Freshwater: Unresponsive responses

Posted 14 July 2010 by Richard B. Hoppe

R. Kelly Hamilton and John Freshwater have filed responses to the Dennis family's memorandum of opposition to reconsideration of the sanctions against Hamilton and Freshwater ordered by the judge in Doe v. Mount Vernon BOE, et al.. I recently described the memorandum in Tightening the vise. The responses are masterpieces of misdirection. See Hamilton's (pdf) and Freshwater's (large pdf). Recall that the memorandum of opposition made two principal allegations: 1. Hamilton and Freshwater claimed that they spent many hours in May 2008 preparing 15 affidavits to give the independent investigators. However, Hamilton's billing records for the period from mid-April through the end of May 2008, obtained pursuant to a federal court order to the Board of Education's attorney, show no evidence of affidavit-related activity. 2. Freshwater has been unresponsive to discovery requests and unresponsive to a court order to compel compliance with those requests. More commentary below the fold The billing records Both Hamilton and Freshwater claim that Hamilton was operating in two distinct roles in April-May 2008, an "investigative" role for the investigation conducted on the Board's behalf and a "legal" role for other work. In his response Freshwater wrote

That bill Kelly [Hamilton] gave Sarah Moore [BOE attorney] for May 2008 is accurate because Kelly billed me and I paid for the investigative interview preparation separately. Let me say it this way. I have two bills for May 2008. Actually I may have received three bills because I may have gotten one from Roger Weaver [an attorney who was briefly employed by Freshwater in April-May 2008] too. The two bills I got from Kelly were for two different processes. One bill was for the investigative interview and the other bill was for the legal works other than the interview preparation. I have never hidden the fact that I had separate legal billings. I testified on December 8, 2009 in the state hearing that I had separate legal bills. I read the transcript on page 4212 and am including a copy of it with this statement. Page 4212 of the transcript is accurate and it shows I spoke about the separate legal billings long before this recent mess started. So if anybody accuses me of being untruthful I say how would I know back then that this matter would come up now. Look the difference between the fee agreement of May 19, 2008 and the fee agreement of June 26, 2008 are (sic) as big as the difference between $175.00 per hour and $275.00 per hour. The difference between the two agreements are (sic) as different as night and day, as different as right versus wrong and as different as the truth versus these allegations. (pp 1-2)

So Freshwater is claiming that he employed Hamilton in two separate roles in May 2008, investigative interview preparation (the affidavit preparation), and some other unspecified "legal works" during the same period, the two being invoiced separately and at different rates. Hamilton echoes Freshwater:

Any billing records obtained by Plaintiff's counsel indicating any billing activity to John Freshwater during May 2008 are based on a separate fee agreement reflecting work completed for John Freshwater but not relating to the preparation of the fifteen (15) affidavits. (Exhibit 1 - Affidavit of John Freshwater at 3 and 4) Again, truth sometimes is a poor competitor as truth can be complicated and always vulnerable to misinterpretation--but truth is truth. The truth is John Freshwater and his family have had four (4) different fee agreements for legal counsel (Exhibit 1 - Affidavit of John Freshwater at 3) The billing record possessed by Plaintiff's counsel is reflective of a fee agreement signed by John Freshwater on June 26, 2008--the third fee agreement--that permitted the undersigned [Hamilton] to re-bill or receive payment for legal work done since the inception of John Freshwater's legal need which began on April 17, 2008 (Exhibit 1 - Affidavit of John Freshwater at 3).

So the implicit claim is that Hamilton's billing records for work associated with the independent investigation is irrelevant to the federal case, and that only the billing for other unspecified "legal works" qualifies as responsive to the present issue. Bear in mind that at that time, April-May 2008, Freshwater was involved in no other legal issues associated with his troubles vis a vis the Board of Education--Doe v. Mount Vernon Board of Education, et al. was not filed until June 13, 2008 and the resolution to terminate him was not passed until June 20, 2008. Hamilton claims in his response that

John Freshwater and the undersigned assert the legal invoices and billings for the fifteen (15) affidavits are and were completely different from the legal invoices and billings for the legal work related to John Freshwater's state hearing and subsequent legal cases.

That's very strange, since at that time--May 2008--Freshwater could not know there would be a state hearing. There was no foreshadowing of a potential need for a hearing prior to the issuance of the investigators' report (pdf) dated June 19, 2008. He had to have made that decision after the report was released and the Board of Education passed its resolution of intent to consider termination on June 20, 2008. So what is Hamilton talking about when he claims to have been working in May on legal matters related to the state hearing? It simply doesn't add up. All the other matters--anything other than the investigation--that would have required Freshwater to have legal advice were initiated well after Hamilton claims he was working on those matters. Look at the Freshwater quotation more closely. The first claim is that "I have two bills for May 2008." I found that interesting because I have a distinct memory of a statement by Freshwater that he no longer has those invoices. I don't recall whether it was in a deposition or in testimony in the hearing, but I have a faint memory that I posted on it somewhere. Anyone else's Google-fu better than mine? I also found this claim interesting:

I [Freshwater] read the transcript on page 4212 and am including a copy of it with this statement. Page 4212 of the transcript is accurate and it shows I spoke about the separate legal billings long before this recent mess started.

