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Wednesday, December 02, 2020

Federal Rules of Trumpist Procedure

I started to add this to my earlier post about Trumpist Procedure (great article title), but decided it needs to stand alone.

Powell's Wisconsin lawsuit, which includes a plaintiff who never agreed to the lawsuit, included a "Motion for Declaratory, Emergency, and Permanent Injunctive Relief." It had to be filed twice because the lawyers filed a draft. They filed both without saying whether they had provided notice to the defendants or otherwise complied with FRCP 65(b) and local rules or whether they wanted a hearing. The court issued an order refusing to do anything, which is the best kind of order. Brad Heath of Reuters put it well:

Just an amazing pattern of lawyers showing up with what they say are the most important cases ever filed and botching the basics. Even the President's lawyers screwed up the everyday rules for suing people. These are the mistakes you see when prisoners represent themselves.

Courts are going to have to figure this out. But I am not sure demanding that the Trumpist lawyers adhere to the rules, refusing to act if they do not is the solution, and issuing (rightfully) annoyed orders is the answer. First, doing so ignores that their point is to make official-sounding noise in any forum; a court with "rules" is no different than a Courtyard-by-Marriott without rules. Second, orders such as this one make the court, especially an Obama appointee, part of the expanding conspiracy.

Posted by Howard Wasserman on December 2, 2020 at 01:13 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink


Wait. The court writes:

"If the plaintiffs have provided notice to the adverse parties, under Civil Local Rule 7(b) (E.D. Wis.) those parties have twenty-one days to respond to the motion and under Civil L.R. 7(c) the plaintiffs have fourteen days to reply," and "[i]f the plaintiffs believe an expedited briefing schedule is necessary or warranted, they may contact chambers, with representatives of the adverse parties on the line, and request a telephone hearing. **Otherwise, the court will await the defendants’ opposition brief**" (emphasis added).

The court is awaiting defendants' briefs under the established calendar and procedures while also highlighting for plaintiff counsel what they can do to expedite the process. How is that "refusing to act"? What do you want Judge Pepper to do?

Posted by: Me | Dec 2, 2020 2:19:32 PM

Funny indeed. Ironically, what he has asked (somehow,unwittingly,unknowingly) is TRO (Temporary Restraining Order). Then, it can be filed, without notice. I quote:

"(b) Temporary Restraining Order.

(1) Issuing Without Notice. The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if:

(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and

(B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required."

But, anyway, he wouldn't succeed without showing by facts, that immediate and irreparable injury shall occur if notice is given etc.....


Posted by: El roam | Dec 2, 2020 2:09:01 PM

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