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]

When Lawsuits Don't Change Anything

 I am still asked if the election lawsuits might still change the result of the election or if the US Supreme Court will get involved. The answer is no, especially after two election cases got resolved in Pennsylvania within the last two days.

Judge Patricia McCullough ordered Wednesday that the state must halt certification "to the extent that there remains any further action to perfect the certification." That order lasted exactly four days. The seven-member Pennsylvania Supreme court unanimously removed the injunction. But they went a step further and dismissed the entire complaint with prejudice. This slap down was the equivalent of saying GTFO and don’t come back. That was the state court.

In the Federal Court, the 3rd Circuit Court of Appeals eviscerated the Trump campaign appeal. They also went beyond the only question raised on appeal by restructuring some truly incoherent arguments and dismantling them as well.

One also shouldn’t be concerned about Sidney Powell’s new cases filed in Michigan and Georgia. Not only are they incoherent and riddled with typographical errors (which courts despise), they were filed way, way too late to be given serious consideration. It’s really hard to explain just how bad these lawsuits are. [Written November 29, 2020]

The News from Pennsylvania

 I’ve been asked by some to update what’s going on legally in Pennsylvania. If this doesn’t interest you, scroll on.

Here’s what we know so far. The district court judge dismissed the election lawsuit. The case was so poorly presented that the judge actually had to sort things out himself in order to show that it was a nothing burger. As part of his ruling, the judge said, “you had a chance to amend your complaint and you did. You can’t come in a second time to say that you screwed up your amendment and need a second do-over.”

So now, this judgment is being appealed to the Third Circuit, complaining that the judge should have granted the second do-over, which the law says the judge has complete discretion to allow or disallow.

It gets better (worse). Having filed for an “expedited review”, the Trump team is saying “We messed up our first petition for expedited review, so we are now amending the petition.” The amended petition is, frankly, incomprehensible. From a legal standpoint, to call it embarrassing would be a compliment. The brief in support of the appeal is due by 4:00 today. I expect it to be as enlightening as chapter two of “The Bear” by William Faulkner. Stay tuned. [Written November 23, 2020]

Those Obama Judges...

 Let’s say your bicycle is stolen on public property in San Francisco. So you file suit against the city of Oakland. When the judge asks what you are looking for in terms of relief, you say that since your bike is gone, all the bikes in Oakland should be taken away. The judge says “Are you sure this is what you want to do?” And you say “Yep.” The judge dismisses the case. You complain that the judge was appointed by Obama. [Written November 21, 2020]

The Pennsylvania Clown Case

 The Pennsylvania clown car case just gets funnier by the day. I thought it couldn’t get any more absurd after Rudy’s disastrous performance yesterday. I was wrong. Today, the Trump organization asked to court for permission to file a second amended complaint (you are entitled to one amendment automatically; any others must be by permission). The complaint starts by saying that their first amendment “inadvertently” deleted some of the original complaint. In other words, they want to undo their undo. Then, even on their third try, they have failed to allege specific acts of fraud, required under the rules. So, either there is no fraud or the attorneys committed malpractice by failing to properly allege it.

These are just the highlights. I’m not even going to go into the violation of local court rules associated with the new attempted filing -- the sorts of things that will get your butt kicked by the judge. [Written on November18, 2020]

Rudy Giuliani's Mistakes

 Rudy made mistakes in Federal Court today that would embarrass a first year law student. It was one of the greatest shows of legal incompetence I have ever seen (and I’ve seen a few). His performance would actually be best used as a bar exam question where the test taker is asked to identify all of the errors committed. They were legion.

You know you’re in trouble when the judge, bending over backwards to not call him a blithering idiot, actually says "You should write this down. That's what lawyers do. They write things down." [Written on November 17, 2020]