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Chris Swanenburg arrived on the lacrosse scene in Hampton Roads when he was introduced November 3, 2005 as the first-ever men’s lacrosse coach at Christopher Newport University. Swanenburg arrived at CNU after three years at Marymount University and 15 years of college coaching experience.

Prior to Marymount, Swanenburg spent the previous two seasons as the top assistant at Stony Brook University. Before joining Stony Brook, Swanenburg served as the head coach at Radford University and resigned from his position with the Highlanders following the school’s decision to discontinue sponsoring men’s lacrosse.

Prior to joining Radford, Swanenburg served as an coaching assistant at Goucher College after graduating from Yale. Swanenburg was a senior at Yale on the 1990 Yale team which included Midfielder Jon Reese ’90 and Goalie Tony Guido ’90. Reese, the most decorated of all Yale players, who received the 1990 Lt. Don C. McLaughlin, Jr. Memorial Award as the nation’s top midfielder. He was a three-time first-team All-Ivy pick, the 1990 Ivy and New England Player of the Year and Yale’s career leader in points (200) and goals (162). Reese, whose 82 goals his senior season are still an NCAA record, was a 1990 All-American, was named to the NCAA Silver Anniversary Team and became a U.S. Lacrosse Hall of Fame inductee in 2011.

Tony Guido, one of the best-known goalies in the history of the program earned the 1990 Ensign C.M. Kelly Jr. Memorial Award as the top goaltender in Division 1. Guido helped the Elis earn three Ivy titles while playing in three NCAA Tournaments.

On March 30, 2010 Swanenburg was terminated as the head coach of the CNU Men’s Lacrosse Team. In July of that same year his former assistant coach Todd Boward was named as the Head Coach of the Men’s Lacrosse Team at CNU. Unlike his predecessor, Boward did not come from the so-called elitist bastion of college lacrosse, Boward, a retired US Army Major, earned his college degree from Frostburg State University with the help of an ROTC scholarship. After retiring from the US Army in 2001, Boward began coaching high school lacrosse teams and ultimately found a college opportunity in Indiana to coach a college club team. Boward came to Virginia to coach at Christchurch School in Urbanna, Virginia before taking the assistant coaching job at CNU. Since taking over as the Head Coach at CNU the program has flourished both on an off the field. Boward has brought a blue collar work ethic to the program and his leadership has enabled the team to assemble not only a great group of players but a top notch coaching staff that continues to rack up accolades both on and off the field.

The Sad Saga Begins

March 2010

Swanenburg is terminated on March 30, 2010 as the Head Coach of CNU Lacrosse in close proximity to his use of a morally reprehensible racist term at Guilford College on March 3, 2010.

June 2011

Over a year after Swanenburg’s termination from CNU, Boward was served with his first lawsuit naming him as a defendant. Swanenburg sought $5,000,000 from Boward claiming that Boward had defamed him by telling another coach that Swanenburg was terminated for using a racially offensive word at a college lacrosse game on March 3, 2010. The case went to trial in August of 2013 and Swanenburg through his attorney effectively withdrew midway through the trial by nonsuiting.

December 2012

Swanenburg filed a $1,000,000 suit against a former player’s father for allegedly interfering with his earning expectancies as well as participating in a conspiracy with local sportscaster, John Castleberry and CNU’s Athletic Director, CJ Woollum to get him fired from his coaching job at CNU. That suit was ended quickly by the court. Swanenburg appealed that ruling to the Supreme Court of Virginia but ultimately never followed through on the appeal.

February 2013

Swanenburg filed a $3,000,000 suit against Boward. In that suit Swanenburg was in effect claiming that Boward was also interfering with Swanenburg’s earning expectancies. The case effectively met it’s end in April of 2014 when Swanenburg effectively dropped the suit through a nonsuit in the pendency of sanctions that had the potential of costing him and his attorney a lot of money.

February 2014

Swanenburg refiled his his original $5,000,000 suit this time asking for $500,000. This suit has some resemblance to the original suit but also looks like a mixture of Swanenburg’s first and second suit against Boward. The case has seen numerous hearings in which Boward’s defense has effectively eviscerated the complaint essentially bringing the case down to a simple defamation action as opposed to a far more complex defamation per se action.

