On October 1, 1939, Winston Churchill had this to say about Russia: “I cannot forecast to you the action of Russia. It is a riddle wrapped in a mystery inside an enigma.” It seems so funny now in 2015 because Russia’s conduct these days is
whatever a deranged corrupt autocrat named Vladimir Putin wants so transparent and predictable. But my point in recalling this Churchillian fragment of rhetoric and history is only to remind readers of the memorable turn of phrase, “a riddle wrapped in a mystery inside an enigma” and to note its interesting origin.
The phrase often comes to mind when I think of trials. After all, all trials are layered stories – at a bare minimum the underlying facts and the overlay of the trial itself, the story about the story (and, more often, a thousand layered mille feuille of facts, laws, personalities) – as I have mentioned before.
Some cases break down break down into “he said/she said.” That’s quite simple. The jury has to figure out whom to believe between two or more entirely different factual accounts. That’s the riddle. Some cases seem to break down into asking the jury whether the set of operative facts, like the picture to the left, make up the image of a young woman or an old lady and the jury cannot say “both sides are right.” Fact-finders are forced to pick. That is a mystery.
And then there are many cases with a third layer (or more), the enigma.
Tara Wendt has made very serious allegations of awful sexual misconduct by a supervisor at Charter Communications in Rochester. Charter Communications takes the position that these allegations are entirely fabricated. (Its trial brief is here.) So there is the riddle. As in many sexual harassment cases (or racial discrimination or age discrimination cases etc.), there are “fuzzy allegations” about “facial gestures,” “body gestures,” smirks, and winks, which one person may experience as suggestive, threatening, revealing, or inappropriate and the other person might be oblivious or unaware the he is communicating anything (or nothing of a conscious offensive or discriminatory nature). (See footnote 7 in Defendant’s trial brief.) Figuring that out is the mystery.
And the enigma in Wendt v. Charter is that trial papers in this case were due on 2/16/15, but only one of the two sides filed papers on or before the deadline. Employment defense powerhouse, Littler, dropped megatons of trial documents on plaintiff’s counsel and the Court. Employment plaintiffs’ powerhouse law firm, Nichols Kaster, appears to have filed no trial materials at all on the other hand….Therein lies an enigma…Is that the waving of a white flag or do the parties have an arrangement to give the plaintiff more time that they have not shared with the Court (or the public)?
UPDATE (same day @ 11:00 a.m.): The enigma is solved. The filing deadline set by the Court was President’s Day so the lawyers at Nichols Kaster, aware of the extension that this resulted in under applicable court rules, delayed their filing until yesterday, the 17th (after I had checked the court’s electronic docket). To balance out the link to defendant’s trial brief, above, here is plaintiff’s (redacted).