Reaching an out-of-court settlement | VailDaily.com
YOUR AD HERE »

Reaching an out-of-court settlement

EAGLE COUNTY – If nothing else, the Kobe Bryant case has provided object lessons in many of the finer points of criminal and constitutional law – particularly the 1st Amendment rights of the press and the 6th Amendment right to a fair trial – and criminal procedure. If you have followed along, you’ve likely learned something too about the Colorado Rape Shield Statute, perhaps more than you ever thought you’d know or ever really cared to know.Now that the criminal case has been (if you’ll forgive the pun) put to bed, the focus shifts to the civil action.First, what the heck is “civil” about a lawsuit? Well, “civil” in law simply connotes that the matter concerns a lawsuit between two or more parties rather than prosecution for an alleged crime by the state. “Civil” lawsuits are suits for “damages,” generally but not always in the form of monetary compensation. If the plaintiff is successful, in most cases the defendant will be ordered to pay the plaintiff a sum of money, and the court will enforce the obligation to pay.Criminal suits, on the other hand, if successfully prosecuted, exact fines, imprisonment or other similar sanction. For example: probation, registration as a sex offender, etc. In criminal actions, you stand to lose your freedom. In civil actions, you stand to lose your pocketbook although civil suits can be advanced to attempt to require the defendant to take or not to take certain actions and/or to have the court declare certain rights. But generally, it’s about the money.In the Bryant case, the action has been brought in federal court. This has nothing to do with the plaintiff (the “alleged victim” in the criminal case) preferring to take her chances in a different court than the one in which she got what she termed a raw deal in the criminal case. Instead, it has to do with “diversity” jurisdiction.What “diversity” has to do with is the state of residence of the two parties. In this case, Mr. Bryant is a resident of California and the young woman who has filed her complaint against him is a Colorado resident. Accordingly, the two parties to the lawsuit have diversity of citizenship. Because the suit does not involve property or other similar rights in Eagle County, in which case the suit would likely be brought in Eagle County District Court, the proper venue (or place) for the suit to be filed is in federal court. And because the plaintiff is a resident of Colorado, the proper federal court in which to bring suit is Colorado.Both the plaintiff and the defendant are U.S. citizens, so the federal court has jurisdiction over them. Because Mr. Bryant is not a Colorado resident, the Colorado state court does not have jurisdiction over him, at least in the civil action. The state did have jurisdiction over him for purposes of the criminal matter because the crime allegedly committed occurred within the state of Colorado.OK now, on to settlement.People settle for different reasons. Certainty is one of them. Settlement of a civil action puts an end to it. There will be no surprises as there might have been if the matter were taken to trial. After all, juries sometimes do strange things.Another factor to consider in contemplating settlement is the time and emotional energy which is invariably invested in litigation, to say nothing of the costs. Even so, in the usual case, the investment of time, energy and emotional resource in bringing a matter to litigation is almost always more than either party initially contemplated when first starting down the path toward suit.In federal court it can take several years for a matter to actually come to trial. The more complex the matter and the more trial time it will require, generally the longer the time before the court will actually hear the case. For example, in a recent seven-week trial to the federal court in which I represented multiple plaintiffs, the interval from the date of filing the suit to the matter actually coming to trial was more than four years. And trial isn’t necessarily the end of it. Appeals can take another several years.There are other reasons to settle. Privacy is one. If a matter is settled, there may be no (or very little) public record. This seems particularly germane in the Bryant case. Owing to the privilege against self-incrimination, Bryant would not have been compelled to testify in the criminal matter. In the civil case, however, he can be called to testify. Under oath. Further, before the matter proceeds to trial, it is almost certain that he will be deposed. A deposition is sworn testimony under questioning by opposing counsel out of the presence of the courtroom. Generally, deposition testimony is more far-reaching than what might be permitted at trial. It is possible, too, if reasonable evidentiary grounds can be articulated, that his wife may be called to testify and perhaps be deposed. And any other women with whom he may have been intimate might be similarly subject to being called as witnesses.In short, Mr. Bryant, potentially, has a lot to lose by proceeding with litigation. Considering the leaks which plagued the criminal matter, it seems a certainty that even if the civil matter settled before trial, if depositions were already of record, it seems likely that they would turn up somewhere in the public stream and, even if Mr. Bryant declaimed that no assault had taken place, it is equally certain, owing to the likely probing and salacious nature of the questioning, that it would be embarrassing and hurtful to Mr. Bryant’s future marketing opportunities.If a settlement is struck, it can be subject to a confidentiality provision and a “no admissions” clause. Simply, the terms of settlement would not be discloseable by either party to any one else and despite payment of a cash settlement, Mr. Bryant would expressly reserve that he has done nothing wrong.Because of the stakes attendant to Kobe Bryant’s celebrity, few legal analysts believe that a settlement will not be struck. And soon, before any further details are released into the stream of public commerce.It is my own opinion that a settlement, if one is successfully brokered, will likely exceed what the plaintiff might hope to recover if the matter were tried. Though unusual (generally settlements are for less than the potential trial liability), the case of Kobe Bean Bryant is anything but usual. And his interests in disposing of this matter in a certain and final manner may very well outweigh the potential damage to his image and career that taking this matter to the mat might otherwise entail.Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a former adjunct professor of law. He may be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) as host of “Community Focus.” He can be reached at 926-4461 or robbins@colorado.net


Support Local Journalism