the trump election lawsuit thread of dominance

[gyroprotagonist 2592]

21 minutes ago, Red Five said:

Powell got her crazy election theories from a self-described time traveler. If she wasn't knowingly lying then she needs to be institutionalized. 

 

[TwiceHorn 31440]

26 minutes ago, Red Five said:

Powell got her crazy election theories from a self-described time traveler. If she wasn't knowingly lying then she needs to be institutionalized. 

That's actually quite a possibility here.  It would be kind of hilarious if this turned into a fitness inquiry ala Chelsea Davis.

[nbmishoid 949]

4 hours ago, TwiceHorn said:

What I mean is, and it is somewhat subtle, for a person of means and not subjected to external biases (meaning those like race not unique to the justice system), the system operates "as intended."  You can call that bias if you want.  I would call it unbiased in those circumstances, because "as intended" pretty much speaks for itself.

There are some instances where the poor and sometimes even the dark are able to obtain top-flight, top-dollar counsel, such as contingent-fee injury litigation, where the system operates as intended, or, largely unbiased, even when countered by deep=pocket defendants.  

You are correct that addict lawyers often get the hammer, but usually when that addiction leads to misappropriation of client funds, which is the bar discipline kiss of death.  I actually represented an addict lawyer that got control of herself before committing any such malfeasance and was able to save her law license and change the law of compulsory discipline upon commission of a crime.  And, I'd say the bar, through TLAP, is increasingly sensitive to addiction and mental health issues and getting impaired lawyers help before they commit the kiss of death.  But, like all addict-related endeavors, the consequences get to sit where they lie.

Incompetence, at least "bursts" of it, which we pretty much all have from time to time, is not an ethical matter strictly speaking, so is addressed by the tort system.   The chronically incompetent I think usually get hung up on neglect, because they seem to go hand in hand.

I'm not sure about "abusers."  I personally know of an off-and-on client that got disbarred for porking a client, that's abusive.  And you see that from time to time.

Not sure why you're conflating medical discipline with attorney discipline.  I think the bar is far more active in disciplining its members than the TMA.  Although the bar could surely use some improvement.

And, I'll repeat, I think disbarring or otherwise disciplining Powell would have been fairly difficult, because Americans have the basic right to file shitty lawsuits, subject to sanctions. Lawyers get sanctioned all the time without getting disbarred or even disciplined.  And unless it can be proven that the allegations of the lawsuit were knowingly false, not just subject to proof and not negligently or recklessly false, discipline or disbarment is going to be tough.

Proving that someone lied to the level of court proof can be really tough.  To use an unfortunate example, we all knew Bill Clinton was lying about porking Monica Lewinsky, but it took Starr years to prove it and millions of dollars.  It's even more difficult in the contest of a lawsuit, where the basic allegations of any lawsuit may prove to be untrue, but the lawyer and client have the right to try to prove them.

 

Twice

I’m one who confesses that your posts about what one should really expect have been educational.  Also frustrating as many have indicated.

But the post above bothered me a bit.  This whole notion of what is intended is abstract, but the difference in legal results between the rich and poor is not.  It is this difference that matters, it’s absolute value, not the relative sub distances from some imaginary centroid in the legal hyperspace.  Such a thing cannot be identified.

So let’s focus on the difference in these cases when we ask ourselves what is right and what is wrong.

[Bozo_Casanova 26437]

6 hours ago, TwiceHorn said:

Not sure why you're conflating medical discipline with attorney discipline. 

I’m not conflating them. I’m saying they are directly analogous. The miserable failure of the medical profession to eject bad doctors in order to prevent bad medicine is exactly the same thing as the miserable failure of the legal profession to eject bad lawyers to prevent injustice. In both cases it’s society who pays for it, while the profession hides behind procedural niceties and platitudes. The gates are strongly kept from both within and without it seems.

I respect both professions very much. I think the general public does. So we are puzzled why those who should revere it the most don’t protect it from within. 

 

Edited March 1, 2023 by Bozo_Casanova

[nbmishoid 949]

In each case we have systems, that deliver some objectionable results.  We look to the “owners” of these institutions for redress, improvement, what have you.  In these limited cases of professional behavior the institutional owners are the professional members themselves.  
There are indeed details differing among/between cases.  The root question isn’t about these details. 
It concerns why, oh why, oh why the fuck don’t these member bodies do a better job?  

[Bozo_Casanova 26437]

8 hours ago, TwiceHorn said:

Incompetence, at least "bursts" of it, which we pretty much all have from time to time, is not an ethical matter strictly speaking, so is addressed by the tort system.   The chronically incompetent I think usually get hung up on neglect, because they seem to go hand in hand.

Less on topic, but what’s the point of all the gatekeeping and barriers to entry if not to rigorously enforce a basic standard of competence? It’s one thing for somebody to have an off day, and obviously there’s a range of skill in every field, but bad career enterprise software salesmen don’t exist. If a salesman consistently sells dirty and get deals unwound as a result or consistently fails to make his nut, he ceases to work.  I see no reason why bad lawyers or doctors should exist, especially since society pays for their mistakes.

Edited March 2, 2023 by Bozo_Casanova

[Pig Bellmont 8712]

12 minutes ago, Bozo_Casanova said:

but bad career enterprise software salesmen don’t exist.

That’s a nice theory and all but I’ve met a few. Even more if we’re talking “successful” salespeople with bad ethics. I understand your point but I’d posit sales isn’t as clean as an example in reality 

[Beau Vine 54208]

21 minutes ago, Bozo_Casanova said:

Less on topic, but what’s the point of all the gatekeeping and barriers to entry if not to rigorously enforce a basic standard of competence?

Ummm, to raise the price of lawyers?  Duh.

[TwiceHorn 31440]

17 minutes ago, Pig Bellmont said:

That’s a nice theory and all but I’ve met a few. Even more if we’re talking “successful” salespeople with bad ethics. I understand your point but I’d posit sales isn’t as clean as an example in reality 

Yeah, I thought that an odd flex.

I guess give me an example of an "incompetent" lawyer that didn't steal from his clients that ought to be disbarred.  There are a pretty fair number of shitty lawyers that disserve their clients, in my opinion, including overcharging them for value received and bringing cases that should never have seen the light of day.  Often as not, their clients suck, too, and also love them, and they're a match made in hell.  So, while I might consider them incompetent, others not so much.

And, there are major partners at law firms that are totally legally incompetent, but that's not how they earn their dough anymore.  And they may never have been any great shakes as actual competent lawyers, but they sure know glad-handing and back-slapping.

Every adversarial case has a winner and a loser, and the lawyers' respective records is not reflective of their competence.

So many little things go into the winning and losing of a lawsuit, and often other less adversarial matters, that it is often not easy to just say "this lawyer is incompetent."  It's easy enough to second guess a particular decision, action, or omission, but proving, beyond dead-reckoning, that that lawyer cost his/her client the case, often just isn't easy to do.  There are some damn good lawyers that have made bad decisions that very likely cost their clients cases, but I would hardly call them incompetent.

In other words, there aren't just a bunch of lawyers sitting around wearing dunce caps with their noses in the corner while the Bar does nothing.  There are more than a few that ought to be wearing dunce caps, but instead are wildly successful.

It ain't like medicine where the incompetent maims or shortens life.

Edited March 2, 2023 by TwiceHorn

[safe sex 11698]

12 minutes ago, TwiceHorn said:

It ain't like medicine where the incompetent maims or shortens life.

I mean...

[TwiceHorn 31440]

7 minutes ago, safe sex said:

I mean...

The point is not whether the harm is analogous.

