Archive for the ‘US Lacrosse’ Category


Brooks Picture

Anthony Brooks – Cobbs Creek, VA

On July 8th & 9th, 2014 a two-day jury trial was conducted, The Plaintiff, Anthony Brooks filed suit after he was reported to Child Protection Services for suspected sexual abuse and was suing for $1,000,000 in compensatory damages and $350,000 in punitive damages against Mark Moreno and his son Michael.
The following instructions were delivered to the jury on day two of the trial by the Hon. Marc Jacobson, Ret.
First Instruction: The plaintiff contends the defendant Mark Moreno made the following defamatory statements to Christopher Swanenburg on April 28, 2012. During a general telephone conversation stated plaintiff, quote, had taken photos of boys’ crotches, end of quote, and could be resigning. Trial Transcript Day 2

Next instruction: Your verdict must be based on the facts as you find them and on the

law contained in all of these instructions. The plaintiff contends that defendant Mike Moreno made the following defamatory statement to Sherry Hamel on April 28, 2012, quote, you don’t fucking know what’s going on, Ethan came to me at Wednesday’s practice and told me that Coach Brooks had taken inappropriate pictures of him in his compression shorts when the boys were changing into their uniform and called the plaintiff a pedophile and a pervertTrial Transcript Day 2
  • On the first instruction the Jury found in favor of the Plaintiff, Anthony Brooks against Mark Moreno.
  • On the next instruction the Jury found in favor of the Defendant, Mike Moreno.
Essentially, the Jury decision means that they did not believe what Michael Moreno said was false. Michael Moreno never denied making the statement which essentially means that a jury of Brook’s peers believed that Brooks did take inappropriate pictures of a player in his compression shorts. As a matter of fact, the minor signed a sworn affidavit after he turned 18 years old, the affidavit was precluded from the trial by the judge in a pretrial conference.
Mr. Moreno adamantly denied the statement attributed to him by Christopher Swanenburg. Mark Moreno contends that the statement offered by Swanenburg was a finely crafted false statement constructed by Swanenburg and his attorney to instigate a lawsuit. Swanenburg throughout his litigation in Newport News always seemed to have a problem with the truth.
In April 2015, Swanenburg lost his fourth and final lawsuit related to his termination from Christopher Newport University in which he sued his former assistant coach and the parent of one of the players. On June 25, 2015 Judge Timothy S. Fisher, the trial judge who presided over Swanenburg’s nearly four years of litigation wrote “This is about as unfortunate course of litigation as I have had the opportunity to observe and it appears to achieved absolutely nothing.”
The Moreno’s represented themselves, Brooks was represented by D.Hayden Fisher of Richmond, VA. Fisher  who also represented Christopher Swanenburg in multiple lawsuits related to his termination from Christopher Newport University. Swanenburg failed to prevail in any of the (4) suits that he filed and the last case was settled by a jury that found in favor of the defendant.  Hayden Fisher is the same lawyer who filed a writ to have the confessed murderer of a VCU coed released from prison in 2008. The confessed murderer left the body of his victim wrapped in plastic and duct tape near a public beach in Matthews County. According to published reports, Fisher had not been requested or retained by anyone to file the action but conceivably did so to bring media attention to himself.

 Commentary/Opinion

So now Brooks thinks that he is deserving of a $250,000 award from a jury. The judgement is a small price to pay when one considers the potential devastation that Brooks could have caused as a result of his apparent predatory tendencies. How can a 67 year-old man justify walking around a partially clothed minor with a camera in his hand and say that he was only checking the lighting on a perfectly sunny day?
The jury decision for Brooks against Mark Moreno apparently has more to do with whether he “could” or “would” be resigning considering the fact that the same jury found in favor of Mike Moreno.
So that’s it, Brooks made the players of a high school lacrosse team refer to him as “creepy” and “weird” because more than likely he is a pervert who either did or attempted to take photos of partially clothed minors and a jury of his peers did not believe that to be false. The Moreno’s defended and protected those players despite the personal risks, they did not hide behind lawyers, they did not settle, and they never folded to the threats and tactics of a disreputable publicly reprimanded sleazy attorney.   Brooks, Swanenburg and their despicable lawyer Hayden Fisher apparently fabricated this lawsuit not to clear Brooks’ name but to profit from it. For Hayden Fisher it’s just a way to collect fees, for Swanenburg it’s just a way to fuel his ego by finding a way to get even with anybody that opposes him, and for Brooks it’s just plain perverted stupidity.
 3+x+2+Jerry+Sandusky+Karl+Rominger

Settlement Stock Art.  Photo by John Disney/Daily Report.

