Posts Tagged ‘SEC Media Days’

This Week’s Roundtable is hosted by: 3rd Saturday in Blogtober

This week marks the second edition of the 2009 version of the Big Orange Roundtable and is hosted by the guys over at 3SIB..

Week 2

1)  We will start with an easy one.  Last week, our beloved Rock was relocated across the street to make room for a new building on campus.  What are your thoughts on the Rock’s relocation?

HSH: Being a student, I actually have the slight advantage of seeing the change.  I drove by as the crane was lifting the behemoth out of the ground, and I’ve only seen it once since it’s been moved.  I have to say it’s going be to a little odd driving through the stoplight next to Stokely Athletic Center and the Thornton Athletic Student Center (where all the UT athletes get their school on), looking to my left and not seeing the Rock.  It might take a little bit of time to get used the change come the fall.

For me, it’s just another aspect of a common theme of my years here as a student.  Here’s what’s changed or been built since I came to Knoxville in the fall of 2006: all the recent renovations to Neyland Stadium, the makeover of Thompson-Boling Arena, Pratt Pavilion, a new soccer stadium, a new softball stadium, the brand new aquatic center.

And that’s just the changes on the athletics side of campus.  There’s also been the total change in the old Glocker Building, which has now become Haslam Business Building where all the business majors do their thing.  The Baker Policy Center was risen up on the corner of Cumberland Avenue and 17th Street, replacing the parking lot where my family parked for every game I came to up until I graduated from high school.  Those are two major projects, that I’ve seen started and completed in my days as a student.

Back to the Rock, my only contact with actually came before I was officially enrolled.  I had two of the more enthusiastic Orientation leaders, and late one night during the two-day event we got together and painted the thing.  I would have visual evidence to prove it, but my computer erased my hard drive awhile, thus I have nothing…

The Rock in its new Home

Lawvol: First of all, I am glad that the Rock did not unceremoniously disappear from campus as a result of the new Student Health Center that is being constructed.  The worst thing imaginable would have been for the university to simply blow the thing up or what have you and cart it off.  I realize the process of relocating the Rock was both onerous and expensive, but I have to give a little credit to university administration (a/k/a “The Big Orange Screw”) for making the right call and preserving this tradition for future generations.

All that said, the last time I painted the Rock was 1997.  I say “painted”—my involvement actually centered more on leaning up against the Rock in a near catatonic state as drool fell from my gaping mouth and I uttered various slurred obscenities at my cohorts.  You see, I was completely pissed drunk overcome by a multitude of circumstances at the time and my recollection of that particular evening of frivolity is fuzzy to say the least.  Still, the Rock does have a special place in my mind due to its tradition of announcing great events, lurid innuendo, and Gameday proclamations.  Considering it is directly across the street from where it used to be located, I doubt there will really be all that much difference.

Of course, I do wonder whether some students may be confused by the relocation—in particular, those suffering from the same … mental confusion … that afflicted me the last time I painted the Rock.  If so, the university may be faced with a long road of maintenance as the drunken masses repeatedly paint the front of the new Student Health Center.

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Given the events of the last 24 hours, I think it is fair to say that Phillip Fulmer  is tired of lawyers.  Despite the fact that I am a lawyer, I would oftentimes tend to agree with him.

Having now had a chance to look at the Complaint ( PDF) filed by Wendell Smith in his defamation lawsuit against the NCAA, it seems clear — as if it wasn’t already — that Smith’s claims are as ridiculous as they are inflammatory.  Joel over at RTT (who happens to be a fellow lawyer) did a fine job of walking through the allegations of the Complaint earlier today, and I’m not going to rehash what he has already said with great clarity.  If you haven’t read his analysis of the complaint, you really should give it a look.

I do, however, have a few observations and thoughts that I’d like to add to Joel’s impressions — if for no other reason than to establish that like all attorneys I like to hear myself talk and sound like I know what I am talking about (sigh).

Fulmer Did Not Have to be Served While in the State of Alabama

As I noted in a comment over at Rocky Top Talk, Fulmer never had to be served while in the state of Alabama — any claims otherwise are absolutely false.

Under the Full, Faith and Credit Clause of the US Constitution (a clause which contributed heavily to some annoyingly intractable disputes over states refusing to honor the laws of another state which ended in a small conflict known as the Civil War) along with the Comity doctrines, each state has to honor and enforce the subpoenas of other states, including having them served.

