Quote:
Originally Posted by Peter_Spaeth
Kenny that's fine, by all means write the letter, I didn't mean to suggest it wasn't appropriate, just that I personally was not enthused for the reasons stated. But relatedly, I would be interested in your view on this, which I haven't fully thought through myself. Suppose all the evidence you had for trial is what you have now from the public record, namely Mastro's admissions. You don't get bidding records, discovery, etc. Do you think as a private plaintiff you can win on a claim that YOU were defrauded? Is there enough to draw that inference under a clear and convincing evidence standard, or even under a preponderance standard? And if you think yes, based on destruction of evidence or whatever rationale, what are your damages, how would you calculate them?
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I think it would largely depend on the judge and what he/she would let in. I'm not saying it would be an ideal case by any means, but I'm not sure it would be a loser either. You can prove fraud by circumstantial evidence and I don't necessarily have a problem doing that. I don't know why you think I wouldn't get discovery though. That seems kind of unrealistic. It would be fun to take a deposition where Mastro can't plead the 5th because he's already pled out and even if he does, you get to draw an adverse inference and talk to the jury about that in a civil case. Adverse inference from record destruction, adverse inference if he tries to plead the 5th, admissions that he shilled and cheated people -- I think the right jury might get irritated with that sort of stuff. We assert fraud in many of our cases, and I don't really think most juries distinguish, or even care, about the difference between clear and convincing and preponderance of the evidence. At least that's my experience.
If the conduct is bad, I really don't worry that much about damages. It's kind of like pleading punis. I'm not necessarily a huge fan of that because it causes you extra work and if the jury is mad enough to award them, I have always believed that they will find a place to stick them even if you don't ask for them. I'd throw out the number paid for whatever items the client bought, maybe show what they had sold for before, and fight about whether I had to quantify the non-economic stuff. I have only lost that once, and even then the judge said the number wouldn't come in when we tried the case. It settled, so I don't know if the judge would have stuck to his guns.