A number of major media sources have noted the allegations against Walmart and its attorneys that have been levied by Tracy Morgan’s lawyers. Aside from Mr. Morgan’s lawyers intimating that he may never recover fully from the traumatic brain injuries inflicted by the commercial trucking accident, the allegation that has received the most attention is that Walmart is stalling to buy more time before the civil personal injury lawsuit begins. However, what has been made less clear by the media are the reasons for the allegations against the Bentonville-based retail giant and whether the statements by Mr. Morgan’s lawyers hold water. The remainder of this post will examine why Mr. Morgan’s lawyers made these statements and whether the allegations can hold up to scrutiny.
What occurred to spur these allegations from Morgan’s attorney?
It appears that the event that set off this latest string of public allegations between the parties is that the attorney for the driver of the Walmart truck, Kevin Roper, has filed a motion with the federal court. The motion seeks to delay the civil trial regarding the commercial trucking accident until Mr. Roper’s criminal matter has been resolved. Mr. Morgan’s attorneys have stated that they believe that this latest filing is just another attempt by Walmart to delay and avoid the disclosure of its safety practices. Walmart’s counsel, however, disagrees with Morgan’s counsel’s characterization.
What does Walmart’s attorneys claim is going on here?
For its part, Walmart has stated that it has yet to take a position on Mr. Roper’s motion. That is, the company and its lawyers have apparently not yet decided whether they will support or oppose this motion to adjourn the civil trial until the criminal matter has been adjudicated.This makes sense because Mr. Roper is not being represented by Walmart’s lawyers in the civil action nor is Mr. Roper currently a joined party in the action. In a letter addressing the concerns raised by Mr. Morgan’s lawyers, the lawyers for Walmart write, “Plaintiffs’ accusation that Wal-Mart is somehow behind Mr. Roper’s motion in an attempt to delay discovery is simply false.” On the face of things, it appears that Walmart had nothing to do with this latest filing. However despite the appearance of non-involvement and the lack of evidence that would indicate otherwise, the company may nevertheless benefits from this delay.
So, the motion was permissible and appropriate?
Yes, it appears that the motion filed by Mr. Roper’s counsel was entirely timely and appropriate. When the parties last met at a status conference in November 2014, the next in-person conference date was set for March 2015. Furthermore, the deadline for filing motions was scheduled for November 2015. Thus, the December 1st filing by Roper’s attorney was timely and appropriate. Furthermore, although Mr. Roper is not a party to Tracy Morgan’s civil suit, his constitutional rights may be affected by the trial.
What are the potential consequences of a delay in the civil trial?
Roper’s attorney has likely requested the delay in the civil trial for a multitude of legal, strategic & practical reasons. While all of these reasons are beyond the scope of this post, there are a few important factors and considerations we can address.
First as for the legal considerations, Mr. Roper’s lawyer writes, “The continuation of discovery and the ultimate outcome of discovery matters would impact the constitutional rights of Roper because it would be a de facto additional forum through which the criminal prosecution could obtain evidence for use in the criminal trial against Roper.” What Mr. Roper’s attorney is arguing here is that any relevant evidence that would be discovered during the civil trial would then become fair game for the criminal trial. Thus Roper’s Constitutional rights could potentially be abridged by allowing this matter to proceed prior to the criminal trial.
As for the strategic considerations, since the legal standard is heightened in a criminal matter, a defense attorney would likely prefer for the criminal trial to occur first. In a high-profile matter like this one, such a tactic can stave off a significant reduction in the number of potential jurors. Because just about every incident or accident involving Walmart hits the news because of the company’s size, it is reasonable to think that many potential jurors could be prejudiced by a widely reported on trial and announcement of the company’s civil liability. Furthermore, because the legal standard for proof in a civil matter is reduced in comparison to a criminal matter, such an arrangement could potentially confuse jurors.
In terms of practical, administrative considerations there may be several effects. However, one practical effect Roper’s lawyer is likely to address is that, such a delay may be in the best interests of judicial efficiency. The approach advocated for in the motion would likely to minimize duplicative, or repeated work, in discovery and throughout the process.
As for Walmart and Mr. Morgan, the impact this delay may have for each party is less clear since the actual impact would be largely dependent on the verdict reached in the criminal matter. However what we can certainly say is that while there isn’t evidence of Walmart advocating for the delay here, delay tactics are those that are typically employed by a defendant. A lengthy delay can result in a cause célèbre losing momentum, fading from the public consciousness, and thus receiving less scrutiny than it would have otherwise. However in other situations the outrage can be stoked when previously unknown & shocking details are managed and slowly revealed to the public. Unfortunately, no one can look into the future and know what type of situation this one will be. However, both sides will undoubtedly use this time to advocate for their preferred narrative.
At least on the surface, this motion appears to have much more to do with legitimate criminal concerns and less to do with the allegations suggested by Morgan’s attorneys.
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