In the transcript (attached to Freshwater's response) that comes out of the blue--Hamilton is questioning Freshwater about the preparation of the 15 affidavits--how Hamilton asked questions and Freshwater answered them, and how Freshwater could make corrections or amendments in the drafts Hamilton prepared, and how Hamilton had Freshwater swear to the truth of them. Then in the midst of that, there's this sequence:

Q. Did I -- you've come to have an understanding now of the importance of of an affidavit? A. Yes. Q. What's your understanding? A. Wow. That, one, I know that you're very good at that. You're very thorough at that. It's important so you get the words down on paper in that time period. Q. Now, you have an awareness of my background. Correct? A. Yes. Q. And what was part of my background? A. Your background--we've gotten to know each other very well--Columbus police officer. And you are very good. Q. When we first hired on together, did I tell you there was a legal component and a legal investigative component? A. Yes. Q, And we actually had an arrangement that I would say treated you pretty nicely financially that we separated the legal expertise versus the investigative legal expertise, right? A. Yes. Q. And we took care of those on separate billing statements. Right? A. Yes.

Hamilton also quoted a few lines of that testimony in his response. That's just plunked into the sequence of questions and led nowhere. It seemed to me at the time, and seems to me now, that it was a device to get the claim of Hamilton's two roles on the record. Another sequence of testimony late in the hearing, in June 2010, struck me the same way when Hamilton asked Freshwater whether he (Hamilton) carried a printer with him:

Hamilton asked if Freshwater had ever seen Hamilton carrying a portable printer, and Freshwater said he had. Asked, he agreed that meant that Hamilton was not restricted to using the church's printer. (I suspect-but do not know-that these questions are related to the question of the date of preparation of the 15 affidavits Freshwater claims to have put together after his first interview with the investigators, to be used at the second interview. ... It may not be a coincidence that this particular testimony, with no connection to anything in prior testimony in the hearing, was elicited the day before a computer forensics analyst was scheduled to testify for the Board. To forestall speculation in the comments, that analyst did not testify about the printer provenance of those affidavits.)

One speculative hypothesis that could account for those two bits of strange questioning is that knowing the Board of Education's counsel had a set of Hamilton's billing records for April-May 2008 obtained in March 2009, and knowing by then that there were questions about the provenance of the 15 affidavits that the billing records were relevant to, in both the December 2009 and June 2010 questioning Hamilton may have laying the groundwork for a defense for not providing all his billing records along the lines of the "two roles" laid out in Freshwater's and his documents filed yesterday. I repeat: that's speculation. But it's how it struck me on both occasions as I listened to the testimony: 'this has something to do with the affidavits.' In any case, none of this speaks to the central question for Hamilton, which is if his computer had been "totally destroyed" in the Flood as he has claimed, how could he have supplied any billing records at all to the Board's attorney in March 2009? One set of invoices or two, one role or two, those records were wiped in January 2009 according to Hamilton. He does not address that question at all in his response. That's what I mean by a "masterpiece of misdirection." Hamilton and Freshwater generated a slew of words about his two roles and about the fragility of "truth" (that word appears 20 times in Hamilton's response), but the central question is not addressed nor even hinted at in either response. Discovery issues Hamilton's and Freshwater's response to the assertion that they have not fully complied with the discovery process amounts to two words: "Did too!" An impending settlement? Finally, Hamilton uses this paragraph four times in his response:

On Tuesday, July 6, 2010, the undersigned learned from communications with Attorney Sandra McIntosh that a resolution in this matter occurred on Friday, July 2, 2010, which will include resolving any concerns against John Freshwater alleged in Plaintiff's Memorandum of Opposition (Doc. 114)

McIntosh is one of the two attorneys retained by the school's insurance company to defend Freshwater in Doe b. Mount Vernon Board of Education, et al. I have been unable to find out if that means there's a tentative settlement with Freshwater. (Recall that Hamilton is no longer Freshwater's attorney of record in that action.) It's unclear what the antecedent of "this matter" is, so we don't (yet) know whether it refers to the Doe suit or just to something about the sanctions imposed on Hamilton and Freshwater. It's perhaps relevant that the federal judge has scheduled an oral hearing on Hamilton's motion to reconsider the sanctions for July 29, 2010. But the federal trial is scheduled to begin July 26. I don't know the protocol in these things, but the two additional sanctions requested by the Dennises, a default judgment in their favor, or failing that, an adverse evidentiary inference against Freshwater, are both associated with how (or even whether) Freshwater's lawyers can defend his case. As I suggested in my 'Quick settlement' post, that may have put enough pressure on to settle. (I see now that post would have been better titled "Sudden" settlement, not quick!) Miscellany There are some things in both Hamilton's and Freshwater's responses that I simply can't parse. For example, consider this sentence from Hamilton's response:

On May 15, 2008, the date John Freshwater was interviewed by HR on Call, Inc., John Freshwater made personal perceptions subsequent to personal interaction he had with a previous attorney who originally served as co-counsel.

