Edward Detwiler et al

Columbus, OH (December 21, 2009) — Attorney Benjamin S. Zacks and a group of attorneys and several individuals associated with his law firm, including Edward B. Detwiler, filed affidavits on Dec. 2, 2009 in a 1,236-page Motion for Summary Judgment [linked here, 32 MB] in their defamation lawsuit against Leader Technologies after Leader publicized allegations from earlier court filings that Zacks, former attorney to the company, and his cronies attempted to take over or bankrupt the company. All comments are Leader´s opinion.

The Zacks Affidavit states:

"13. All these statements are false."

Identical declarations are made by attorneys Dunn and Wittenberg as well as Steiger in their Affidavit Sections 8, 10 and 12 respectively.

The Detwiler Affidavit does not include this statement; however, these affidavits place the collective testimony of the plaintiffs in disarray. All the affidavits are contained within the Motion for Summary Judgment.

Figure: Sworn testimony in Plaintiffs´ Motion for Summary Judgment [linked here, 32 MB] in their defamation lawsuit captioned Detwiler, Zacks, Steiger, Dunn, Wittenberg et al v. Leader et al. Case No. 09CVC-05-6857 (Franklin County (Ohio) C.P.) Lawsuit [linked here] and Leader's response [linked here]

On the surface: Whose statements are false?

Ambiguous Statements & Ohio Law

To which statements are the plaintiffs referring, their affidavit statements or Leader´s and McKibben´s alleged statements? They give "statements" no special meaning in their Affidavits. Therefore, one is left to guess at the meaning.

False and ambiguous statements in court pleadings carry stiff penalties under Ohio law. Ambiguous statements are considered false statements since one or the other of the possible interpretations will be false.[1]

Digging deeper: "Plain and ordinary meaning"

[Affidavit] statements are false

Ohio law directs that sworn statements are to be interpreted according to their "plain and ordinary meaning." The courts are not permitted to imbue meaning into a statement that may or may not have been in the affiant´s mind. The courts must interpret the words on the page according to their plain and ordinary meaning. Because Zacks fails to define whose statements are false in Section 12, any use of the word "statements" in his testimony is ambiguous. Affidavit declarations are also called "statements (of the affiant)".

Typographical Error?

If one were inclined to give the benefit of the doubt and assume a typographical error, the most logical typo would be that the affiants intended "All these statements are false" to be included as the last sentence of the previous paragraph. However, such an interpretation contradicts the rules of interpretation for the following reasons:

1. It modifies the intrinsic meaning of a simple sentence "All these statements are false" stated four times; three times by attorneys who must be presumed to know better;
2. It imposes capricious, extrinsic interpretations upon a clearly presented statement (i.e., its placement anywhere tends to reverse or render ambiguous the meaning of the preceding statements) and one can never know if the new placement was in the mind of the affiant;
3. Any alternative placement of the statement only creates different ambiguities and falsities; and
4. Ambiguous statements are not exempt from the false statements penalty under Ohio law.[2]

"All these statements are false" makes the affidavits ambiguous and nonsensical; whether the sentence is left in its current location or moved elsewhere. Even using the most favorable interpretation possible, placement of the statement anywhere in the declaration at the end of a paragraph reverses the meaning of the statements in that paragraph or renders its meaning ambiguous, thus causing at least the statements in that paragraph to contradict affiant's other testimony. Therefore, one is left to conclude that the statement "All these statements are false" must stay where it is in the affidavits and be interpreted according to its plain and ordinary meaning.

No Defense for Sloppy

The burden of proof is on the plaintiffs to prove their case for defamation. They must prove beyond a reasonable doubt that there is no genuine issue of fact. "Conclusory statements" are not acceptable. For example, "I know he did it" and "She defamed me and knew her statements were false" are not enough. Facts are now required to prove the truth of these allegations.

The plaintiffs´ affidavits state over and over that the defendants defamed them with information that the defendants knew to be false. The plaintiffs´ affidavits also state that "All these statements are false." While typographical errors are generally excused in legal briefs, wholesale changes of meaning, or the wholesale rendering of the writing to an ambiguous state due to sloppy legal writing are not. When sloppy legal writing leads to contradictory or ambiguous statements, the court has no requirement or authority to fix the mistakes. The statements must be interpreted by their plain and ordinary meaning. There is no defense for sloppiness. Even more proof of why Leader decided a change of legal counsel was needed.

Plaintiffs´ "All these statements are false" affidavits, when read according to their plain and ordinary meaning, present an array of conflicting statements that say that McKibben did A; McKibben did not do A; McKibben may or may not have done A; McKibben did B; McKibben did not do B; McKibben may or may not have done B; and so on. Such contradictory assertions render the MSJ internally contradictory and nonsensical.

For motions for summary judgment to be granted there must be no issues of material fact. When such issues exist, the interpretation of those statements must be read in a manner most favorable to Leader.[3]

False and ambiguous statements in an affidavit, especially affidavits submitted by attorneys, carry stiff penalties. Under Ohio law ambiguous statements are considered false statements since one or other of the statements will be false.[4] Additionally, Ohio attorneys are forbidden from making false and misleading statements.[5]

Zacks et al have submitted false and/or ambiguous affidavits that render their Motion for Summary Judgment nonsensical and place an even bigger question mark over their veracity.

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Footnotes

[1] Perjury. Ohio Revised Code 2921.11.

[2] Ibid.

[3] Summary Judgment. Ohio Rules of Civil Procedure §56(C).

[4] Op.cit.

[5] Ohio Rules of Professional Conduct Rule 2.3 (Evaluation for Use by Third Persons); Rule 3.3 (Candor Toward The Tribunal); Rule 3.4 (Fairness to Opposing Party and Counsel); 4.1 (Truthfulness In Statements To Others); Rule 8.1 (Bar Admission and Disciplinary Matters); Rule 8.2 (Judicial Officials); Ohio Rules of Civil Procedure, Rule 11; Ohio Rules of Evidence, Rule 410.

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