It's if a doctor takes the wrong limb or performs the wrong procedure, that's what lawyers call res ipsa loquitor.  It speaks for itself and you got some splainin to do.  And whatever that explanation is, it is unlikely to suffice.

Rarely is the outcome of a legal matter so easily traced to incompetence or malpractice.  And, if a lawyer is that chronically incompetent, they're also likely fucking up things with a more direct bearing on their client, that is, mishandling client trust funds, which is a one-way, express ticket to disbarment or at least suspension.

[Neonmoon 38129]

2 hours ago, nbmishoid said:

In each case we have systems, that deliver some objectionable results.  We look to the “owners” of these institutions for redress, improvement, what have you.  In these limited cases of professional behavior the institutional owners are the professional members themselves.  
There are indeed details differing among/between cases.  The root question isn’t about these details. 
It concerns why, oh why, oh why the fuck don’t these member bodies do a better job?  

Because there is no accountability. Police have this issue as well. And the Supreme Court. And Congress. And Wall Street. Etc. 

[Brisketexan 105075]

I’m not conflating them. I’m saying they are directly analogous. The miserable failure of the medical profession to eject bad doctors in order to prevent bad medicine is exactly the same thing as the miserable failure of the legal profession to eject bad lawyers to prevent injustice. In both cases it’s society who pays for it, while the profession hides behind procedural niceties and platitudes. The gates are strongly kept from both within and without it seems.
I respect both professions very much. I think the general public does. So we are puzzled why those who should revere it the most don’t protect it from within. 
 

Not a totally off-target comparison, but the problem with lawyer discipline is who that system is designed to protect. Believe it or not, it is almost uniformly designed to protect the client. Open up the Bar Journal, and there’s stacks of discipline cases…almost all of which are for absconding with client funds or simply failing to represent the client (won’t return phone calls, letting a case be dismissed for want of prosecution, etc). We did NOT design our disciplinary system to deal with lawyers who betray not their client, but the legal system as a whole. Kind of like how our system of laws is not super well equipped to deal with psychopaths who try to overthrow the government, or a president who openly plots against the Republic. We have a blind spot against people doing shit THAT bad. It’s a big flaw. I’d like to fix it.
Think the GQP will let us?
Yeah, me neither. We’re stuck with these gaps, because exploiting them to bring about the demise of the rule of law and the republic is their core mission.

[TwiceHorn 31440]

5 hours ago, nbmishoid said:

Twice

I’m one who confesses that your posts about what one should really expect have been educational.  Also frustrating as many have indicated.

But the post above bothered me a bit.  This whole notion of what is intended is abstract, but the difference in legal results between the rich and poor is not.  It is this difference that matters, it’s absolute value, not the relative sub distances from some imaginary centroid in the legal hyperspace.  Such a thing cannot be identified.

So let’s focus on the difference in these cases when we ask ourselves what is right and what is wrong.

I didn't say the results were not inequitable.  I admit that they are.  Our system is premised on two roughly evenly matched adversaries going toe to toe in a quest for victory, truth, or justice.  Any deviation from "two roughly evenly matched adversaries" is a bias away from the system as intended.  Most often that deviation is due to economic power, secondarily, it is due to individual/institutional prejudices.

There are, however, examples of the economically disadvantaged and the "other"-disadvantaged prevailing in our system, because they are nonetheless roughly evenly matched with their adversaries through the NAACP, the ACLU, contingent-fee representation, etc. etc. etc.  The system is thus working as intended, even if they don't prevail.

I don't count bad laws necessarily as part of the judicial system.  They are part of the SYSTEM writ large, but because they don't originate within the judiciary, it's another part of the SYSTEM.

I freely acknowledge that the legislative end is captured by and mostly does the bidding of special economic interests.  That's another discussion.

Edited March 2, 2023 by TwiceHorn

[TwiceHorn 31440]

22 minutes ago, Brisketexan said:

Not a totally off-target comparison, but the problem with lawyer discipline is who that system is designed to protect. Believe it or not, it is almost uniformly designed to protect the client. Open up the Bar Journal, and there’s stacks of discipline cases…almost all of which are for absconding with client funds or simply failing to represent the client (won’t return phone calls, letting a case be dismissed for want of prosecution, etc). We did NOT design our disciplinary system to deal with lawyers who betray not their client, but the legal system as a whole. Kind of like how our system of laws is not super well equipped to deal with psychopaths who try to overthrow the government, or a president who openly plots against the Republic. We have a blind spot against people doing shit THAT bad. It’s a big flaw. I’d like to fix it.
Think the GQP will let us?
Yeah, me neither. We’re stuck with these gaps, because exploiting them to bring about the demise of the rule of law and the republic is their core mission.

Excellent point.

Also, note that we are duty bound, in many cases, to represent our clients to the exclusion of other considerations, like the general welfare or other noble, yet still vaporous notions.

You can represent a client to a great victory of some sort, that is truly just, and create a steaming awful precedent that is going to be bad for a lot of people for a long time in the process.

Or just take a criminal case.  The lawyer is duty bound to secure acquittal if possible for his client, or the least conviction and  sentence, without regard to actual guilt.  That may actually result in tangible harm to society if that guilty person goes free or gets out early and does more crime.

But better 100 guilty men go free than one innocent man be wrongly convicted.  While there are surely far too many wrongly convicted, it's still better that we minimize that, which also means that a lot of guilty go free. And that's not just some moral bon mot.  The problem is that the government in a criminal prosecution wields its greatest power against an individual citizen, even if that citizen is a fucking dirtbag.  We can't start putting our thumb on the scale in favor of the government just because we dislike the citizen, even violently dislike the citizen.  The thumb needs to stay on the scale for the citizen.

 

Edited March 2, 2023 by TwiceHorn

[Bozo_Casanova 26437]

1 hour ago, Pig Bellmont said:

That’s a nice theory and all but I’ve met a few. Even more if we’re talking “successful” salespeople with bad ethics. I understand your point but I’d posit sales isn’t as clean as an example in reality 

i never said it was “clean”. I said it it’s better than medicine or law. I’m not in enterprise software sales for a long time, but i know this: You can step up to the line on the regular and you can even be a mediocrity,  you cannot build a career on bad deals or missing numbers. 

[TexasEd 8066]

On 2/26/2023 at 12:29 PM, Captainant said:

I'm just saying: throwing out an ENTIRE case because a filing was (A thru F) instead of (A thru H) doesn't pass the sniff test. It looks like the court doesn't want to disbar Powell and is looking for ANY reason to not do so. 

The way I read the judgement is that the Judge could be saying, if you want this to stick you had better get your ducks in a row because if there is a procedural fuckup that could let her off the hook on appeal it is on you, not me.  So file it the right way so when I make a judgement there is no technicality for her to get off on.

 

[Captainant 27637]

13 minutes ago, TwiceHorn said:

Excellent point.

Also, note that we are duty bound, in many cases, to represent our clients to the exclusion of other considerations, like the general welfare or other noble, yet still vaporous notions.

You can represent a client to a great victory of some sort, that is truly just, and create a steaming awful precedent that is going to be bad for a lot of people for a long time in the process.

Or just take a criminal case.  The lawyer is duty bound to secure acquittal if possible for his client, or the least conviction and  sentence, without regard to actual guilt.  That may actually result in tangible harm to society if that guilty person goes free or gets out early and does more crime.

