Curiosity Never Kills the Cat: Legal Questions for VERIFIED LAWYERS- ~No Discussion~

MaybeNotToday said:

Anyway, what I'm wondering now is: (1) if the interrogatories were duplicative enough to become so burdensome, why didn't they respond with "see answer to Interrogatory # 3". I've seen that done in other cases as questions do have a natural tendency to overlap. That would take no time. Answer it one time, see that it's asked another 3 times and repeat "See interrogatory answer number so and so". You could wrap up that pleading rather speedily IMO.

Maybe they'll get that order signed and not have to respond this time. But, surely they know that the Court doesn't like to babysit over things like this. And I don't think defense counsel will take too kindly to plaintiffs counsel calling them malicious. Not the best foot to start off on. I hardly think one or two emails attempting to resolve this warranted a plea to the Court because defense counsel is being a big meanie.

I know plaintiffs are ready for a trial (because a jury has heart!) but discovery has to happen before that. Both sides are entitled.

IMO

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This is self-evident: 105 interrogatories for which to write replies to is *excessive* to say the least. Even if just to write "See...blah, blah, blah".

K_Z said:

Interesting. Mr. Schumann has "acted" as lead attorney, giving press conferences, releasing statements, etc.

From his bio on his firm website:



http://www.schumannrosenberg.com/attorney/kim-schumann




Read more: http://www.azfamily.com/news/Dina-Shacknais-lawyers-respond-to-lawsuit-280227562.html#ixzz3MFbd96kT

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Sounds like Mr. Schumann has not been listed in the docket. I assume this means he's not legally representing Dina in the WDS but that two of his associate attys are. Even though he's speaking head in media, I believe that's because he's lead partner in the firm and everything the firm does reflects him. However, again, he does not appear to be personally representing Dina in any legal capacity apart from the talking head in media.

Also, I took a gander at the Schumannrosenberg.com and it does not even list Ms.Tran as an associate anymore. Fascinating...

Wonder why Benchoff of AZ is so important to Dina to have him fly to CA to represent her...Hmm...What legal technicality is up that manipulative sleeve of Dina's?

^ Could he be a personal friend of hers?

Attorney Kim Schumann is listed as DS's only attorney on the San Diego Register of Actions for the State case. Attorneys Tran and Matthews are listed on the Federal docket (PACER) as DS's attorneys.

Kittychi, that crossed my mind, as well-- perhaps AZ Atty Benchoff is a personal friend, in addition to representing DS. She is entitled to, and should have, as many attorneys as she deems necessary, and can afford, IMO.

There is another pro hac application on PACER for Atty Benchoff, this time listing Attorney Matthews as local counsel. I think 3 times is a charm-- I suspect he will be approved this time. I do wonder why he is only applying for the Federal case, and not the State case, as the State case is the one moving forward at present. Special expertise?

Another quick question.

Lately, only one defendant of the 3 defendants (DS) has filed anything of significance. She appears to be going forward full ahead, while the other 2 defendants have had little to no activity (or at least not filing anything on the docket). On the case management document filed yesterday, there is an option for all defendants to file that document together, or alone. DS opted to file on her own. I don't want to read too much into that, but it does raise some questions for me.

What happens in a civil case like this, if one or more of the defendants are not in agreement about re-attempting things like alternative dispute resolution? I know you said one (or more) defendant cannot settle or conclude their part of the case apart from the others.

But, in a practical sense, what happens if multiple defendants are not in agreement about how to proceed? Do they metaphorically end up get dragged along unwillingly by the more assertive defendant? Do they have any say?

Do their individual attorneys try to get them together to plan their strategy, and mediate their differences, so they are all on the same page? Or does that even matter, whether or not all three are in agreement?

Thank you for your insights!

K_Z said:

Another quick question.

Lately, only one defendant of the 3 defendants (DS) has filed anything of significance. She appears to be going forward full ahead, while the other 2 defendants have had little to no activity (or at least not filing anything on the docket). On the case management document filed yesterday, there is an option for all defendants to file that document together, or alone. DS opted to file on her own. I don't want to read too much into that, but it does raise some questions for me.

What happens in a civil case like this, if one or more of the defendants are not in agreement about re-attempting things like alternative dispute resolution? I know you said one (or more) defendant cannot settle or conclude their part of the case apart from the others.

But, in a practical sense, what happens if multiple defendants are not in agreement about how to proceed? Do they metaphorically end up get dragged along unwillingly by the more assertive defendant? Do they have any say?

Do their individual attorneys try to get them together to plan their strategy, and mediate their differences, so they are all on the same page? Or does that even matter, whether or not all three are in agreement?

Thank you for your insights!