WTF does that mean? On a note related to fees, Hamilton wrote

John Freshwater and the undersigned made every reasonable effort to scrabble together that which was possible to comply with the Court's Order. John Freshwater and the undersigned continue to dispute the reasonableness of the fees asserted by Plaintiff's counsel. As the undersigned holds unfiled liens and a deed to the Freshwater Family farm both Freshwater and the undersigned complied as best they could with the resources they have available.

Italics added. Freshwater's effort at compliance was to send a lien on his farm to Doug Mansfield, the Dennises' attorney, to satisfy the Court's Order to pay the lawyer fees associated with the extra work required to compel compliance with the various discovery orders. As noted in the memorandum of opposition, however, that lien was not filed with the Clerk of Courts in Knox County and is thus invalid (as, apparently, are Hamilton's liens). In any case, Freshwater has apparently truly bet his farm on this. And it's also interesting that Hamilton associates himself with the offer, even though he's not mentioned in Freshwater's affidavit of lien. Hamilton has no skin in that game: the "undersigned" offered precisely nothing in fulfillment of the Court's Order for sanctions except to prepare and forward Freshwater's Affidavit for Lien. I wouldn't be surprised to learn that he charged Freshwater for doing so. Finally, the word "truth" is used liberally in Hamilton's response. "Truth" and "truthful" together appear 22 times in Hamilton's response-there's even a two paragraph section with "Truth" as a title. And the last paragraph of Hamilton's response emphatically preaches about it:

Truth is everything, truth shall set one free and both John Freshwater and the undersigned will follow truth wherever it may lead. Truth can be complicated and vulnerable to misinterpretation. John Freshwater and the undersigned have been castigated unfairly and unjustly despite simply telling the truth and it is requested by both, that the truth be investigated and determined with as much zeal as has been invested in speculation. Accordingly, reconsideration of this Court's Opinion and Order are requested.

Somehow I don't think quoting John 8:32 ("truth shall set one free") in support of an argument will favorably affect Judge Frost's judgment on an issue in an Establishment Clause case. Thomas Jefferson ("follow truth wherever it may lead") might carry a little weight though the full quote doesn't seem to be consonant with Freshwater's and Hamilton's worldview:

This institution [University of Virginia] will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it.

Recall that Jefferson forbade the inclusion of a theology department or divinity school in UVA.

42 Comments

W. H. Heydt · 14 July 2010

Wow, just...wow. When those two decide to dig themselves a hole, they start with a backhoe and end with mining equipment.

--W. H. Heydt

Old Used Programmer

robert van bakel · 15 July 2010

Wonderful! I believe the NAZIS in several camps had the phrase, 'Work Will Set You Free.' Bit harsh maybe, but quoting scripture to a Judge? Jesus!

Also I fear in the lala land of Freshwater/Hamilton the battle of right and wrong has long since been lost. I have every confidence in the judges' ability to damn these cretins.

Finally, you may think me nasty, but I hope Freshwater loses his farm, and that Hamilton gains from this, what a delightful message for christians everywhere.

The obfuscation taking place in these submissions is breathtaking, it's like trying to decipher a William Dembski psudo-sciency/psudo-probability/ piece, damn near impossible. The two word summation from RBH, 'Did too' was immeasurably useful in clearing matters up.

The Founding Mothers · 15 July 2010

Careful, Robert, you've hit upon Godwin's Law a bit too early in the discussion!

IINAL, but I am a practicing ~~atheist~~ scientist, and am constantly reminded of the importance of writing clearly and succinctly when one tries to communicate effectively. I tried to read "Counsel's Reply to Plaintiff's Memorandum..." which was linked above. I'll never get that part of my life back now.

Sweet Sally Struthers, what an abomination. I constantly read better writing from non-native English speakers in the sciences. It may not be legalese, but the intention is surely the same. Try to articulate a (potentially complex) idea so that the audience will find it as easy as possible to follow and ultimately agree with your arguments.

Hamilton's prose is more akin to a steaming pile of horseshit.

SEF · 15 July 2010

The Founding Mothers said: Try to articulate a (potentially complex) idea so that the audience will find it as easy as possible to follow and ultimately agree with your arguments.

I think you're missing the point there. While Hamilton may indeed be incompetent, at law and/or at English, it's very likely that at least part of the mess he has created is deliberate obfuscation. He is using the word salad to try to disguise the fact that there's no meat at all in the argument he's presenting.

The Founding Mothers said: Hamilton's prose is more akin to a steaming pile of horseshit.

ie quite reflective of its cognitive content.

Hieronymus Fortesque Lickspittle · 15 July 2010

Richard - Good write up, as always! This issue of the billing records zips right by me though. Were they caught in an obvious lie about how much and when Hamilton billed Freshwater? Why is it an issue for the court how much and when an attorney bills their client? I just don't see the bigger picture perhaps. You'd think burning children and teaching theology in the science class would be enough!

