From the Desk of
H.K. Edgerton...

Staring Down DuPont in Jeff Davis' office

Compatriot's & Fellow Confederate Southern-Americans,

The final round of briefing in the DuPont case was intense. DuPont had filed a Motion for Sanctions against Kirk D. back in November and the court agreed to consider them.  At the same time Judge Hudson dismissed the lawsuit against DuPont and on January 15 invited DuPont to file a Motion for Attorney Fees and costs due on January 20.

The Court set oral arguments in the old Confederate Treasury Building on Friday, January 30th. Plaintiffs were given 3 days to file a response, due on January 26, and then DuPont was given a weekend plus 3 more days (a total of 5 days) to rebut Plaintiff's Response.  DuPont's rebuttal was a rambling venomous document accusing Kirk D, the SLRC, the SCV and the DuPont 7 website with everything but murder, mayhem and premature death.  Because Kirk D. Dr. Payne and I had to leave for Richmond on Thursday the 29th, Kirk D. had no office time to draft a sur-reply.  DuPont's band of attorneys were sure they would have the last written word.  It looked pretty grim for us and we were all worried.

DuPont was asking for $61,000 in attorney's fees and costs against the Plaintiffs and Kirk D., personally.  This was very instructive in real world fighting, as this is what the SLRC should be making from the CSA community for all the fighting it does mostly for free.

DuPont's fees are as follows:

1. Investigate original complaint allegations - 43.9 hours $6,376.26

2. Preparation of Motion to Dismiss - 63.9 hours $9,096.20

3. Preparation of Motion to Dismiss Reply Brief - 33.9 hours $4,483.50

4. Preparation of Motion for Sanctions - 48.9 hours $7,979.30

5. Preparation of Reply Brief on Sanctions - 55.3 hours $$8,816.42

6. Analysis of Amended Complaint - 12.9 Hours $2,255.50

7. Plaintiff's Pro Se briefs and local counsel issues - 24.8 hours $4,391.02

8. Preparation of Response to motion for reconsideration - 60.3 hours $9,410.72

9. Preparation of fee application - 60.3 hours $9, 410.14

Total: 393 hours $61, 550.14

Arrayed against Kirk D. were 5 lawyers and one paralegal asking for fees ranging from $205 - $121 per hour with $75 per hour for a paralegal. Not bad work - if you can get it.

In addition, DuPont was seeking $2,240.25 in costs.  DuPont "graciously" knocked $1500 off the bill.

Kirk D. was barely able to get his reply filed in time to cover the law of the case.  He had no time to make specific objections to the 225 entries for specific charges that made up the fee application.

Kirk had been working on the DuPont case almost around the clock for the last week, and had averaged only 3-4 hours sleep a night.  I worked all day Wednesday helping him prepare for the hearing (we prepared 6 LARGE 3 ring binders - over 3600 pages of case law generated by the case and Kirk D. has to know it all backward and forward).  I worked all day and when I left after midnight, Kirk D. was still there working. Kirk D. knocked off at 3:30AM slept until 8AM, packed for the trip and was back at the office working until 3PM when Dr. Payne arrived and we all left for Richmond Kirk D. is the fastest one-finger typist I have ever seen, and as Dr. Payne and I did the driving, Kirk D. worked on his specific objections to DuPont's last rebuttal.  It was a 6 1/2 hour drive to Richmond and except for an hour for supper Kirk D. typed the whole trip.  VA Div Cdr Brag & Mrs. Bowling graciously opened there home to the SLRC team.  We visited briefly, then turned in, but Kirk D. kept working until 3:30AM, finished his specific objections & Comments, then he turned in for a few hours shut-eye.

Friday morning I accompanied Cdr Bowling to the Senate hearing on Confederate History & Heritage month - and witnessed a VA Senate Committee's passing same (Congratulations Cdr. Bowling), while Dr. Payne and Kirk D. stayed at the Bowling's to continue preparations for oral arguments at 2PM that afternoon.

We arrived at the Courthouse (the Confederate Treasury Building) a little after High Noon - I am told the clerk's office on the 3rd floor is President Davis' old office.

Since we were early, Kirk D. & I continued to prepare in the Library of the 4th Circuit (same building).  From where we sat and studied we could see an enormous mural of Jeb Stuart & his men, painted in the 1930's and recently restored.  Kirk told me later that his stomach was churning so bad that he thought he would throw up if he ate anything (he didn't), so he began pacing the library.  He told me that while he paced, he prayed - and that God calmed him down.  "After prayer I felt totally calm and prepared for whatever was to come," he related later.

The DuPont 7 Plaintiffs arrived at 1:30 and there was just time for a brief client conference.

The DuPont team arrived all cocky, stand-offish and arrogant, expecting an easy win.  DuPont waltzed in with 3 attorneys, their staff and DuPont Human Resources manager Linda Derr.

Several VA Div SCV members sat in the gallery including Cdr. Fred D. Taylor and his girlfriend Adrian and Div Cdr Bowling and his lovely wife Cathy.

All got quiet and at 2:00 PM the Judge was announced, all rose and in walked United States District Court Judge, Henry Hudson, Judge presiding.

The Judge opened the proceeding by considering the motion for sanctions.  Jim Crockett of West Virginia opened for DuPont.  The Judge immediately told him that he had read every single brief written and need no education on the law. He then proceeded to fire hard question after pointed question at Crockett - DuPont didn't know what hit them.  They were expecting a sanctions walk-over and the Judge wasn't having it.