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One or more defendants definitely can settle their part of the case apart from the others, and can also take different positions on any other issues along the way. If Defendants disagree among themselves, the judge will consider their opinions separately just as he/she would if the Plaintiff and Defendants disagree.

Normally, it's more effective, though, for co-defendants to plan a coordinated strategy. If they are not doing so, there may be some serious conflicts among them. E.g., perhaps Dina wants to say that RZ committed suicide, but if it was murder it was Adam and not her. Presumably Adam would not be on board with that strategy.

^ Can't help but wonder why they are not coordinating their defenses; it doesn't even sound like Dina and Nina are coordinating, do I have that right?

Its probably simplistic reasoning on my part, but it just seems it would be much less expensive to do so.

I do see why Adam would want to take a different tack since he admits to being on the property and is the one who "discovered" Rebecca's body.

AZlawyer, could you look at these recent entries on the State and Federal case, and kind of interpret for us what's going on? It looks like they are punting the case back and forth. It's all quite confusing.....

http://www.websleuths.com/forums/sh...-2013-in-California-2&p=11396703#post11396703

http://www.websleuths.com/forums/sh...-2013-in-California-2&p=11399522#post11399522

K_Z said:

AZlawyer, could you look at these recent entries on the State and Federal case, and kind of interpret for us what's going on? It looks like they are punting the case back and forth. It's all quite confusing.....

http://www.websleuths.com/forums/sh...-2013-in-California-2&p=11396703#post11396703

http://www.websleuths.com/forums/sh...-2013-in-California-2&p=11399522#post11399522

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If you remember, the state court case includes more claims than the federal court case, because the federal court quite correctly refused jurisdiction of one claim for which there was no diversity of parties. Normally, the plaintiffs would just dismiss the federal court case and there would be no issue. But here, the state court case was filed after the statute of limitations had passed (because the attorneys apparently didn't understand the federal court jurisdiction problem) so is very much in peril of being dismissed (and the attorneys being sued for malpractice BTW). There is some California case law that might "save" the state court case from dismissal, but I haven't done in-depth research on that issue. It seems that the plaintiffs' lawyers are not 100% confident of winning that argument, though, because they want to keep the federal action open as a backup in case the state court action is dismissed. (That way, they will only get sued for malpractice for the one lost claim.)

So the plaintiffs are asking the federal judge to just hold the case open while they see if the state court case gets dismissed; if it doesn't get dismissed, then the plaintiffs will probably dismiss the federal case as superfluous at that point because, as they pointed out, the state court case includes all the claims and more progress has been made in that case. Plus they would need a unanimous jury to win in federal court and only (I think) 6 out of 8 in Cal. state court.

ETA: And the state court judge wants to wait and see what the federal judge has to say about all this before making any decisions.

Thank you so much for that explanation, AZ Lawyer. Now I have more questions!

Could you please explain why the Zahaus lawyers would have filed the same lawsuit in both Federal and State courts in the first place?

If the state case is dismissed, who could sue the plaintiffs' attorneys for malpractice? The State? The Defendants? On what grounds exactly? Filing the State case after the statue of limitations was passed? But since the Judge allowed it, why would the attorneys be at fault?

It seems to me that by trying to keep the Federal case open until the State case is ruled on, the Zahaus attorneys are using a "let's see which accusations stick" approach. Is this a standard practice when one has a case in both state and federal court? Can the defendants lawyers request that the federal case not be held open?

TIA!

LuckyLucy2 said:

Thank you so much for that explanation, AZ Lawyer. Now I have more questions!

Could you please explain why the Zahaus lawyers would have filed the same lawsuit in both Federal and State courts in the first place?

If the state case is dismissed, who could sue the plaintiffs' attorneys for malpractice? The State? The Defendants? On what grounds exactly? Filing the State case after the statue of limitations was passed? But since the Judge allowed it, why would the attorneys be at fault?

It seems to me that by trying to keep the Federal case open until the State case is ruled on, the Zahaus attorneys are using a "let's see which accusations stick" approach. Is this a standard practice when one has a case in both state and federal court? Can the defendants lawyers request that the federal case not be held open?

TIA!

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The Zahaus' attorneys filed the case only in federal court at first. Then the defendants pointed out the jurisdictional problem and they freaked out and filed in state court as a "backup." The only problem was that the statute of limitations had already expired.

The people who would sue them for malpractice would be their clients--the plaintiffs (Zahaus). The grounds would be that the attorneys filed the case in the wrong court (because the federal court didn't have jurisdiction over all the claims) and in the meantime the statute of limitations passed in the state court. To win a malpractice claim, though, the Zahaus would have to prove that they would have been successful if the claims had gone to trial (As I mentioned above, the plaintiff's state court case may be "saved" by California case law, though, so this is all hypothetical.)