 

"Sidney Powell was duty bound to knowingly lie to the court in more than sixty different cases" is certainly a novel position to take

[TwiceHorn 31440]

1 minute ago, TexasEd said:

The way I read the judgement is that the Judge could be saying, if you want this to stick you had better get your ducks in a row because if there is a procedural fuckup that could let her off the hook on appeal it is on you, not me.  So file it the right way so when I make a judgement there is no technicality for her to get off on.

 

What the judge ultimately said was "you have no evidence that Sidney Powell knowingly" violated a bunch of ethics rules.

Part of that was that the exhibit labels apparently didn't match up with what was said in the response.  That is, you said Exhibit A shows or proves X, but I can't find Exhibit A even after giving you an opportunity to fix it, so it's as if Exhibit A isn't even there, so you have no evidence of X.

That doesn't mean it doesn't exist, or even that "you don't have it."  It means "you failed to show it to me."  It's a bit hard to extricate the substantive (the evidence and what it did or didn't prove and was it enough proof) from the procedural (did you properly show me what you have).

[TwiceHorn 31440]

10 minutes ago, Captainant said:

"Sidney Powell was duty bound to knowingly lie to the court in more than sixty different cases" is certainly a novel position to take

Hyuk hyuk.

Edited March 2, 2023 by TwiceHorn

[Bozo_Casanova 26437]

Good thing the 

36 minutes ago, TwiceHorn said:

What the judge ultimately said was "you have no evidence that Sidney Powell knowingly" violated a bunch of ethics rules.

Part of that was that the exhibit labels apparently didn't match up with what was said in the response.  That is, you said Exhibit A shows or proves X, but I can't find Exhibit A even after giving you an opportunity to fix it, so it's as if Exhibit A isn't even there, so you have no evidence of X.

That doesn't mean it doesn't exist, or even that "you don't have it."  It means "you failed to show it to me."  It's a bit hard to extricate the substantive (the evidence and what it did or didn't prove and was it enough proof) from the procedural (did you properly show me what you have).

Oh hey kids it’s an epistemic bubble!

As I said earlier, You don’t need a galactic conspiracy for a systemic bias to exist. You merely need the class who controls the system to take care of their own first. I couldn’t invent better example than the  legalistic pretzel of justification above. Res ipsa loquitur, indeed. The thing speaks for itself.

[BevoAbyss 2058]

Denialism.

Look. The system is working. There is plenty of rain forest left. Rains will come. People will stop setting rain forests on fire. Checks and balances. Fire is not winning. 

Look again. The system is working. There is plenty of rain forest left. Rains will come. People will stop setting rain forests on fire. Checks and balances. Fire is not winning. 

Keep looking dammit. The system is working. There is plenty of rain forest left. Rains will come. People will stop setting rain forests on fire. Checks and balances. Fire (fascism) is not winning. 

Edited March 2, 2023 by BevoAbyss
clarity.

[Brisketexan 105075]

14 hours ago, TwiceHorn said:

What the judge ultimately said was "you have no evidence that Sidney Powell knowingly" violated a bunch of ethics rules.

Part of that was that the exhibit labels apparently didn't match up with what was said in the response.  That is, you said Exhibit A shows or proves X, but I can't find Exhibit A even after giving you an opportunity to fix it, so it's as if Exhibit A isn't even there, so you have no evidence of X.

That doesn't mean it doesn't exist, or even that "you don't have it."  It means "you failed to show it to me."  It's a bit hard to extricate the substantive (the evidence and what it did or didn't prove and was it enough proof) from the procedural (did you properly show me what you have).

Also this.

The way that the Texas summary judgment rules work is that you can't just say "sure, I have a bunch of evidence," you attach a random-ass pile of 1,000 pages and say "my evidence is somewhere in there."  Here's some language from a relatively recent case on the subject:

Quote

When responding to a summary judgment motion, the nonmovant must expressly and specifically identify the supporting evidence on file he wants the trial court to consider. See Speck v. First Evangelical Lutheran Church of Hous., 235 S.W.3d 811, 816 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Arredondo v. Rodriguez, 198 S.W.3d 236, 238 (Tex. App.—San Antonio 2006, no pet.); see also TEX. R. CIV. P.166a cmt. (stating that response must “point out evidence” raising fact issue on challenged elements).

 “Merely citing generally to voluminous summary judgment evidence in response to either a no-evidence or traditional motion for summary judgment is not sufficient to raise an issue of fact to defeat summary judgment.” Nguyen v. Allstate Ins. Co., 404 S.W.3d 770, 776 (Tex. App.—Dallas 2013, pet. denied) (citing Leija v. Laredo Cmty. Coll., No. 04-10-00410-CV, 2011 WL 1499440, at *5 (Tex. App.—San Antonio Apr. 20, 2011, no pet.) (mem. op.)) (“When a summary judgment respondent fails to direct the reviewing court to specific summary judgment evidence, a fact issue cannot be raised sufficient to defeat summary judgment.”); Kastner v. Gutter Mgmt. Inc., No. 14-09-00055-CV, 2010 WL 4457461, at *3 (Tex. App.—Houston [14th Dist.] Nov. 4, 2010, pet. denied) (mem. op.) (“Blanket citation to voluminous records is not a proper response to a no-evidence motion for summary judgment.”). Absent guidance from a nonmovant, trial and appellate courts are not required to sift through a voluminous file in search of evidence to support the nonmovant's argument that a fact issue exists. Aguilar v. Morales, 162 S.W.3d 825, 838 (Tex. App.—El Paso 2005, pet. denied); Shelton v. Sargent, 144 S.W.3d 113, 120 (Tex. App.—Fort Worth 2004, pet. denied); see also Brookshire Katy Drainage Dist. v. Lily Gardens, LLC, 333 S.W.3d 301, 308 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). A trial court does not abuse its discretion in failing to consider summary judgment evidence the nonmovant does not specifically bring to the trial court's attention. See Kastner, 2010 WL 4457461, at *8 (citing Guthrie v. Suiter, 934 S.W.2d 820, 826 (Tex. App.—Houston [1st Dist.] 1996, no writ)).

Now, if the issues is just that the citations to the evidence weren't perfectly matchy-matchy, BUT, by reference to what the exhibit WAS (that is, maybe when you meant to refer to the pleading she filed in Michigan, which was attached as Ex. B, you referred to Ex. A, BUT, it was clear from you reference an discussion that you were talking about the Michigan pleading, that's likely sufficient to meet the "point to specific evidence" standard.  Mislabeling of exhibits, when they can still be clearly identified and understood, is probably not going to fail to pass muster).

By the way, to avoid this, my typical summary judgment motion or response contains a section called "Summary Judgment Proof" that looks like this:

Quote

Defendant relies on the following summary judgment evidence:

Ex. A: Affidavit of Twice Horn

Ex. B: Photograph of Twice Horn's mom

Ex. 😄 Certified copy of Twice Horn's mom's birth certificate

Ex. 😧 a box of Captain Crunch cereal

Ex F: the head of Alfredo Garcia

Etc.

We'll see.  I suspect there will be a "Motion for New Trial," and then various appellate proceedings, and we'll find out exactly what happened.

Edited March 2, 2023 by Brisketexan

[Brisketexan 105075]

Edit the above -- stupid emojis for C and D.  SEE?  That's just how an accidental mislabeling can happen.  But the court can clearly see the attached birth certificate, and later, when I discuss EX C, the birth certificate, it's clear that's what I'm talking about.

[WhatTheBuck 28775]

😄

😧

16 minutes ago, Brisketexan said:

Edit the above -- stupid emojis for C and D.  SEE?  That's just how an accidental mislabeling can happen.  But the court can clearly see the attached birth certificate, and later, when I discuss EX C, the birth certificate, it's clear that's what I'm talking about.