Photo by John Disney/Daily Report

Swan Song

The Honorable Timothy S. Fisher, Newport News Circuit Court heard oral arguments on June 11, 2015, on a Motion for Sanctions filed against Christopher T. Swanenburg and D. Hayden Fisher, Swanenburg’s attorney. Frank A. Edgar, Jr., Todd Boward’s attorney argued that since the moment that Swanenburg was fired from Christopher Newport University he has used the court to extract revenge against the person that he contends “orchestrated” his firing.

Swanenburg’s attorney argued against the sanctions by essentially arguing that the core issue was that Boward had defamed his client by falsely stating that Swanenburg was fired for calling people the n-word which was different from using the n-word although in previous proceedings he had argued that it was a distinction without a difference. Fisher argued that Boward had admitted that he did not know why Swanenburg was fired and therefore Boward’s statement was actionable.

In his 18 page Opposition to Motion for Sanctions Swanenburg’s attorney argues that Todd Boward is seeking the sanctions to bully his client and accuses the defendant of leaving a four-year paper trail and states that if Todd Boward has incurred significant legal expenses it is because “he has been the architect of his own misfortune”. Swanenburg further argues that the defendants motions for sanctions exceed the 20 page limit by 8 pages according to Rule 4:15 (c) of the Supreme Court of Virginia.

Most importantly, Swanenburg argues in his brief that he has already agreed not to appeal the the jury decision and that it is Boward who is unsatisfied with merely winning the case and is now piling on by filing a Motion for Sanctions against Swanenburg and Fisher.

Stay Tuned

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April 1, 2015

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Christopher Swanenburg Capital Lacrosse, LLC was founded in 2003 with a goal of providing exceptional lacrosse instruction and competition. For over a decade, Capital Lacrosse has developed and hosted a variety of offerings, ranging from private lessons and camps to tournaments and travel teams. Some of these events are among the most successful and popular lacrosse offerings in the state of Virginia and beyond. Capital Lacrosse proudly sponsors the Colonial Challenge and Summer Celebration lacrosse tournaments in Williamsburg, VA and the Peninsula Patriots lacrosse All-Star travel teams. The tournaments have quickly become two of the top events in the Mid-Atlantic while the Patriots boast some of the most competitive teams in the region. In 2014, two Peninsula Patriots were named High School All-Americans and numerous Patriot alums represented the program at the NCAA varsity level. The Peninsula Patriots boys lacrosse travel program is forming its 2015 summer rosters. U11, U13, U15 and HS boys teams are being fielded. For more information, please call (757) 534-9238. Source: Capital Lacrosse Website

Christopher Swanenburg’s Sad Saga ended today when a jury of his peers in Newport News Circuit Court found in favor of Todd Boward, Head Coach, Men’s Lacrosse, Christopher Newport University. At the end of a three day jury trial, a jury deliberated for nearly three hours before returning a verdict for Todd Boward effectively ending Swanenburg’s legal battle against him. Swanenburg had originally sought $5,000,000 in compensatory damages and $350,000 in punitive damages in his original suit against Boward in a case that went to trial and Swanenburg through his attorney effectively quit electing to nonsuit in 2013. The case was refiled in 2014 with Swanenburg seeking $500,000 in compensatory damages and $350,000 in punitive damages and was decided today. The effect of this jury verdict is that Swanenburg gets nothing, no compensatory damages award and no punitive damages award as the case was ended by a jury in a manner that is unfavorable to him.

In non-legal parlance, Boward Won, Swanenburg Lost!

The case was presided over by the Honorable Timothy S. Fisher, Presiding Judge, Newport News Circuit Court, 7th Judicial Circuit.

Todd Boward was represented by Frank A. Edgar, Jr., Newport News, Virginia.

Swanenburg was represented by D. Hayden Fisher, Richmond, Virginia.

