A civil case prompted by accusations from convicted Annapolis attorney Edward S. Digges Jr. against his former law partners was to go to the jury today. Ironically, Digges, a once-powerful asbestos litigator who one lawyer described as "having his footprints all over this courtroom," was not called to testify during the 3 1/2 -week-old trial in U.S. District Court in Baltimore.
Digges was brought from a federal prison in West Virginia as a supposed key trial witness. But he has sat in Baltimore City Jail since May 8 awaiting a call to the witness stand that never came.
Digges prompted the civil fray last year after he pleaded guilty to mail fraud here for defrauding Dresser Industries Inc., his major client, out of $3.1 million in an overbilling scheme.
Digges told St. Paul Fire and Marine Insurance Co., which insured the Digges, Wharton & Levin law firm for professional liability, that his former law partners, James T. Wharton and David A. Levin, knew of his fraud and even participated in it.
As a result, St. Paul filed a declaratory judgment suit claiming that it should not have to pay the multimillion-dollar negligence judgment imposed on Wharton and Levin for "vicarious liability" because they failed to monitor Digges' billings.
St. Paul claims that a "prior acts" clause in the law firm's professional liability policy voids it because all three partners knew of Digges' fraud and lied about it on their application for coverage.
The evidentiary phase of the trial ended yesterday. The case and was to go to the jury late today for deliberations, after closing arguments from St. Paul's lawyers; lawyers for Dresser Industries Inc., the defendant that is trying to collect the judgments from the insurer; and a lawyer who represents Wharton and Levin, who have been involved in the trial as witnesses and "interested parties."
Richard McMillan, St. Paul's lead counsel, said he did not call Digges to the witness stand "because we didn't need him" to prove the legal issues involved in the case.
"We feel we have done that without Digges," McMillan said.
Benjamin A. Civiletti, Dresser's lead counsel, said in open court this week that McMillan did not call Digges to testify "because he [Digges] is totally unreliable, totally unbelievable."
Civiletti suggested that he didn't call Digges as a witness for the same reason.
Jacob Stein, who represents Wharton and Levin, wouldn't call Digges to testify either. His clients say they are outraged at Digges for robbing them of $1 million and thrusting them into this legal wrangle, which may may end with them having to repay Dresser the $3.1 million judgment and another $500,000 in interest.
Judge Joseph C. Howard, the St. Paul-Dresser trial judge, suggested that the jury should have heard Digges' story, but he was powerless to force anyone to call Digges to testify.
Howard repeatedly asked the trial lawyers, "What about Mr. Digges' status as a witness?" He got a series of shrugs from McMillan and Civiletti for answers.
Finally, at the conclusion of evidence late yesterday, a Civiletti co-counsel said he would tell the U.S. Marshal Service that Digges was not needed as a witness.
Court officials said Digges probably would be returned to prison today to resume serving his 2 1/2 -year mail fraud sentence.