That’s interesting. Traditionally, emoticons were sideways and the eyes came before the mouth left-to-right. So the grinning emoticon was “:D” which will still yield the emoji  if it’s followed by a space or a carriage return. Typing “D:” to yield 😧 doesn’t really make sense in that context. It’s notable that “C:” yields 😄 while “:C” just gets you :C and no emoji. The problem is that strings like “C:” and “D:” have a lot of legitimate uses other than as keyboard shortcuts for emojis. That’s just poor design, imo.

I always liked using a nose in my emoticons. So a smiley was ”:-)” which will give you 🙂 while typing “:)” will get you  and I can’t explain why there’s a difference or what it means. But C-: and D-: don’t mean anything. Adding the nose to the keyboard shortcut would fix the problem and I think we could live with just the one smiley emoji.

Sorry for the distraction. I’m not trying to derail the thread. I just thought that was interesting and I can sympathize with the nuisance of unwanted emojis (and other autocorrections).

[Pato del Muerto 52486]

Can you get an entire contract voided due to a misspelling or two?  Can you even get the section or clause where the misspelling occurs voided?  What if it’s like a British spelling that’s accepted as correct in other parts of the world?

[Gatorubet 30185]

16 hours ago, TwiceHorn said:

So many little things go into the winning and losing of a lawsuit, and often other less adversarial matters, that it is often not easy to just say "this lawyer is incompetent."  It's easy enough to second guess a particular decision, action, or omission, but proving, beyond dead-reckoning, that that lawyer cost his/her client the case, often just isn't easy to do. 

I once tried a case where my opponent’s theory was that my clients were hurting the Catholic Church intentionally because they challenged a will bequest.   The trial judge who heard it must have agreed, as he just came back from a Catholic religious retreat and seemingly improperly put his thumb on the scale during the trial. I would make a point with a witness, and then he would do a re-cross himself to get the witness to take back the point I had just made.   The trial court said I had filed a frivolous suit.  The court of appeal 3-0 said that it was lacking in probable cause and was a malicious and frivolous suit. 

The Louisiana Supreme Court in a unanimous decision overturned the trial and appellate courts.  The decision said that (paraphrasing) even a slow child could recognize there was a valid cause of action, and it was in no way frivolous or malicious.  Several Catholic Justices among them. 

Why you won or lost a legal action is often never clear and sometimes absolutely unfathomable.   Trying to find a reason for a decision that matches a conspiracy theory is not difficult, but more often than not wrong. 

[TwiceHorn 31440]

42 minutes ago, Gatorubet said:

I once tried a case where my opponent’s theory was that my clients were hurting the Catholic Church intentionally because they challenged a will bequest.   The trial judge who heard it must have agreed, as he just came back from a Catholic religious retreat and seemingly improperly put his thumb on the scale during the trial. I would make a point with a witness, and then he would do a re-cross himself to get the witness to take back the point I had just made.   The trial court said I had filed a frivolous suit.  The court of appeal 3-0 said that it was lacking in probable cause and was a malicious and frivolous suit. 

The Louisiana Supreme Court in a unanimous decision overturned the trial and appellate courts.  The decision said that (paraphrasing) even a slow child could recognize there was a valid cause of action, and it was in no way frivolous or malicious.  Several Catholic Justices among them. 

Why you won or lost a legal action is often never clear and sometimes absolutely unfathomable.   Trying to find a reason for a decision that matches a conspiracy theory is not difficult, but more often than not wrong. 

Yeah, that's one of the things people don't get about lawyering.  You win and you lose and sometimes you don't even know why, until maybe later in the fullness of time.

Your own cases that you think are great get poured out before trial and the cases you think are mediocre or even dogshit win big.

So, by and large, us lawdogs stop thinking that every time we lose one of our righteous cases, a great and cosmic miscarriage of justice occurred.  Sometimes it did, and then sometimes you come to realize that you were looking at it wrong.  And even the other side was looking at it wrong.

And, of course, it doesn't do any one any damn good to just stomp around ranting about fascists or some other cocksuckers that fucked up your case.  If you have a post-trial motion, make it, if you have an appeal, take it.

 

[TwiceHorn 31440]

1 hour ago, Pato del Muerto said:

Can you get an entire contract voided due to a misspelling or two?  Can you even get the section or clause where the misspelling occurs voided?  What if it’s like a British spelling that’s accepted as correct in other parts of the world?

While this is tongue in cheek and the whole thing seems technical as fuck, let's break it down a little.

I think most people have some notion that "summary judgment" means that the case can be resolved without trial because the state of facts and evidence is such that there is no "material question of fact" to be decided by a jury. "The facts" or even a single operative fact, is so clear that there's no need to go to trial on the case.

So this is a variation on that where one party says, "you've had long enough to prepare your case and you have no evidence of" some essential fact.  In this particular instance, Powell contended that all of the ethical violations of which she was accused required "knowing" conduct.

To respond to such a motion, the other side has to produce some tiny amount of evidence (a scintilla) that her violations were, in fact, knowing. YOU HAVE TO PRESENT EVIDENCE.  If you fail to present evidence, you lose.  If you fail to present enough evidence, you lose. That makes perfect sense.  If you fuck up presenting the evidence, by giving the wrong stuff, or lopping off the meaningful parts when you attach it, or put the wrong exhibit numbers on it, you run a severe risk of being treated as if you DIDN'T PRESENT EVIDENCE at all.  Technical on the one hand, not so technical on the other.  You gotta be kind of careful with this shit and having a listing, as brisket notes, of the summary judgment evidence you present, is a good practice tip.  And make damn sure what you attach matches up with that list.

You also have to show the court your evidence within a set time frame.  Failing to do that, even a day late, runs a severe risk, again, of you being treated as if you DIDN'T PRESENT EVIDENCE.  I don't think there's a timing issue here and timing seems hypertechnical and can be, but you got to have deadlines, for fuck's sake or shit's going to drag on forever.

It's fairly clear that the Bar intended to submit Powell's own pleadings filed in the lawsuits in question that omitted dates from exhibits and stated something in the pleadings that would have been shown to be false if the date had shown in the exhibit.  That sets up a pretty good inference that the date was deliberately cut off of the exhibit so the argument or statement could be made plausibly.  

That seems to me to be a scintilla of evidence that Powell knowingly presented false information to the court in those lawsuits, either in the form of the cut-off exhibit or the statement about the exhibit, or both.  Maybe I'm off there, I'm happy to entertain arguments.

What the Bar apparently fucked up is attaching the right exhibits that showed the matters above that they were trying to prove by a scintilla of evidence.  Or, maybe, the judge didn't understand the argument.  There seems to be some confusion as to whether the "cut off exhibits" were cut off by the Bar and thus incomplete, or cut off by Powell in the first place, giving rise to their significance, or, actually, both.  One thing adding to the confusion is that the PACER (the federal e-filing system) heading on the cut off exhibits is along the right margin instead of the top.  PACER puts that heading on the top, and would have done so when Powell filed the stuff, so it certainly appears that the Bar attached the exhibits incorrectly, turning them sideways and cutting off approximately 2.5 inches at the bottom..  The exhibits may have been cut off by Powell and then again by the Bar.  It's a mess.

Sometimes, in summary judgment, you submit hundreds of pages of evidence, forming hundreds of exhibits, and errors can occur with that volume of stuff.  Whether a judge will let you fix that or not varies.  In this case, it was actually hundreds of pages because of the length of Powell's pleadings, but it was only something like six to eight discrete exhibits.  Kinda shameful on the part of the bar lawyers.

