I sent a defense attorney an email asking them to give me all the document production that was quite obviously missing. she responded that she prefers if I could send her a letter for her file. I looked her up expecting her to be 84. she’s 35.
I haven’t decided yet how to continue messing with her about this but it’s definitely happening. And the worst part of all this is she somehow wasn’t the dumbest attorney I was interacting with last week. I asked some poor girl why exactly she needed this insane protective order to turn over restaurant policies and her response was “because we can’t turn over our policies without a protective order.” This went on for multiple emails. I think she’s going to really enjoy me filing all the policies into the court file because I already have them from another defense firm in another case.
I do some extracontractual and coverage work for a carrier that requires us to also fax everything that we email them.
One of my clients that rhymes with EdFex has fucking ridiculous PO requests. Basically, on receipt of a lawsuit, our first piece of correspondence to Pltf Counsel is a 10 page PO that is just crazy over the top. 90% of lawyers laugh, "why the fuck would I sign this?" -- because the burden is on us to prove the materials sought to be protected are worthy of protection. They initially tried to get us to enter a PO before turning over a fucking Dec Page. There is an Oregon statute directly on point that says Dec Pages/insurance limits are automatically discoverable as a matter of law (no shit). After sending them this plain-as-day statute, they asked that we brief the issue to see if there was any way around it. Like fucking why? Their entire model is form over substance. We get graded on our settlement amounts compared to other regional firms across the nation. Not shitting you, if we have 5 wrongful death suits in one year, and have to pay out multiple seven-figure settlements, we get poor remarks versus a different firm that had no wrongful death suits and settled a bunch of slip and falls, and thus had lower overall settlement amounts. It makes zero fucking sense and I hate it. But they pay a lot of money.
the first correspondence I received in this case was a unilateral notice of deposition and an 8 page letter setting forth all these conditions for the case. Things like the settlement must include confidentiality and a non-disparagement agreement, that I must give them a firm demand 60 days before any mediation and it cannot change and of course an outrageous protective order. it's a fucking fast food slip and fall. Unfortunately for them, I'm in the best venue in Georgia with great injuries and I have the most likable client I've ever had in my career and I'm going to make them play chicken with a bunch of offers of judgment that don't include a release.
A couple of the in house insurance firms send out notice of depos with their answer and in a letter say they’re willing to work with us on scheduling it someone above them makes them do it and they don’t even ask us to quash them or anything. Basically everyone just ignores them including the defense lawyer
In a lot of venues, the local rule is that whoever is noticed first gets deposed first. I can see the strategic advantage in wanting to make sure you get to question the plaintiff before he/she gets the opportunity to listen to the defendant's testimony.
I’m not sure I’ve ever had a case where the first depo was someone other than my client guessing the houston office got that memo from one of the venues you’re referencing because they all hate doing it but are required to
I just talked to a witness in a trip and fall case that said (paraphrasing): "Oh yeah, the defendant definitely knew about it because your client was the third fall that week. And someone filmed the aftermath where the security guard admitted it was known and uploaded the video to Worldstar." So I'm now combing through Worldstar videos.
Several of the major auto carriers will send a file to outside counsel any time a plaintiff’s lawyer issues a 30(b)(6) in a UM/UIM case. I know a handful of very crafty plaintiff’s lawyers who file one with their complaint for that reason.
Can you file a compulsory counterclaim with a 12(b)(6) motion, or do you have to wait and file it with your answer if your motion is denied? I have a strong basis for a dismissal, but I'd like for my counterclaim to stay within the same case.
The rule says you have to file any motion under 12(b) before further pleading. A counterclaim is a pleading so I think you have to file the 12(b)(6) motion first. Maybe you could file two separate documents and drop a footnote in the counterclaim explaining why? I've had that issue once before but my client was not concerned with the counterclaim if the case was dismissed. We held off on filing the counterclaim and the case ended up getting dismissed.
Thanks. That's what I thought, and probably what we'll end up doing. The counterclaim is a pretty good one, though.
I do this often in cases in which my counterclaim causes a plaintiff to admit facts necessary for the 12(b)(6). In most federal circuits, any document attached to a pleading and admitted as authentic become part of the pleadings for the 12(c). It’s a preemptive MSJ with the contract or other document you need, as long as the construction of it is an issue of law.
Have a motion deadline Monday for a police pursuit tort claim act trial that's coming up in a bit over a month. Been working like a dog to respond to their motion for summary judgment and various other motions.
How long is too long in a response for MSJ? Seems like eventually the judge (or his clerk) would say f it , I'm not reading all this BS (or at least get pissed at the author). Around 20 pages for a memo or response to a MSJ is pretty common. But there is so much depo testimony and so many legal issues in this case that my current draft is 35 pages long. I don't want to be obnoxious. Is this something I should even worry about? I know with appellate briefs there are actually limits to page numbers but I'm aware of no local rules regarding this for motion practice.
I'm not in federal court. I'll look again at local rules but I don't think there is one for page limits.
My area of law doesn't have summary judgment, but my guess is you would include everything regardless of the length. Preserve your objections and record, particularly with something as important as MSJ.
By the way , if you ever have a police pursuit case, at least in my jurisdiction, federal courts usually throw out your 1983 and constitutional claims and you just end up in state court anyways.
Here if you prove reckless disregard then they aren't immune. But there's a $500k cap. It's a standard above gross negligence but shy of intentional conduct. There's a 10 part test with elements such as type of neighborhood, speed, did they violate their own policy, vehicular traffic etc. There's been a decent amount of cases where the MS Supreme Court found reckless disregard.
Gallant Knight did you note a precipitous drop in $20,000 ESIs due to decreased vehicular activity on your SBA loan application?
My April has been pretty damn busy, and have two Zoom mediations next week. But I've also settled like 30-40% of my small cases, so the well is drying up in May.
If you are trying to create an issue of fact to defeat MSJ, lead with your best issue of fact and don’t overwhelm with repetitive depo testimony.
Had a Zoom depo at 10:00 AM this morning. Did most of my prep yesterday on my work computer. Woke up at 7 to finalize preparation/email exhibits to court reporter Work computer won't start up, turns out battery failed. No access to hard-drive or anything. Drive to work at 8:30, IT guy has to run in, gets in at 9 Gives me new computer, it keeps shutting down after 5 minutes of use He gives me a 3rd computer that does not have Outlook and runs fucking Windows 95. Cannot access our internal file system. No exhibits. Zero documents pertinent to this case. Start the depo on my personal computer at 9:55 -- wholly unprepared. Thankfully there are 2 Defendants, Co-Def Counsel agreed to take the lead. IT guy is trying to find somewhere to buy me a new work laptop to set-up. Fucking comedy of errors.
I've also started submitting an "executive summary of the arguments" for state court judges along with my brief when it's particularly complex and/or lengthy. It's basically a condensed 2-3 page outline of the dispositive facts + my argument with cites to the brief itself.
I put a table of contents in every brief which outlines all arguments. I then try to outline the entire motion in a single page Intro that leads the brief. I’m always surprised when people don’t do it. I treat every brief like an appeal, Arguement I.A.1, etc.
Boyos I think I am ready I have done very very well (for me) on my last few full length tests taken under all time constraints
I was registered for both March and April, now registered for both May and June which are both remotely proctored. only 3 sections: LR, LG and RC
Nice. Bests of luck. Glad they are adapting, I know a lot of people who have had various tests pushed back because of this and there is an obvious need to be able to do these things remotely. I know Colorado is going to waive new graduates of law school into the bar if there can be no July exam.