[Update, February 26, 2014: Discovery in the DiDonato v. Ung case has been completed, and the matter set for trial in April. There was an interesting and long diversion into insurance coverage law: apparently, during Ung’s deposition, DiDonato’s lawyers told him that he could potentially be covered by his parents’ homeowners insurance policy, and so Ung submitted a claim.

The insurance company denied coverage and filed a declaratory judgment action in federal court. Unsurprisingly, DiDonato argued alongside Ung that the insurance company was obligated to defend and indemnify Ung.

Earlier this week, the Eastern district of Pennsylvania granted summary judgment in favor of Ung on the defense claim, but left the indemnification issue for later. The order is here. If you’re interested in the issue, the order is quite readable and well-written. It’s a reminder of how lawyers should always look far and wide for potential insurance coverage — an issue also addressed at length in The Atlantic’s recent article on lawsuits arising from injuries at fraternities.

Seems from the docket the insurer appointed Richard ‘Bruce’ Wickersham of Post & Schell to represent Ung. Bruce is a capable defense lawyer. It may be the best Philadelphia civil trial to watch this Spring.]

[Update, January 12, 2012: Above the Law is reporting that DiDonato has filed a civil suit against Ung, the bar and restaurant that served Ung alcohol that night, and the bar and restaurant that served DiDonato’s friends alcohol that night. I’ve amended the end of this post to include some thoughts about the lawsuit.]

Yesterday a Philadelphia jury acquitted Gerald Ung, a Temple University Law School (“Beasley School of Law,” that is) student of attempted murder, aggravated assault and possession of an instrument of crime in the shooting of Edward DiDonato Jr.

Nobody doubted that Ung shot DiDonato, the question was if the shooting was excused or justified as self-defense. The jury answered in the affirmative.

It’s not my place to say which side was right; I wasn’t there at the time and I didn’t witness the trial. Above the Law has devoted extensive coverage to the subject, and has even provided some reports from the trial.

That’s not why I’m writing; as a civil litigator, though, this part from ATL’s post piqued my interest:

Does this mean that Ung gets his life back? Can things go back to normal for him and for the Ung family?

Not necessarily. For starters, Eddie DiDonato Jr., a former lacrosse star at Villanova and the son of a well-connected partner at the Fox Rothschild law firm, might file a civil suit against Ung. As noted by the Philadelphia Daily News, the 24-year-old DiDonato “underwent numerous operations to repair damage to a hand and multiple internal organs.”

Indeed, the acquittal doesn’t stop DiDonato from bringing a civil suit against Ung for tort claims like assault and battery. See Commonwealth v. Reynolds, 876 A.2d 1088, 1093 (Pa. Cwlth 2005) (acquittal has no preclusive effect on subsequent civil litigation). In addition to all of the trial testimony, he might also be able to use information learned by the District Attorney’s office — which obviously favored his version of events, hence prosecuting the case — in the civil case, thereby sparing himself a lot of trouble and expense in discovery.

One big legal question is if DiDonato would be able to exclude as evidence from the civil trial the fact that Ung was acquitted in the criminal trial. As a theoretical matter, the finding by the criminal jury is irrelevant to the subsequent civil jury; the criminal jury was asked to decide different issues, and applied a different and higher burden of proof. As a practical matter, though, it will be awfully tricky for DiDonato to find a pool of Philadelphia jurors with no knowledge of the criminal case. Even if they do, the lawyers will run into serious trouble trying to cross examine witnesses with their prior statements — i.e., the statements they gave the police and their testimony at the criminal trial — without inevitably revealing the statements were made in criminal proceedings.

That issue came up in one of my trials in which there was a criminal investigation, but not prosecution, in advance of the civil litigation. We argued, successfully, that the jury is entitled to know the circumstances under which a witness gave a prior statement, such as whether the witness was talking to a friend, talking to a private investigator, or, as was the case there, talking to police officer because, as we argued, people give different answers in different contexts and take some contexts more seriously than others. The defense argued, successfully, that the jury should not know that the statements were made in the course of a criminal investigation, because that would prejudice the jury into thinking that defendant’s conduct arguably rose to the level of criminal conduct.

In the end, the Judge entered a compromise order in which we had to refer to the statements as having been made before “an officer of the Commonwealth.”

I have no idea what the jury thought that meant. Police? Health inspectors? Parking enforcement? Who knows. There’s no ideal solution to such a complicated situation, and it depends upon the particulars of the situation; it’s why judges are given so much discretion in making evidentiary rulings.

All those legal issues out of the way, DiDonato’s bigger problem is purely pragmatic: if one jury already accepted Ung’s self-defense argument, then another jury is likely to accept it, too, regardless of the differing standards of proof, i.e. “beyond a reasonable doubt” in the criminal trial and “a preponderance of the evidence” in the civil trial.

And then there’s the rest of ATL’s post:

In addition, the services of Jack McMahon don’t come cheap. The Ungs easily owe McMahon six figures.


But Ung might have a way to pay that bill, particularly if DiDonato starts the civil process: countersuing DiDonato for malicious prosecution.

