As we reported three weeks ago, lawyers for Steelers quarterback Ben Roethlisberger sent to lawyer Calvin Dunlap, who represents the woman who has sued Roethlisberger for sexual assault, a motion for sanctions under Rule 11 of the Nevada Rules of Civil Procedure.
Most jurisdictions have adopted some form of “Rule 11,” the primary tactic for combating frivolous statements made in litigation by lawyers representing any of the parties.
The standard practice is to draft the paperwork, send it to the lawyer who has made the allegedly frivolous filing, and inform the lawyer that, if the frivolous document isn’t withdrawn within 21 days, the motion will be filed with the Court.
In this case, the three weeks expired on September 15. Per a source with knowledge of the situation, the motion for sanctions was filed Wednesday. (The actual filing of the motion was first reported by Joe Buck’s favorite web site, and strangely couched as an “exclusive” -- even though the document is publicly available, and even though the existence of the motion was reported by an organization other than Joe Buck’s first (or second) favorite web site three weeks ago.)
Here’s a taste of page 8 of the motion, regarding the importance of the accuser’s decision not to file criminal charges:
“Plaintiff’s failure to report the alleged sexual assault was more than a speed bump in counsel’s race to get to the courthouse. It was an independent and objective fact that would cause ‘a trained professional who [is] expected to exercise independent judgment’ to at least investigate whether the absence of a criminal complaint against Mr. Roethlisberger was evidence of the absence of criminal conduct by Mr. Roethlisberger. It is particularly noteworthy that the witnesses who have refuted Plaintiffs false allegations are the same witnesses upon which law enforcement would have relied in determining whether to charge Mr. Roethlisberger with a crime. Rather than discharge the duty to investigate imposed by Palmer, Plaintiff s counsel chose to attack and, in some instance, sue the witnesses that [Nevada law] mandates he should have interviewed.”
If the Court concludes that Dunlap failed to properly investigate the case, he could be required to pay all attorneys’ fees incurred by Roethlisberger. As a practical matter, it’s rare that motions of this nature are granted, but it’s not unprecedented.
So, yes, this thing is getting uglier by the day. And, no, we don’t think the case will be going away, unless the accuser goes against the advice of counsel and caves.