Posts by Chaserious

68

What I Saw & Heard in the Oral Argument Hearing on January 14, 2015

by ABibleStudent in

im not an attorney and i could not record the hearing, so please forgive me if i make mistakes in relating what i remember of the oral argument hearing for jane doe (i.e., candace conti) versus the watchtower bible & tract society on january 14, 2015 and the length of this post.. i arrived at the civic center/union plaza in san francisco, ca about 7:30. the area is very nice with a few homeless people sleeping in the park across from the courthouse.

it took me about 10 minutes to find the clerks office for the court on the first floor, which opened at 8:00.. once the clerks office opened, the two clerks who i talked with were very polite and helpful.

the arguments for jane doe (i.e., candace conti) versus the watchtower bible & tract society were scheduled 5th out of (i think) 8. while i was in the office a cameraman and another person for nbc arrived asking about the hearing for candace contis case.. the courtroom for the 1st appellate court is on the 4th floor and takes up most of that floor.

Chaserious

the Org certainly considers itself to have a special relationship with any publisher of the good news.

Of course they do - especially in the context from protecting from predators within. They constantly drive home that holy spirit is upon the congregation, people inside are "good association," and those outside are bad association, JWs are the most law-abiding and moral people on earth, etc. They induce a high level of trust, yet they don't want to be bothered protecting anyone when there is a known predator within.

The difficulty is making a judge understand this, especially one who didn't sit through the trial and get a feel for themselves. There can be a tendency to make a comparison to more mainstream religions that are much less insular when people don't really understand the way the WT org operates.

68

What I Saw & Heard in the Oral Argument Hearing on January 14, 2015

by ABibleStudent in

im not an attorney and i could not record the hearing, so please forgive me if i make mistakes in relating what i remember of the oral argument hearing for jane doe (i.e., candace conti) versus the watchtower bible & tract society on january 14, 2015 and the length of this post.. i arrived at the civic center/union plaza in san francisco, ca about 7:30. the area is very nice with a few homeless people sleeping in the park across from the courthouse.

it took me about 10 minutes to find the clerks office for the court on the first floor, which opened at 8:00.. once the clerks office opened, the two clerks who i talked with were very polite and helpful.

the arguments for jane doe (i.e., candace conti) versus the watchtower bible & tract society were scheduled 5th out of (i think) 8. while i was in the office a cameraman and another person for nbc arrived asking about the hearing for candace contis case.. the courtroom for the 1st appellate court is on the 4th floor and takes up most of that floor.

Chaserious

On Watchtower having a special relationship with congregations-

I don't want to contradict Robert's detailed report since I wasn't there, but I have read the briefs (and am an attorney), and the only special relationship issue raised in the briefs was whether WTS and/or the congregation had a special relationship with Candace Conti (and to a lesser degree Kendrick), and not with each other. Since parties are not allowed to raise new arguments that they do not address in the briefs, I wonder if this could have been a misunderstanding.

In this context "special relationship" has a legal meaning under California law, rather than a special relationship in the everyday meaning of the words. Generally no duty to warn or prevent harm from occurring to someone exists except in the case of one with a special relationship to the potential victim. This case did not involve agency or vicarious liability, where the WTS was held responsible for the elders' actions. Rather, the jury found 27% of the blame was with WTS for its own negligent actions.

68

What I Saw & Heard in the Oral Argument Hearing on January 14, 2015

by ABibleStudent in

im not an attorney and i could not record the hearing, so please forgive me if i make mistakes in relating what i remember of the oral argument hearing for jane doe (i.e., candace conti) versus the watchtower bible & tract society on january 14, 2015 and the length of this post.. i arrived at the civic center/union plaza in san francisco, ca about 7:30. the area is very nice with a few homeless people sleeping in the park across from the courthouse.

it took me about 10 minutes to find the clerks office for the court on the first floor, which opened at 8:00.. once the clerks office opened, the two clerks who i talked with were very polite and helpful.

the arguments for jane doe (i.e., candace conti) versus the watchtower bible & tract society were scheduled 5th out of (i think) 8. while i was in the office a cameraman and another person for nbc arrived asking about the hearing for candace contis case.. the courtroom for the 1st appellate court is on the 4th floor and takes up most of that floor.

Chaserious

Thanks for sharing so much detail about your observations! Nice job with the report.

111

Conti Appeal Preview - Oral Argument Jan 14

by Chaserious in

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.

Chaserious

I think Candace's lawyer's arguments revolved around that the elders did fulfill their duty of care towards Candace sufficiently. I think this came out when Candace Conti's lawyer questioned the elders regarding what safety measures they had put in place to prevent Kendrick from ever working in the field service with children. If this aspect is significantly important then surely it would not matter so much that Candace did not (and was not asked by her lawyer directly enough to) testify to being assigned to work with Kendrick?