The Founding Mothers · 15 July 2010

SEF said: ...it's very likely that at least part of the mess he has created is deliberate obfuscation. He is using the word salad to try to disguise the fact that there's no meat at all in the argument he's presenting.

Yep - you're probably correct, SEF. But if this is true, he's surely sorely (ahem) underestimating the Judge, who is presumably well experienced in sifting through horseshit arguments. It beggars belief that Hamilton could misjudge (ahem) the situation so badly. Perhaps he thinks the best hope for Freshwater is a mistrial, somehow based on the grounds of Counsel's incompetence? HFL: Try checking here for some insight into the relevance of billing dates.

W. Kevin Vicklund · 15 July 2010

Hieronymus Fortesque Lickspittle said: Richard - Good write up, as always! This issue of the billing records zips right by me though. Were they caught in an obvious lie about how much and when Hamilton billed Freshwater? Why is it an issue for the court how much and when an attorney bills their client? I just don't see the bigger picture perhaps. You'd think burning children and teaching theology in the science class would be enough!

Freshwater testified that he had prepared a bunch of affidavits, but HROncall (sp?) never called him back. The billing records would prove that these affidavits were prepared when he claimed they were, and not at some later date. The affidavits themselves likely have very little impact on the case, but if the judge determines that Freshwater and Hamilton were lying about the affidavits, they face perjury charges (a felony) as well as risking having the rest of Freshwater's testimony impeached.

phantomreader42 · 15 July 2010

W. Kevin Vicklund said:
Hieronymus Fortesque Lickspittle said: Richard - Good write up, as always! This issue of the billing records zips right by me though. Were they caught in an obvious lie about how much and when Hamilton billed Freshwater? Why is it an issue for the court how much and when an attorney bills their client? I just don't see the bigger picture perhaps. You'd think burning children and teaching theology in the science class would be enough!
Freshwater testified that he had prepared a bunch of affidavits, but HROncall (sp?) never called him back. The billing records would prove that these affidavits were prepared when he claimed they were, and not at some later date. The affidavits themselves likely have very little impact on the case, but if the judge determines that Freshwater and Hamilton were lying about the affidavits, they face perjury charges (a felony) as well as risking having the rest of Freshwater's testimony impeached.

Hasn't Freshwater already contradicted himself under oath? As I recall, Freshwater's legal argument on the cross-branding issue was something akin to this: "I never branded a student, okay I did but it was an x not a cross, okay it was a cross but it wasn't christian, okay it was but...hey, is that a demonic duck of some sort? *runs away*"

JohnK · 15 July 2010

truthiness n. The quality of preferring concepts or facts one wishes to be true, rather than concepts or facts known to be true. --Merriam-Webster's Word of 2006

Truthiness is everything, truthiness shall set one free and both John Freshwater and the undersigned will follow truthiness wherever it may lead. Truthiness can be complicated and vulnerable to misinterpretation. John Freshwater and the undersigned have been castigated despite simply telling their truthiness and it is requested by both, that their truthiness be investigated and determined with as much zeal as has been invested in speculation.

David Utidjian · 15 July 2010

Let me see if I have this right: F and H are now contending that an invoice, that was supposedly destroyed via a flood, and has now turned up from the BOE attorneys is NOT the invoice for the preparation for the affidavits but some other invoice?

Perhaps this (surviving) invoice has some detail as to what services it is billing for. We can't see that invoice due to the gag order?

Wouldn't there be bank statements, cancelled checks, and other records both from Freshwater and Hamilton on the payment (or payments) for these invoices? I suppose they could claim that all payments are made in cash delivered by in black bags and deposited near garbage cans :P

As noted by Richard, they did not address the issue of where the surviving invoice came from if it was supposedly destroyed.

Since the affidavits themselves seem to be irrelevant to the current case (I forget which one) is the plaintiff only trying to impeach the testimony of Freshwater? Is F&H only trying to play the persecution card?

raven · 15 July 2010

This looks like an uncommon xian rite practiced by obscure cults.

It is called auto-martyrdom. One goes out and finds a lion and smacks it in the nose.

The surviving members then scream "persecution".

Sivi · 15 July 2010

...Okay, just how much is Hamilton leading Freshwater there? I don't follow legal proceedings very closely, but it sounds like he's coaching Freshwater right there in the hearing.

Curt Cameron · 15 July 2010

I appreciate your work in capturing all this, but to me the legal mumbo-jumbo just makes my eyes roll and drool drip from the corner of my mouth. A Readers Digest summary would be all I need.

wright1 · 15 July 2010

@ raven: yeah, I think you have at least part of Freshwater's motivation there. All this deliberate obfuscation goes waaay past stupidity.

@ Curt Cameron: is that sarcasm? From what (very little) I know of legalese, this IS the Reader's Digest summary :)

C.E. Petit · 15 July 2010

Curt Cameron said: I appreciate your work in capturing all this, but to me the legal mumbo-jumbo just makes my eyes roll and drool drip from the corner of my mouth. A Readers Digest summary would be all I need.