Swanenburg is now 0-3 in his continuing legal actions against Boward, and 0-1 in his legal action against a player’s father all allegedly stemming from Swanenburg’s termination from CNU.  Swanenburg’s legal campaign against Boward began in June 2011 after Swanenburg’s largest customer, Vic Goeller, then coach of Paul IV Catholic High School in Fairfax, Virginia and owner of Tribal Lacrosse alleged that Boward had made defamatory statements about Swanenburg at a lacrosse recruiting tournament in June 2010. Boward has always contested Goeller’s version of the conversation with particular emphasis on the repugnantly racist term but has always admitted to three literally true statements. The alleged statements came on the heels of Swanenburg’s termination as the Head Coach, Men’s Lacrosse at CNU. Swanenburg’s termination came closely after he uttered a morally repugnant racist term at Guilford College on March 3, 2010 to characterize the music being played at halftime. Swanenburg had claimed that he uttered the word to suggest that the song immediately after was more appropriate and argued that he was not fired as a result.

In closing arguments, Swanenburg’s attorney/counselor, Hayden Fisher stated to the jury repeatedly that either you believe Boward or you believe Goeller and if you believe Goeller, Boward loses and Swanenburg wins. Unfortunately, presenting an either/or choice to the jury didn’t seem to work out too well for either Goeller or Swanenburg considering the jury found for Boward essentially indicating that they did not believe Goeller or Swanenburg.

In his close, probably one of Fisher’s most nonsensical and ridiculous arguments seemed to be that Boward had pledged donations to CNU in an attempt to buy his job.  Fisher argued that Boward had a weekly donation deducted from his paycheck and that he secretly met with the team’s largest donor. Fisher also told the jury that Boward had no support from anyone at CNU and also saying that there was not one adult that testified on his behalf, apparently in reference to the numerous players that Boward’s defense team had called to the witness stand.

In one of the lighter moments of the trial, Boward’s attorney, Frank A. Edgar, Jr. in his closing argument, told the jury that he really didn’t intend to respond to Fisher’s closing arguments by telling the jury that it was as if Fisher had just let loose 1,000 mice in the courtroom and he, Mr. Edgar was not going to chase them. The bulk of Mr. Edgar’s closing argument focused on the testimony that had been elicited throughout the trial. Mr. Edgar, then methodically moved through the elements of the case that apparently further convinced the jury to find on his client’s behalf.

Ironically, Fisher’s closing argument was remarkably similar to his closing argument in a defamation trial in York-Poquoson Circuit Court on July 8th & 9th of 2014. It is also important to note that Swanenburg appeared as Fisher’s star witness on day 1 of the trial and Fisher’s closing argument is on day 2.  Coaches are Mandated Reporters II

Admissions

Throughout the trial, Boward’s defense team had repeatedly argued that Swanenburg was bound by his testimony and his admissions. Although for most, testimony is a pretty easy legal concept some may not understand what admissions are. Prior to trial, the opposing attorneys serve upon the other Request for Admissions. Essentially, each party legally requests of the other answers in the form of “Admitted” or “Denied” and those answers are admissions under oath and become part of the record when entered as exhibits. An actual example would be the Request for Admissions served upon Swanenburg, specifically #18 “Admit that you were fired by CNU as its head coach for men’s lacrosse, at least in part, because you uttered the word n*##^! in front of members of the CNU, men’s lacrosse team.” Prior to October 2014 hearing Swanenburg essentially denied admissions that he had previously admitted either through previous testimony or pleadings in his legal actions against Boward.

Boward’s attorney filed a motion for sufficiency and a hearing was conducted on October 21, 2014. The result of that hearing was that Swanenburg essentially reversed most if not all of his admissions including #18 from Denied to Admitted. One of the most interesting aspects of that hearing was that Fisher spent a considerable amount of time complaining about this blog and specifically it’s author. At the hearing Fisher apparently got his briefs all tied up in a knot, or didn’t have any (never go to court without your briefs) when he  argued that he wanted a protective order to prevent this blog from publishing Swanenburg’s admissions. After the hearing Fisher apparently attempted to litigate by email sending at least one letter to judge apparently attempting to reverse some of Swanenburg’s admissions.