March 2015 

The case goes to trial on March 30, 2015 in the Newport News Circuit Court. It now appears that most of the questions of law have now been decided, the case will proceed as defamation per quod in which Swanenburg will now effectively ask a jury to find as a matter of fact that Boward’s alleged literally true statements have caused Swanenburg damages and most importantly that Boward is liable for those damages. Those damages are likely to be that Swanenburg is angry and upset because Boward allegedly told Vic Goeller, High School Lacrosse Coach that Swanenburg used the n-word implying that he was fired by a CNU as a result.

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Trial Primer / Commentary

The trial will most likely be preceded by a continuation of pretrial motions and arguments from last week’s hearing. The motions will likely include Boward’s motion for Summary Judgement in which Boward, through his attorney, Frank A. Edgar Jr., is effectively asking the court to rule as a matter of law to dismiss the case against him and rule in his favor and award costs.

Throughout the course of the week several documents have been submitted to the court including another extensive brief submitted by Boward’s attorney essentially arguing that Swanenburg cannot proceed in an action where he does not plead damages or elevate his case by contradicting his previous testimony and admissions.

One might also expect to see a lot of pre-trial arguments related to witnesses, trial exhibits, and  jury voir dire since it was argued last week that Swanenburg’s publicly reprimanded attorney, D. Hayden Fisher missed the filing deadline set forth by the scheduling order and/or local court rules. Fisher actually was held in Contempt of Court in August 2014 (unrelated case) possibly indicating that his case load is so heavy that he missed the deadline.  If in fact, Fisher missed a deadline that Swanenburg believes ultimately weakens his case it is likely that Swanenburg will complain to the Virginia State Bar related to diligence and competency and will disclose all fees paid to Fisher. According to the Virginia Rules of Professional Conduct Rule 1.15 (a) All funds received or held by a lawyer or law firm on behalf of a client, other than reimbursement of advances for costs and expenses, shall be deposited in one or more identifiable escrow accounts maintained at a financial institution in the state in which the law office is situated…and; 1.15 (e) Record-Keeping Requirements, Required Books and Records. As a minimum requirement every lawyer engaged in the private practice of law in Virginia, hereinafter called “lawyer,” shall maintain or cause to be maintained, on a current basis, books and records which establish compliance with Rule 1.15(a) and (c). Given that Swanenburg has conceivably been paying Fisher for hundreds of billable hours those records could be voluminous.

D. Hayden Fisher is no stranger to controversy having once again survived sanctions in a Richmond case involving a recently imprisoned Richmond personal assistant who sued Boyd Tinsley, violinist for the Dave Matthews Band in Richmond Circuit Court. According to court records, Getty “Andy” Rothenberg filed a $10,000,000 lawsuit against Tinsley earlier this month that contained lascivious accusations about Tinsley which Tinsley claims are “outrageous and false” and a failed attempt at extortion.  Rothenberg was Tinsley’s personal assistant and was convicted of embezzling more than a million bucks from Tinsley.  It has been reported that Tinsley’s lawyers asked for sanctions in a 150 page filing within hours after the complaint was filed against Fisher and Rothenberg claiming that Fisher “ghost-wrote” the complaint. The swiftness of the sanctions more than likely indicates that the complaint had been delivered to Tinsley before it was filed in an apparent attempt by Rothenberg to force Tinsley into a settlement. The fact that Fisher was named in the sanction would indicate that Fisher did have a legal relationship with Rothenberg and at least one report suggested that Fisher was actively working to negotiate a pre-filing settlement which many people refer to as legal thuggery or extortion. The motion for sanction reportedly pleads that since January 2014, Rothenberg has been threatening to file the suit and alert the media unless Tinsley paid Rothenberg a multimillion-dollar settlement. Fisher opposed the sanctions and on March 18, 2015 the judge in the case refused to grant the motion for sanctions and also ordered that the complaint be amended. The amended complaint is expected to be filed on March 30, 2015 according to published sources.

Jury selection will undoubtedly be an interesting aspect of this trial given the nature of the case and the fact that Swanenburg admits to using a repugnantly racist word with some additional vulgarities. Contrary to popular belief the real goal of jury selection is not to pick unbiased jurors, the real goal is to select those jurors who are biased towards your position. The attorneys in this case have more than likely developed a theme for the trial and will be trying to select jurors that will buy into their theme.

Opening arguments will probably be the most interesting component of this trial. Fisher will be tasked with trying to win over a jury and convince them that although his client used a morally reprehensible term and that as a matter of technicality that he was not fired because of it, Boward should be held liable. The challenge for Boward’s attorney seems a lot less daunting in so far as his main job will be to persuade the jury that as a matter of common sense, not law, that someone should not be liable for the stupidity of another.

