Thursday, July 29, 2010

What to expect next in the Nikki Araguz case

The present stage of the proceedings in the child custody lawsuit filed against Nikki Araguz by her late husband's ex-wife Heather Delgado hasn't been reported about much in the news. However, it seems apparent that the case is in some stage of discovery (evidence gathering). Given the death of one of the parties, it seems like either or both sides may file various motions with regard to the status of the parties that may impact the resolution of the case. For example, it may be that Nikki Araguz never formally adopted her step sons, so the death of her husband might end her legal relationship to them, voiding her standing in that lawsuit, and rendering her efforts to maintain contact with them moot and unattainable.

The estate/inheritance lawsuit filed against against Nikki Araguz by her late husband's mother, Simona Rodriguez Longoria, and ex-wife, Heather Delgado, appears to have just begun though, with a summons and petition/complaint having been filed and served, along with a motion by the plaintiffs for a temporary restraining order (TRO) and motion for expedited show cause hearing. The show cause hearing for the temporary restraining order took place on Friday July 23 2010 at the Wharton County courthouse in Texas. The judge granted the TRO and froze the assets of Thomas Araguz, including fireman's death benefits, life insurance, and so on, prohibiting both parties from accessing, spending, transferring, and otherwise doing anything with them until the final outcome of the lawsuit.

The next steps seem likely to come from the Nikki Araguz's legal defense team. It seems like a truly vigorous defense team would likely have spent the weekend and the additional days since the Friday hearing gathering their own evidence from their client and determining their options. However, I can't help but suspect that the defense may likely have been blindsided by the flood of seemingly irrefutable character evidence that the press and media have disclosed about Nikki Araguz, evidence that implies she may have had a hard time providing full disclosure to her own attorneys as well.

Under normal circumstances in such a civil lawsuit, there would likely be two potential next steps: either a defense motion to attack the legality of one or more plaintiff claims, or the filing of an answer. In most jurisdictions, motions regarding the legality of a plaintiff's standing and/or claims must precede filing an answer (1).

In this case, the defense might want to challenge the standing (i.e. legal ability of a party to sue) of Simona Rodriguez Longoria, Thomas Araguz's mother. The ex-wife of Thomas Araguz,  Heather Delgado, probably has standing because she is the guardian of their biological children, who are the actual parties to the lawsuit, but who cannot act for themselves because they are minors.

Although most states have court rules patterned after the federal court rules system, there are some states that are notable exceptions; California, Michigan, and New York being a few of them. Texas is also a state with its own idiosyncratic rules system, although a careful reading of them reveals analogues with the federal style rules used by the majority of states.

(Texas Court Rules of Civil Procedure)

If the defense doesn't file a motion to challenge the legal effectiveness of the plaintiff's complaint/petition, then the defense will need to file an answer. Usually, answers are primarily paragraph by paragraph denials of the claims made by the plaintiff, plus "affirmative defenses" if appropriate, and sometimes one or more counterclaims against the plaintiff. Notwithstanding the sort of motions described above, it is usually worthwhile to simply file a total denial answer quickly and then move on the discovery phase of the case.

Based on a quick perusal of information on the Texas judiciary, the Texas court system seems somewhat behind the times technologically and in terms of the changes to litigation practice that often come with it. For example, I can't find any evidence that Texas has implemented a comprehensive digital docketing and electronic court records and electronic filing system. The federal courts, and the more technologically savvy states have been moving toward digitizing all court record keeping. The federal courts seem to be one of the furthest along with the effort, with all its dockets online, all pleadings available online in PDF form, and all document filing done via the web with secure SSL login and digital signatures. In such states, fewer and fewer face to face court motion hearings are entertained by courts, and lawsuits often progress without the parties physically appearing in court for months at a time. However, most courts still require a face to face hearing to "show cause" for a temporary restraining order of the sort obtained in this case, so Friday's mob scene outside the courthouse was probably unavoidable. What is unfortunate though, is that since Texas doesn't appear to have electronic court records, it would be more difficult to get copies of the pleadings and motions files with the court by the parties to share on sites like this one. Hopefully, some entity like will get interested in the case, have someone go to the courthouse and get copies of the filings, and publish them on their web site, which is something does for many cases of interest.