With virtually no exceptions, the defendant in a criminal matter — even if acquitted — cannot sue the prosecutor for malicious prosecution. Although we tend to take that sort of prosecutorial immunity and judicial privilege for granted, the idea that prosecutors should be shielded with absolute immunity from suit is of recent vintage. In the English legal tradition, prosecutorial immunity was qualified, and was dependent upon the presence of probable cause. See 2 William Blackstone, Commentaries 364 (noting that “probable cause to found such prosecution” is required to defeat claims of false and malicious prosecution). In the United States, “there is not one single case adopting any form of prosecutorial immunity” until 1896. Johns, Margaret Z., “Reconsidering Absolute Prosecutorial Immunity,” 2005 B.Y.U.L. Rev. 53, 114; see Imbler v. Pachtman, 424 U.S. 409, 421 (1976)(noting “The first American case to address the question of a prosecutor’s amenability to [malicious prosecution]” was in 1896).

But complaining witnesses who initiated the prosecution can be sued:

A cause of action for malicious prosecution has three elements. The defendant must have instituted proceedings  against the plaintiff 1) without probable cause, 2) with malice, and 3) the proceedings must have terminated in favor of the plaintiff. Miller v. Pennsylvania R.R. Co., 371 Pa. 308, 313, 89 A.2d 809, 811 (1952). It is undisputed that the criminal proceedings underlying this litigation resulted in Ms. Kelley’s acquittal. Malice may be inferred from the absence of probable cause. Hugee v. Pennsylvania R.R. Co., 376 Pa. 286, 291, 101 A.2d 740, 743 (1954). Thus, only the first element is at issue in this case. Usually, the existence of probable cause is a question of law for the court rather than a jury question, but may be submitted to the jury when facts material to the issue of probable cause are in controversy.

Kelley v. Local Union 249, 544 A.2d 940 (Pa. 1988). That analysis is applicable to most cases; typically, the primary issue is the absence of probable cause.

Malicious prosecution is one of the oldest torts in our English legal tradition, but it’s rarely successful, because, as a general matter, prosecutors do a reasonable — not perfect, but reasonable — job of rejecting cases without some probable cause and corroboration. Even where the only evidence is the oral testimony of the complaining witness, it takes a lot to show the total absence of probable cause; you need to prove a witness was intentionally lying about what they saw, heard, and did.


Which brings us to Ung and DiDonato. There were corroborating witnesses for DiDonato’s claims — i.e., DiDonato’s friends — and so there’s a question of if Ung can even bring a claim at all. That very question is on appeal right now as the result of a verdict our friends at Sprague & Sprague won last year:

A nasty divorce and allegations of insurance fraud by an ex-wife against her former husband resulted in a $1.63 million verdict for the husband last month in a malicious prosecution case he brought against her.

In post-trial motions filed after the verdict in Snyder v. Glass , Nancy Glass’ attorney, Michael A. Schwartz of Pepper Hamilton, is now arguing the case never should have been brought to a jury trial as a matter of law, arguing a private citizen who gives a tip to law enforcement about a crime that is later corroborated cannot be held personally liable when the object of that tip is later found innocent.

Mark B. Snyder’s attorney, Lawrence R. Woehrle of Sprague & Sprague, said malicious prosecution cases against private citizens are tough to win.

“In part, the reason that there are very few malicious prosecution, or successful malicious prosecution, claims against private individuals is essentially that — the defendant can say, ‘All I did, rightly or wrongly, was to take information to the district attorney and it was the district attorney’s call'” as to whether to prosecute, Woehrle said. “But we were able to convince the jury that if you give the district attorney false information, then you are depriving the district attorney” of the ability to make an informed decision.

If I recall correctly, $630,000 of that verdict was compensation for Woehrle’s defense of Synder in the criminal prosecution. McMahon’s bills might be similar.

I don’t like Glass’ argument, and I don’t think it will prevail. I am, like the Framers of our Constitution, a strong believer in the jury trial as a means of resolving civil disputes. I’m uncomfortable with judges deeming certain factual situations that meet the elements of the claim as nonetheless unfit for trial, with precluding either Edward DiDonato or Gerald Ung from seeking compensation in the civil courts.

But just because each of them could bring civil claims doesn’t mean they necessarily should. That question can only be answered by the people who were there that night.

* * *

Update, January 12, 2012: As mentioned above, Above the Law is reporting that DiDonato has filed a civil suit against Ung, the bar and restaurant that served Ung alcohol that night, and the bar and restaurant that served DiDonato’s friends alcohol that night. I’ve amended the end of this post to include some thoughts about the lawsuit. Readers interested in Pennsylvania dram shop law should read my post about Ryan Dunn’s fatal car accident.

DiDonato is represented by the Bob Mongeluzzi / Andrew Duffy / Jeff Goodman team at Saltz Mongeluzzi, all of whom I know through other litigation, and they’re all quite capable lawyers. The complaint doesn’t spell it out, but I can see the theory: if Ung hadn’t been served alcohol while visibility intoxicated, or if DiDonato’s friends hadn’t been served alcohol while visibility intoxicated, then the incident between Ung and DiDonato wouldn’t have escalated to the point of Ung shooting DiDonato. One ironic point: DiDonato’s claim against the establishments that served Ung alcohol may rise or fall on Ung’s testimony.

It’s a clever theory against the bars and restaurants, one that, depending on the facts, might get him an insurance policy limits offer from one or more of the defendants. As I mentioned below, though, I’m doubtful the claim against Ung will prevail — indeed, Ung might have a better claim against DiDonato based on the trial testimony.