No Smokin’ GunThere is not likely to be a smokin’ gun or gloves that don’t fit in this trial. This is a civil trial, not a criminal trial. Swanenburg not only must prove by clear and convincing evidence (among many other prima facie elements) that the reasonable implication of Boward’s alleged literally true statements is substantially false, but also that he actually sustained special damages as a direct and proximate result of the three literally true statements Boward allegedly made to Vic Goeller on June 24, 2010.

Swanenburg has already admitted that he used a morally offensive/reprehensible racist term and was “at least in part” fired because of it. His main goal appears to be to demonstrate that there is a direct and proximate cause of Boward’s statements to his state of mind almost three months after being terminated by CNU when he allegedly discovered what Boward told Goeller. It’s probably a given that Swanenburg was still angry and upset when he filed his first suit against Boward and allegedly told Goeller the truth which was dramatically different than Swanenburg’s account. Swanenburg’s account was probably a lot more like he was fired over politics, or that a benefactor player parent or influential person got him fired because their son wasn’t getting enough playing time.

The closest anyone will get to a smokin’ gun will be if evidence or testimony elicited in the trial miraculously establishes that Swanenburg is simply a fine, upstanding, stellar, pillar of the community coach whose only purpose for using the n-word was to educate his players on the difference between words you can say, sing, or publish and those that you can’t. Beyond that Swanenburg could convince the local community that he is fit to be a role model and leader of boys and young men capable of good judgement generally not offensive/reprehensible, not an outright racist, or  a liar. The real smokin’ gun in this case could be discovering that Swanenburg and his attorney have an ounce of integrity between them or any integrity at all.

Trial Begins March 30, 2015

 Opening arguments began at 1:00 pm.

Day 1 Trial included testimony from a number of witnesses including Vic Goeller, Shane Allen, Kevin Righi, Danny Huston, CNU Human Resource Director Lori Westphal, Local Sportscaster John Castleberry, and most notably Chrs Swanenburg.

In what can best be described as an extreme embarrassment for Swanenburg and his attorney Hayden Fisher, appeared to be the testimony of Lori Westphal, CNU Human Resources Director who testified that she was not present when Swanenburg was fired on March 30, 2010. There also does not appear to be any evidence to indicate that she had been subjected to deposition prior to the trial.

Swanenburg’s attorney had previously argued that she was present in pretrial arguments and the fact that she testified in front of the jury that she was not there when he was fired did not appear to sit well with the trial judge. Westphal has been the Human Resources Director at CNU since 2007 and it appeared as though Swanenburg’s attorney wanted to elicit testimony from her that would prove that Swanenburg was not fired for using the n-word. Given the fact that she was not present would indicate that she can not state exactly why he was fired or more importantly that he was not fired for using the n-word which now appears to be the entire theme of Swanenburg’s case against his former assistant, Head Coach Todd Boward. Swanenburg had stated in an interrogatory that she was present on March 30, 2010 when he was asked to resign and was fired when he refused. That pleading was entered in court records in the discovery stage in his actions against Boward.

Swanenburg’s Testimony 

Swanenburg testifies that he was brought to CNU to build a team that would not have the “bad boy” image referring to the Duke lacrosse incident in apparent attempt to suggest that somehow he was personally given the mission to single handedly clean up the image of lacrosse. Swanenburg claims that he was personally tasked by CNU President Paul S. Trible, Jr. to build a team that would defy the “bad boy” image of lacrosse.

For anyone that is not familiar with the so called “Duke incident”, all of the players were completely exonerated from false allegations of sexual assault that created an over the top reaction by the college, the district attorney, and the majority of the media. Recently, the media has made comparisons between the Duke incident and the Rolling Stones article that alleges a rape incident at a fraternity at the University of Virginia. Charlottesville Police have now thoroughly investigated those allegations and have concluded that there is no evidence that prove that they occurred.  Although much of the news media had labeled the University of Virginia Rolling Stones story as dubious it is important to note that few in the media ever questioned the validity of the Duke allegations with the exception of Meghan Kelly of Fox News.