OK, here's the shortest version that I can come up with. (1) Lawyers can't write. "Never use five words where fifty will do" is not only a time-honored tradition, it's essential to padding invoices based on hourly billing. (My excuse: I learned how to write before law school... studying for a PhD in the humanities.) (2) The lawyers who can't write include all of the lawyers in this matter. Most of the briefs, orders, etc. are C+ and worse material -- even the incisive ones that eventually get at the issues. (3) If it was clearly written, it wouldn't be law... because one of the unstated principles of law is that the correct answer to any legal inquiry is "It depends." And so, the RD™ summary and intended for an audience of non-lawyers more interested in truth than in legal justification: Accusation: Hamilton lied about the affidavit time, and here's an invoice he later issued, covering the same period, that is silent on the affidavit time. Response: No, I didn't lie; the computer really was destroyed, and that invoice wouldn't have covered the affidavits anyway. Accusation: Hamilton lied about the computer, because he couldn't have prepared that invoice that we have to the third party. Response: Nothing substantive, just points out possibilities. (That said, most solo practitioners are not all that anal about entering time and billing, and frequently end up later going backward to reconstruct what they were doing.) Accusation: Freshwater perjured himself. Response: Essentially ignores the issue, and attempts — rather inelegantly — to point out that perjury and "deception" require both objective and subjective knowledge of falsehood. The implication (probably not intended!) is that Freshwater can't tell the difference between objective truth and dogmatic requirement, which certainly doesn't help his ultimate goal: Getting reinstated as a teacher. The even shorter version: In the course of responding on sanctions, Hamilton further undermined the substance of his client's case. This is a common problem in sanctions proceedings; the lawyers involved (on both sides) get tunnel vision and lose sight of their litigation objectives. Sanctions hearings often end up looking like a bad experience during second-grade recess... especially when you actually sit down and read the briefs on both sides, then look at the record.

RBH · 15 July 2010

C.E. Petit said: Sanctions hearings often end up looking like a bad experience during second-grade recess...

That raises the probability that I'll trek into Columbus for the oral sanctions hearing on July 29. :)

mary · 15 July 2010

In reading Hamiltons Novel, I mean brief, it says he went back and re-billed Freshwater at a higher rate starting in April 2008. Really Freshwater agreed to this??
So NON of the billings show the affidavits? The first billing at a lower rate, the new bill at a higher rate and the bill the School board had. Did the flood destroy everything?

Robin · 15 July 2010

On May 15, 2008, the date John Freshwater was interviewed by HR on Call, Inc., John Freshwater made personal perceptions subsequent to personal interaction he had with a previous attorney who originally served as co-counsel.
WTF does that mean?

I'd bet dollars to donuts that this is euphemistic way of saying that Freshwater got the impression from another attorney that he (Freshwater) didn't need to push the affidavits or anything since that type of information would be asked for later. Or something of that nature.

Finally, the word “truth” is used liberally in Hamilton’s response.

Methinks he doth protest to much.

Robin · 15 July 2010

mary said: Did the flood destroy everything?

Everything except ~~Noah~~ Hamilton and his family apparently.

DS · 15 July 2010

Well it is pretty obvious what is going on here. Hamilton has never charged Freshwater anything, ever. That's why there are no records. He probably just gets a share of the offering plate at various churches around the area. That would seem to be a more than fair arrangement given the usefulness of Hamilton's legal advice.

When asked about the legal fees, Freshwater made up some crap about signing over his house. I bet there is no evidence of that either. Then, they started to realize that they could not get legal costs awarded unless they actually had records. That's when all of the lying and excuses started.

This has been a horse and pony show from the beginning. The real problem is that these two jokers are ready to lie at any moment whenever it is convenient. I guess neither one thought they would ever get caught at it. Kind of the reason the whole thing happened in the first place.

DaveL · 15 July 2010

Well it is pretty obvious what is going on here. Hamilton has never charged Freshwater anything, ever.

I can't decide which would be more stupid: to pay for R. Kelly Hamilton's legal advice or to take it for free and then perjure yourself about it.

Q. When we first hired on together, did I tell you there was a legal component and a legal investigative component?

In the matter of Doe v. Mt. Vernon BOE, John Freshwater is represented by two separate yet equally important R. Kelly Hamiltons. The "investigative" R. Kelly Hamilton who investigates allegations, and the "legal" R. Kelly Hamilton who argues in court. These are their stories. [Donk-donk]

Michael J · 15 July 2010

A senior policeman friend of mine said that if you ever get caught doing something just remember 2 rules, lie as little as possible and keep it simple and you will most likely get off.

