Friday, April 9, 2021

We Have Moved from “Release the Kraken” to Buzz Lightyear. Really.

There is a lot to unpack this week in the wonderful world of “release the Kraken” lawyer, Sidney Powell. The week ended with her quoting from Buzz Lightyear in a legal brief. Bear with me as we cut through the legalese while unravelling the recent developments in her cases.

Two weeks ago, Powell moved to dismiss the Dominion Voting Systems’ defamation case against her, arguing among other things that no reasonable person would accept her comments about Dominion at face value. (For more on that, see my prior article: Sidney Powell’s Defamation Defense: No Reasonable Person Would Believe My Election Rigging Claims on FOX.)

The "no reasonable person" statement did not go unnoticed by the Michigan lawyers who are attempting to get Powell sanctioned for filing frivolous post-election lawsuits there. To understand why their ears perked up, you need to know a little about writing legal briefs.

When the court allows you to file a legal brief in support of your case, two things are of utmost importance: you need to file the brief on time, and you need to include everything relevant to the case in that document.  In other words, you have one shot to do the exhaustive research necessary to make your legal case. You do not have the luxury of later saying “Oops, I missed something.” Knowing that this is a one-shot deal is what causes sleepless nights.

There is one exception to the “one shot” rule, and that is when brand new information is revealed after the brief has been filed. If you have new information, you may request that the court accept a “supplemental brief.” This is what the lawyers in the Michigan sanctions case did earlier this week.

In their supplemental brief, the Michigan lawyers said that Powell’s statements in the Dominion case effectively proved that she should be sanctioned in the Michigan case. Her “statement of facts” were, from her own admission, not facts at all. You are not entitled to file a case citing “facts” when you are actually saying “let’s see how this plays out.” In all likelihood, the judge will allow this supplemental brief to be filed. It does not portend well for Ms. Powell.

You might think that the movement in these two cases would be enough drama to last a while in the Powell world. You would be wrong. Michigan is not the only state where sanctions against Powell are being sought. She is also defending against sanctions in Wisconsin.

The argument for sanctions in Wisconsin is similar—that Powell pursued frivolous litigation. Powell’s motion to dismiss in this case is a bit different, however. She is claiming that the original Wisconsin defendants cannot claim sanctions because they waited too long to ask for them. (Technically, the court no longer has jurisdiction to hear a claim for sanctions because the case was dismissed as moot.)

What is most interesting in the Powell’s brief in support of her motion to dismiss is not the case law she cites, as questionable as that is. Rather, what has caught most commentators’ attention is her characteristic, yet extraordinary, use of hyperbole.

Most lawyers would suggest that the Wisconsin defendants simply waited too long to bring their request for sanctions. Not Powell. She argued that allowing the sanctions motion to proceed “could extend the time for filing a sanctions motion ‘to infinity and beyond’ to harass a plaintiff in what amounts to nothing more than political grandstanding.”

That’s right. Powell quoted Buzz Lightyear and even footnoted it (Buzz Lightyear, Toy Story (Pixar 1995).)

The consensus among legal analysts is that there might be more persuasive people to quote than Mr. Lightyear. If Buzz does end up being legally credible, he will probably be quoted in the reply brief as well, something along the lines of “There seems to be no sign of intelligent life anywhere.”

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