Click Here to read the transcript from the hearing and discover who he is referencing in his argument.

swanenburg, hayden fisher, colonial challenge, transcript

In response to the defense Request for Admissions, Swanenburg actual denied requests that he had already admitted in previous requests, depositions, and/or testimony. Boward’s defense team filed a Motion for Sufficiency and a hearing was held on October 21, 2014. Click the photo to read the transcript from the proceeding. CAUTION: The transcript contains repugnantly racist language

Costs

In many ways, filing, discovery, litigation, and trial costs are probably the biggest deterrent to taking a case to trial and quite possibly why so few cases actually make it to trial. There are many reports that suggest that 95% of civil cases filed do not make to trial and are settled. To be clear, the costs associated with Swanenburg’s nearly four year litigation are likely to be enormous. It is also important to note that Swanenburg essentially filed four lawsuits following his termination from CNU. He filed lawsuits in 2011, 2012, 2013, & 2014 and nonsuited a trial in 2013 immediately at the conclusion of his case-in-chief which prevented the defense to present their case. Ironically his obsessive legal campaign appears to be over almost to the day of the five year anniversary of his termination from CNU. It all began when Swanenburg used a morally offensive repugnantly racial comment about the music that was being played at halftime at Guilford College on March 3, 2010 and was fired “at least in part”* as a result. *RFA #18

Determining the costs associated with this trial are difficult to ascertain because of attorney-client privilege but some have suggested that the cost of the trial alone probably exceeded $100,000 which does not include all of the pre-trial discovery, depositions, hearings, trial prep, legal filings, transcripts, court reporter, and the three pepperoni pizzas for the jury paid for by the court. The jury’s request for three pepperoni pizzas was made in open court and there is nothing on the record to indicate that the jury returned any verdict on the pizzas, however; getting seven people to agree on only one pizza topping was possibly an indication that the jury wasn’t going to have any problem reaching a unanimous verdict. (if you need pizza for your next jury trial in Newport News or you are a juror, ask the bailiff to call Anna’s, they deliver and they know how to find the courthouse)

Below are filing logs from Newport News Circuit Court:

Sanctions

It is likely that Boward’s defense team may have a legal standing to file sanctions in this case. On day one of the trial Boward’s defense team noticed the court that they had received an email from Fisher that was unethical and unprofessional and it now appears that email has been forwarded to Virginia State Bar as potentially a violation of the professional rules of conduct.

Ironically, The Supreme Court of Virginia ruled on a very similar case in, NORTHERN VIRGINIA REAL ESTATE, INC., et al. v. Karen MARTINS, et al.,Record Nos. 101836, 101844. Decided: January 13, 2012 . This blog also referenced that case in A Lacrosse Story? in July 2014.

In his first trial, Boward’s defense team moved to strike Swanenburg’s evidence at the close of the plaintiffs’ case in chief and before the judge ruled on the motion, Swanenburg through his attorney moved to nonsuit his case and the judge ultimately denied Boward’s motion to strike and granted the nonsuit for Swanenburg. The significance is that in nonsuiting his first case, Swanenburg refiled enabling this second trial to proceed. In NVRE v. Martins, the defendants moved to strike the plaintiffs’ evidence at the close of the plaintiffs’ case-in-chief but, before the trial court ruled on the defendants’ motion to strike, the plaintiffs moved to nonsuit, and the trial court granted the plaintiffs’ motion to nonsuit as against all defendants.

The defendant, Martins subsequently filed a motion for sanctions and the trial court granted the motion. “Specifically, the trial court found that: (1) the complaint, by stating that the allegations were likely to have support “after reasonable opportunity for discovery,” was a “per se” violation of Code § 8.01–271.1 under Ford Motor Co. v. Benitez, 273 Va. 242, 639 S.E.2d 203 (2007); (2) the plaintiffs’ claims “were filed out of a vindictive and malevolent desire to injure and intimidate a business competitor”; and (3) the plaintiffs lacked “any factual basis for their $135,000 claim to the ‘second commission’, and lack[ed] any basis for the $1.35 million defamation claims. Plaintiffs further lack[ed] a factual basis for a conspiracy claim.” The trial court ultimately granted sanctions and ordered the plaintiff and their attorney to pay over $250,000 to the defendants. The plaintiff appealed to the Supreme Court of Virginia and the trial court’s ruling was AFFIRMED.