I think that these guys just proved the point

John_S · 15 July 2010

phantomreader42 said: Hasn't Freshwater already contradicted himself under oath? As I recall, Freshwater's legal argument on the cross-branding issue was something akin to this: "I never branded a student, okay I did but it was an x not a cross, okay it was a cross but it wasn't christian, okay it was but...hey, is that a demonic duck of some sort? *runs away*"

A variation of the old "It never happened; but if it did, I was out of town; but if I wasn't, I didn't do it; but if I did, it was self-defense; but if it wasn't, I was insane" defense ...

H.H. · 15 July 2010

John Freshwater and the undersigned have been castigated unfairly and unjustly despite simply telling the truth...

"Truth," in this case, being defined as Freshwater's personal religious views and the lies he told in service of them.

Hieronymus Fortesque Lickspittle · 15 July 2010

W. Kevin Vicklund said: Freshwater testified that he had prepared a bunch of affidavits, but HROncall (sp?) never called him back. The billing records would prove that these affidavits were prepared when he claimed they were, and not at some later date. The affidavits themselves likely have very little impact on the case, but if the judge determines that Freshwater and Hamilton were lying about the affidavits, they face perjury charges (a felony) as well as risking having the rest of Freshwater's testimony impeached.

Thank you! I totally get it now, perjury charges would be awesome after observing all the other lies.

Juicyheart · 15 July 2010

Hieronymus Fortesque Lickspittle said:
W. Kevin Vicklund said: Freshwater testified that he had prepared a bunch of affidavits, but HROncall (sp?) never called him back. The billing records would prove that these affidavits were prepared when he claimed they were, and not at some later date. The affidavits themselves likely have very little impact on the case, but if the judge determines that Freshwater and Hamilton were lying about the affidavits, they face perjury charges (a felony) as well as risking having the rest of Freshwater's testimony impeached.
Thank you! I totally get it now, perjury charges would be awesome after observing all the other lies.

I'm not sure if this judge can refer charges of perjury for what Freshwater said in the hearing, that might be up to the hearing referee. My impression was that the Dennises' originally wanted to show that Freshwater was willing to lie under oath, and undermine any testimony he would give under oath in court. Since then Freshwater and Hamilton seem to have built themselves a potential perjury charge in front of the judge. And remember when the judge ruled that the issues had to be put in front of a jury, part of that decision was the assumption of Freshwater's truthfulness. I'm wondering if the trial can/will be postponed until after the sanctions hearing. It seem like the hearing could impact the trial significantly, especially how to interpret the items from his room that Freshwater hasn't produced.

RBH · 16 July 2010

Juicyheart said: I'm not sure if this judge can refer charges of perjury for what Freshwater said in the hearing, that might be up to the hearing referee. My impression was that the Dennises' originally wanted to show that Freshwater was willing to lie under oath, and undermine any testimony he would give under oath in court.

In a ruling that's relevant to that comment, the judge will allow testimony from other venues to be used for purposes of impeaching a witness's credibility. The money sentence in the judge's order is

Further, as Plaintiffs accurately contend, they are entitled to impeach Freshwater through use of his prior inconsistent statements. (p. 3)

There is by now a large body of inconsistencies to draw on. Whether Judge Frost or the referee will refer anything to the relevant prosecutors for investigation of possible perjury charges is unknown, but that ruling opens up a large can of worms for Freshwater's defense in the federal suit. I'll bet the more of the hearing transcript and depositions they read, the harder those two new insurance company lawyers are pushing to get a settlement before trial.

The Founding Mothers · 16 July 2010

RBH said: I'll bet the more of the hearing transcript and depositions they read, the ~~harder~~ faster those two new insurance company lawyers are pushing to get ~~a settlement~~ the hell out of Dodge before trial.

Just like the last poor Insurance Schmoes who jumped ship... I know I shouldn't be surprised by this sort of thing, but doesn't Hamilton realise that his God probably doesn't want him trying to dictate to other mortals what "Truth" is? Isn't that impinging on His territory a bit too much? Do I hear the distant sounds of wailing and gnashing of teeth? Can you hear the drums, Fernando?

eric · 16 July 2010

RBH said: The money sentence in the judge's order is
Further, as Plaintiffs accurately contend, they are entitled to impeach Freshwater through use of his prior inconsistent statements. (p. 3)
There is by now a large body of inconsistencies to draw on.

I'm personally hoping for the whole 'used the tesla coil/did not use it' thing to come up. Question for the lawyers - is it usual to bill someone at two different rates for two different services? I can see keeping two bills separate for tracking purposes, but it strikes me as really odd that RKH would use two very different hourly rates for his own labor for the same client.

Doc Bill · 16 July 2010

I have met people like Freshwater who have an inability to admit to being wrong. Ever. They always have to be right, even when they're wrong.

Imagine what the past 2+ years would have been like, not having Freshwater to entertain us, if the following had transpired:

John, did you use that thing in science class on a student the other day?

Yeah, it's part of my demonstration. It's fun. I've been doing it for 20 years.

Well, the kid developed a rash or a burn or something. Here's a picture of it.

