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Joseph A. Lombardo

The commercial trucking accident that caused  comedian Tracy Morgan to suffer a severe traumatic brain injury has received an extensive amount of coverage in the press and mass media.  In recent weeks, Mr. Morgan’s lawyers have informed the public that neither they nor doctors know if Mr. Morgan will ever be able to make a full recovery or resume his career. While this new is certainly tragic, it is perhaps not entirely unexpected considering that the severity of the June 2014 accident had already taken the life of comedian James “Jimmy Mack” McNair.

Perhaps more interesting is the allegation that has been floated by Mr. Morgan’s lawyers that Walmart is stalling. The remainder of this post will analyze the reasons Mr. Morgan’s lawyers advanced such a charge and whether these allegations appear to be supported by what is known thus far.

Truck accident

What occurred to spur these allegations from Morgan’s attorney?

The allegations by Mr. Morgan’s attorney were advanced following the filing of a motion in the federal lawsuit by the attorney for the truck driver in the fatal crash. To be clear the attorney for the truck driver represents only the truck driver, Mr. Roper and Mr. Roper has yet to be officially joined in this particular action. Walmart is represented by its own independent counsel in this particular litigation.

Mr. Roper’s lawyer has filed a motion seeking to adjourn, or delay, the civil trial until a verdict has been rendered in Mr. Roper’s criminal trial. Counsel for Mr. Morgan believes that this motion is an attempt by Walmart to deny, delay and avoid responsibility.

What does Walmart’s attorneys say is going on?

Walmart has denied that it has anything to do with Mr. Roper’s motion, and states the company has yet to decide whether it will support or oppose the motion. In a letter made public, the lawyers for Walmart denied the allegations writing, “Plaintiffs’ accusation that Wal-Mart is somehow behind Mr. Roper’s motion in an attempt to delay discovery is simply false.” It appears that the lawyers for Walmart may have a point.

In terms of practical, mechanical procedural grounds, the motion appears to be appropriate and timely. At a November 2014 status conference, the parties had set the next in-person conference for March 2015 with a motion filing deadline of November 2015. Although Mr. Roper is not yet a party to civil suit, his Constitutional rights may be affected by proceeding with the civil suit before Mr. Roper’s criminal trial.

What are the potential consequences of a delay in the civil trial?

Aside from the procedural grounds, it also appears that there is, at minimum, a viable substantive argument for the delay of the civil trial in the Tracy Morgan accident. Roper’s attorney likely has a multitude of strategic reasons in mind for his request for an adjournment. We can examine some of these reasons that are likely to have motivated this motion.

Firefighters Saving Woman In Car

To begin with, the legal standard for proof differs between a civil and criminal matter. That is, where a civil matter can be carried with mere a preponderance of the evidence or that liability was more likely than it was not, a criminal matter requires proof “beyond a reasonable shadow of a doubt.” Because the standard of proof is heightened in a criminal matter, a defense attorney would likely want to criminal matter to occur first as an unfavorable civil verdict may confuse potential jurors.

Furthermore because Walmart is a large national brand that receives extensive media coverage, any verdict or news with an association to the accident involving Tracy Morgan is extremely likely to be covered extensively in the media. This extensive media coverage is likely to bias many potential jurors thus resulting in a significantly reduced pool for jurors.

However, the delay in this trial may nonetheless benefit Walmart as the initial shock and public outrage over the injuries subside. However, at least on the surface of this matter, there is nothing to suggest that anything untoward is occurring. Rather, the motion for an adjournment appears to have more to do with legitimate legal concerns and protecting a client than it does with stalling or delaying the matter.

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