Follow-On Class Action to an Individual Suit = Double Jeopardy?

[Paul84]

Am I allowed to bring my own laptop to refer to documents when defendants' attorney deposes me at his office?

If necessary, to refresh my memory, I want to be able to quickly search documents that I have already provided to defendants. Their attorney does not agree to this, but says they will provide me with a laptop to use with electronic versions of the documents. However, unlike them, I would have no way of verifying if the document is a true copy. Any thoughts? Am I entitled to use my own electronic copy and then provide it on a USB for their assistants to verify against their version, print out, number, and if necessary, attach to the transcript?

 

[Paul84]

Can I raise an additional claim based on evidence revealed by discovery?

Documents released by defendants over the past few months show that I have a valid claim for an additional cause of action. However, the case is now in its third year and discovery is ending. At such a late stage, can I raise an additional claim?

The judge previously did not allow me to amend my complaint, which I had amended once several years ago as a matter of course (i.e. in a process not requiring court permission due to the timing involved).

 

[quincy]

Documents released by defendants over the past few months show that I have a valid claim for an additional cause of action. However, the case is now in its third year and discovery is ending. At such a late stage, can I raise an additional claim?

The judge previously did not allow me to amend my complaint, which I had amended once several years ago as a matter of course (i.e. in a process not requiring court permission due to the timing involved).

If the judge previously did not allow you to amend your complaint, it seems unlikely that the same judge would allow you to amend it now, in its third year.

 

[Paul84]

Documents released by defendants over the past few months show that I have a valid claim for an additional cause of action. However, the case is now in its third year and discovery is ending. At such a late stage, can I raise an additional claim?

The judge previously did not allow me to amend my complaint, which I had amended once several years ago as a matter of course (i.e. in a process not requiring court permission due to the timing involved).

Thanks for the reply. Quincy. Since the case is proceeding to a summary-judgment motion, I figure I could attach the evidence in opposing the motion and then the judge could decide (or narrow) everything together as the facts are related to the other claims. Also, if I ask permission and the judge says "no", I'll have yet another item for the appellate record while presumably keeping the discovery-rule exception alive as to statutes of limitations on the additional claim.

 

[quincy]

... Frankly, outside of hiring a local lawyer to do the appearances, your most viable strategy is probably the "throw everything at the wall and see what sticks" approach. Take the information/reasons you've posted here, flesh them out, stir in the doctor's note, and hope for the best. ...

I have quoted a portion of one of You Are Guilty's posts above. Other than the "doctor's note" part, the advice given to you then probably applies as well here as it did back when YAG offered it. You know your judge better than any of us here.

Good luck with whatever it is you decide to do, Paul84.

 

[Paul84]

using one's answers from defending a deposition in opposing motion for sum. judgment

I am in the final stages of opposing a motion for summary judgment--i.e. putting together a detailed response to defendants' statement of material facts along with my own additional statement with citations to specific exhibits attached to a declaration authenticating them, plus the memorandum of law.

One of my exhibits is the full deposition that defendants did of me several months ago along with my notarized errata sheets clarifying or correcting typos in the transcript. I was well prepared for the deposition, and many of my deposition answers would be useful as additional exhibit citations, particularly if there are no documents to back up the particular facts mentioned in my testimony. In defendants' motion, they submitted just a few excerpts of my deposition because I did not give them much of use to go on.

Question: Am I correct that my deposition answers can serve as the equivalent of, or supplement to, a declaration (or affidavit) by me, so that I can use these answers at the summary judgment stage and, if necessary, at trial--e.g. to show consistency in my responses, etc?

 

[quincy]

... One of my exhibits is the full deposition that defendants did of me several months ago along with my notarized errata sheets clarifying or correcting typos in the transcript ... In defendants' motion, they submitted just a few excerpts of my deposition because I did not give them much of use to go on.

Question: Am I correct that my deposition answers can serve as the equivalent of, or supplement to, a declaration (or affidavit) by me, so that I can use these answers at the summary judgment stage and, if necessary, at trial--e.g. to show consistency in my responses, etc?

