With hopefully a good deal of interest here in the Conti appeal tomorrow (or later today, depending on where you are), I thought that on my ride home from work tonight I'd preview what to expect and what I think the key issues are for any who are interested. I have had a busy few weeks and haven't had time to read everything, but I had some time to look at the appeal briefs during my work commute the past couple days. It'll be interesting to see what develops out of the network news coverage of this case.
Procedure
- The attorneys for the parties will argue before a panel of three judges. There will be no witnesses or testimony, and the parties themselves are not required to attend.
- The rules allow 30 minutes for the defendants and 30 minutes for the plaintiff. Since there are two defendants in this case (the Watchtower and the North Fremont Congregation), it wouldn't be unusual to allow them more time, so that they aren't limited to 15 minutes each. The defendants (or appellants, as they are called here) will go first, and will usually save time for rebuttal, so will also speak last. Only one lawyer can speak for each party, and it appears that it will be Watchtower's appellate lawyer from a private firm, and not a Watchtower in-house attorney. The congregation is also represented by a different private firm.
- The lawyers might be able to speak freely for most of their allotted time, or they may be peppered with questions from the judges. It depends on the judges.
- The panel will issue a written opinion deciding the appeal within 90 days.
Issues
- The WTS has six arguments. (Sorry, but I'm on my tablet and don't have the links to the briefs. They can be easily found online). Four arguments go to overturning the verdict and last two relate to punitive damages only.
- The biggest issue is whether a negligence verdict is supported at all under California law given the facts of this case. A major dispute is whether the evidence supports misfeasance by the Cong. & WTS (in other words, doing something affirmatively wrong, rather than failing to warn). I suspect they will take up this issue in court.
- The only alleged misfeasance evidence is that, according to Candace Conti's lawyer, the elders assigned Candace to work with her abuser in field service. However, the defendants say there was no evidence of this at trial. Unless I am missing something, I tend to agree that there was not evidence of this.
- There was testimony that the elders assigned people to field service groups and set meeting times, and that at some point Candace was with her abuser going door to door. But it seems there was a lack of testimony that any elder assigned Candace to specifically pair up with the pedophile in field service.
- If Conti's lawyers can't win on misfeasance, their next hope is to uphold the verdict on a failure to warn/failure to prevent theory, based on a special relationship between the defendants and Ms. Conti. There is not a lot of authority for this under CA law (or at least this doesn't fit neatly into a box that there is a body of law on), so if it comes down to this issue, it may depend on whether the judges are willing to blaze a bit of a new trail. I get the sense that the trial judge had a strong feeling about this case from being closer to the facts and issues, and was not afraid to push the boundaries of established law on when a special relationship arises that gives rise to a duty to warn or protect.
- The defendants' second argument on appeal relates to jury instructions. I won't go into too much detail, except to say that the arguments claim that (1) the trial judge refused to give the jury the option to assign a percentage of fault to law enforcement entities and/or Candace's parents, (fault was allocated 60% molester, 27% WTS, 13% Congregation) (2) the trial judge should have explained to the jury that clergy did not have a legal duty to report abuse at the time, and (3) the judge didn't appropriately explain to the jury how the defendants could have satisfied the duty to warn.
- I don't know that there is much here for the defendants to work with, but jury instructions are one of the most common grounds for reversal. Unlike the first issue (where the defendants could basically win the case if they succeed) if there is a reversal on jury instructions, a new trial would be ordered, so that different instructions can be given in the new trial.
That's about all I have time for. I think the other two issues raised by WTS are probably just noise in any event. Punitive damages I didn't really get to anyway. Hopefully some member of the JWN community will attend and report back.
-C