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Tuesday, December 04, 2018

The limits of civil litigation for exposing truth

The past week has brought to light the story of Jeffrey Epstein, a billionaire hedge-fund manager and alleged sexual predator and child rapist. Epstein pleaded guilty to two state felony counts and served 13 months in unusually forgiving conditions, with a federal investigation and prosecution stopped in its tracks by a broad non-prosecution agreement.*

[*] Full disclosure; The former US Attorney at the center of the controversy, now Secretary of Labor Alex Acosta, was my dean from 2009-17.

The story has exploded now for two reasons. First is the Miami Herald's multi-part in-depth reporting on the case. Second is ongoing civil litigation--one case  by Epstein's victims in federal court claiming the federal settlement violated the Crime Victims Rights Act (which gives crime victims certain notice and other rights) and one case in state court by attorney Bradley Edwards. The latter began as a suit by Epstein against Edwards and his former partner, claiming the latter committed fraud, racketeering, and other crimes in investigating Epstein; Edwards filed a counterclaim for malicious prosecution, which remained alive after Epstein dropped his lawsuit. Trial on the counterclaim was scheduled to begin today, with Edwards expected to call at least seven of Epstein's victims to testify. But the case settled as the jury was being selected, with Epstein paying an undisclosed sum, conceding that he attempted to damage Edwards' professional reputation, and apologizing.

This illustrates the limits of civil litigation for exposing misconduct and revealing truth. The victim stories were tangential to this case, which was really about Epstein's conduct in filing the original lawsuit and Edwards' professional reputation. A settlement offer that resolves that central dispute is irresistible, even if it denies the victims the opportunity to tell their stories (the opportunity they claim they were denied by the actions of the U.S. Attorney's office). One perhaps might criticize Edwards for accepting the settlement rather than giving the victims the chance to testify, since that is what he was promoting as the point of the suit. (Following the settlement, he held a press conference outside the courthouse standing in front of the boxes of evidence he said he planned to present). But I doubt there was any way to avoid that. The judge would have pushed Edwards to accept a settlement that included the defending party admitting wrongdoing (as to Edwards, not as to the women) and apologizing. And had Edwards refused to settle, Epstein might have confessed judgment, rendering a trial on liability, and the women's testimony, unnecessary.

The next step is the federal action by the victims themselves. News reports indicate the plaintiffs hope the court will revoke the federal plea deal and allow the government to prosecute Epstein.

Posted by Howard Wasserman on December 4, 2018 at 09:01 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink

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