If the defendants are using select excerpts of your deposition in their motion for summary judgment, the full deposition can be used by you in your opposition.

 

[Paul84]

Is oral argument a waste of time and money?

In federal district court, or even at the appellate level, oral argument on a matter that both parties have fully briefed in writing seems like a waste of time and money. What's the point? If a party cannot make its argument clear in in its written brief, why would making the same argument orally come out any clearer?

Even if a judge has questions after reading briefs from both sides and (a) still cannot use his or her own judgment or (b) rely on the law clerks for further research into an issue, why not just promulgate these remaining judicial questions in writing for the parties to respond to via supplemental briefs? Seems like a more judicious and transparent method of reaching a fair decision. Or am I missing something here?

 

[quincy]

In federal district court, or even at the appellate level, oral argument on a matter that both parties have fully briefed in writing seems like a waste of time and money. What's the point? If a party cannot make its argument clear in in its written brief, why would making the same argument orally come out any clearer?

Even if a judge has questions after reading briefs from both sides and (a) still cannot use his or her own judgment or (b) rely on the law clerks for further research into an issue, why not just promulgate these remaining judicial questions in writing for the parties to respond to via supplemental briefs? Seems like a more judicious and transparent method of reaching a fair decision. Or am I missing something here?

The purpose of an oral argument is to clarify what has already been written and read. Whether oral arguments always work to this end is a question I can't answer - but that is their intent.

Here is a link to an ABA article written by Jacob Z. Goldstein which provides advice on "how to approach your first appellate oral argument:"
http://www.americanbar.org/groups/young_lawyers/publications/the_101_201_practice_series/may_it_please_the_court_approaching_your_first_appellate_oral_argument.html

 

[Paul84]

Reply to Sum, Judg,: if no evidence in reply, are my add'l facts deemed admitted?

If the defendants are using select excerpts of your deposition in their motion for summary judgment, the full deposition can be used by you in your opposition.

In my opposition to defendants' FRCP 56(c) motion for summary judgment, I disputed each of their "undisputed facts", and then, in conformance to the SDNY's local rules, added additional numbered paragraphs with my facts supported by accompanying and authenticated exhibits. However, in their reply, defendants did not adduce any additional evidence to support their contentions but merely used boilerplate objections to state that my additional facts were immaterial, irrelevant and/or unsupported by my evidence. Is this a common ploy when a party has no evidence to support its position? And does defendants' failure to address my facts with evidence from the record make these facts automatically admitted as undisputed and not in need of further proof at trial?

The defendants also often use the language "the evidence is not competent to support". [emphasis added]. What does that mean--i.e. how can written evidence, such as emails, be competent or incompetent?

By the way, in their reply memo, the defendants also upped their level of stridency--perhaps in a display of the lawyers' maxim that, when neither the law or facts are on your side, pound the table.

 

[quincy]

In my opposition to defendants' FRCP 56(c) motion for summary judgment, I disputed each of their "undisputed facts", and then, in conformance to the SDNY's local rules, added additional numbered paragraphs with my facts supported by accompanying and authenticated exhibits. However, in their reply, defendants did not adduce any additional evidence to support their contentions but merely used boilerplate objections to state that my additional facts were immaterial, irrelevant and/or unsupported by my evidence. Is this a common ploy when a party has no evidence to support its position? And does defendants' failure to address my facts with evidence from the record make these facts automatically admitted as undisputed and not in need of further proof at trial?

The answer to the question in your title is "no."

The other party did not have to offer any additional evidence or even reply at all to your opposition to their motion. In the response they did make, however, they are disputing your evidence as "immaterial, irrelevant and/or unsupported." They are standing with what they offered in their motion for summary judgment.

The defendants also often use the language "the evidence is not competent to support". [emphasis added]. What does that mean--i.e. how can written evidence, such as emails, be competent or incompetent?

Ah. What's in a name?

There have been long (and boring) papers I have read that work to define various "legal" adjectives like credible and substantial and relevant and satisfactory and material and competent. Competent evidence is evidence that is, very simply, admissible (relevant, material) and incompetent evidence is evidence that is not.

