Found in my Morgan Letters Folder
Please keep this under your hat as I am under a confidentiality agreement for now...
I deposed Mr. Fund for approximately 5 hours, his deposition is
over,and here is the good news. These are my preliminary comments.
An attorney's objective at a deposition is to score various
"nuggets"of inconsistencies or simply unbelievable testimony that will make thatperson suspect in the eyes of a jury. Here is what was achieved today:
(1) With respect to Plaintiff Exhibit "9", his interrogatory answers, he
admitted that his sworn responses were all true and correct. In one of hisinterrogatory answers, he stated that he first met you in the 1980's at Santa Barbara, California and was introduced to you by your mother. HOWEVER, on direct testimony he stated that he first met you in the late 1990's at a Chinese restaurant in New York City, and you were with your then boyfirend Mr. Wallach, and your mom was not present. Why lie about such a thing? But, its on the record, now.
(2) This will make you sad and angry, but I have to report to you. He
admitted that he was intimate with you during the time frame from Fall 1998 through Summer of 1999, and that he took you to dinner and to the movies. He claims that you were then living on York Avenue in Jersey City, and he was living (since 1982, when he moved to East Coast) at his 250 First Street Apt., a 1 bedroom apt., in Jersey City. He states that he did not consider that he was "dating" you. How do you think a jury will react to this callousness? Basically he said, yeah I fucked her, but that counts for nothing. He reacted the same way when
I asked him if he was intimate with your mother (he admitted this), and he also said this was too brief of a relationship to consider dating.
(3) He stated that he was dating Leslie George and Gail Heriot (Christine Hall was only a research assistant, Judge Sykes was only a friend, and he never dated Ellen Wesley) during the time that you lived with him (you stayed on the Futon, and you never slept in his bed, he claims.) from August 2001 through "very early" 2002. He stated that he was not then intimate with you. He denies leaving condoms around for you to see. He admits that when you moved in the place was "very cluttered", but denies the larvae in refrigerator, mouse droppings (although he said that it was "possible"), toilet being backed up, etc. he stated that his apartment was damaged in a fire, and that the firemen had to break down the walls.
(4) With respect to the pregnancy, he admits that you told him during March or April 1999 that you were pregnant with his child. He claims that he never told you to terminate the pregnancy, and that it was your decision. The jury will see this guy as basically not giving a fuck, and not taking responsibility.
He showed no interest in this question. I showed him a 3-1999 abortion
document from Dr. Michael Kreb (sic) with a 310 phone prefix. He admitted that 310 was for Los Angeles. He denied ever having seen this document before, but claims that you did tell him and you were in California during March or April 1999 "to get things in order." He denies hearing about the Pacifica Women's Health Center in Venice, California.
(5) He denies having ever assaulting you either in Jersey City or in East 9th Street, NYC. He claims that maybe 5 times prior to 2-19-02 he was at your East 9th street apartment. He stated that your landlady was named Caroline. He claims that you were also known as Caroline.
(6) Early on in the deposition, I asked him what your emotional state was during the 1998-1999 relationship. He stated that you showed him a letter you received from a psychiatrist you were seeing. I showed him the 10-14-99 Dr. Muriel Gold Morris letter, Plaintiff Exhibit "2", and he said that that was the letter. He denies ever having spoken to this doctor.
(7) He claims that several times during January 2002-February 2002, you
threatened suicide. He defined these threats as somewhat real and he was
somewhat concerned there might be a measure of truth to this. He consulted informally with a friend of his a Dr. Bowman who used to live in Texas and now in California. He admits that he never referred you to any shrink for treatment. Again, a jury will say, How about this guy, he is totally without feeling!
(8) He claims that either before or after you moved in with him, you told him that you would clean for him, etc. in exchange for not paying rent. He denies ever agreeing to pay you money for your cleaning, and for emptying out the boxes at WSJ, 200 Pearl Street, NYC. He denies giving you authority to pay bills, or to sign his name to the checks.
(9) He claims that in December 2001, he caught you practicing to sign his name to a check, which was never deposited. You became flustered. He admits that in November 2001 (You told him in August 2001 that you had nowhere to live, and he "took sympathy" on you, and let you move in. However, he stated that he told you at a conference in 1999 in Colorado that the relationship was over, because of your emotional state, and because you lied. Again, how believable is this guy? If he is telling the truth, why would he let you back in his life? Does a guy who is dating the 2 women let someone he is not sleeping with into
his apartment, to cramp his style? Simply not believable. Also not
believable; he states that he never tried to get you to leave EVEN AFTER YOU FILED A REPORT WITH NEW JERSEY POLICE! Wouldn't someone consult a lawyer, as to how to get the person, the troublemaker to leave, also not believable. he denies sitting on you or asking you to make up punishment lists.) the police came to your apartment, and no action re: arrest was taken.
(10) Around January 24, 2002 he found out you signed his name to the checks. His response was to file a police report (Actually this was for credit card fraud) but not to follow up on it. He was angry and hurt (But he admits that he is always under control. Here is something interesting. I asked him if he ever cursed at you, if he said to you "Get out bitch" when you left his apartment (He claims that you left voluntarily) he said and this is an exact quote I NEVER CURSE. THAT IS SOMETHING INTERESTING ABOUT ME, MR. FISH, I NEVER CURSE. Why even put that on the record. Ladies and gentlemen, a control freak.
He never tried to have you prosecuted. His account was not charged, but he claims that he does not know if the money was returned from your account to his. Huh?! Oh yeah, he basically threw out any records of anything relevant in the case.
