By Alan Prendergast
By Michael Roberts
By Michael Roberts
By Amber Taufen
By Patricia Calhoun
By William Breathes
By Michael Roberts
By Melanie Asmar
McGihon says she's had "ongoing discussions" with Reed's lawyers about streamlining the case, but after twenty months, the case still hasn't reached the discovery stage. It now encompasses two court actions; after several of Reed's claims were dismissed from federal court, her attorneys refiled them in Denver District Court.
Predictably, both sides have blamed the other for what McGihon calls "this enormous procedural morass," a boundless bog of complicated motions and counter-motions accompanied by not-so-brief briefs. (The legalese has waxed so thick that it's almost a parody of the form; one McGihon filing is captioned, "Defendants' response in opposition to plaintiffs' substituted motion and second motion to strike and/or dismiss defendants' setoff claims, or alternatively, to reconsider the dismissal of plaintiffs' breach of contract and promissory estoppel claims, including motions to strike under Rule 12f.")
"They have tried to bury me in paper," Reed attorney Frick says of the city's defense team. "I've never had a case where the complaint was filed a year and a half ago and the case has gotten nowhere. The case needs to get over these procedural battles and get into the substance."
Frick says McGihon's hardball tactics have included sending a letter to various current and former police officers directing them to not talk to Reed's investigators without the city's attorneys being present. Last fall, after Frick filed a motion complaining about the stonewalling, Magistrate Judge Bruce Pringle ordered McGihon to send another letter rescinding that directive.
But city officials say the case's mounting delays and costs are primarily due to the actions of Reed's own lawyers, who have made massive requests to obtain documents and interview witnesses and have repeatedly amended her complaint. "The reason the billings are five times higher than they ought to be is because Miriam Reed and her attorneys couldn't get their complaint straight and filed it five times," Muse snaps. "This is most extraordinary."
"They're pretty much driving the litigation, because they're generating the issues that have to be responded to," adds Wallace Wortham, supervisor of the city attorney's employment-law and risk-management section. "Every time my people have found a flaw in their complaint, we've asked the court to dismiss the complaint, and the court has permitted them to amend the complaint time and time again."
McGihon says she's had to respond aggressively to Frick's filings in order to protect her clients. "You can't play dead when you have a plaintiff's lawyer who's doing the exact opposite," she says. "I get something from her at least three times a week. What am I supposed to do? Roll over and not respond?"
McGihon notes that progress has been made in some areas, including the dismissal of several defendants and the narrowing of Reed's claims. Once the court decides whether Webb, Montoya and Michaud can be sued as individuals--a key ruling that both sides have been awaiting for months--the case should proceed more quickly, she says.
Yet a review of the court file suggests that some of the most costly wrangling in the case has involved peripheral issues. In the months of June and July of this year, during which McGihon & Associates billed the city more than $75,000 for its services, one major skirmish involved McGihon's attempt to file counterclaims against Reed, charging that she'd defamed the mayor and shown "disloyalty" to the police department. Reed quickly fired off a letter to Muse arguing that, since she was being sued in her capacity as a police officer, the city attorney's office should pay for her defense of the claims--in effect putting the city in the position of paying for both sides of the litigation.
McGihon then withdrew the counterclaims and refiled some of them as "affirmative defenses," but Frick maintains that the city should still indemnify her client for responding to them. (Muse, of course, disagrees.) In a letter entered in the court file, Frick also chided Muse for sending Reed's letter to McGihon, claiming that both Muse and McGihon have a conflict of interest in the matter. McGihon has since filed a motion objecting to the "scandalous and impertinent material" in the letter and demanding that it be removed from the court file.
Copies of McGihon's billings to the city, heavily redacted by the city attorney's office on the grounds of protecting attorney-client privilege, indicate that she charged the city for the time involved in sending a paralegal to the courthouse to see if the file had been removed. Her firm is now seeking to recover fees and costs in the matter from Reed, arguing that it was the plaintiff's responsibility to remove the letter. (Frick says the letter was filed with the court inadvertently and she thought it had been removed prior to McGihon's motion.)
"This is a pending motion before the court, and I hesitate to comment on it," McGihon says of the letter brouhaha. "But yes, the city should be billed for this, because it's a letter designed by the plaintiff's counsel for what I view as a kind of press feeding frenzy. It is inflammatory and impugns the credibility of the defendants and their counsel."