I have personally had out-of-state subpoenas commissioned on numerous occasions for deponents in other states. I will say this — it is a royal pain-in-the-butt to do, but any lawyer can do it if they take the time to consult the Rules of Civil Procedure for their state and the home state of a deponent (or just call the clerk of court in each location).

There is a very well established system for accomplishing this sort of thing, which any lawyer worth his or her salt is aware of (or could become aware of with little effort). So any claims by Smith’s attorneys that they had to serve Fulmer while he was in the state is an outright, baldface, lie. Period, it is not even open to discussion.

As an attorney who has represented a lot of healthcare providers, businesses, contractors, and so forth over the years in highly contentious cases, there is only one reason that a party pulls a stunt like what occurred yesterday — to prove a point or gain publicity. It is gamesmanship, it is unprofessional, and irrespective of Coach Fulmer’s involvement it is the sort of tactic a slimeball attorney (a/k/a the kind that generally gives the legal profession a bad name) pulls.

I honestly could care less whether the suit is about Alabama or whether Coach Fulmer was involved at all — it’s pure “Bush-League” lawyering, and it is reprehensible.

I’ve got no problem with Alabama or it’s fans – heck, I’ve been posting nice things about them for the last few weeks — but this isn’t about Alabama at all. For me this is about a rogue booster and his dirtball lawyers. It is also about the “rules of engagement” when it comes to legal disputes.

Personally, I know judges who would sanction the attorneys in this case at the drop of a hat—and not a minor sanction either. While I agree it can be tough to prove, I agree with Joel that this situation is terribly suspect and Coach Fulmer’s legal team should explore the possibility of pursuing an abuse of process claim against Smith’s attorneys.

Coach Fulmer was Right in Referring to the Suit as “Crap“

Proving defamation is a difficult task under the best of circumstances.  I cannot recount the number of times I have had a defendant I have represented ask whether they could file a counter-claim against a plaintiff for defamation due to allegations leveled against them.  The reason I have never personally filed a defamation suit is because they are nearly impossible to prove.  The reason for this is a little thing known as the First Amendment.

First of all, as Joel noted “truth” is a defense to a suit alleging defamation.  That said, in most cases, what is said about an individual need not even be true to be protected.  So long as the alleged defamer reasonably believed that what they were saying was true — even if it was not — then they are not liable for defamation.

Second, many types of statements are afforded complete protection depending upon the context in which they arise.  Good examples of this are: papers filed with a Court, statements made in Court while under oath, debates in legislative bodies, and so on.  One area where a healthy degree of protection is afforded is in the case of individuals speaking in a context where they themselves have a vested interest in the subject matter of the statements made.  For example, if a businessman tells a potential client that his services are better than his competitor because his competitor is a mouth-breathing imbecile, well — as a general rule — he is allowed to do so.  In this case, it seems likely that what the NCAA stated could potentially fall within these sorts of exceptions.

Third, as a general rule, opinion can not be the subject of a defamation action — only statements asserted as being “facts.“  Thus, if Ghost of Neyland writes an article stating “Lawvol is a complete and utter moron.  His mindless drivel is enough to make you want to bash your brains out…” ignoring the fact that this is, in fact true, it is simply an expression of opinion.  If, however, MoonDog writes an article stating that “Lawvol has a bad case of the piles, and is a card-carrying member of Al Queda.” well, he would have made a factual averment which could potentially be the subject of a defamation action.

In Smith’s case, the allegations are, in my opinion, pled “minimally” — in other words, I would have expected more.  It seems to me that, while some of the statements Smith takes issue with could be taken as fact (especially those relating to his actually paying Kenny Smith), and thus could potentially be the subject of a defamation action — but that only gets him to the courthouse door.  In other words, if the statements are in fact untrue, the NCAA knew they were untrue, and the statements didn’t fall into one of the exceptions discussed above (or one of a number of other exceptions) then Smith might have the right to try the case in front of a jury.

The public statement made by Smith’s attorneys to the Birmingham News was that he had evidence that “The NCAA violated its own policies not once, but twice.“  My thoughts on that are simple:

So what?

The question is not whether the NCAA violated its own policies, but whether they defamed Smith — the two are not the same.  Furthermore, who cares? Smith’s attorneys did not plead anything related to policy violations in their complaint so whether the NCAA violated it’s policies is irrelevant.