OMG! You're kidding! That's terrible! Is he OK? This has never happened before, well, not to this extent. I am so sorry. I've got to talk to the student's parents right away. Can we arrange a conference? (and so forth)

++++++

My experience with public school teachers is that they're very concerned about their students, and safety is right up front. If Freshwater had practiced a modicum of what he preaches, in my opinion, I think everyone would have gone their own way. Freshwater's lack of concern for others or for the safety of his students was fatal to his career in public education, just as his continued denial and obfuscation that he's done anything wrong will sink him in court.

phantomreader42 · 16 July 2010

Doc Bill said: I have met people like Freshwater who have an inability to admit to being wrong. Ever. They always have to be right, even when they're wrong. Imagine what the past 2+ years would have been like, not having Freshwater to entertain us, if the following had transpired: John, did you use that thing in science class on a student the other day? Yeah, it's part of my demonstration. It's fun. I've been doing it for 20 years. Well, the kid developed a rash or a burn or something. Here's a picture of it. OMG! You're kidding! That's terrible! Is he OK? This has never happened before, well, not to this extent. I am so sorry. I've got to talk to the student's parents right away. Can we arrange a conference? (and so forth) ++++++ My experience with public school teachers is that they're very concerned about their students, and safety is right up front. If Freshwater had practiced a modicum of what he preaches, in my opinion, I think everyone would have gone their own way. Freshwater's lack of concern for others or for the safety of his students was fatal to his career in public education, just as his continued denial and obfuscation that he's done anything wrong will sink him in court.

Of course, if Freshwater were capable of behaving as you suggest he would not have illegally taught creationist pseudoscience and used such elaborate measures to cover it up. If Freshwater were capable of honesty there would be nothing to charge him with.

David Utidjian · 16 July 2010

C. E. Petit thanks for the summary and for clarifying (in an RD sort of way) what is going on.

Thanks also to Richard for keeping up on all this.

Amadan · 16 July 2010

Doc Bill said: I have met people like Freshwater who have an inability to admit to being wrong. Ever. They always have to be right, even when they're wrong.

Paging Mr Hawkins! . . .

Anubis bloodsin · 17 July 2010

It really tends to the earlier point made in the comments that deliberate obfuscation is being liberally used.

They got pulled in the billing fiasco, and maybe calculated to allow that to run and be their downfall instead of getting publicly spanked for cretinist mumbo jumbo in a science class.
They would still be squealing martyrdom but for being busted for technical infringement of a secular court protocol, (after all is seems xians everywhere are aware secular authorities hate men of 'gawd').
Probably hoping that in all the confusion and pearl clutching drama in the community the primary reason for their predicament gets back burnered at least for the foreseeable.

With all the legal actions flying around it might occur that one court proceedings might unintentionally impede another's, that would be a gift from 'gawd' that they are hopefully angling and praying for methinks.
Tie the legal proceedings up in a deadlock while angling quietly for a private settlement for the original reason for the case elsewhere.
Then plead mitigating circumstances 'forced them to settle because they are extremely busy elsewhere...but they were not guilty whatever and only settled to concentrate their assets!

Surely a judge that perused this debacle would conclude no contest and that they were lying manipulative scumbags but nothing is certain in this world!

So indeed 'chuckles' 1&2 might concede they are on a hiding to nothing but best be busted for summat not overtly religious rather then publicly getting a spanking for preaching cretinism in a science class.

Thus keeping 'gawd' and 'truthfulness' well out of the equation.

C.E. Petit · 18 July 2010

eric said: [snip] Question for the lawyers - is it usual to bill someone at two different rates for two different services? I can see keeping two bills separate for tracking purposes, but it strikes me as really odd that RKH would use two very different hourly rates for his own labor for the same client.

Yes. It's exceedingly common, in fact. Typically, there will be two (or sometimes three) hourly rates in a complex representation: $x as a base, default rate $x + 10-15% for "in-court" time and, sometimes, $x - 20% for "related preparatory tasks," which might (or might not) include the affidavits at issue here There's one critical point, though: Billing must be based upon a signed fee agreement. Variances from the billing arrangement agreed in writing, in advance, are frowned upon by the various state bars to various degrees. A few states even frown upon a lawyer giving a client a discount from an agreed-upon rate... presuming that the client will then believe she is entitled to the discount for future work. Of course, there's an overriding requirement that an attorney's fee must be "reasonable." Based upon what I've seen on the record in this matter, $1.75/hr seems "reasonable" to me for Mr Hamilton's time, based upon the display of legal acumen, the complexity of the matter, and the success of counsel in obtaining an appropriate result for the client. Yes, that decimal point was before the "75".

David Utidjian · 18 July 2010

C.E. Petit said: There's one critical point, though: Billing must be based upon a signed fee agreement. Variances from the billing arrangement agreed in writing, in advance, are frowned upon by the various state bars to various degrees. A few states even frown upon a lawyer giving a client a discount from an agreed-upon rate... presuming that the client will then believe she is entitled to the discount for future work.

Right. So are we to believe that these fee agreements have also been destroyed or gone missing by two separate people? I am asking because it seems to me that there must be more of a 'paper trail' than whatever was on Hamilton's laptop.

