Topic category: Other/General
Duke Case: Rod Phelan’s Pass/Fail Test for the “88”
The “88” are the 88 members of the Duke University faculty known who became known as the Group of 88 after they posted the so-called “Listening Statement” or “Social Disaster” ad in The Duke Chronicle on April 6, 2006, when the members of the 2005-06 Duke University Men’s Lacrosse Team were generally (but falsely) believed to be group rapists or cover uppers for group rapists, based on the phony claims of ex-convict stripper Crystal Gail Mangum, the utterly unethical and incendiary public statements of Durham County, North Carolina District Attorney Michael B. Nifong and the reportage of a mainstream media that mostly treated the ludicruous story as legitimate, because it fit the leftist agenda so very nicely.
Rod Phelan is a senior partner in Baker Botts L.L.P., an international law firm with approximately 750 lawyers and a worldwide network of offices recognized for its creative approach to the legal and business issues facing its clients and perhaps best known now as the law firm of THE James Baker.
Excerpts from Mr. Phelan’s exceptionally impressive resume follow:
Mr. Phelan concentrates on defense and knows how to win major cases.
Examples:
Townes Telecommunications, Inc. v. Telephone & Data Systems, Inc.
Mr. Phelan represented Telephone & Data Systems (“TDS”), a holding company owning rural and cellular phone companies across the country, in a suit alleging breach of contract and fiduciary duty by TDS. The case was tried for two weeks to a state-court jury in Henderson, Texas. Plaintiff claimed $35 million in actual damages and $200 million in punitive damages, and demanded $70 million to settle before trial, $20 million during trial. The jury returned a defense verdict.
Life Insurance Systems of America v. Lotus Corp.
Mr. Phelan represented Lotus, the software company, in a breach of contract and DTPA case tried for six weeks to a Houston state-court jury. For a fee, Lotus developed software for the Plaintiff, which complained that Lotus did not finish the job. Plaintiff claimed $40 million in actual damages, which it sought to treble under the DTPA. The jury returned a defense verdict.
Mr. Phelan’s extensive litigation experience includes professional malpractice litigation on the defense side, for local and national accounting, law, engineering, and architectural firms.
The email addresses of the “88” follow.
On Thurday, January 11, 2007, at 12:16 PM, Mr. Phelan emailed the “88” as follows:
“Subject: It is time for another ad in the Chronicle
“To 88 members of the Duke faculty:
“I believe I have addressed this email to the 88 members of the Duke faculty who last April published a full-page ad in the Duke Chronicle that has come to be called the ‘Listening Statement.’ Since then, much has happened in the Duke lacrosse controversy. I'm sure you have followed it closely, so I won't try to summarize it.
“The purpose of this email is to suggest that the time is ripe and right for another full-page ad in the Chronicle, from the same 88 members of the faculty. I understand the presumption of my suggested text. Feel free, of course, to use your own words. But I am serious in asking you seriously to consider another ad, this one acknowledging that 3 Duke lacrosse players have been wrongly accused and are the victims of a grotesque misuse of our legal system - and more.
“A number of you have asserted that your April 2006 Listening Statement was not intended even to take sides in the ‘she said, everybody else said’ controversy, much less to suggest that the stripper's tales were true. (Can we call her that, since it is undisputed that stripping is one of her chosen professions? Identifying her by her job description also avoids having to switch from ‘alleged victim’ to something like ‘Crystal ___’ or ‘false accuser.’) Whatever your intentions and motivations in April, you must acknowledge that your Listening Statement was seen by many as a premature acceptance of the stripper's story and rejection of those of everyone else present; a rejection of the presumption of innocence; an endorsement of radical rants. Right or wrong, that is a widely held perception. Many have questioned whether, had the stripper been white and her targets black, you would have run such an ad; surely you all would agree that you would not have done so, because your ad, most of you say, was aimed at calling attention to white racism and elitism, not vice versa.
“You now have an opportunity - and some would say a duty - to demonstrate academic objectivity, to support your assertions that you were not taking sides then, and to take the right side now. The truth has become clear, and irresistible.
“Great harm has been done to 3 young men and their teammates. Having felt the sting of your collective pen, they deserve its balm. I respectfully ask you to run another ad in the Duke Chronicle carrying this message.
"To Three Falsely Accused Duke Lacrosse Players (and their teammates): We Are STILL Listening -- And The Truth Has Emerged"
“I hope this does not sound like another rant. It is easy to get over-exercised about this remarkable miscarriage of justice. I am proud of Duke. I expected far better from its faculty and administration. Please consider the ad I have proposed. I respectfully submit that you owe it to the Duke 3, to Duke, and to those whom we all wish would listen.
“Thank you for listening - and thinking.
“Rod Phelan
Baker Botts LLP
900 Trammell Crow Center
2001 Ross Avenue
Dallas, Texas 75201
214 953 6609 (direct)
214 661 4609 (fax)
214 952 6609 (cell)”
Mr. Phelan appears to be an optimistic. He thanked the “88” for “listening – and thinking.”
I do hope the “88” will sign on to an ad like or substantially like the ad Mr. Phelan suggested.
But with the Dowd family already having sued Duke University and “88er” Kim Curtis alleging punitive grading, Cathy Davidson have recently written an op-ed reiterating the ad and insisting that it has been misread, Houston Baker having written that disgusting “farm animal” email to the mother of one of the members of the 2005-2006 Duke University Men’s Lacrosse Team and a lawsuit or lawsuits against the “88” and Duke University looming, I am advising Mr. Phelan not to count on such an ad as he suggests ever coming from the “88.”
I expect there will be a follow up ad, in the shameful tradition of the first, with a large dollop of self-congratulation and a dash of self-pity.
Michael J. Gaynor
Biography - Michael J. Gaynor
Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.
Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.
The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.
Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.
Gaynor's email address is gaynormike@aol.com.