Found in my Morgan Letters Folder
Please
keep this under your hat as I am under a confidentiality agreement
for now...
Morgan,
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
believable!
(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.
Gary
No comments:
Post a Comment