|CBS wants Larry "The Canary" to fly the coop|
Larry Mendte's former employer, CBS Broadcasting Inc., apparently has seen enough of his act as an amateur trial lawyer.
In the long-running civil case where Mendte's former co-anchor Alycia Lane is suing CBS and Mendte for damages, CBS has filed a motion to sever Mendte from the case.
Specifically, CBS in a motion filed last month in Philadelphia Common Pleas Court asked Judge Frederica Massiah-Jackson to try Lane's case separately against Mendte first. Then, if needed, CBS's lawyers have asked the judge to hold a second trial where Lane would be suing just CBS.
"CBS will be highly prejudiced if [Lane's] case against it is tried at the same time as the case against Defendant Mendte," argued lawyers for CBS and Michael Colleran, a former CBS president and general manager who is also named as a defendant in Lane's suit.
In response, former CBS anchorman Mendte, representing himself, wrote that he found it curious that in eight years of litigating the Lane case, CBS never suggested separating Mendte as a defendant, until he became his own lawyer. If the defendants are tried separately, Mendte has asked the judge to try CBS first.
"They [CBS and Colleran] apparently want to use me the way cave workers use a canary," Mendte the novice lawyer wrote. That's because, as far as CBS is concerned, as the canary in the mine shaft, Larry Mendte may have already done too much singing.
|For the defense|
Mendte pleaded guilty to one felony count for hacking into Lane's personal email account. He was sentenced to six months of home confinement, three years probation, and community service.
In their motion to sever, CBS's lawyers argue that Lane "will introduce the details of Mendte's conviction at trial," and those details "are obviously extraordinarily prejudicial to CBS's defense."
However, "The details of Mendte's conviction are not relevant to determining whether CBS, as Lane's employer, had an affirmative duty, or even the ability to detect and prevent any of Mendte's admittedly secret conduct, which allegedly occurred on CBS property," wrote lawyers John M. Elliott, Mark J. Schwemler, John P. Elliott, and Gregory S. Voshell in a motion filed April 12th in Philadelphia Common Pleas Court.
In response, Mendte the novice lawyer wrote, "It is curious that CBS and Colleran are motioning for separate trials now after co-defending the case against Plaintiff Lane for over eight years in several different courts and before several different judges."
"It would seem CBS and Colleran are more concerned about me representing myself than the arguments they presented in the motion, as the alleged prejudice and inconvenience would have existed before now," Mendte wrote. "But since there is no legal basis for severing because I am Pro Se, they present arguments that are suspect at best."
But, CBS's lawyers argue, they may not be able to successfully defend themselves against Lane's suit, if Larry Mendte Esquire is allowed to sit at the defense table.
Allowing Lane to "focus her case on Mendte's criminality creates a substantial risk that jury confusion will taint CBS with Mendte's misconduct," CBS's lawyers wrote. "By focusing the jury on the details of Mendte's conviction of a felony offense and violation of state criminal statutes, [Lane] may mislead the jury into believing that CBS is associated with criminal activity, when it has committed no crime and is accused of none."
|The alleged victim|
"However, if these claims are tried together, the jury will inevitably be confused in determining which of those 7,000 incidents occurred on CBS property and using CBS equipment, and which did not," CBS's lawyers wrote. "And, which of those incidents caused any harm, and which did not."
CBS fears that when the jury hears about "all those incidents of Mende's misconduct -- coupled with his guilty plea" that the jury will "be led to believe that CBS is liable for all of Mendte's activities, just based on the sheer volume of evidence against Mendte," CBS's lawyers wrote.
The argument about jury confusion is bunk, according to Larry Mendte Esquire.
"There would be no jury confusion in a single trial as the claim against CBS is intrinsically tied to the claims against me," Mendte argued. "One must be explained to understand the other. CBS attorneys are skilled and knowledgable about the case. They have had no problem over 8 years explaining the claims. They should have no problem now."