In the end, Fulmer was dead-on.  This case is about lawyer’s trying to grab as much publicity as they can.

Where Does it all go From Here?

In the end, were I a betting man, my money would be on Fulmer not appearing for a deposition on the 25th of September.  I am sure Fulmer’s lawyers will be filing a Motion to Quash the subpoena — as set forth in Rule 45 of the Alabama Rules of Civil Procedure — in the coming days.  That will lead to more piles of paper being filed, hearings, and general delays of the lawyerly sort.  While he may end up giving a deposition in the case, I would be highly surprised if it occurs remotely close to the time set forth in the subpoena.  That’s the good news.

The bad news is that, regardless of what happens, Coach Fulmer will have to pay his lawyers to represent him in the matter, and probably pay them a considerable amount.  That is unfortunate because now, without even having the rights of a party in the suit, Fulmer is getting hit in the pocket book for Wendell Smith’s boneheaded desire to grind the axe.  While I am sure Coach Fulmer can afford his legal fees, the fact is that he shouldn’t have to have reason to call upon his attorneys in the first place.

Even more annoying, is the fact that despite the fact that it has been over six years since the NCAA handed down its infractions report against the Crimson Tide, here we are still being forced to rehash the whole thing again.  Thus, no matter what we try to do, both Tide fans and Vol fans alike will have to put up with more shenanigans, more distractions, and more side shows throughout this football season.

I miss the days when the Third Saturday in October simply meant football, and not Court Orders.  Hopefully, we will return to that sooner rather than later…

– Go Figure …

Disclaimer:  Though a practicing attorney, the author of this article is not licensed to practice before the Unified Courts of the State of Alabama.  The comments and observations offered in this post are intended as editorial commentary and are published solely for the sake of discussion.  This article is not intended to render any legal opinions and/or legal advice, and should not be relied upon in any matters concerning legal rights, responsibilities, or obligations.

Only in the SEC do things like this happen…

One day Tim Tebow is being described as the second coming of the Messiah (HT to Joel at RTT), and then the next, Phillip Fulmer is getting served with a subpoena in a case filed against the NCAA by Wendell Smith’s ambulance chaser less-than-well-known attorneys.

Undeterred, however, the Great Punkin has fired back.  In a statement released this evening Fulmer responded:

I do have to be a little bit careful — a lot more than I’d like to be.

I was getting out of the car and was tossed a piece of paper that I picked up, stuck it in with a whole bunch of things that I had been reading on my way in from the airport and handed it to Bud Ford to put in his briefcase and forgot about it. I got a bunch of questions (from the media) about a subpoena that I hadn’t seen.

I wasn’t expecting a subpoena but maybe every time I go to Birmingham I probably will be expecting a subpoena. As it turns out its some sort of subpoena to do something, and I will let the attorneys all handle that. The issue is its all crap and they are trying to use the press trying to use a day that’s very special to the Southeastern conference for players and the coaches.

Because they can’t win legally they are trying to play the game in the press I am more than a little PO’d about any part of that. It’s sad that a few publicity hunting lawyers in one of our sister states want to keep open a chapter of history that has long since been closed and as far as I’m concerned will stay closed. Obviously this is an effort to distract our football team or distract me in some way. The last time this happened we won the division with two freshman quarterbacks. We won’t be distracted I had a good conversation with the commissioner about it.

About being in Birmingham, I wasn’t trying to mislead anybody. I hadn’t looked at anything.

I’m just disappointed that Fulmer failed to mention that his legal team was “workin’ like heck” — that would have been priceless…

More tomorrow, once I have had a chance to think about this a little more.

Oh, and if anyone out there in the blogosphere has a copy of the pleadings in this case (especially the complaint) please email me — I am looking everywhere for a copy.

– Go Figure …

Statement Courtesy of: Knoxville News-Sentinel/GoVolsXtra

As 3SIB noted earlier today, the “Bama Boys” are at it again.

The Knoxville News-Sentinel and Tuscaloosa News are both reporting that Coach Phillip Fulmer was served with a deposition subpoena while attending the SEC Media Days in Birmingham earlier today by attorneys representing disgruntled ex-Alabama booster Wendell Smith in his defamation and libel suit against the NCAA. The deposition notice calls for Fulmer to appear for deposition on 25 September — two days before the Tennessee Volunteers take on the Auburn Tigers.

Click to view a PDF version of the Subpoena

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