Hanging on by a thread

Posted: March 24, 2015 in HRLax, US Lacrosse
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March 24, 2015

hayden fisher, swanenburg, colonial challenge, williamsburg lacrosse,

Christopher Swanenburg appeared today with his lawyer D. Hayden Fisher in Newport News Circuit Court in what is likely to be his final public hearing before going to trial on March 30, 2015. Swanenburg has embarked on a continuing legal saga against Todd Boward, his former assistant coach of the Christopher Newport University Men’s Lacrosse Team. Swanenburg’s relentless and largely unsuccessful legal campaign has now lasted for almost 4 years and now finally appears to be approaching an end. Ironically the trial date marks Swanenburg’s fifth anniversary of his termination as the Head Coach of the Men’s Lacrosse Team at CNU.

At it’s core, Swanenburg admittedly used a morally reprehensible racist term in the presence of the lacrosse team, a female trainer, and the assistant coaching staff at a lacrosse game at Guilford College in March of 2010 and was subsequently terminated as the head coach of CNU lacrosse. It is important to note that it has not been plead that anyone directly called Swanenburg a racist despite the belief that people who throw that repugnant word around generally are racists.

So what did Swanenburg say at Guilford College on March 3, 2010 that he claims he was not fired for?

According to court documents, Swanenburg actually deposed 5 of his former players, each recalled Swanenburg’s statement at Guilford being different than what Swanenburg claims he said:

  1. “Oh, and we’ve got to listen to this motherf.. n*##^! music”
  2. “This is a lot better than the motherf.. n*##^! shit”
  3. “This is a lot better than that f…ing n*##^! shit music that was on before”
  4. “This is a lot different than that motherf-ing NS . . . Motherf… n*##^! shit”
  5. “that the music was better than the n*##^! music playing before”.

Swanenburg pleads, Plaintiff’s [Swanenburg] Answers to Defendants First Set Interrogatories, that what he actually said was “This is a hell of a lot more appropriate than the shit before that was full of n*##*!, mother f…, suck my d… and eat my p……”. Swanenburg was terminated from CNU on March 30, 2010. and admits that he was terminated ” at least in part” because of the statement.

Approximately, one year after his termination Swanenburg filed a $5,000,000 lawsuit against Todd Boward for telling another coach that he (Boward) didn’t tell him (Swanenburg) to go around using/calling people the n-word implying that Swanenburg was fired for using the n-word. The statement is literally true because Swanenburg has admitted that Boward didn’t tell him to go around calling people the n-word.  Swanenburg is essentially now arguing that even if he did use the n-word and that Boward could not know if he was fired for using the n-word so therefore; if he told someone that Swanenburg was fired for using the n-word, it would be false and therefore defamatory.

The case has zigged and zagged for quite some time now with Swanenburg saying that he didn’t really use the word and that he could not have been fired because of it. In a zig he says he merely quoted the word to bring attention to the inappropriate lyrics of a song being played at Guilford, in a zag he pleads that he could not of been fired because of it since he was able to collect unemployment.

At today’s hearing his attorney, D. Hayden Fisher attempted to introduce a document that he alleged was from the Virginia Attorney General, Mark R. Herring claiming it is some substantive proof that Swanenburg was not fired from CNU. It would appear as though if such a document does exist it will not likely be admitted as an exhibit because of the scheduling order of the trial or at a minimum it is irrelevant since Swanenburg has already admitted to being terminated from CNU. For the record, Attorney General Mark R. Herring was not at the hearing but he was in Williamsburg to celebrate the 20th Anniversary of Triad in Virginia an OAG-coordinated program helps empower Virginia seniors to keep themselves safe. 

Effectively, this case is often referred to Defamation 2, but is in effect a refiling of Swanenburg’s first defamation case against Boward which he effectively quit in the middle of the trial by moving to non-suit. This refiled complaint has largely been eviscerated by order of the judge as a result pretrial motions in August 2014. What is most significant about the August 2014 order is that the case has to proceed on a Defamation per Quod basis requiring Swanenburg to prove actual damages. Even more damaging to Swanenburg’s case are his own admissions both in testimony and Request for Admissions that he has not sustained any damages and to using the n-word and effectively being terminated from CNU because of it.

The hearing today was originally scheduled by Swanenburg’s attorney late last year as essentially a pretrial hearing. Subsequently, the defense had requested a scheduled hearing a few weeks ago that was unfortunately canceled due to a snow storm. Frank A. Edgar, Jr., Boward’s lead attorney seized today’s hearing as an opportunity to effectively keep the case from going to trial. As usual, Mr. Edgar delivered his arguments in a professorial manner, clicking off point after point even providing some charts to emphasize his argument. Mr. Edgar cited numerous cases and essentially made the point that Swanenburg can do nothing to elevate his case to a level above his prior testimony and admissions. Effectively, Mr. Edgar’s argument is that without damages there is nothing for a jury to decide and Swanenburg has admitted that he has no damages and nor does he plead any in his complaint.