The Kirk D. got up to speak.  You couldn't here a pin drop. He was brilliant - I and I think everyone in the courtroom was moved by his eloquent defense of the SLRC's lawsuit against DuPont, his struggle to find local counsel among the cowardly Richmond bar and how he had no choice but to have his clients sign the Motion to Dismiss (that Kirk D drafted) because with no local counsel, if the client's didn't sign on their own, the case would be dismissed. the Judge admonished Kirk D. for not making a Motion to waive the local rule earlier so the client's wouldn't have to sign pro se. Kirk D. quickly retorted: " Your Honor I couldn't even file for a waiver, under the local rules I can file NOTHING without local counsel signing - so how could I file the waiver.  The Court saw Kirk D' point and quickly agreed.  He refused to impose sanctions on this point.

The Judge also made it clear that the SLRC's Terrill case - the first Confederate Southern American case - which the 4th Circuit had turned down - could not be used as precedent because it was an UNPUBLISHED decision.  DuPont had claimed that Kirk D. should be sanctioned because Terrill being dismissed was binding precedent - controlling law - in the 4th Circuit (which includes Virginia) and that by filing against DuPont AFTER the Terrill decision - Kirk D. should be sanctioned for filing a frivolous lawsuit.  The Judge said "no."  No sanctions were imposed.  Because no sanctions were imposed and apparently because the 4th Circuit case law forbids it - $20,000 of DuPont's fees sought against Kirk D. & the Plaintiffs was wiped away.  (WE HOPE).

Next the Court took up the issue of Attorney fees against the Plaintiff.

DuPont's Niall Paul got up to argue for DuPont - his family was there to observe why the lawsuit against DuPont was frivolous and why the Plaintiffs should pay all 5 of their high dollar lawyers.

The Judge asked Paul if Plaintiff's lawsuit was facially frivolous. Yes Paul replied.  "Then why did it take you 250 hours of attorney time to find that out?'  Judge Hudson retorted. Paul fumbled his answer, and looked like deer in headlights.

Then Kirk D. got up. "Your Honor, he began, $61,000 in attorney fees is the best evidence that this was not a frivolous lawsuit! he began.  This lawsuit reminds me of what Winston Churchill said in reply to Hitler's claim that he would "wring England's neck like a chicken!" Churchill replied, "Some neck!" "Some Chicken."  The gallery tittered on both sides.

Kirk D. then launched into an eloquent defense of the SLRC's mission to use the Civil Rights Act of 1964 to broaden the scope of national origin, to change the law, to widen judicial interpretation to include Confederate Southern Americans. His remarks to the Judge were brilliant and I have never been prouder of my friend and brother.  The Judge was visibly moved - called Kirk D an "honorable man that he has the highest respect for" and said that these Plaintiffs had the absolute right to use the courts to try to broaden or change the law......BUT.....

...DuPont was still the prevailing party and the Judge reluctantly agreed with DuPont that some fees would have to be paid....BUT....

....he further stated that the law commanded that he take into account the Plaintiff's ability to pay, and that he would render an opinion in a week.  Everyone on our side of the courtroom feel that the Judge will be fair.  I have never been more impressed with a US District Court Judge - and I know several.

Kirk D. manfully got up and told the Judge that the Plaintiffs had done nothing wrong to deserve attorney's fees assessed against them, and that if fees must be imposed - impose them on Kirk D. personally.

So was it a victory?  Yes I think it definitely was.  But it was a qualified victory.  We were spared disaster.  Kirk D. with the pressure of sanctions, fatigue and all the SLRC & personal financial problems and pressures weighing him down, performed brilliantly and put the SLRC back in the game.  But we are a long way from a touchdown - we are stilling playing defense and it is up to all of us to help so that we can score.  We were woefully under-funded for fighting hardball with DuPont - and DuPont is showing us how corporate America will fight our struggle for civil rights from here on.  God helped us this time -but we must raise more funds for the trench-fighting that is to come.  If we don't DuPont will eventually win - and if the Confederate community fails us - will deserve to win!!!

Some attorney's fees will be assessed.  But I think the Judge will be fair.  If we can't get a stay or a bond to guarantee the payment of the fees, we will not be able to appeal.  If no appeal and thus no lawsuit, the DuPont 7 will be at DuPont's mercy -y'all know how that will work (oh no - we're not firing you because you sued us 2 years ago, we're firing you because you were late getting back from your coffee break by 26 seconds).  I'm no lawyer, but I think we must appeal!

If the 4th Circuit sends this case back to Judge Hudson to try - we will have a fair hearing.  You must continue to help Kirk D., the DuPont Plaintiffs and the SLRC to continue.  Ask Cdr. Taylor or Cdr. Bowling their opinion of the hearing.  Kirk D. has shown that he can overcome incredible odds and beat back a well financed attempt to crush, him, the SLRC and the whole concept Confederate Southern-American rights.

As soon as I finish my March to Charleston I will begin a March to Richmond, Virginia and the DuPont plant.

We cannot let these brave men down.  Kirk D. has drawn the line in the sand.  Who will cross over that line and fight with him for liberty?

My personal congratulations to Cdr. Bowling on the Senate Committee voting on Confederate History & Heritage month & thanks from Kirk D., Dr. Payne and myself to Cdr & Mrs. Bowling for their friendship and wonderful hospitality -God Bless you both!

Respectfully Submitted,

H. K. Edgerton
Confederate Southern-American
www.slrc-csa.org

Also check a non-SLRC affiliated site: www.dupont7.com

Send a pledge or tax deductible donation to the SLRC today. God Bless all of you who helped get us to Richmond. Kirk D. & I leave for Philadelphia next week for oral arguments in the Storey case.  We need money for travel - so start sending it in now!