The judge in the federal court has confirmed that he does NOT have jurisdiction over one of the claims. He does have jurisdiction over the other one, so the plaintiff's counsel is only at risk for a malpractice suit on the claim that has been kicked out of federal court already.

The state court judge has not made any decision whatsoever about whether the statute of limitations has been missed. She has not "allowed" the case to stand. The plaintiff's attorneys are still at risk there. Most likely one or more of the defendants has included this argument in a motion to dismiss, but there has been no ruling yet that I know of.

The accusations in both courts are the same, so it's not about seeing which accusations stick. It's about seeing how many of the claims can be saved. The Zahaus would prefer to go forward in state court (with both claims), but would like to hold open the federal case (with fewer claims) just in case the state court judge says that the claims expired before the state court case was filed. There is no real "standard practice" for what you do when you file in the wrong court and miss the statute of limitations in the meantime, but obviously preserving as many of the claims as possible is the goal. The defense lawyers can say what they want, but the federal judge won't be dismissing the federal case IMO until the state court judge decides the statute of limitations issue. Judges generally try not to cause needless malpractice problems for lawyers.

Thanks so very much AZ.

In California is the general public able to view a wrongful death trial?

ETA

Oh, I see it is. Michael Jackson's wrongful death suit was open to the public.

Again, thank you AZlawyer for your input It is greatly appreciated!

Just for clarification, the Zahau attorneys filed the suit in federal court because they believed there was a diversity jurisdiction issue. The Zahau lawyers did not interpret the diversity law correctly. Diversity jurisdiction requires no defendant can be a citizen of the same resident state as any plaintiff. Since Mary and Pari live in MO, the Zahau lawyers thought this was a jursidiction issue. However, the law reads the resident state for the plaintiff follow the estate in the suit, which for Rebecca was AZ. The same as Dina, AZ. This was not an intentional mistake made by the Zahau attorneys. It is a VERY big mistake, which could result in a malpractice suit, but not a legal strategy of any kind. Would this be correct? TIA

time said:

(from Wiki)
The enabling statute for diversity jurisdiction, 28 U.S.C. § 1332, grants the district courts jurisdiction in an action that meets two basic conditions:

• Complete diversity requirement. No defendant is a citizen of the same state as any plaintiff.
• Amount in controversy requirement. The matter in controversy exceeds $75,000.

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AZlawyer said:

The Zahaus' attorneys filed the case only in federal court at first. Then the defendants pointed out the jurisdictional problem and they freaked out and filed in state court as a "backup." The only problem was that the statute of limitations had already expired.

The people who would sue them for malpractice would be their clients--the plaintiffs (Zahaus). The grounds would be that the attorneys filed the case in the wrong court (because the federal court didn't have jurisdiction over all the claims) and in the meantime the statute of limitations passed in the state court. To win a malpractice claim, though, the Zahaus would have to prove that they would have been successful if the claims had gone to trial (As I mentioned above, the plaintiff's state court case may be "saved" by California case law, though, so this is all hypothetical.)

The judge in the federal court has confirmed that he does NOT have jurisdiction over one of the claims. He does have jurisdiction over the other one, so the plaintiff's counsel is only at risk for a malpractice suit on the claim that has been kicked out of federal court already.

The state court judge has not made any decision whatsoever about whether the statute of limitations has been missed. She has not "allowed" the case to stand. The plaintiff's attorneys are still at risk there. Most likely one or more of the defendants has included this argument in a motion to dismiss, but there has been no ruling yet that I know of.

The accusations in both courts are the same, so it's not about seeing which accusations stick. It's about seeing how many of the claims can be saved. The Zahaus would prefer to go forward in state court (with both claims), but would like to hold open the federal case (with fewer claims) just in case the state court judge says that the claims expired before the state court case was filed. There is no real "standard practice" for what you do when you file in the wrong court and miss the statute of limitations in the meantime, but obviously preserving as many of the claims as possible is the goal. The defense lawyers can say what they want, but the federal judge won't be dismissing the federal case IMO until the state court judge decides the statute of limitations issue. Judges generally try not to cause needless malpractice problems for lawyers.

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Thanks AZlawyer, you are the best!

BBM Which claim was booted out of federal court and which one wasn't?

bourne said:

Sounds like Mr. Schumann has not been listed in the docket. I assume this means he's not legally representing Dina in the WDS but that two of his associate attys are. Even though he's speaking head in media, I believe that's because he's lead partner in the firm and everything the firm does reflects him. However, again, he does not appear to be personally representing Dina in any legal capacity apart from the talking head in media.

Also, I took a gander at the Schumannrosenberg.com and it does not even list Ms.Tran as an associate anymore. Fascinating...