"There is no rational argument that having two separate trials would promote judicial economy when the majority of witnesses, testimony and relevant facts for the defense would be the same in both trials," Mendte argued. "It is, in fact, the opposite of judicial economy. It is judicial redundancy."
"If you consider that two separate juries must be chosen and then sit through much of the same testimony, then how can CBS and Colleran possibly argue that the expense and juror inconvenience associated with a single proceeding would be more than two trials," Mendte wrote.
As Mendte continued to argue in his response brief, it became more obvious why CBS does not want him at the defense table on Oct. 21st, when the Lane civil case is scheduled to go to trial in Philadelphia Common Pleas Court.
"CBS forgets that the claim against them is that they should have put precautions in place to prevent and/or detect such access," Mendte wrote. "It will be part of the plaintiff's case against both CBS and me to present the access as criminal."
In their brief, CBS proposes that the judge hold a trial where Lane will be suing just Mendte. That case will allow the jury "to hear all of the evidence relating to the alleged thousands of occasions on which Mendte allegedly accessed [Lane's] email, and determine whether [Lane] has proven her claims, and whether she has suffered any damages at all," the CBS lawyers wrote.
If the jury finds that Lane suffered no damages, then "there will be no need to hold a trial on her claim against CBS, thus saving the Court's, the jury's, and the parties' time and resources," CBS's lawyers argued.
If the jury finds in favor of Lane, then a "second, limited, focused and judicially economical trial can be held on the limited incidents where there is evidence that Mendte secretly accessed [Lane's] email at CBS, and while using CBS equipment," the CBS lawyers wrote.
"Either result will avoid the significant prejudice involved with holding a combined trial, and in fact may eliminate the need for any trial at all against CBS," the CBS lawyers wrote.
Those claims prompted Larry Mendte Esquire to cry foul. The CBS lawyers are using false facts against him, he said.
"I did not access [Lane's] email account 7,000 times," Mendte wrote. But, he added, Lane "is certain to argue that I was able to ascertain passwords and the ability to access accounts without permission through a CBS computer. Therefore, all future accesses of [Lane's] computer would be the result of CBS not preventing the initial breach."
Ouch. With arguments like that, it's easy to see why CBS doesn't want Mendte around during the Lane trial.
Lane's "claims against CBS and me are connected," Mendte wrote. "I am accused of wrongdoing. CBS is accused of giving me the opportunity through neglect. The facts, witnesses and testimony will be the same in both trials."
"CBS's strategy here is clear," Mendte wrote. "They hope I succeed so they can file a motion to drop the case against them. And if they don't succeed, they want to use the first trial to learn what they can about the Plaintiff's strategy and case."
"They are just trying to gain an unfair advantage," Mendte wrote. It's CBS's "dream scenario of watching a pre-trial" so they can "gain legally and economically."
But, argued Mendte, "A glaring omission in the CBS and Michael Colleran motion to sever is that we all share the same defense."
The reason Alycia Lane was fired in 2008 from CBS "had nothing to do with me or access to her emails," Mendte wrote. "Lane was fired for striking a New York City police officer in the face and calling the officer a homophobic slur in Manhattan in December of 2007. Lane never returned to the Philadelphia airwaves after that night."
A New York Judge under a first offenders program "agreed to expunge Lane's felony charges if Lane stayed out of trouble for six months," Mendte wrote.
"After the NYC arrest & incident, Lane and her team went after me and were able to use my case to rehabilitate Lane's public image," Mendte wrote. "Lane then landed a job as a weekday anchor at WNBC in Los Angeles, America's second largest TV market [a much larger TV market than in Phialdelphia.]"
"Lane has since been fired from WNBC, but, again, that had nothing to do with CBS, Colleran, or me," Mendte wrote.
Mendte concluded his brief, filed May 1st, by saying, "Again, CBS never brought up severing the case until I started representing myself. All of the alleged prejudices, benefits and confusion CBS argued was apparently non-existent until I was without counsel."