Courts Don't Like Sloppy Pleadings

 When you practice in the Federal courts, there is a detailed and exacting set of rules for filing and pursuing a lawsuit. These are the Federal Rules of Civil Procedure. What many people don’t realize is that the individual courts have their own specific rules – called “local rules.” These rules can run dozens of pages. Since nobody can keep track of the local rules for every court, lawyers often hire “local counsel” if only to make sure that every detail is done correctly.

That brings us to the Wisconsin election lawsuit brought by Sidney Powell. Her suit managed to violate BOTH the Federal and local rules. These are a few, but not all, of the deficiencies as things currently stand. Federal rules: failing to name the correct plaintiffs, originally filing a “draft” complaint, failing to attach listed exhibits, failing to verify the complaint, failing to certify notice to the defendants (in either the original or amended complaint). Local rules: miscaptioning amended complaint, failing to ask for a modified briefing schedule, failing to request an oral hearing.

Similarly, the most recently filed Arizona suit violated local rule 7.1(a)(3) concerning proper form for issuing a summons. This is basic, basic stuff.

Many of these may seem to be minor technical issues. However, the courts take these matters of form and substance very seriously. Lawsuits may be dismissed for repeated violations and attorneys are subject to sanctions for filing frivolous pleadings. It is not unlikely that some of these will happen in the coming weeks. [Written December 2, 2020]

Avoiding Being Blind-Sided

 Those who read the 3rd Circuit opinion in the Pennsylvania case will notice that they took the entire hodge podge of arguments in the Trump campaign brief, reorganized it, and then dismantled it. This made me smile because it reminded me of my days doing appellate practice.

An effective appellate lawyer doesn’t just read the opposing arguments and respond to them. This method almost guarantees you will miss something. Instead, the better approach is to first pretend you are on the other side of the case and systematically develop the most effective arguments you can. Only then do you develop your brief. So, yes, you are effectively preparing two briefs, but it ensures that you completely prepared. Besides, it makes organizing your own thoughts much easier and helps to create a clearer picture to present to the judge.

This do-both-sides approach also keeps you from being blindsided during oral argument. That happened to Guiliani when the judge asked what standard of review should apply. He actually didn’t know so made something up. The judges were not impressed.

I remember one oral argument where the appellate court judge asked me if I was familiar with a case that had not been cited in either brief (judges do their own research). I replied that yes I did and proceeded to explain why it didn’t apply in our case. I would have never found the case if I had only been responding to the other brief. [Written November 30, 2020]

Why Has Trump Lost 37 Cases (So Far)

 The questions of the day are all related.

How has the Trump campaign has managed to lose (at last count) 37 cases affecting seven battleground states?

Why are the cases not being litigated by lawyers who specialize in election law?

Why are the cases riddled with procedural errors that would caught by a first-year law student?

What haven’t the complaints been able to find the right plaintiffs to being the suits?

Why have the cases that could have litigated fraud expressly said that fraud is not an issue?

Why have the cases that actually allege fraud only been filed after the results have been certified?

There are two possible answers that come to mind immediately.

Answer #1. These cases are being brought and argued by some of the most inept lawyers in the history of American jurisprudence.

Answer #2. The purpose of bringing these suits in the first place was not to win.

I’ll concede Answer #1, but that doesn’t preclude Answer #2. Consider that Answer #2 allows for a couple of things to occur.

First, fundraising may continue, both for legal expenses and other political purposes.

Second, if you know that your fraud claims have no merit, the LAST thing you want is for a Court to say that. Keeping the Court from weighing in allows you to continue having “hearings” such as the one in Pennsylvania earlier this week where unsubstantiated claims may continue without the rigors of actual proof. [Written November 27, 2020]

Sound and Fury

 Over the next few days, Guiliani and many others will hold public events to claim that the sky is purple with pink polka dots. They are entitled to do that; it’s free speech. And some people will believe them. That’s their right too.

Contrast that, though, with what has happened in court. More than 30 cases in 7 states have had the opportunity to prove that in court. In ALL cases where the question has some up, the lawyers have instead said “This is not a sky case” or voluntarily dropped the allegation. Why? Lawyers like to keep their licenses. They are prohibited from arguing positions that they know are wrong or that they know are not supported by sufficient evidence.

So when you get the breathless media reports of these events, remember the famous quote from Macbeth: “it is a tale told by an idiot, full of sound and fury, signifying nothing.” [Written November 25, 2020]

It's Over

 On the first day of class in Civil Procedure in the first day of law school, my professor said: “None of this will make sense for about six weeks. Then one day you’ll see how it all fits together.” And he was right.

Real lawsuits are not like The People’s Court where you can just come in and say “here’s who I am and here’s what I want.” The rules are complex, and for good reason. The Courts, federal courts in particular, are designed to make sure that the right people bring the case (standing), that they are filing the case in the right place (jurisdiction), and that what they are asking for is appropriate (stating a claim upon which relief can be granted). The process is a deliberate one, designed to make sure that everybody’s time isn’t wasted. In some areas of the law, such as fraud, you must do much more than simply make general allegations. You must specifically lay out the who, what, when and where.

Because the process is so deliberate (and time consuming), attorneys who want relatively quick action from the courts get the process moving immediately. This is particularly true in election challenges. The sooner you can prove you are the proper parties to the action and that you are in the right court, the sooner issues can finally be determined.

What all of this means is that when you hear people, at this late date, spouting fraud or conspiracy theories that they claim will ultimately prevail in court, know that they are on a legal fool’s errand. As we approach Thanksgiving, stick a fork in it. It’s done.[ Written November 24, 2020]