Or, maybe the judge was just a fascist and looking for any excuse to dump the suit.  You can't entirely rule it out, but it's not the most likely explanation.

[nbmishoid 949]

17 hours ago, TwiceHorn said:

I didn't say the results were not inequitable.  I admit that they are.  Our system is premised on two roughly evenly matched adversaries going toe to toe in a quest for victory, truth, or justice.  Any deviation from "two roughly evenly matched adversaries" is a bias away from the system as intended.  Most often that deviation is due to economic power, secondarily, it is due to individual/institutional prejudices.

There are, however, examples of the economically disadvantaged and the "other"-disadvantaged prevailing in our system, because they are nonetheless roughly evenly matched with their adversaries through the NAACP, the ACLU, contingent-fee representation, etc. etc. etc.  The system is thus working as intended, even if they don't prevail.

I don't count bad laws necessarily as part of the judicial system.  They are part of the SYSTEM writ large, but because they don't originate within the judiciary, it's another part of the SYSTEM.

I freely acknowledge that the legislative end is captured by and mostly does the bidding of special economic interests.  That's another discussion.

Well said.  But, again with the intentions.  If the car I design and build doesn’t work in the real world, then my intentions are irrelevant.  When physicists and engineers look at systems, there is no care in looking at intentions.   Sure, they are sometimes latent in the system, but it is how the system really works that matters.

Many people here seem to just say the system does not work well enough.  Does discussion of intentions get us anywhere?  It can help find the bug but just keeping the bug because of intentions looks like not caring, shrouded by sophistication.  

[956 Worldwide 34702]

1 hour ago, Gatorubet said:

I once tried a case where my opponent’s theory was that my clients were hurting the Catholic Church intentionally because they challenged a will bequest.   The trial judge who heard it must have agreed, as he just came back from a Catholic religious retreat and seemingly improperly put his thumb on the scale during the trial. I would make a point with a witness, and then he would do a re-cross himself to get the witness to take back the point I had just made.   The trial court said I had filed a frivolous suit.  The court of appeal 3-0 said that it was lacking in probable cause and was a malicious and frivolous suit. 

The Louisiana Supreme Court in a unanimous decision overturned the trial and appellate courts.  The decision said that (paraphrasing) even a slow child could recognize there was a valid cause of action, and it was in no way frivolous or malicious.  Several Catholic Justices among them. 

Why you won or lost a legal action is often never clear and sometimes absolutely unfathomable.   Trying to find a reason for a decision that matches a conspiracy theory is not difficult, but more often than not wrong. 

 

32 minutes ago, TwiceHorn said:

Yeah, that's one of the things people don't get about lawyering.  You win and you lose and sometimes you don't even know why, until maybe later in the fullness of time.

Your own cases that you think are great get poured out before trial and the cases you think are mediocre or even dogshit win big.

So, by and large, us lawdogs stop thinking that every time we lose one of our righteous cases, a great and cosmic miscarriage of justice occurred.  Sometimes it did, and then sometimes you come to realize that you were looking at it wrong.  And even the other side was looking at it wrong.

And, of course, it doesn't do any one any damn good to just stomp around ranting about fascists or some other cocksuckers that fucked up your case.  If you have a post-trial motion, make it, if you have an appeal, take it.

 

As a non-law dog, I just want y’all to read these anecdotes through laypeople’s eyes. I’d say you both perfectly explained the deep crisis of faith in legal institutions and the justice system. Because justice can be blind, justice can be harsh, justice can be many things but most people will say justice cannot be arbitrary and opaque. 
 

And so when I see two clearly experienced and knowledgeable experts say that even they don’t understand how a set of knowable facts and knowable laws will be applied canines and applied….cause maybe the judge just came back from church camp….that’s not reassuring at all and seems to us that maybe there’s something really wrong. 

[TwiceHorn 31440]

2 minutes ago, nbmishoid said:

Well said.  But, again with the intentions.  If the car I design and build doesn’t work in the real world, then my intentions are irrelevant.  When physicists and engineers look at systems, there is no care in looking at intentions.   Sure, they are sometimes latent in the system, but it is how the system really works that matters.

Many people here seem to just say the system does not work well enough.  Does discussion of intentions get us anywhere?  It can help find the bug but just keeping the bug because of intentions looks like not caring, shrouded by sophistication.  

I'm not really that concerned with intentions.  The argument was made that the system is biased against people, which tends to mean it is built that way.  I don't believe that to be true.

The system falls apart when the adversaries in the system aren't equal, mostly economically, but not exclusively.  The system isn't built that way, but that's how it turns out for a variety of reasons external to the system, that is, economic inequality, racial bias, etc.

Fix those external problems, and voila the system is mostly fixed.

If you want to define the system to encompass those external problems, I guess that's ok too, but the problem with the system is the same problem with a lot of our other systems, it's not unique or inbuilt to the court system.

[TwiceHorn 31440]

13 minutes ago, 956 Worldwide said:

 

As a non-law dog, I just want y’all to read these anecdotes through laypeople’s eyes. I’d say you both perfectly explained the deep crisis of faith in legal institutions and the justice system. Because justice can be blind, justice can be harsh, justice can be many things but most people will say justice cannot be arbitrary and opaque. 
 

And so when I see two clearly experienced and knowledgeable experts say that even they don’t understand how a set of knowable facts and knowable laws will be applied canines and applied….cause maybe the judge just came back from church camp….that’s not reassuring at all and seems to us that maybe there’s something really wrong. 

That's fair.  It's not that opaque, really.  Two parties can be going hammer and tongs over what they think is the decisive issue, submit it to a judge or jury, and what they fought all about turns out to be not the decisive issue, in the eyes of a third party, and thus the outcome is initially shocking to everyone. Sometimes, everyone is too close to a dispute to see it clearly, too emotionally wrought over elusive notions of who did what wrong when and lose sight of the bigger picture.  And, sometimes the factfinder just gets it all wrong, too.

The point being that just because you think you are wearing a white hat, and God and all of the angels are on your side, everyone else may think you're an asshole. So you have to be careful about believing your own self-righteous bullshit.  Which in turn means a good lawyer is going to be resistant to that whenever s/he can and try to maintain an even, analytical keel about who is right and who is wrong and focus on proving the case and dealing with any niggling details that may hold you up.

Edited March 2, 2023 by TwiceHorn

[Gatorubet 30185]

1 minute ago, 956 Worldwide said:

 

As a non-law dog, I just want y’all to read these anecdotes through laypeople’s eyes. I’d say you both perfectly explained the deep crisis of faith in legal institutions and the justice system. Because justice can be blind, justice can be harsh, justice can be many things but most people will say justice cannot be arbitrary and opaque. 
 

And so when I see two clearly experienced and knowledgeable experts say that even they don’t understand how a set of knowable facts and knowable laws will be applied canines and applied….cause maybe the judge just came back from church camp….that’s not reassuring at all and seems to us that maybe there’s something really wrong. 

Unless you can build a system where humans are not involved, you will always have questions. Why? Because all humans come with a certain set of beliefs arising from their upbringing, or their life experience, or their religion, or their political bent.    All humans can try to NOT let any of that affect them. It would be a truly remarkable human to eliminate all of it.  

Some of the non-lawyers here seem to think there is some easy magic wand way to remove the humanity and the accompanying preconceptions from the humans involved in legal proceedings.   Short answer, you can’t always.   But see all of the Trump appointees who ruled against Trump in the 60+ election cases.    Good judges try to do the right thing and to recognize their own potential bias and predilections. That’s really all you can do.