I think you may be missing that there are two alternative theories of liability at play here: misfeasance and nonfeasance. What you are describing sounds like nonfeasance; that they didn't do enough to warn or protect her. You are correct that the attorneys do not have to show that they were assigned together in field service to prevail on that theory.

But Rick Simons also argued on appeal that even if there is no such duty, the verdict should be upheld due to misfeasance, and the only evidence he points to for that is the field service issue. I was only commenting that there had to be enough evidence at trial for a jury to conclude there was misfeasance for the judgement to be upheld on that basis.

Conti's team doesn't have to show a basis for both theories; only one. Since juries don't have to explain themselves, if the court finds one of the two theories viable under the law (and assuming the WT doesn't win on one of its other arguments) the jury verdict will stand, assuming that the jury accepted that basis.

I agree that it's sad that only the threat of legal liability works to force their hand to protect their children.

111

Conti Appeal Preview - Oral Argument Jan 14

by Chaserious in

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.

Chaserious

I'd guess the kid that got raped as a result might remember. The point is sound though, there's not likely to be any clear testimony on this topic and even if there was it would be easy to dismiss due to the time that's passed. I can't think how there'd ever be any hard evidence of such an assignment, either.

This isnt really the issue in terms of misfeasance. You don't need "hard" evidence - testimony is enough. If Candace testified that the elders assigned her to work in field service with her abuser, the jury would be entitled to believe it and return a verdict, no matter how long ago. The issue is that her lawyer is saying on appeal that they were assigned to work together, but he never directly asked her that question when she testified at trial.

That suggests to me that Candace couldnt testify to it - either because it didn't happen or she can't remember. If she could testify to it, and Rick Simons just didn't ask her when she was testifying, that would be a very bad job of lawyering - it's an extremely important piece of testimony.

The only other thing I can think of is that the lawyer didn't understand how JW field service works and he thought the papers on the information board actually said who the door-to-door partners were. That seems unlikely though - he seemed to otherwise have a good grasp of WT and congregation policies.

111

Conti Appeal Preview - Oral Argument Jan 14

by Chaserious in

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.

Chaserious

The thing is it is not up to elders (or at least it isn't the law everywhere) to report a crime such as child molestation to the authorities unless they have personally been a witness to it, or have been specifically asked to do so by the victim and/or parents who will then have to accompany them. It is up to the victim or victim and/or parents. They are the ones who have to do the reporting.

This is incorrect. Almost all states have mandated child abuse reporting laws that apply to certain professionals such as teachers, doctors, nurses, etc. A majority of these laws apply to clergy, although not in every state. They require reporting upon reasonable suspicion of child abuse or neglect, not proof. Its not up to the victim or parents. The parent could be the abuser.

111

Conti Appeal Preview - Oral Argument Jan 14

by Chaserious in

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.

Chaserious

Doubting Bro - I agree that it's easy for you, me, and anyone who has been around the WT to know that they should have such a duty. I think the trial judge had the same feeling, having been exposed to enough documents and testimony to know that something stinks.

The more difficult thing is setting out a general rule that is widely applicable, which is the job of the higher courts. Would the same duty apply to a Catholic parish with 1000 members, if it involved a victim and pedophile whose role in the church is merely attending services a few times a year?

What would larger churches that are not as hands on with members have to do to discharge the duty? Make an announcement from the pulpit upon even an allegation of abuse? That seems a little severe. Would contacting authorities be enough or do they have to do more? Should it depend on the level of control a religion has over its members? That could result in putting the church doctrines on trial in each case. These are tough questions - much harder than the obvious, which is to recognize that they have been dishonest, secretive, and acted in self-interest over the years with respect to prevention of child abuse.

111

Conti Appeal Preview - Oral Argument Jan 14

by Chaserious in

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.

Chaserious

Cofty - that's a good observation. The recognition of a duty based on a child's relationship with the organization has the greatest value for precedntial effect.

In fact, if the court were to decide in Conti's favor on the malfeasance issue, it would probably not even reach the duty to warn issue. While I'm sure Candace, her lawyers and observers here would be pleased with the result, it would have limited precedntial value, as that situation, e.g. elders assigning a child to work with a known pedophile in field service, is probably unlikely to exist in other cases. It's also not a significant change in existing law as malfeasance in these circumstances is already widely recognized as a basis for liability.

111

Conti Appeal Preview - Oral Argument Jan 14

by Chaserious in

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.

Chaserious

Thanks jwleaks. Appreciate your keeping all of the docs on your site, including the trial transcripts - that's where I read up on this.

111

Conti Appeal Preview - Oral Argument Jan 14

by Chaserious in

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.

Chaserious

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