The legal tradition of Summary Judgment has always been fairly clear that when it comes to questions of the motives/good faith of the parties, a summary process is not the right place to make those calls. A judge needs to see the live, or viva voce testimony to be able to weight the credibility of competing claims. But in recent years, the courts have been increasingly proactive in tossing out cases at the summary level. They are encouraged in this trend by the disturbing recent Supreme Court Decision in
The bottom line is that I was determined not to let the courts screw me again by first denying my rights to discovery, and then at the hearing saying: "Where's your evidence?" Now, the University had claimed that the news of my misdeeds had only been distributed to a small and necessary group of individuals. I knew they were holding back, because at my criminal trial Professor Cantor testified that the Dean of Education had phoned her at home to warn her that I was going around calling on my former instructors. Or something to that effect. Just what Mrs. Stewart was telling people, I needed to find out. So I did what's called a Rule 39 subpoena on her.
Counsel for the University cried foul! You can't subpoena Jan Stewart. She has nothing to do with the case against you. You can only cross-examine the people whose affidavits we have filed...that would be security chief Martin Grainger and U of W VP Neil Besner.
Now it gets complicated. They filed a motion to quash my subpoena, and in support of that motion, they filed an affidavit by...Jan Stewart, saying essentially (in the words of Sargent Schultz): I know nuss...sink. Nuss...SINK.
I immediately filed Notice of Examination to cross-examine Jan Stewart...on her affidavit! Mr. Meronek actually seemed taken aback when he realized the door he had opened. He immediately responded that I could cross-examine her only on the material in her affidavit, and not on the overall case. Which meant that if I attempted to broaden the scope of question, he would advise her not to answer.
Okay, I could live with that. I only needed enough evidence on cross to defeat their motion to quash my subpoena, not to defeat their motion for Summary Judgment. I only needed to ask Jan Stewart if she made those phone calls. If she did, then I would have clear justification to proceed with my Rule 39 exam.
So on the appointed day, I showed up with a Court Reporter to take down her testimony. Things did not start off well. I asked her if she had been the Acting Dean of Education. She said she was not.I asked her if she knew who the dean was at the time of the events in question. She told me she didn't know what date I was talking about.
Okay, so that's how it was going to be. We clarified that we were talking about the time of the alleged home invasion, and her attendance at a meeting to discuss those events. I asked again, who was the Dean of Education?
She answered that it was Ken McCluskey. "He's always the dean, but there was an acting dean".
Then who was the acting dean? "Dr. John Anchan", she answered.
This was not what I had heard. "Was there an associate dean", I asked?
"Well, he's always the associate dean. I was acting associate dean."
Okay, apparently I was mistaken. She wasn't the dean, she was just acting associate dean. John Anchan was the acting dean.
Or was he? About ten minutes later, we were getting into the roles of the various parties, and she testified that she had been called to the meeting because they needed an administrator "and John (wasn't) here...".
Wait a minute....where was John? Why wasn't he available?
"I don't know where he was, but he wasn't in town".
Okay, let's get this straight. If he was the acting dean, and she was the acting associate dean, and he was out of town, wouldn't that mean that she was acting dean?
Mr. Meronek was getting pretty irritated with my questions and he blurted out: "Don't, don't don't (answer that question)..."
I think if Mrs. Stewart were interested in telling the truth, she would have simply stated at the very start of the examination, when I asked her if she was acting dean, that yes she was acting dean. I don't think it speaks very well to her credibility the extent to which I had to virtually pull teeth to get her to admit that she was indeed the senior administrator of the department at the time of that meeting, whether she called herself the dean, the acting dean, or the acting associate dean. But that's the kind of semantic maneuvering and evasiveness that I've had to put up with every single witness of the University I ever examined.
But at last we were getting to the nitty gritty. What about the phone calls? Did you make any phone calls to people to inform them as to what had happened?
No she did not.
"You didn't phone Professor Cantor?"
"Well, she says you did."
Mrs. Stewart said she simply couldn't remember. She thought if she had made such a phone call, she would have remembered. And when I tried to jog her memory, Mr. Meronek interjected: "She's given her answer. Just move on." The cross-examination ended shortly after that.
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