(11) I showed him the 1-24-02 notarized letter by Lillian Rauchi (sic) and asked him if he told you to sign that, and then he would not prosecute for fraud. Here is what he said. He claims that you told him the 1-24-02 letter was his INSURANCE POLICY AGAINST YOUR MOTHER'S $150,000.00 CLAIM, AND THAT YOU WANTED TO HELP HIM. THAT IS WHY YOU GAVE HIM THE EXCERPTS OF THE CRAIG FRANKLIN DEPOSITION AND THE 10-14-99 DR. MORRIS SHRINK REPORT!! At the time he was arrested, he was going to file an extortion report against you and your mother in mid-town precinct, but received a call from a Detective (he is not sure if
it was Stewart), went back to Greenwich Village precinct and was arrested. He never folllowd up, and never, at any point in time, filed the extortion report. He was in jail for 2 1/2 hours to 3 hours, before being arraigned. And guess who was his lawyer defending him in the criminal case?! MR. KESSLER (!!) TO WHOM HE PAID OVER $50,000.00 DOLLARS!! for 5 court appearances. WHAT A SHMUCK, $10,000/APPEARANCE is outrageous. The whole case, most attorneys would charge $7,500.00 for (No wonder Mr. Kessler does not want to settle our case! He is milking
this guy for everything he is worth!!) When I called for the production of the Kessler-Fund retainer agreement and all invoices, you had to see the look on Mr. Kessler's face! Not only that, I called for the production of Mr. Fund's IRS records for 2000 to 2003!! He placed it in issue-more about it later-so I am entitled.
(12) With respect to the 1-24-02 letter, he claims that you started drafting it in his presence, and that he walked over with you to the Notary, and you went inside, and he stayed outside. Again, not believable, he wouldn't stay with you every step until it was signed. ONLY THEN IS IT INSURANCE, RIGHT?! Wait, it gets better-HE ADMITS THAT HE HAS THE ORIGINAL OF THAT LETTER!! He does not know if the Gigot letter was ever mailed out. Interesting, he claims that he never contacted Mr. Gigot to see if he got the letter!! This is also not
(13) He admitted that-Plaintiff Exhibit "8" the counterclaim was true and correct. Paragraph 63 claims past loss of income and future loss of income.
He estimated that he lost between January 2002 and January 2004 $60,000-$70,000.00 in income (He admits that he has worked for Dow Jones for the past 20 years, except when he left to write a book, and then did nonprofit work for the
Manhattan Institute. He claims that he was never fired by Dowjones, and
never collected unemployment compensation benefits in the past 10 years. From 2000-2003 he earned approximately $110,000.00/year from Dowjones.) However, when he claims
he lost speaking engagements he admitted that he had no contracts or agreements for the engagements. He claimed loss of $6,000.00 in income from 1-04 to 10-19-04 due to an Amercian Congress appearance that was not extended to him. Again, no documents to back it up. He admits that he never consulted an accountant or economist to prove future loss of earnings. He claims that he lost Fox and MSNBC contracts, but admits that he only had past contracts with them that expired at the time of the situation with the plaintiff, yourself. His damage claim is speculative, but I am entitled to his tax return. He repeatedly stated that his "reputation" was damaged by your conduct. There really is no
evidence to back this up. Ladies and gentlemen of the jury, if you cannot believe Mr. Fund on this, you cannot believe him on anything.
(14) First he said that he saw 3 photographs of your bruises in Kessler's office. Then he changed his testimony and said he only saw photocopies of the originals. He denies ever having met ADA Bonnie Sard, although he smiled when I mentioned her name.
(15) At the conclusion of deposition, Mr. Kessler told me that Mr. Fund
rejected our demand, and that their offer is a mutual release of both
claims. I informed him that we WILL definitely go to trial unless a
substantial offer to us is made. I think I said something to the effect: "Fred, we are going all the way with this, unless your client comes up with something serious."
(16) Like your deposition, we marked the deposition CONFIDENTIAL, meaning it can only be used for purposes of this law case. Mr. Fund was very, very relieved when I agreed to this (I HAD to; they extended the same offer to you which we accepted.). That is why I think that, eventually, in this game of poker, they will fold first. Mr. Fund simply cannot tolerate the thought of outsiders hearing of his sordid little adventures; that was made patently clear to me today. Again, the greed of his own attorney may prevent this from happening.
I still can't get over $50,000.00 FOR A CRIMINAL CASE INVOLVING ASSAULT, WHAT A RIP OFF BY HIS ATTORNEYS. Wait till the jury hears of this, and they will. (Oh yeah, Mr. Fund admitted that he spoke with Craig Franklin about you, about the
criminal case, that Craig sent him numerous FAXes that he can't recall (He said I can't recall a lot, also.) but denies having spoken with him about the civil case. He denies ever having met Steven Craig. Fund stated that in 2001-2002 he was 6 feet tall and 208 pounds, and you were 5'3" and 120 pounds. He seemed much heavier today. To his credit, he was very calm and polite to me and again, very much like someone in control.)
(17) I don't think his attorney really understands the potentially
devastating impact of Mr. Fund's testimony until he sees the record (This deposition will probably cost me $800-$1,000.00. ), which he also ordered. We have a November 16, 2004 conference, and I have to file my Request for Trial no later than December 31, 2004. Trial will occur probably in New York County 15 months after the Trial Request is filed. I believe that the Judge can help with any settlement. Again, it is clear to me that Mr. Fund's attorney either has not conveyed our offer to his client, but simply has not analyzed the down side
risk in the case. By the way, in cases I have handled of this nature in the past (In which I have always obtained a decent settlement for my clients) it is not unusal for this stance in negotiating. Mr. Fund should settle the case because he HAS a choice.
That's it for now.