That same judge I had some reservations about stated, in an entirely different case, the following maxim: “assumptions are the railroad tracks to inevitable conclusions.”  But he meant it in the context about trying to avoid unproven assumptions. So maybe he just hated my direct. 

 

[TwiceHorn 31440]

12 minutes ago, Gatorubet said:

Unless you can build a system where humans are not involved, you will always have questions. Why? Because all humans come with a certain set of beliefs arising from their upbringing, or their life experience, or their religion, or their political bent.    All humans can try to NOT let any of that affect them. It would be a truly remarkable human to eliminate all of it.  

Some of the non-lawyers here seem to think there is some easy magic wand way to remove the humanity and the accompanying preconceptions from the humans involved in legal proceedings.   Short answer, you can’t always.   But see all of the Trump appointees who ruled against Trump in the 60+ election cases.    Good judges try to do the right thing and to recognize their own potential bias and predilections. That’s really all you can do.

That same judge I had some reservations about stated, in an entirely different case, the following maxim: “assumptions are the railroad tracks to inevitable conclusions.”  But he meant it in the context about trying to avoid unproven assumptions. So maybe he just hated my direct. 

 

Yeah, there's still too much belief among the "laiety" that law is a black box where you provide certain inputs and get a certain output.

It certainly strives to be that way in some cases and that's desirable.  Most of those cases don't really need the courts anyway.

You wouldn't want a black box much or even most of the time, because a black box is just a series of logic gates and AI demonstrates the inadequacy of black boxes for problems of any real complexity or nuance.

Edited March 2, 2023 by TwiceHorn

[Bozo_Casanova 26437]

1 hour ago, TwiceHorn said:

Yeah, that's one of the things people don't get about lawyering.  You win and you lose and sometimes you don't even know why, until maybe later in the fullness of time.

Your own cases that you think are great get poured out before trial and the cases you think are mediocre or even dogshit win big.

So, by and large, us lawdogs stop thinking that every time we lose one of our righteous cases, a great and cosmic miscarriage of justice occurred.  Sometimes it did, and then sometimes you come to realize that you were looking at it wrong.  And even the other side was looking at it wrong.

I think people do get that and I'm struggling with how or whether that's different from any other field.  Everybody in every field, gets a bad beat sometimes. But people in most fields who either fail consistently, require cleanup by their peers consistently, or screw people over consistently don't last long in their respective fields. 

What distinguishes the professions is that they are closed to the general public and enormous barriers are rightly erected to enter them, and require ongoing education and so forth to maintain the ability to work. So why, then, given all that, are the professions of law and medicine so reticent to punish bad actors or aggressively root out those who consistently fail to deliver professional quality work? When Doctors let bad doctors bounce around the system injuring people, it undermines the whole profession. When lawyers let bad (and by bad, I mean abusive, malicious, lazy or simply incompetent) lawyers continue to have careers practicing law, it undermines the whole profession, particularly in a system premised in roughly evenly matched adversaries.  

Edited March 2, 2023 by Bozo_Casanova

[ChiTownDoc 21144]

3 hours ago, WhatTheBuck said:

😄

😧

That’s interesting. Traditionally, emoticons were sideways and the eyes came before the mouth left-to-right. So the grinning emoticon was “:D” which will still yield the emoji  if it’s followed by a space or a carriage return. Typing “D:” to yield 😧 doesn’t really make sense in that context. It’s notable that “C:” yields 😄 while “:C” just gets you :C and no emoji. The problem is that strings like “C:” and “D:” have a lot of legitimate uses other than as keyboard shortcuts for emojis. That’s just poor design, imo.

I always liked using a nose in my emoticons. So a smiley was ”:-)” which will give you 🙂 while typing “:)” will get you  and I can’t explain why there’s a difference or what it means. But C-: and D-: don’t mean anything. Adding the nose to the keyboard shortcut would fix the problem and I think we could live with just the one smiley emoji.

Sorry for the distraction. I’m not trying to derail the thread. I just thought that was interesting and I can sympathize with the nuisance of unwanted emojis (and other autocorrections).

This was the easiest post to read over the last couple pages.  Fuck. 

[TwiceHorn 31440]

2 minutes ago, Bozo_Casanova said:

I think people do get that and I'm struggling with how or whether that's different from any other field.  Everybody in every field, gets a bad beat sometimes. But people in most fields who either fail consistently, require cleanup by their peers consistently, or screw people over consistently don't last long in their respective fields. 

What distinguishes the professions is that they are closed to the general public and enormous barriers are rightly erected to enter them, and require ongoing education and so forth to maintain the ability to work. So why, then, given all that, are the professions of law and medicine so reticent to punish bad actors or aggressively root out those who consistently fail to deliver professional quality work? When Doctors let bad doctors bounce around the system injuring people, it undermines the whole profession. When lawyers let bad lawyers continue to have careers practicing law, it undermines the whole profession, particularly in a system premised in roughly evenly matched adversaries.  

Well, again, I think you're going to have to specify which "incompetent lawyers" you refer to.  Anecdotes aren't usually useful, but I can't think of too many hazardous lawyers that don't catch a case pretty quickly.

Those who do dirty by their clients get rousted with great regularity.

Those that aren't much good at what they do get shut down economically without doing too much harm to people.

And theres loads of shitty lawyers facing off against other shitty lawyers every day in the family courts in low stakes divorces and related matters.  

I'm not sure I'd say Sidney Powell is incompetent per se.  She used to have quite a solid appellate practice and was well respected, according to DDDad and what I can figure out.  She's a fairly special case I can't really come up with any historical parallel for.

 

 

[nbmishoid 949]

42 minutes ago, TwiceHorn said:

Yeah, there's still too much belief among the "laiety" that law is a black box where you provide certain inputs and get a certain output.

It certainly strives to be that way in some cases and that's desirable.  Most of those cases don't really need the courts anyway.

You wouldn't want a black box much or even most of the time, because a black box is just a series of logic gates and AI demonstrates the inadequacy of black boxes for problems of any real complexity or nuance.

What this lay dog is saying is the results show systematic bias, whatever the intention.  Yes, humans cause most of this, and other fields are not great analogues.  But the results show bias, full stop.  I am interested, Twice, in what you, an expert, would change.  Society’s desires about legal result fairness should matter.

[Gatorubet 30185]

52 minutes ago, nbmishoid said:

What this lay dog is saying is the results show systematic bias, whatever the intention.  Yes, humans cause most of this, and other fields are not great analogues.  But the results show bias, full stop.  I am interested, Twice, in what you, an expert, would change.  Society’s desires about legal result fairness should matter.

This brings up a good point…fairness.  And I am not addressing this at you or any poster, this is just a general observation that I have.    “Fairness” is overrated - and in some cases immaterial.   If the cops do not keep a proper chain of evidence the rapist murderer goes free when evidence is excluded.    The non-lawyers yell about “legal technicalities” and the unfairness of a rapist murderer going free.    They do not get that it is vastly more important to society not to let cops plant evidence.  Because they will.  Always.   So the law says you can’t show up day of trial with a murder weapon not logged in, but “found” in the back seat of the squad car.    The victim’s family will be outraged, but the legal system was not set up for one victim.   It is designed to produce the best result for all society, and sometimes valuable and essential safeguards result in individual bad outcomes in order to protect all outcomes from being tainted. 

Second point: I find it very common that most people were never told in their civics classes (assuming they paid attention to their service classes) how the legal system works. I increasingly find that most people think the purpose of an appellate court, when reviewing a lower court‘s ruling, is to look at the facts again to see if the court ruled the “right” way.   Put another way,  most non-lawyers  have no idea what appellate review is about. What it is not, conceptually, is for the appellate court to say “the wrong guys won”. 