C.E. Petit · 18 July 2010

David Utidjian said: Right. So are we to believe that these fee agreements have also been destroyed or gone missing by two separate people? I am asking because it seems to me that there must be more of a 'paper trail' than whatever was on Hamilton's laptop.

We are stuck with what we're told; whether Judge Frost is is another matter. Attorney-client agreements are ordinarily treated as confidential, and only in extraordinary circumstances will a court even look at the actual agreement in camera — and it won't become public record. The stated rationale for this is that many fee agreements implicate the strategy and interests of the client, which are precisely what the attorney-client privilege is intended to protect. The real rationale for this is that the organized bar doesn't want people to go comparison-shopping for lawyers on the basis of price... which objection has both valid and invalid elements. On the one hand, lawyers are not fungible; if Professor Irons were in private practice, for example, he'd charge at a different rate than would R. Kelly Hamilton... or Casey Luskin... and would be justified in charging a significantly higher rate, within their respective areas of specialization.* On the other hand, the price of representation is a legitimate concern of clients, and particularly natural-person clients; that old line about "how much justice can you afford?" is not a joke. * The organized bar refuses to admit that lawyers are actually far more specialized in their practices than are even physicians, so even calling oneself a "specialist" violates the ethics rules (except for patent lawyers, who are — generally — allowed to say the "s" word). See, e.g., Ill. R. Prof. Cond. 7.4(c). Unfortunately, one of the actual areas of legal specialization appears to be making an ass out of one's client, oneself, and the law.

David Utidjian · 18 July 2010

C.E. Petit said:
David Utidjian said: Right. So are we to believe that these fee agreements have also been destroyed or gone missing by two separate people? I am asking because it seems to me that there must be more of a 'paper trail' than whatever was on Hamilton's laptop.
We are stuck with what we're told; whether Judge Frost is is another matter. Attorney-client agreements are ordinarily treated as confidential, and only in extraordinary circumstances will a court even look at the actual agreement in camera — and it won't become public record.

If I understand the term "in camera" it means the original signed paper or a photocopy, correct? As far as being treated as confidential it appears that Freshwater has all but blown that away with items 3 and 4 in his affidavit. It also seems a bit strange that Freshwater claims that he was being billed by Hamilton on a monthly basis up until, at least, November, 2008. I forget, for the moment, when the alleged flood took place but with or without in camera billing agreements there still should be a paper trail of billing data regarding the affidavits that F&H claim were made back in May 2008, no? In other words, without looking at any billing agreement, according to what Freshwater says in this most recent affidavit, couldn't the judge simply ask to see the bills or invoices or whatever that Freshwater claims he received from Hamilton for these affidavits?

The stated rationale for this is that many fee agreements implicate the strategy and interests of the client, which are precisely what the attorney-client privilege is intended to protect. The real rationale for this is that the organized bar doesn't want people to go comparison-shopping for lawyers on the basis of price... which objection has both valid and invalid elements. On the one hand, lawyers are not fungible; if Professor Irons were in private practice, for example, he'd charge at a different rate than would R. Kelly Hamilton... or Casey Luskin... and would be justified in charging a significantly higher rate, within their respective areas of specialization.* On the other hand, the price of representation is a legitimate concern of clients, and particularly natural-person clients; that old line about "how much justice can you afford?" is not a joke. * The organized bar refuses to admit that lawyers are actually far more specialized in their practices than are even physicians, so even calling oneself a "specialist" violates the ethics rules (except for patent lawyers, who are — generally — allowed to say the "s" word). See, e.g., Ill. R. Prof. Cond. 7.4(c). Unfortunately, one of the actual areas of legal specialization appears to be making an ass out of one's client, oneself, and the law.

Thanks for the clarification and insights on how this all works. When I worked at a corporate law firm years ago we certainly had attorneys that were specialists in very specific areas. I do not remember that it was advertised as such. We had attorneys that specialized in tobacco legislation for a single company, others that specialized in racketeering in a particular state, and others that specialized in structural failures in buildings, and so on. They may not use the 'S' word but they certainly talk about their "areas of practice" or "services."

W. H. Heydt · 18 July 2010

The term "in camera" is more closely related to the camera obscura. It means (in context) in the Judge's chambers...in private. A "camera" was originally a small room.

--W. H. Heydt

Old Used Programmer

David Utidjian · 19 July 2010

Thanks WHH. I really have no excuse when google/wikipedia pops up your definition on the first hit. ::sheesh::

W. H. Heydt · 26 July 2010

Today (7.26.2010) is the day...is there a last minute settlement or is Freshwater actually going to have his case pled? Waiting with bated breath....

--W. H. Heydt

Old Used Programmer

RBH · 26 July 2010

W. H. Heydt said: Today (7.26.2010) is the day...is there a last minute settlement or is Freshwater actually going to have his case pled? Waiting with bated breath.... --W. H. Heydt Old Used Programmer

There was a last minute settlement; no details on it are yet available.