I suppose they are using "not competent to support" to mean that the evidence is not sufficient to support whatever it is that the evidence was supposed to support.

By the way, in their reply memo, the defendants also upped their level of stridency--perhaps in a display of the lawyers' maxim that, when neither the law or facts are on your side, pound the table.

Well, I guess it is for the judge to decide now (unless the judge decides to hear oral arguments).

Good luck, Paul84.

 

[Paul84]

What's the difference between partial summary judgment (FRCP 56) and FRCP 52?

Based on the written record and thousands of pages of submitted exhibits by both sides, I've made a cross-motion to the judge for partial summary judgment (as per FRCP 56)--i.e. on issues of liability only, while reserving a decision on damages for a jury trial on that issue only if I prevail on the liability aspect. However, I see there is also an FRCP 52 called "judgment on partial findings". Isn't that the same thing as partial summary judgment?

If the defendants use boilerplate objections to dispute all my facts, should my motion properly be called an FRCP 52 motion when--according to them--material facts are in dispute? I would appreciate any help in clarifying this. I guess there would be different standards of appellate review--ie de novo for partial summary judgment (after a trial) versus discretionary for error in a finding of fact.

If I think my case is strong in both facts and in the relevant law, does it not make a difference whether I ask the judge (or the judge decides sua sponte) to make an FRCP 56 or FRCP 52 judgment?

 

[Paul84]

What is the "ripe date" of a motion?

Is the "ripe date" of a motion the date of the last reply? In my case, the last reply (on duelling motions for summary judgment) occurred in October, and the judge scheduled a teleconference for later this month to discuss additional claims I had raised. However, the judge recently adjourned that phone conference "sine die"--i.e. indefinitely, unless oral argument becomes necessary.

Is the ripe date still the October date of last reply in the motion practice, the scheduled but adjourned date of the December call about it, or something else? Some judges pledge to resolve motions within 60 days of their ripe date.

I ask because I expect that this judge prefers not to appear on the required national list showing pending motions still outstanding as of six months. I would, therefore, like to gauge by when I am likely to see a ruling.

 

[Paul84]

Interesting article by a federal judge on life at BigLaw firms

http://faculty.law.miami.edu/mcoombs/Schlitz.htm

Vanderbilt Law Review, May 1999: "ON BEING A HAPPY, HEALTHY, AND ETHICAL MEMBER OF AN UNHAPPY, UNHEALTHY, AND UNETHICAL PROFESSION" by Patrick J. Schiltz

Schiltz wrote it before becoming a judge, and based on a comment in it, he seems to have spent part of his BigLaw career defending priests that preyed on youngsters, as dramatised in the recent Oscar-winning movie, "Spotlight".

I expect the pressures on lawyers in BigLaw have increased further from the trends of the '90s that he describes.

Do you think judges tend to look away from unethical behaviour in litigation because they themselves may have engaged in it before assuming their positions?

 

[quincy]

http://faculty.law.miami.edu/mcoombs/Schlitz.htm

Vanderbilt Law Review, May 1999: "ON BEING A HAPPY, HEALTHY, AND ETHICAL MEMBER OF AN UNHAPPY, UNHEALTHY, AND UNETHICAL PROFESSION" by Patrick J. Schiltz

Schiltz wrote it before becoming a judge, and based on a comment in it, he seems to have spent part of his BigLaw career defending priests that preyed on youngsters, as dramatised in the recent Oscar-winning movie, "Spotlight".

I expect the pressures on lawyers in BigLaw have increased further from the trends of the '90s that he describes.

Do you think judges tend to look away from unethical behaviour in litigation because they themselves may have engaged in it before assuming their positions?

This post of yours could have supported a thread of its own, Paul84.

I agree with you that Schiltz's article is an interesting one. What he writes reflects accurately the lives of many attorneys I know, especially those who have worked at large law firms for an extended period of time.

Some attorneys will learn that money is a poor trade-off for their health and their personal happiness - unfortunately, these attorneys often learn it only after their lives have spiraled out of control.

As to your question, I like to believe that judges do not discount unethical behavior.