Then comes the discovery phase, during which the parties gather evidence. The Texas court rules have a reasonably detailed set of standards for discovery that are pretty similar to what occurs in most states. Based on a quick perusal of the Texas court rules, they limit depositions to a total fifty hours, and provide for about nine total months of discovery, which is actually relatively short. Discovery allows the parties to submit written questions to each other, to request each other to produce documents and other tangible evidence, to take depositions of witnesses, including the opposing party or parties, and to subpoena evidence from people who are not parties. I would expect the plaintiffs to subpoena copies of the various television and other video interviews that Nikki Araguz has given, so that the plaintiff can use the contents of them to impeach the credibility of her deposition testimony if she deviates in any way from her previous statements. I suspect that the video documentary made about her in 1994 will become significant evidence of her personal and medical history.

Given the nature of this case, I would also expect the plaintiffs to file a motion for an order under Texas court rule of civil procedure 204, specifically 204(c)(1) (pages 147-148 in pdf document linked above), for one or more physical/medical examinations of Nikki Araguz, possibly including DNA analysis, abdominal MRI scan, abdominal ultrasound, and other investigative medical tools, in addition to a general physical examination, in order to have one or more medical expert witnesses testify with regard to Nikki Araguz's physical morphology, sex chromosomes, evidence of genital surgery, presence of internal sex specific organs if any (including a possible prostate and seminal vesicles), and so on. The defense would need to do the same and spare no expense on expert witnesses, whose costs alone could run in the hundreds of thousands of dollars including the cost to write reports and provide testimony at trial. Given the personally invasive nature of this potential medical scrutiny, if I were such a party to such a lawsuit, I would have to consider that long and hard. If this case were to go to trial, every intimate detail of Nikki Araguz's medical history and medical condition could become public record, with television stations all over Texas leering in, and reporting every lurid detail.

Given all that has transpired in just a few days, I suspect, that as discovery proceeds, information about the evidence gathered will be leaked to the media by either or both sides, enabling the public to be kept up to date on some of the inner workings of the case. Given the level of pugnaciousness exhibited by the parties, I suspect there may also be a variety of other motions filed and hearings held, to mediate the likely contentious nature of the proceedings. After adequate discovery, I would expect the plaintiffs to move for summary judgment (judgment by the court without trial), based on the contents of Nikki Araguz's own voluminous admissions and future deposition testimony, and using Littleton v. Prang as controlling law to annul her marriage, declare her legally male, determine she committed fraud, and order that all of Thomas Araguz's estate go to his children.

However, given the totality of what has transpired in the press/media thus far, it is hard for me to imagine that even Phyllis Frye would want to use this case as her crusade test case to challenge Texas marriage law, and go all the way through a trial and appeals with it, which would require years of effort and enormous expense. Consequently, I suspect that at some point the parties are likely to announce a settlement. I personally have the impression that a quick settlement in this case, that gives most or all of the money to the kids and dismisses all the claims without assignment of judgment or blame, is in the best interest of Nikki Araguz, of her late husband, and most importantly, her late husband's children, with the possibly that a trust could be controlled by an independent trustee so that the kids' trailer trash mom wouldn't be able to blow the cash, since $600,000 is enough for private school now and tuition at quality private universities for the children later. Such a settlement would at least enable the existence of her marriage to remain intact, which may have some intangible but worthy value with regard to her personal dignity. To me, that might make it worth reaching a settlement, unless the pugnacious plaintiffs demand a stipulated annulment of the marriage as part of a settlement, which could also include a confidentiality clause that would prevent the husband's family and the attorneys from continuing to verbally assault her.


(1) Although Texas uses its own rules system, most law schools primarily use the federal rules for teaching and most states follow the federal rules nomenclature. Consequently, a review of Federal Rule 12 provides some background on motions that challenge a plaintiff's claims, standing, or jurisdiction:

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