Attorney Joel S. Perwin of Joel S. Perwin P.A. (J. Albert Diaz)
An unusual offshoot of a high-profile case is pending in the Fourth District Court of Appeal.
The appeal piggybacks on a two-way defamation action settled last year by Alan Dershowitz, the retired Harvard law professor, and lawyers for Virginia Giuffre Roberts, 34, who say she was sexually exploited by billionaire Jeffrey Epstein and others in his circle when she was a teenager.
The appeal concerns David Boies, the powerful head of Boies Schiller Flexner. His law partner, Sigrid McCawley, who represents Roberts, wants Dershowitz sanctioned for contempt of court for allegedly violating the confidentiality of settlement talks between Boies and Dershowitz. She said in a court filing that Dershowitz displayed “flagrant bad-faith litigation conduct” during his deposition in the defamation case and in an interview with the New York Times.
Dershowitz, a friend of Epstein’s, helped negotiate a controversial plea deal for Epstein with federal prosecutors.
McCawley attended Dershowitz’s Oct. 15, 2015, deposition in Fort Lauderdale and heard Dershowitz claim Boies told Dershowitz that Boies didn’t believe Roberts’ accusations about an Epstein underage sex ring.
“Mr. Dershowitz’s description of what was said is not true,” Boies said in a statement released after the deposition.
At the deposition, McCawley objected to Dershowitz recounting his talk with Boies. Broward Circuit Judge Thomas Lynch held a hearing, the defamation case was settled, Lynch dismissed McCawley’s motion for sanctions, and everybody went to the Fourth District. Roberts never formally intervened in the lawsuit.
The appellate court set oral argument for May 9 but recently requested briefing on the issue of how Roberts, a nonparty in the defamation case, has standing to appeal. Depending on what the court decides about standing, it could dismiss the appeal, confine the oral argument to this preliminary question, or glide past it and have both sides address the contempt-of-court claim.
No Standing Allowed?
The Daily Business Review asked Miami appellate lawyer Joel Perwin, who is not involved in the case, for his take on standing.
“The general rule is, if you want to be heard in a lawsuit, you have to formally intervene into that lawsuit, and if you have some problem with somebody who’s in that lawsuit, you have to sue him,” Perwin said.
He explained the underlying policy. “The structure of the lawsuit is defined by the people who are suing” and who must accept the result. There may be an exception if a court order impacts a nonparty, “but otherwise we’re going to confine the process, the right to be heard and the outcome, to the parties to the lawsuit,” Perwin said.
McCawley is representing Roberts’ interests in the privacy of the settlement discussion between Dershowitz and Boies. She’s also representing Boies “by extension,” she suggested in court papers. McCawley did not return a call seeking comment by deadline.
A casual observer reading the Fourth District docket might be perplexed about who’s fighting whom here. In addition to Dershowitz, the respondents are Bradley Edwards of Farmer Jaffe Weissing Edwards Fistos & Lehrman in Fort Lauderdale and Paul Cassell, a law professor and former federal judge from Utah. They are Roberts’ lawyers in a West Palm Beach federal court challenge to the plea bargain that put Epstein behind bars — only at night — for about a year when he might have faced decades in prison. Dozens of women have made allegations similar to Roberts’.
Since McCawley also represents Roberts, it looks like one Roberts lawyer is appealing the actions of two other Roberts lawyers.
But that’s a misleading conclusion to draw from a legal formality, according to Perwin. He noted Edwards and Cassell sued Dershowitz on their own behalf, not for their client, and said McCawley had to list them in order to use the defamation case as a vehicle.
“There’s really no significance to the fact that the plaintiffs in this lawsuit represent Roberts in some other lawsuit in my opinion,” Perwin said.
Dershowitz On Offense
There’s no confusion about the hostility between Boies and Dershowitz, or what vital interests Dershowitz is fighting to protect.
Roberts has accused Dershowitz, along with Epstein, of sexually assaulting her when she was a teenager. At every turn of the litigation involving Roberts’ claims, Dershowitz fired back hard.
He explained why in a December 2015 interview with the New York Times. “This is very serious. It involves my life, my legacy, my career, my history, my reputation,” Dershowitz said.
The Broward Circuit Court defamation case started with Edwards filing an affidavit detailing Roberts’ claims about Dershowitz in the plea bargain lawsuit. Dershowitz responded by persuading U.S. District Judge Kenneth Marra to strike the allegations and vowing to get Edwards and Cassell disbarred for making them.
Dershowitz “initiated a massive public media assault on the reputation and character” of Edwards and Cassell, according to the Broward lawsuit. Dershowitz filed a counterclaim.
Terms of the settlement reached in April 2016 were confidential.
Boies has won a preliminary round in the Fourth District. Dershowitz charged McCawley breached an appellate court rule by claiming without record evidence that Dershowitz “intentionally and wrongfully” filed a false affidavit in the defamation case. The affidavit reiterated Dershowitz’s description of the talk he had with Boies, which is at the center of the appeal.
The court ruled against Dershowitz on Jan. 10.
What happens next is up to the Fourth District.
VIRGINIA GIUFFRE, APPELLANT, V. BRADLEY EDWARDS ET AL., APPELLEES
Case No.: 4D16-1847
Oral argument: May 9, 2017
Case type: Contempt of court
Court: Fourth District Court of Appeal
Lawyer for petitioner: Sigrid McCawley, Boies Schiller Flexner, Fort Lauderdale
Lawyers for respondent: : (for Alan Dershowitz) Bruce Rogow and Tara Campion, Bruce S. Rogow P.A., Fort Lauderdale; Richard Simpson, Wiley Rein, Washington
Originating court: Broward Circuit Court