UPDATE: Boward files Motion for Sanctions

On April 22, 2015 Boward’s Defense Team filed a comprehensive Motion for Sanctions essentially asking for fees and costs associated with Swanenburg’s legal actions against Boward. Swanenburg will probably file an Opposition to the sanctions in the next couple of weeks which will be followed by a rebuttal brief from Boward’s counsel.

US Lacrosse Code of Conduct

Players, coaches, officials, parents and spectators are to conduct themselves in a manner that “Honors the Game” and demonstrates respect to other players, coaches, officials, parents, spectators and fans. In becoming a member of the lacrosse community an individual assumes certain obligations and responsibilities to the game of lacrosse and its participants. The essential elements in this “Code of Conduct” are HONESTY and INTEGRITY. Those who conduct themselves in a manner that reflects these elements will bring credit to the sport of lacrosse, themselves, their team and their organization.

“Representing the fastest growing national sport, as an emerging force in sports organizations and leadership, US Lacrosse has a duty to provide positive influence over athletic administrators, programs, officials, coaches, and players. The goal of US Lacrosse, in creating the Code of Ethics, is to promote sportsmanship and character by teaching, advocating, modeling and enforcing ethical principles, while preserving the integrity of the game.

By affiliating with US Lacrosse, individuals and organizations agree to comply with the aspirational guidelines set forth in the Code of Ethics. Failure to adhere to this Code of Ethics may result in revocation of membership or affiliation. US Lacrosse encourages others involved with the sport of lacrosse to adopt and follow these important guidelines.”

It is likely that US Lacrosse will review Swanenburg’s case and make a determination on whether or not he represents the values that US Lacrosse espouses. If they determine that his behavior is not in keeping with those values his membership could be revoked.

Support Coach Boward

Coach Boward’s legal bills are massive and you can help Coach Boward for free simply by doing some online shopping.

Sponsor Support Coach Todd Boward for free! Just click the link

Sponsor Support Coach Todd Boward for free with your online purchases. If you shop online, do this via one of the webshops. This way, Support Coach Todd Boward receives additional sponsorship to achieve the goal set in the Sponsormeter. It doesn’t cost you anything extra!

Local Media Coverage:

Peter Dujardin of the The Daily Press also reported on the trial in an article: Jury sides with current CNU lacrosse coach in defamation case, Mr. Dujardin’s exclusive article is a good snapshot of the case.

Court Slams Frivolous & Vexatious Litigation with $4.7 MM in Fees, by Gene Quinn

Related Posts

A Lacrosse Story?

Hanging on by a Thread

Swanenburg’s Sad Saga

Since this case, according to Swanenburg and Fisher was all about lyrics, we would like to offer a few of our own. Understanding that your theme song for this saga has been “Don’t Stop Believing” and we have been unable to find a song entitled “When Do We Start Believing?” we thought it would be appropriate to end with a live version of “Say Goodbye” by the Dave Matthews Band. Interestingly or not, saying goodbye is something that you apparently forgot or chose not to do when you left the courtroom.

Goodbye,

Friends and Supporters of Coach Boward

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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

Related Posts

Swanenburg’s Sad Saga Ends!

Hanging on by a Thread

A Lacrosse Story?

A Lacrosse Story? Updates

All content provided for this article is for informational/educational purposes only and should not be relied upon for legal advice. The writer makes no representations as to the accuracy or completeness of any information, although the information has been carefully researched and every effort has been made to insure the accuracy of the information presented, it is possible that there are errors.
The author will not be liable for any errors or omissions in this information nor for the availability of this information. The owner will not be liable for any losses, injuries, or damages from the display or use of this information. These terms and conditions are subject to change at anytime with or without notice.


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

All content provided for this article is for informational/educational purposes only and should not be relied upon for legal advice. The writer makes no representations as to the accuracy or completeness of any information, although the information has been carefully researched and every effort has been made to insure the accuracy of the information presented, it is possible that there are errors.
The author will not be liable for any errors or omissions in this information nor for the availability of this information. The owner will not be liable for any losses, injuries, or damages from the display or use of this information. These terms and conditions are subject to change at anytime with or without notice.