Wonder why Benchoff of AZ is so important to Dina to have him fly to CA to represent her...Hmm...What legal technicality is up that manipulative sleeve of Dina's?

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BBM - Considering Benchoff is the attorney representing Dina in the WDS suit she filed against Jonah, I think we found the answer to your question of why Benchoff is so important to Dina.

*Lash* said:

Again, thank you AZlawyer for your input It is greatly appreciated!

Just for clarification, the Zahau attorneys filed the suit in federal court because they believed there was a diversity jurisdiction issue. The Zahau lawyers did not interpret the diversity law correctly. Diversity jurisdiction requires no defendant can be a citizen of the same resident state as any plaintiff. Since Mary and Pari live in MO, the Zahau lawyers thought this was a jursidiction issue. However, the law reads the resident state for the plaintiff follow the estate in the suit, which for Rebecca was AZ. The same as Dina, AZ. This was not an intentional mistake made by the Zahau attorneys. It is a VERY big mistake, which could result in a malpractice suit, but not a legal strategy of any kind. Would this be correct? TIA

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It was a huge mistake and definitely not a strategy.

bourne said:

Thanks AZlawyer, you are the best!

BBM Which claim was booted out of federal court and which one wasn't?

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The "survivor" claim is out. That's the claim Rebecca could have brought personally if she had survived the alleged attack. The "wrongful death" claim is in. That's the claim that belongs to Rebecca's family for the injury caused to them by Rebecca's alleged murder.

AZlawyer said:

The "survivor" claim is out. That's the claim Rebecca could have brought personally if she had survived the alleged attack. The "wrongful death" claim is in. That's the claim that belongs to Rebecca's family for the injury caused to them by Rebecca's alleged murder.

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Thanks so much AZlawyer!

Just for my own knowledge, a "survivor" claim can only be made by next of kin or family of the deceased? And the victim of an "event" (.e.g, assault/medical procedure/car accident, etc.) need not have "survived" the event?

Hi AZlawyer!

In post #227 you were asked if it was possible the defendants 'sever' from one another, I believe the fed suit was being discussed. Your answer was 'not happening' or something similar.

In post #248 you were speaking about a 'collaborative relationship'.

Then in post #266 you said 'defendants definitely can settle their part of the case apart from others'.

I'm confused. Was your answer in post #227 referring only to the fed suit? And answer in post #266 applies to the civil case that is currently moving forward?

TIA

bourne said:

Thanks so much AZlawyer!

Just for my own knowledge, a "survivor" claim can only be made by next of kin or family of the deceased? And the victim of an "event" (.e.g, assault/medical procedure/car accident, etc.) need not have "survived" the event?

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A "survivor" claim is made by the estate of the deceased victim (via the personal representative of the estate, who is often but not always a family member).

screecher said:

Hi AZlawyer!

In post #227 you were asked if it was possible the defendants 'sever' from one another, I believe the fed suit was being discussed. Your answer was 'not happening' or something similar.

In post #248 you were speaking about a 'collaborative relationship'.

Then in post #266 you said 'defendants definitely can settle their part of the case apart from others'.

I'm confused. Was your answer in post #227 referring only to the fed suit? And answer in post #266 applies to the civil case that is currently moving forward?

TIA

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In either of the cases, the defendants are not going to be allowed to sever from one another--i.e., they will not be allowed to have the case against them proceed in a separate action from the case against the other defendants. This might be allowed in a criminal case and technically is possible in a civil case but will not happen here. But of course in either of the cases each defendant can settle with the plaintiff individually and get dismissed from the case if they can agree on terms with the plaintiff. That's not severing the case--that's just getting dismissed as a defendant.

I think the comment on the collaborative relationship was that separate motions filed by separate lawyers for separate defendants are suggestive of a lack of collaboration. If the defendants were all "on the same page," you would expect their lawyers to file motions jointly.

AZlawyer said:

A "survivor" claim is made by the estate of the deceased victim (via the personal representative of the estate, who is often but not always a family member).



In either of the cases, the defendants are not going to be allowed to sever from one another--i.e., they will not be allowed to have the case against them proceed in a separate action from the case against the other defendants. This might be allowed in a criminal case and technically is possible in a civil case but will not happen here. But of course in either of the cases each defendant can settle with the plaintiff individually and get dismissed from the case if they can agree on terms with the plaintiff. That's not severing the case--that's just getting dismissed as a defendant.

I think the comment on the collaborative relationship was that separate motions filed by separate lawyers for separate defendants are suggestive of a lack of collaboration. If the defendants were all "on the same page," you would expect their lawyers to file motions jointly.

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BBM

Wow, so if Adam wanted to settle with the plaintiff, he could and walk and be done with it?
Thank you so very much for clarifying this!!!