this terrible idea was a Public Diplomacy soft power ploy. While I have the highest regard for great propagandists - and cultural propaganda can be the most powerful kind, see for instance the paintings of Jacques-Louis David, who was basically the artistic director of the French Revolution and permanently shaped its public perception - I cannot imagine why anyone thought there would be a public interest anywhere in the contents of SecState Blinken's playlist. Much less can I imagine what goal PD thought would be furthered by publicizing that particular playlist.

For what it's worth, I can easily imagine him listening to the first two songs, but the rest of them must be what young PD whippersnappers thought would make him sound interesting.

If PD plans any more stunning musical revelations like this, I strongly recommend they add a Rolling Stones number to counter the sweetness of Penny Lane. Personally, I'd go with Sympathy for the Devil, which has the best literary-historical basis of any '60s Rock hit, hands down. I mean, it references the Hundred Years War, the murder of the Russian royal family by Bolshevik revolutionaries, the Holocaust, the Augustinian inquiry on the nature of evil ("what's puzzling you is the nature of my game"), and has lines like "'cause every cop is a criminal, and all the sinners saints." The whole song was inspired by a Russian novel, The Master and Margarita. It's stunning.

The Beetles, bless them, mostly have lyrics like "I wanna hold your hand, yeah, yeah, yeah." Trust me, back in the day when those songs were new, the Beetles were strictly for the girls while the Stones were every boy's favorite band. 

So the choice is yours, PD. What will impress our adversaries more? Sentimental dreck or hard-core bloody reality put to a samba rock beat? 

I know which one would make Xi Jinping think twice before invading Taiwan.         


Harry Dunn Case Update: Cutting Up the Settlement Pie

The case was settled out of court almost three months ago, as was publicly announced by the Dunn's spokesman, although the dollar ammount of the settlement is under court seal. I expect it will remain there, since that otherwise so voluable spokesman will want to keep us from learning how far short of his promised millions of dollars it fell. Also, the family is still raising donations from the public, and they wouldn't want to be seen partying in Ibeza now even if they could afford to do so. 

But what is not under seal is the argument over who gets a piece of that settlement. The first set of lawyers for the plaintiffs, Cohen Milstein, want one third of the award as per their contract to represent the Dunns on a contingency basis, and accordingly have filed a lien with the court. 

As for the defendants, they are out of the matter now and have filed for and obtained an 'interpleader' to handle the matter of divvying up the award. They may even have deposited the award with some third party. 

Meanwhile, the Dunns are contesting that claim by Cohen Milstein and are trying to claw back the one third that CM says its entitled to. In fact, the Dunns will not even consent to offered mediation between them and CM. They take the position that CM rolled the dice on a contingency contract but then quit the case before an award was negotiated, and so are entitled to nothing. Well, don't roll the dice if you can't pay the price. 

To which Cohen Milstein replies, we didn't quit the case, we were constructively terminated when “irreconcilable differences and professional considerations” arose that made continued representation of the Dunn family "untenable and unworkable." So, we'd still like that one third slice of the pie, please. 

Needless to say, the second set of lawyers who are now representing the Dunn family would like their own contractual slice of the pie, which is almost certain to be another one third. 

The case continues, with the next hearing scheduled for December 21 at 10:00 AM in Alexandria Courtroom 601 before District Judge Rossie D. Alston Jr., to hear oral arguments about attorney fees.

Wednesday, December 1, 2021

Harry Dunn Case Update: Court Filings Available via Internet Archive

While we wait for news of the hearing that was scheduled for today, I've discovered that the various motions which have been filed in the suit - the ones that are not sealed, anyway - are available online here for your information. Thanks, Internet Archive!

Browsing those files has confirmed the accuracy of that previously unreliable and unsourced UK Twitter gossip that I've cited occasionally. I was particularly struck by the motion filed by the Dunn family's first set of U.S. lawyers, Cohen Milstein Sellers and Toll, on May 4, 2021, when they requested to withdraw as counsel for the plaintiffs.

CMST cited “irreconcilable differences and professional considerations” as the cause for the withdrawal.
Cohen Milstein Sellers Toll PLLC respectfully submits this Memorandum in support of its Motion to withdraw as counsel for the Plaintiffs in this action. Given the sensitivities of this matter, we limit our statement here to simply say irreconcilable differences and professional considerations have arisen that require termination of the representation and that Plaintiffs need retain new counsel. Situations have arisen which makes continued representation untenable and unworkable. We have brought this matter to the Court’s attention at the earliest possible time after it became apparent the relationship cannot continue.
What professional considerations would make further representation "untenable and unworkable?" And note it was plural "situations" that arose, as in, more than one situation. 

Well, three days later the defendants filed a motion of their own to express their lack of objection to the CMST motion, but also to request the judge affirm that the Joint Stipulated Protective Order in the case - which was requested by the U.S. government to limit discovery on any matter that might implicate U.S. national security interests - will apply to any new counsel who represent the plaintiffs even though they were not an original party to the order.

The defendant's motion also cited CMST's own term “professional considerations” and hinted that it may be coded language for 'legal ethics.' In other words, it may suggest that the plaintiffs wanted CMST to act contrary to their ethical obligations.

Why would the plaintiffs possibly do that, you may wonder? Well, maybe because they would like nothing better than a fishing expedition for anything of USG security interest that the family’s advisor could then pass to his favorite media outlet. It's just the sort of thing he would do. He is the very definition of a loose cannon. I can easily believe that he would be the cause of multiple "situations" for poor long-suffering CMST.  

One other matter of note, which I found in a filing of March 11, 2021, is the plaintiffs' partial voluntary dismissal of all their liability claims except those governed by the laws of England and Wales.
Plaintiffs agreed that the substantive law of England and Wales governed Defendants’ liability for all Plaintiffs’ claims.
That is big, because those laws limit liability awards in fatal accident cases to some truly cheapskate kind of money. Nothing remotely "in the region of millions of dollars, not unless about 25,000 Pounds Sterling is in that vicinity.