Settlement unlikely in Ryan Ferguson lawsuit mediation hearing

Tuesday, June 17, 2014 | 7:02 p.m. CDT; updated 8:30 p.m. CDT, Tuesday, June 17, 2014

COLUMBIA– Bill Ferguson says he's not interested in a settlement.

Nor, he said, is his son, Ryan Ferguson. Despite the hundreds of thousands of dollars Bill Ferguson has estimated his family spent on defending and publicizing his son's avowed innocence, they're not just chasing money. Ryan Ferguson is suing police, investigators, a sitting judge and other city officials, as well as the city and Boone County, for violating his civil rights.

Ryan Ferguson and his attorneys, Chicago-based Kathleen Zellner and St. Louis-based Samuel Henderson, filed the lawsuit in the U.S. District Court Western District of Missouri on March 10, seeking $100 million in total damages, four months after Ryan Ferguson was released from prison.

The Missouri Court of Appeals Western District vacated Ryan Ferguson's conviction Nov. 12, 2013, on a "Brady violation," which occurs when prosecutors fail to disclose evidence that could help the defendant. Ferguson served almost eight years of a 40-year sentence for the 2001 robbery and murder of Kent Heitholt, a sports editor at the Columbia Daily Tribune.

Bill Ferguson estimates his family spent $250,000 on the case, a number that would have been higher if Zellner had not taken over the case in 2009 pro bono. Her firm spent an estimated 3,500 hours on the case, which would have cost about $1.07 million plus more than $130,000 in expenses, according to previous Missourian reporting.

Bill Ferguson said the federal lawsuit was always part of the plan following his son's release. He also said that an agreement was negotiated with Zellner prior to his son's release that would guarantee the attorney an amount of any damages received in the civil suit, but he declined to comment on the specifics of the arrangement.

The lawsuit makes nine claims, including that detectives and investigators for the prosecution failed to properly examine alternate suspects and fabricated and suppressed evidence, according to previous Missourian reporting.

Despite several attempts by attorneys for some of the defendants to have their clients dismissed from the lawsuit, all 13 remain. The city of Columbia attempted to get dismissed on the grounds of sovereign immunity, but the motion was denied.

"We do not want a settlement, we want to go to trial. We're more interested in exposing prosecutorial misconduct, especially that of Prosecutor Crane," Bill Ferguson said, referring to the prosecuting attorney in Ryan Ferguson's case, Kevin Crane, who is now a judge in the 13th Circuit Court in Boone County.

The case is set for trial on Aug. 24, 2015. The deadline for a settlement is noon on the previous day.   

What happens in a mediation

But in the meantime, a federal court mediator will try to bring the Ferguson side and the defendants closer together for a possible settlement, avoiding a trial if possible.

U.S. District Judge Nanette Laughrey has scheduled the first settlement conference in the case for Thursday in Jefferson City. U.S. Magistrate Judge Matt Whitworth has been assigned to mediate the lawsuit.

Settlement conferences are standard procedure in civil litigation, and each mediator conducts the conferences differently, Whitworth said.

Whitworth, who has been a federal magistrate judge since 2010, begins by bringing the attorneys for both sides and their clients together in the same room, where he lays out the rules of the mediation, which is closed to the public. That facilitates open and constructive dialogue, he said. The proceedings are confidential.

He then separates the parties before starting with the plaintiffs to see if they have a demand, normally made in terms of dollars.

He takes the demand to the defendants and shares it with them. The defendants typically make a counter-offer, which Whitworth takes back to the plaintiffs, who may also counter in response.

"Then you just go back and forth," Whitworth said. "I've been in some meditations when I've gone back and forth 20 times."

In Missouri, a mediation can be conducted by a magistrate judge such as Whitworth, by one of dozens of private mediators or by the director of the Mediation and Assessment Program in Kansas City.

Each of the options has advantages, but the objectives of resolving a lawsuit and avoiding the expense and stress of litigation remain the same. 

Whitworth's forte is his legal knowledge and experience, which he said allows him to give parties on either side perspective on the strengths and weaknesses of their cases and how those strengths and weaknesses might be interpreted by a mid-Missouri jury.

Whitworth said that the settlement rate for these early mediations is low, but the conference gives parties a chance to get acquainted with the other side's case and outlook. Chances for a settlement often rise as the trial date nears.

"The settlement conferences are helpful, but usually they're too early for either side to think about a settlement," said Brian McCallister, a Kansas City attorney with experience in these types of cases.

McCallister agreed that the conferences help attorneys get a feel for what their counterparts will argue, but he tells his clients not to have any expectations of a resolution before completing discovery or hiring experts.

"It takes a long time for cases to be properly prepared for trial," McCallister said.

In a case he's taking to trial in July, seven lawyers' schedules had to be accommodated for discovery disputes, motion hearings, meetings with the judge and 58 depositions. The case was originally filed in 2012.

Michael Berry, the attorney for one of the defendants in the Ferguson lawsuit, Boone County investigator William Haws, said he couldn't comment on the likelihood of a settlement due to uncertainty at this point in the judicial process. But he spoke generally about lawsuits and their settlement prospects.

"Cases that have a lot of emotion involved frequently don't settle early," Berry said.

None of the other attorneys for the defendants in the lawsuit would comment on the upcoming settlement conference or the lawsuit. Zellner didn't return calls.

Both sides are expected to finish their discovery by Nov. 12. The plaintiffs have until Oct. 14 to designate any expert witnesses they intend to call at trial, and the defendants have until Nov. 12 to do the same.

All deposition of the expert witnesses must be completed and all discovery dispute must be resolved on or before Dec. 12.

An initial pretrial conference is scheduled for April 18, 2015, in Judge Laughrey's chambers.

Supervising editor is Katherine Reed.

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