Appellate courts are looking for reversible legal error, be it wrong procedure or an incorrect application of the law that is so serious it may have improperly affected the trial.   If a jury decides that party “A” won, it is NOT the job of the appellate court to look at the facts and say that party “B” should have won.  The appellate court looks to see if there was legal error in the evidence accepted by the trial court, if the lower court ruled correctly on what testimony should be admitted or excluded, and whether the jury was instructed with the proper law.  

if the evidence and testimony was admitted correctly, and the jury was instructed on the proper law, then even a boneheaded stupid decision by the jury should stand. *    Non-lawyers think that the appellate courts looks to see if the jury was “right”.   When an unpopular decision is upheld on appeal, because there was no error of law, non-lawyers don’t seem to get this and they blame the legal system.  What they need to do is go back to high school and punch their civics instructor.
 

* not going into sufficiency or JMOL stuff. 

Edited March 2, 2023 by Gatorubet

[Satchel 6934]

I’m beginning to warm up to the idea that our DOJ is more of a legal operation than it is one geared toward justice.

[TwiceHorn 31440]

4 minutes ago, Satchel said:

I’m beginning to warm up to the idea that our DOJ is more of a legal operation than it is one geared toward justice.

It never was anything else.

If you like "justice," you'd better believe in a higher power.  Anything more than some sort of "rough justice" is beyond the capability of mankind.

Edited March 2, 2023 by TwiceHorn

[Pato del Muerto 52486]

17 minutes ago, Gatorubet said:

If the cops do not keep a proper chain of evidence the rapist murderer goes free when evidence is excluded.   

To me that is an example of fairness, not the inverse. That evidence is now suspect.  Now, should a jury be allowed to see the evidence and be informed about the issue with its provenance or handling?  Do we trust juries with such understanding?  We do expect them to understand what expert witnesses have to say, in a system where non-experts aren’t even allowed to opine on or explain an issue. 
 

now if there is a lot of evidence and it all gets tainted, might want to look into that. 

Edited March 2, 2023 by Pato del Muerto

[TwiceHorn 31440]

19 hours ago, Bozo_Casanova said:

Good thing the 

Oh hey kids it’s an epistemic bubble!

As I said earlier, You don’t need a galactic conspiracy for a systemic bias to exist. You merely need the class who controls the system to take care of their own first. I couldn’t invent better example than the  legalistic pretzel of justification above. Res ipsa loquitur, indeed. The thing speaks for itself.

Thing is, though, this procedure (mostly without the fuckup, but sometimes with) happens EVERY SINGLE DAY in some courtroom somewhere in America.  It happens in 75%++++ of civil litigation.  It is not particular to Dallas, or Texas, or disbarment proceedings or Sidney Powell.  Rich people win, poor people win, black people win.  The same people also lose.

It is absolutely not evidence of some systemic bias.  It's an isolated fuckup, a drop in the bucket.  it just happens to irritate people more than the other 9,999,999 times it's happened in the last 90+ years since summary judgment became a thing.

Let me state succinctly.  The procedure of summary judgment allows the parties to a civil case to test each other's evidence ahead of trial.  If a party lacks the evidence to go to trial, why have a trial?  The process is one side alleges either that their evidence is so good, or the other's so bad, that there is no material question of fact left for trial.

Makes sense, don't it?  Why waste everyone's time with a trial when the evidence, after discovery, is insufficient or overwhelmingly one-sided?

Then you have the procedure for presenting and testing the parties' evidence, which is where it seems to be an epistemic bubble, but who really cares? (generically speaking of course, most of us would like to see ol Sid disbarred). If you have the evidence to go to trial, show it.  

We can't tell right at the moment whether it was an error in the showing or an insufficiency in the evidence itself.  It looks to be a bit of both.  Further proceedings will tease that out.

There may be some bias in the trial judge lurking in there, but there's nothing that objectively so indicates or about the procedure of summary judgment.

You and many others seem to be engaged in a post hoc fallacy:  Sidney Powell is not disbarred (yet), the system must be systemically biased.

It can still happen.  All is not lost.

Edited March 2, 2023 by TwiceHorn

[Gatorubet 30185]

I see you, and raise you one Learned Hand/Justice Holmes quote. 

[Brisketexan 105075]

1 hour ago, TwiceHorn said:

And theres loads of shitty lawyers facing off against other shitty lawyers every day in the family courts in low stakes divorces and related matters.  

More importantly, there's an important place for "shitty lawyers."  And my shitty, I don't mean malicious, or dumb, I just mean as having a lower quality skillset.  The thing is, there's a LOT of legal work that can be done, just fine, with a lower quality skillset.

There's a place for both gourmet chefs and short-order cooks.  The short-order cook is going to fuck up a souffle, can't make a bechamel worth a damn, etc.  But he does just fine cooking a burger on the griddle, serving up some over-easy eggs, and hash browns.  Which is more than enough for many meals.  If you have an uncomplicated family law case, or a garden-variety criminal case (DUI, low-level assault), or a basic car wreck civil claim, it doesn't take a "gourmet chef" to handle those.  You're going to get all you need from a "short-order cook."  And -- and this is very important -- the short-order cook is going to be a lot cheaper.  You want the $150 an hour guy, not the $1500 an hour guy who usually handles complex anti-trust cases.

That doesn't make the short-order cook "incompetent."  If he stays in his lane, he's good enough.  Most "competence" issues come when either an attorney has a personal problem (drugs, money) OR when the lawyer gets out of his lane.  Honestly, that fancy $1500 anti-trust lawyer would probably do a shitty job at representing you on a DUI, because he doesn't know those rules, the governing statutes, and has never worked with the DA's office to work out a deal.

And then finally, in every profession, at every level, the practitioners are human beings.  Doctors and lawyers mess up sometimes.  They forget to calendar a deadline.  They lose count of the sponges used in the surgery.  Those are mistakes, and they are real and serious.  But they don't, on their own, mean that the person is "incompetent."  Every one of us has forgotten something important at one point or another (forget to pick the kid up from daycare, forget your wife's birthday, etc.).  Sometimes, a lawyer messes up how he orders the evidence in his summary judgment response.  Trust me, most of us who practice trial work spend our lives in a state of anxiety to avoid JUST THAT.  We check, we double-check, we confirm.  But mistakes still slip through from time to time.

So, there's a place for "shitty" lawyers.  There's a place for "non-brilliant" physicians.  I certainly agree that the professions should do a better job of drumming out the ones who are incompetent enough to represent a real threat to their clients/patients.   But again, for lawyers, that gets us back to a place where we have to understand that the system really wasn't designed to deal with bad actors.  AND, for constitutional reasons, we are hesitant to empower the system to declare lawyers bad actors.  Here's an easy example to understand why that's the case: imagine if the lawyers who pursued civil rights cases in the 50s and 60s had to operate within a system that allowed them to be disbarred for subjective value judgments by the accuser/the system, like "you advanced a claim that is inconsistent with the law today" (no shit I did, that's because I'm trying to get the case to the SCOTUS to change the law), or any other of a number of ways the white establishment surely characterized civil rights litigation.  We err on the side of letting lawyers -- every one of whom, EVERY LAST ONE, has a CLIENT -- act pretty freely within the system, because we don't want to deny their CLIENTS their day in court.  So, realize that every degree by which you "clamp down" on "bad lawyers" also means you clamp down on clients who would choose that lawyer.  I'm not saying we shouldn't do more of it -- I think that Sidney Powell is hot garbage and should be disbarred.  I'm just suggesting that it's not an "easy answer, why haven't we made it easy to yank lawyers' licenses?" kind of thing.

