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Against Avenatti In Nike Case US Presages Paid Experts Tuft and Engstrom

By Matthew Russell Lee, Patreon, thread video

SDNY COURTHOUSE, Dec 27 – Michael Avenatti in the Nike case against him opposed the US Attorney's proffered legal expert testimony about his fiduciary duty, citing decisions by U.S. District Court for the Southern District of New York Judges Valerie E. Caproni and Kimba Wood, below.

  Now in the run up to a trial set to begin on January 22, the US Attorney's Office on December 27 wrote that "The Government respectfully submits this letter, pursuant to the Court’s request during the conference in this matter on December 17, 2019 and the Court’s order of December 20, 2019 (Dkt. No. 105), to provide a supplemental summary of the expert opinions that the Government expects to offer during its case-in-chief at trial. The Government also respectfully requests that the Court order the defendant to file a similar supplemental summary on or before January 3, 2020. The Government expects to offer testimony in its case-in-chief at trial from Nora Freeman Engstrom, Esq., or Mark L. Tuft, Esq.1  Professor Engstrom is a Professor of Law and the Deane F. Johnson Faculty Scholar at Stanford Law School, where she teaches classes in, among other things, legal ethics. She is the author or co-author of numerous publications, including Legal Ethics (Foundation Press, 7th ed. 2016). Mr. Tuft is a partner at Cooper, White & Cooper LLP, who principally focuses on, among other things, professional liability, and counsels lawyers and law firms on professional responsibility. He is a Certified Specialist in Legal Malpractice Law and former President of the Association of Professional Responsibility Lawyers. He is the co-author of California Practice Guide on Professional Responsibility (The Rutter Group), which is available on Westlaw."

  Back in August Judge Paul G. Gardephe told Avenatti's lawyer in that case Scott A. Srebnick to "tee up the subpoena issues sooner rather than later."

 Srebnick as in his written submissions brought up the Fifth Amendment. Judge Gardephe said raising that to a jury would be a first for him, and that Srebnick faces a uphill battle convincing him. But it seems Srebnick will try. He took up 85% of the speaking time (Inner City Press live tweeted it here), in a courtroom whose gallery was less than half filled. Things have changed.

  Srebnick proposed moving the trial from November to January, then mentioned that AUSA Richenthal has a trial starting on January 21, so why not extend further? More on Patreon here.

Back on June 18 when Avenatti phoned in to the prior status conference in the Nike extortion case against him, he said nothing other than confirming he was on the line and has no scheduling conflict for the trial scheduled for November 12.

  Srebnick told Judge Gardephe in June that the trial might have to be delayed because Avenatti's law firm's server has still not been reviewed. He said it is in the possession of the U.S. Attorney's Office for the Central District of California. 

  SDNY Assistant US Attorney Podolsky said that he has not seen the server, either. Don't these US Attorney's Office, both part of the US Justice Department, work together? Or do they mostly compete?

   Across Pearl Street at the courtroom of SDNY Judge Batts, which Avenatti was to have appeared at 10:30 am, a signed on the door said that the conference has been adjourned until July 23. (Srebnick says it is "to allow for new counsel in that case to enter his appearance and begin reviewing the discovery.") Instead Judge Batts was taking a surreal and halting guilty plea, with Inner City Press the only media in that large courtroom, of Defendant Augustin Zamora-Vega who could not remember where in the SDNY he had transported drugs.

  Avenatti if nothing else knows his way around the system. So beyond the motion schedule -- August 19 for Srebnick, September 19 for Podolsky and Richenthal with an October 3 reply -- whether this trial actually starts the day after Veteran's Day is anybody's guess. See @InnerCityPress and the news @SDNYLIVE.

   Back at his in person arraignment on the Nike extortion charges against him on May 28, Judge Gardephe
asked him about each of the charges, How do you plead?

  "One hundred percent not guilty," Avenatti answered four times, something he expanded slightly on in a question-less press gaggle in Foley Square just after the proceeding. Periscope video here. Alamy photos here.

Judge Gardephe began by disclosing that Assistant U.S. Attorney Robert B. Sobelman had been an intern of his while in law school. Judge Gardephe said this would have no effect. He asked AUSA Matthew Podolsky when the discovery material would begin to be produced.

  As soon as Avenatti's lawyer Scott Srebnick signs a protective order and provides a thumb drive, was the answer. It seems it will be a disk. Judge Gardephe set the next conference for June 18 at noon, an hour an a half after Avenatti and some lawyer are set to appear before SDNY Judge Deborah Batts in the Stormy Daniels case.

Earlier on May 28 before Judge Batts, Avenatti's first move was to have his Miami-based lawyer Srebnick ask to transfer the Daniels case to California.

  The U.S. Attorney for the SDNY's office opposed the request, saying it met none of the Supreme Court's factors for change in venue in the 1964 case Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240.  Attorney Srebnick's motion to make a motion was denied.

[Assistant U.S. Attorney Matthew Podolsky told Judge Batts he had recently beaten back a similar attempt to delay by bifurcated venue motions. For more, see Patreon, here.]


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