By Max Mitchell, From The Legal Intelligencer

The gay lawyer who sued Anapol Schwartz over his scuttled lateral move should be sanctioned for allegedly making false statements about a key fact in the case, the defendants argued in a post-trial motion.

The motion filed in Downs v. Anapol Schwartz asked the court to award attorney fees and costs, claiming plaintiff Jeffrey Downs made false statements in court filings that allowed his defamation and tortious interference claims to proceed to trial. However, Downs admitted that those statements were false during his trial testimony, the defendants contend.

The sanctions motion was filed several days after Downs filed a post-trial motion seeking a new trial, and arguing the judge who presided over the case was biased because of his shared work history with the lead defense lawyer in the case.

Downs sued Anapol Schwartz in the Philadelphia Court of Common Pleas for defamation and tortious interference stemming from Downs' scuttled lateral move. Downs had planned to move with former Anapol Schwartz shareholder Mark LeWinter to Raynes McCarty. However, that move was aborted after LeWinter told leadership at Raynes McCarty that Downs allegedly threatened to sue Anapol Schwartz for discrimination.

Earlier this month, a jury rendered a defense verdict in the case, finding in favor of Anapol Schwartz.

The defense's post-trial motion, which was filed by Gaetan Alfano of Pietragallo Gordon Alfano Bosick & Raspanti, said Downs had maintained during the lead-up to trial that he never attempted to hide from LeWinter a request Downs had made asking the firm to pay him an approximately $88,000 severance package. According to Alfano, Downs had denied asking Thomas Anapol not to tell LeWinter about the demand in court filings.

However, during cross-examination, Downs admitted he had told Anapol not to tell LeWinter about his request for a severance package, the defendants argued.

The defendants contended that Downs' statements denying that he had asked Anapol to keep the information from LeWinter misled the court, and allowed the case to survive summary judgment "as both claims relied upon plaintiff's assertion that Mr. LeWinter had conveyed false information to Raynes McCarty."

"Plaintiff argued that Mr. LeWinter had defamed him by relaying certain information to Raynes McCarty that was not true. Yet plaintiff now admits that the information conveyed by Mr. LeWinter was, in fact, correct," the defendants said in the motion. "Importantly, as stated by plaintiff himself, the statement at issue—whether plaintiff told Mr. Anapol not to disclose his demand to Mr. LeWinter—was the linchpin of defendant's defense."

Alfano declined to comment, and Downs' attorney, Michael A. Bowman, did not return a call for comment.

In a post-trial motion that Bowman filed May 22, Downs contended that Judge Kenneth J. Powell Jr., who presided over the trial, should have removed himself from the case because he and Alfano had worked together at the District Attorney's Office and knew each other. Downs argued that Powell demonstrated his bias in favor of Alfano, the lead defense attorney in the case, through evidentiary rulings and statements Powell made before the jury.

"With the trial starting April 24, 2015, and throughout, Judge Powell's bias and partiality further permeated and was evident by his additional comments, behavior and rulings during trial, which included, among other instances, calling plaintiff 'pugilistic' and states that the plaintiff was 'trying his patience,' both in front of the jury, while holding plaintiff's hostile witnesses to the same standard," Downs said in the motion. "One need only compare the court's reaction and comments during the testimony of hostile witness Stephen Raynes, who all but refused to respond to simple yes or no questions to gauge the court's complete partiality in this matter."

According to the motion, the prior work relationship between Alfano and Powell came to light when Downs' prior counsel, Kimberly Ashbach, walked in on Powell having alleged ex parte conversations with the defense counsel. Powell then disclosed that he had worked at the District Attorney's Office at the same time and knew each other, and said he did not see a reason to remove himself from the case. At the time, no objection was made, the motion said.

But after Ashbach stopped handling Downs' case due to medical issues, Downs entered an appearance for himself, and also put a motion on the record requesting that Powell recuse himself because of his work history with Alfano. That motion was denied, Downs said in the filing.

Among other things, Downs pointed to comments that Powell allegedly made as evidence of alleged bias, including saying that Downs "might as well have gone to Anapol Schwartz 'with a bandana and a gun,'" and words to the effect of "you're a smart man, please answer the question" during Downs' testimony.

Downs also said Powell displayed an "openly aggressive attitude" toward him, and told Bowman that Bowman was misleading a witness and that Bowman "knows better than that."

Downs also contested several evidentiary rulings Powell made in the case.

For more on this story go to: http://www.thelegalintelligencer.com/id=1202727558059/Defense-Seeks-Sanctions-Against-Gay-Lawyer-in-Defamation-Suit#ixzz3bTpk3400