[nbmishoid 949]

Gator

You present expertly correct view here.  
 

But I don’t over rate fairness.  A four year old knows what fairness is ( or used to know) to an actionable degree.   Many folks find the term interchangeable with justice.  But none us can completely delimit these terms for everyone else.

So I’ll used another word.  The results are sickening, broadly inhumane, not what society wants.  Seriously. So, Gator, what do you and Twice recommend to improve things.  

 

[TwiceHorn 31440]

17 minutes ago, Brisketexan said:

More importantly, there's an important place for "shitty lawyers."  And my shitty, I don't mean malicious, or dumb, I just mean as having a lower quality skillset.  The thing is, there's a LOT of legal work that can be done, just fine, with a lower quality skillset.

There's a place for both gourmet chefs and short-order cooks.  The short-order cook is going to fuck up a souffle, can't make a bechamel worth a damn, etc.  But he does just fine cooking a burger on the griddle, serving up some over-easy eggs, and hash browns.  Which is more than enough for many meals.  If you have an uncomplicated family law case, or a garden-variety criminal case (DUI, low-level assault), or a basic car wreck civil claim, it doesn't take a "gourmet chef" to handle those.  You're going to get all you need from a "short-order cook."  And -- and this is very important -- the short-order cook is going to be a lot cheaper.  You want the $150 an hour guy, not the $1500 an hour guy who usually handles complex anti-trust cases.

That doesn't make the short-order cook "incompetent."  If he stays in his lane, he's good enough.  Most "competence" issues come when either an attorney has a personal problem (drugs, money) OR when the lawyer gets out of his lane.  Honestly, that fancy $1500 anti-trust lawyer would probably do a shitty job at representing you on a DUI, because he doesn't know those rules, the governing statutes, and has never worked with the DA's office to work out a deal.

And then finally, in every profession, at every level, the practitioners are human beings.  Doctors and lawyers mess up sometimes.  They forget to calendar a deadline.  They lose count of the sponges used in the surgery.  Those are mistakes, and they are real and serious.  But they don't, on their own, mean that the person is "incompetent."  Every one of us has forgotten something important at one point or another (forget to pick the kid up from daycare, forget your wife's birthday, etc.).  Sometimes, a lawyer messes up how he orders the evidence in his summary judgment response.  Trust me, most of us who practice trial work spend our lives in a state of anxiety to avoid JUST THAT.  We check, we double-check, we confirm.  But mistakes still slip through from time to time.

So, there's a place for "shitty" lawyers.  There's a place for "non-brilliant" physicians.  I certainly agree that the professions should do a better job of drumming out the ones who are incompetent enough to represent a real threat to their clients/patients.   But again, for lawyers, that gets us back to a place where we have to understand that the system really wasn't designed to deal with bad actors.  AND, for constitutional reasons, we are hesitant to empower the system to declare lawyers bad actors.  Here's an easy example to understand why that's the case: imagine if the lawyers who pursued civil rights cases in the 50s and 60s had to operate within a system that allowed them to be disbarred for subjective value judgments by the accuser/the system, like "you advanced a claim that is inconsistent with the law today" (no shit I did, that's because I'm trying to get the case to the SCOTUS to change the law), or any other of a number of ways the white establishment surely characterized civil rights litigation.  We err on the side of letting lawyers -- every one of whom, EVERY LAST ONE, has a CLIENT -- act pretty freely within the system, because we don't want to deny their CLIENTS their day in court.  So, realize that every degree by which you "clamp down" on "bad lawyers" also means you clamp down on clients who would choose that lawyer.  I'm not saying we shouldn't do more of it -- I think that Sidney Powell is hot garbage and should be disbarred.  I'm just suggesting that it's not an "easy answer, why haven't we made it easy to yank lawyers' licenses?" kind of thing.

Right, I kind of hate to say it, but one man's "undermining democracy" is another man's righteous fight for freedom and self-determination.

For example, a lawyer representing Eugene Debs or other "anti-American" or "anti-Democratic" causes or figures could at least theoretically have been disbarred for "undermining democracy" or unAmerican activities if that were standing alone cause for disbarment.  It reflects poorly on the profession!

Granted, that lawyer probably didn't lie as much as Sidney Powell, but legally sufficient proof of lying is harder than anyone is willing to admit and would take some pretty stout lawyering to get done.

The bar, or any other judicial body considering punishing Powell for "the Kraken" is going to have to be able to articulate a meaningful difference between what Powell did and some other tenuous lawsuits filed in the name of unpopular causes that might actually serve a social good.  That might actually be kind of hard to do.  Not impossible, but harder than it initially appears.

Captainant howling about his feels is not a meaningful difference.

Edited March 2, 2023 by TwiceHorn

[TwiceHorn 31440]

1 minute ago, nbmishoid said:

Gator

You present expertly correct view here.  
 

But I don’t over rate fairness.  A four year old knows what fairness is ( or used to know) to an actionable degree.   Many folks find the term interchangeable with justice.  But none us can completely delimit these terms for everyone else.

So I’ll used another word.  The results are sickening, broadly inhumane, not what society wants.  Seriously. So, Gator, what do you and Twice recommend to improve things.  

 

What result is sickening?  That Sidney Powell isn't disbarred yet?  That more lawyers aren't routinely disbarred?  That Trump hasn't been judicially hanged outside the local Esso station?

Or the myriad other injustices out there in the criminal justice system and elsewhere?  We're getting somewhat afield here, but people are making uniformed and hysterical declarations that "'the fix is in" because Sidney Powell won a no-evidence summary judgment in a disbarment case under somewhat unusual circumstances apparently provoked by some sloppiness on the part of lawyers for the Bar.

It aint over yet.  This is a pimple on the ass of American jurisprudence.

[Brisketexan 105075]

3 minutes ago, nbmishoid said:

So I’ll used another word.  The results are sickening, broadly inhumane, not what society wants.  Seriously. So, Gator, what do you and Twice recommend to improve things.  

You're not wrong.

The great thing about the legal system is that it involves humans, who can make nuanced human judgments.  That is also its giant, gaping flaw.

There is no such thing as a bulletproof system.  Design it rigidly to avoid the exceptional outcome that you hate?  That rigidity will lead to stupid injustices.  Design it too loosely, where there are no objective standards, and the outcome is just whatever some random person decides?  That will lead to stupid injustices.  Try to strike the perfect balance?  Good luck with that.  You will miss that bullseye.  Because the exact same system will turn out to be too rigid in one case, and too loosey-goosey in another.

It's a human system.  There will always be a significant error rate.  Which, by the way, is one of my main reasons for opposing the death penalty.  That's an irrevocable outcome (you can't un-execute somebody once they're dead).  We generally should not impose irrevocable results reached by a fallible system.

I regularly have to tell clients that if they are looking for "justice," they've come to the wrong place.  Because that asshole who wronged you?  We all KNOW that "justice" for him should be complete ruination, a kick in the balls, and payment to you of all money you lost, plus your attorney's fees.  The legal system can only deliver, and inconstiistenly, on three of those (and while most folks feel like a trip through the system is "ruination," it's actually not a common outcome at all, so really, the legal system is mostly about awarding money.  Sometimes, it's a place for equitable remedies (an injunction to order you to stop kicking me in the balls), but even then....that's just a piece of paper).

Justice is for God to administer.  I can get you damages and/or an injunction, but even then, understand that the other side is gonna hire a lawyer who's going to argue that you shouldn't get either.