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Friday, January 19, 2007

Comments

J.D. Crane

Your next motion should be for 137 sanctions. That's deplorable.

Prophet

W.W.D.C.D.?
What would Denney Crane do?

If I am the Defendant and my case is stronger with an ambiguous opinion, I am going to want that opinion to stand. No Matter What! I can get a better settlement for my client while the case is still "ambiguous" rather than trying to reach a settlement when you and your client are feeling empowered by a recent ruling. Thus, I am going to do everything to help my client and to show that (1) I support the Judge and the law clerk that wrote the opinion and (2) I firmly disagree that the opinion needs to be revised.

An unopposed motion is usually entered as a matter of course. That doesn’t mean the Judge will rule in favor of it. Before the motion is entered, I want to show the Judge that the parties don’t agree and that I don’t think he needs to do more work. So, I too would file an opposition. And if your Motion for Clarification is more than 2 sentences long, I'd also argue that your motion is improper because you, the plaintiff, tried to add additional facts not in the original motion, re-argue old facts based on the line of the Judge's reasoning, or tried to "spin" the ambiguous opinion, etc.

Judges write opinions all the time. The fact that this one is ambiguous suggests that he doesn’t have a clear handle on the issues. As the Defendant, this means I am more likely to win. Why? Because, in the end it is likely the Judge won’t be able to rationalize how the plaintiff’s theory is supported by a preponderance of the evidence (or by clear and convincing evidence).

I am also going to want that ambiguous ruling to stand especially because some time has past and the Judge may no longer have the same opinion of the facts or, worse, he may begin to understand the case a little more. Asking for a clarification in an instance like this is akin to asking the Judge to roll the dice again.

I can see where the Defendant is coming from.

J.D. Crane

Further thoughts:

1. What kind of lame-ass judge writes an order so ambiguous that neither side is confident what it's saying? Shame on him/her.

2. With all due respect to Prophet, the Defendant is full of it. If they really interpreted the ruling to be fully supporting their position, then they wouldn't feel the need to oppose the motion.

3. This is really not a philosophical question regarding lawyer ethics, or something akin to that field. This is a question of fact. What makes this different than "arguing in the alternative" is that there was a ruling, for which one side wants clarification. The other side is opposing clarification, CLARIFICATION for pete's sake. This is like a four year old boy covering his eyes with his hands, thinking that if he can't see the monster, it can't get him. The case will have a resolution, eventually. What the Defendants are actually doing is not merely trying to prevent you from getting clarification, but prevent an ultimate resolution of the issues. That is the reprehensible part. The Defendant couldn't stop you from filing the motion, so it's going to catch the Judge's attention, regardless. So they know he'll think about it anyway. So, like a petulant child, they file the opposition motion, knowing full well it won't stop the Judge from thinking about it.

Jurisconsultus

Wow, Prophet is starting to sound like a litigator. I almost afraid to face him in court--almost. JC remembers a nice little ass-whooping given to Prophet by the hands of JC and Sui Generis back in the days of 1L-dom.

JD makes some valid points, but I have to agree with Prophet. Filing an opposition is completely useless, but I think it is also necessary. The defendant's lawyers need to be "zealous advocates." Letting the other side convince the judge to essentially re-write an order without making any opposition is just bad lawyering. Chances are the order will be clarified, but there is a slim possibility the judge may feel his order is perfectly clear. Without any opposition, the judge may think both sides are confused and will clarify.

If the other side asserts that the order is clear, then the judge may feel that the plaintiff's are trying to sneak a more favorable order through.

All in all, I think the defense is doing what they should do, and Go Bears!

Prophet

What?

Please, counsel, continue to perjure yourself by trying to reconstruct this story:

JC remembers a nice little ass-whooping given to Prophet by the hands of JC and Sui Generis back in the days of 1L-dom.

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