Swanenburg’s Admitted Answers to Request for Admissions
  1. He used the word “n*##^!” on March 3, 2010;
  2. Boward was in no way responsible for his  use of the word “n*##^!;”
  3. He  was fired by CNU on March 30, 2010;
  4. He was fired by CNU, at least in part, because he used the word “n*##^!” on March 3, 2010;
  5. “No damage to him at all came out of Boward’s Alleged Statements;
  6. He “did not suffer any damage from the Alleged Statements.”

Swanenburg through his attorney was apparently attempting to introduce witnesses and evidence to contradict his own sworn admissions. His argument was met with swift opposition from Boward’s attorney.

Mr. Edgar also informed the court that he had recently attended a deposition in Lynchburg conducted by the plaintiff that required him to spend all day traveling for a deposition that lasted a little more than five minutes. Based on arguments presented at the hearing it is likely that Boward will likely ask the court to force Swanenburg to pay all costs associated with that deposition. 

The Honorable Timothy S. Fisher ultimately ruled that the case would go to trial, but not without some strongly worded cautions for Swanenburg and his attorney. Judge Fisher actually excused himself from the bench on two separate occasions to allow Fisher time to reconsider his seemingly nonsensical and ridiculous arguments. The judge went on to say, “This saga is a disaster” and “hanging by a thread” referring to Swanenburg’s case and reminding Swanenburg that he will have to “pass the red face test” standing in front of a jury of his peers. The “red faced test” is for Swanenburg to sit in front of the jury and tell them that he used the n-word but he was not fired because of it thereby making Boward responsible for the damages that he does not have.

So on March 30, 2105 a jury trial will commence in the case of Swanenburg v. Boward. There will possibly be a teleconference later this week between the judge and the attorneys to discuss some final pretrial matters but as of this writing the case will proceed to trial. Stay Tuned

OPINION / COMMENTARY

Maybe it’s time for Swanenburg and his attorney to stroll to the nearest 7-11 for a Big Gulp and a bag of chips and then find a park bench where they can sit and contemplate their case. At a minimum, they should get a dose of reality and move out of the fantasy land that they seem to be living in. Although it is possible that a jury could find in Swanenburg’s favor it is probably more likely that the trial will end in a manner that is not favorable to them opening the door for a malicious prosecution case and/or sanctions.

At a very minimum their antics are a mockery of the legal system which in part is designed to serve justice to those who deserve it. In civil matters, the legal system is designed to redress losses or damages sustained by a party who may or may not be entitled to an equitable remedy.

What is the equitable remedy that Swanenburg is seeking?

Many would suggest that Swanenburg is not really seeking any remedy but has pursued these actions for no other reason than to punish Boward for losing his coaching job at CNU. One possible reason for Swanenburg’s actions is most likely attributable to his own personality disorder and he is obsessed with using this litigation to support his need to feel powerful. One of the most compelling examples of his obsession is a letter that he wrote to then Governor Bob McDonnell nearly three years after his termination from CNU. In his letter, Swanenburg states that his former assistant coach “threatened to kill both my wife and me” and other allegations that have never been substantiated. That letter actually followed a letter, written in October 2012 to the board of visitors which makes many of the same allegations in which Swanenburg repulsively evokes the tragedies at Virginia Tech and the University of Virginia to gain more attention. In defense of his lawyer, many of Swanenburg’s actions including these letters seem to be in direct contravention of any sound legal advise and many of the pleadings in the litigation seem to have been authored by Swanenburg himself including the most recent complaint. One of the most compelling examples of a document entered into the court that appears to be written by Swanenburg is Plaintiff’s [Swanenburg] Answers to Defendants First Set Interrogatories.

Swanenburg’s Letter to Gov. Bob McDonnell

According to Psych Central, the focus of the delusion is often on some injustice that must be remedied by legal action. The affected person may engage in repeated attempts to obtain satisfaction by appeal to the courts and other government agencies. Psych Central has been noted in dozens of international publications, including The New York Times, The Wall Street Journal, The Los Angeles Times, Newsweek, TIME, U.S. News & World Report, The Washington Post, USA Today, USA Weekend, The Village Voice, Business Week, and Forbes.

“Out of the Fog”, an information site and support group offering help to family members and loved-ones of people who suffer from personality disorders, some Personality-Disordered individuals will use the legal system as a proxy to continue their abuse, harassment or conflict with someone through groundless lawsuits, meritless proceedings and spurious legal action and those with Personality Disorders are drawn towards conflict and will use litigation as a tool to sustain conflict or support a need to feel powerful.

The Letter Black – Hanging On By A Thread

The Movie:  Hanging by a Thread 

Review Summary

“Master of disaster” Irwin Allen was so confident of his talents in 1979 that he actually thought he could stretch out a suspense tale for a full 200 minutes. Originally telecast in two parts, Allen’s Hanging by a Thread concerns a group of friends and tourists, trapped in a sightseeing tram that dangles precariously over a yawning chasm. You might start yawning as well during the film’s entirely dispensable flashback sequences. The “suspense” scenes themselves aren’t bad, permitting an all-star cast (Sam Groom, Patty Duke Astin, Joyce Bulifant,

Donna Mills, Burt Convy et. al.) to alternate between screaming and looking terrified. Hanging by a Thread was first broadcast on May 8 and 9, 1979. ~ Hal Erickson, Rovi credit NY Times

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