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Wednesday, September 9, 2009
Roethlisberger suit: Duel of the lawyers

By Lester Munson
ESPN.com

The Reno, Nev., hotel executive who accuses Ben Roethlisberger of raping her will drop her civil lawsuit … if the quarterback apologizes and donates $100,000 to a battered women's support group. Through his attorney, David Cornwell, Roethlisberger is refusing to consider that offer and says he will settle only if the accuser, Andrea McNulty, totally abandons her quest, apologizes herself or helps Roethlisberger make a claim against her attorney, Calvin Dunlap of Reno. The offers and counteroffers raise legal questions about the merits of McNulty's claim and Roethlisberger's response. Here are some of the questions and their answers:

Both sides have made settlement proposals. Will this dispute be settled amicably?

No. Although both sides claim to be talking settlement, their assertions are nothing more than the preliminary skirmishes of what shapes up as an all-out courthouse war. There appears to be no middle ground. The stories from McNulty and Roethlisberger are irreconcilable. The dispute has all the early signs of a take-no-prisoners battle. McNulty's attorney, Dunlap, accuses Roethlisberger's attorney, Cornwell, of "bullying" and "extortion" and professional misconduct. Dunlap wants Cornwell barred from practicing law in Nevada. Cornwell responds with similar assertions. This is not the kind of negotiation that leads to an amicable settlement.

Who is winning the war so far?

Cornwell and Roethlisberger are ahead and pulling away. The accuser's offer to settle for an apology and a charitable contribution is not a sign of strength. Although they would deny it, McNulty and Dunlap might be looking for a way out of a situation that is becoming a monster. The settlement offer came after Cornwell produced a series of highly damaging e-mails purportedly written by McNulty at the time of the alleged incident and statements from McNulty's colleagues at the Harrah's hotel and casino in Lake Tahoe. In one e-mail, McNulty, less than 24 hours after the alleged attack, tells a male friend that she is looking forward to dinner with a group that includes Roethlisberger. If the case is tried before a jury in Reno, McNulty will have a tough time trying to explain things she appears to have said at the time of the incident.

What's next?

Roethlisberger and Cornwell are already demanding court action against McNulty and Dunlap to punish them for what they believe is a bogus claim. They might soon add their own counterclaim against McNulty and Dunlap, increasing the stakes and adding heat to the battle. Roethlisberger appears to be willing to spend whatever is necessary to prove his innocence and punish McNulty and Dunlap.

What hope does the accuser have in proving her claim?

If the e-mails produced by Cornwell are actually hers, written on the hotel's computer, McNulty's only hope would be that she can prove she went to a hospital or a doctor shortly after the incident. Dunlap refuses to discuss what McNulty did after the incident. If there was a medical examination that showed signs of nonconsensual sex, McNulty would have a chance to convince a jury that she is telling the truth. A source who requested anonymity because of the pending litigation told ESPN.com that McNulty did not seek medical attention after the incident. If that is true, McNulty and Dunlap might wish they had never filed their lawsuit.

Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.