Swanenburg further testified that he used the n-word and other vulgarities of a sexual nature in front of the team and Lacy Norsiden, female athletic trainer as a teaching moment. In a familiar theme throughout this saga he claims that he was merely quoting the words of a song that had been playing at halftime at Guilford College on March 3, 2010. Both he and his attorney have claimed that the song immediately after that song was “Don’t Stop Believing” by Journey although they have never named the song that contains the lyrics that Swanenburg claims he was merely quoting to draw a comparison between what was more appropriate. He says repeatedly that he is not a racist, that he chose his college roommate who was African American, that he played basketball in the mean streets of New York with black people, and that he and his son were the only white people on a local recreational basketball team. Listening to that part of his testimony could have had many believing that he grew up on the means streets of the Bronx,  that he costarred with Wesley Snipes in the movie “White Men Can’t Jump”, that Spike Lee is his best friend, and Al Sharpton is his frequent guest for Sunday dinner.

Swanenburg’s seemed to be extremely agitated when he was cross-examined by Boward’s lead attorney Frank Edgar. Swanenburg accused Mr. Edgar of  “trickery” when questioned about his previous admissions to using the n-word and admitting “at least in part” that he was fired because of it.  The majority of his cross-exam had few objections from Swanenburg’s attorney and was essentially put on hold by the judge to be resumed on day 2.

March 31, 2015

Trial is expected to resume at 10:00 am with a continuation of the cross examination of Chris Swanenburg.

Boward’s attorney, Frank A. Edgar, Jr. rested the case today on the emotional testimony of Tom Elliott, the father of Alex Elliott, a former lacrosse player that Swanenburg recruited to play on the team. Mr. Elliott revealed on the stand that he had also been sued by Swanenburg in 2012. In that suit, Mr. Elliott was sued for $1,000,000 when Swanenburg discovered that Mr. Elliott had complained of Swanenburg’s behavior to the Athletic Director at CNU. The suit was quickly upended and dismissed with prejudice in May 2013.

April 1, 2015

The trial is expected to resume at 11:00 am today. Swanenburg’s attorney is expected to bring Swanenburg back to the stand as a rebuttal witness. “Rebuttal witnesses are very common in civil litigation.  At the conclusion of the defendant’s case, the plaintiff may choose to call rebuttal witnesses for the purpose of rebutting something that was brought up anew during the defendant’s case,” according to  lawyer Brien Roche. Mr. Roche also writes, “As a general rule, the extent to which a Trial Judge allows rebuttal testimony is within the sound discretion of that Judge.  What that means is that it is unlikely that the Judge’s decision on that issue is going to be reversed by an Appellate Court unless it is determined by the Appellate Court that the Trial Judge abused his/her discretion.” That is a very important point, since the trial judge in this case has already stated that he will keep this case moving. In non-legal terms, Swanenburg’s attorney Hayden Fisher is bringing Swanenburg back to the stand to attempt to contradict some testimony or evidence that had been presented by the defense.

In closing arguments, Swanenburg’s attorney, Hayden Fisher essentially attempted to cast Coach Boward as a person who would do anything to get Swanenburg’s job and told the jurors that Boward had not presented any evidence to prove that he had not defamed Swanenburg. Fisher also argued that Boward had no support from anyone at CNU and that no adults testified on his behalf. Fisher further argued that Boward had told at least one person that he wanted to get a shotgun and shoot Swanenburg. That argument drew a strong objection from Boward’s attorney and a stern warning from the judge.

Boward’s attorney, Frank A. Edgar, Jr. in his closing argument focused on the facts of the case and argued that it was Swanenburg who had to prove that Boward had defamed Swanenburg.Mr. Edgar, effectively argued that Swanenburg did not deserve anything from Boward and that he Swanenburg should be held to his own testimony and admissions.

In one of the lighter moments of the trial, Mr. Edgar in response to Fisher’s closing argument, told the jury that if was as if Fisher had just let 1,000 mice loose in the courtroom and he Edgar was not about to chase them all.  Fisher potentially missed a huge opportunity to object since there were only at most, 999 still scurrying around the court at the conclusion of his closing argument or so it seemed.

Boward Wins, Swanenburg Loses!

On April 1, 2015, after nearly 3 hours of deliberation the jury returned a verdict for Todd Boward effectively ending Swanenburg’s Sad Saga. When the verdict was announced, Swanenburg appeared visibility upset and quickly left the courtroom with his attorney, D. Hayden Fisher.

Peter Dujardin, Daily Press provided exclusive coverage in a pair of articles published on March 31, and April 1, 2015 in the Daily Press.

Jury Sides with Current CNU Lacrosse Coach in Defamation Case, April 1, 2015, Daily Press, by Peter Dujardin

Former CNU Lacrosse Coach Says Current Coach Defamed Him, March 31, 2015, Daily Press, by Peter Dujardin

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