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Wednesday, December 02, 2020

Judges, procedure, and Trumpist litigators (Updated Again and Again and Moved to Top)

We have seen some strangeness the past two days over one of Sydney Powell's Kraken lawsuits in Georgia. That lawsuit seeks, among other things, an order seizing and impounding voting machines in the state and allowing plaintiffs to perform a forensic inspection. On Sunday afternoon, the court issued a scheduling order that included a TRO prohibiting the state from scrubbing data from the machines. Later, the court issued a second order, rescinding the TRO, apparently because the state does not control the machines; counties do and the counties were not sued. On Sunday evening, the court issued a third order following a Zoom conference, reinstating the TRO prohibiting defendants from scrubbing or allowing scrubbing of the machines, limited to three counties, apparently on the understanding that plaintiffs will amend the complaint to add them as defendants. This morning came a fourth order, certifying the third order for immediate review under § 1292(b).

Why the insanity? I agree with several online lawyer-commenters. The judge issued a routine, non-adversary scheduling order that sought to preserve the status quo. And Powell, Lin Wood, etc. reacted by taking to Twitter to crow about a giant initial step towards exposing the massive international voter-fraud conspiracy, a substantive victory. Then the defendants pointed out the problems with the litigation and thus with even that routine order--the plaintiffs sued the wrong people and the machines probably cannot be subject to a plaintiff-run forensic audit, at least without more allegations and proof of wrongdoing. And the court sought a middle ground by allowing someone (not clear who) to appeal an otherwise-unappealable order. And questions remain about what the controlling question of law could--whether it was proper to issue a TRO before the amended complaint was filed? whether a forensic audit is available? It might be that the 11th Circuit could reject any appeal (the court of appeals must agree with the district court's certification that appeal is appropriate).

The lesson is that courts must be as cautious as everyone else in these waters. Routine litigation is not routine litigation with these lawyers or with their public followers, because they are not here for judicial resolution. The most innocuous order or statement by the court will be seized upon and trumpeted either further evidence of the vast international conspiracy of which the judge is a part or as a heroic step by a heroic judge to stopping the greatest evil in human history. (Recall Jenna Ellis's insistence that Giuliani had won the argument in the MDPa case, as evidenced by the judge recommending places for the lawyers to get a drink). But unless courts begin to use the tools at their disposal to stop these abuses, they must think twice about even the smallest procedural step or statement.

Updated on Tuesday: Politico has the full story based on the transcript of the Sunday conference, with commentary. The first two orders were proposed drafts circulated among the court and parties that were publicly disclosed and promoted by plaintiff counsel, thus far without consequence. The judge seems less unreceptive to these allegations than others; while stating that the allegations are backed by "precious little proof," he appears to take them as sufficiently plausible to warrant ordering limited preservation. The § 1292(b) order was entered in response to the state's desire to appeal, although still no word on the controlling question of law. No appeal has been filed.

My basis point in this post stands: Trumpist litigators are going to abuse the system. And judges have to be ready for it.

Updated on Wednesday: Instead, the plaintiffs appealed the TRO granting them narrow relief (no clearing machines in three counties). And they did not rely on the § 1292(b) certification, which appears to have been at the state's request. Instead, plaintiffs argue that this is an appeal as of right of an injunction under § 1292(a), based on Eleventh Circuit precedent from the Terri Schiavo litigation treating a TRO as an appealable preliminary injunction where the grant or denial "might have a serious, perhaps irreparable, consequence, and can be effectually challenged only by immediate appeal." In Schiavo, the consequence was that Schiavo would die; I doubt the consequences here are so grave.

Meanwhile, the notice of appeal argued that the appeal divests the district court of jurisdiction. This caused the district court to stay its scheduling order, including the briefing schedule (state briefs were due today) and a Friday hearing, both of which are off. This was unnecessary and probably unwise, because the district court must begin anew when the case returns (probably quickly) from the court of appeals. The district court was was not pleased, stating in the order that any delay in briefing and holding a hearing upon remand would be attributable to the plaintiffs and not the court.

Mike Dunford has more on how bad the lawyering has been in this case. Again, my basic point: This is about using the system to put on a show for a segment of the public. 

Posted by Howard Wasserman on December 2, 2020 at 08:32 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink


As others have noted, the plaintiff's aberrant behavior will continue until some jurist says, "Stop, you are violating Rule 11. Get ye and your worthless case out of my courtroom".

Posted by: Paul Sonnenfeld | Dec 2, 2020 1:36:52 PM

Although to be fair to Powell and Wood, Van Orden acknowledged speaking with him and saying he was interested/intrigued by the suit. Not a go-ahead. But I don't think he can say he was totally unconnected to the insanity.

Posted by: Howard Wasserman | Dec 2, 2020 11:04:05 AM

It gets worse. Yesterday in Wisconsin, Powell filed a lawsuit on behalf of a defeated congressional candidate named Derrick Van Orden. Van Orden says he found out about the lawsuit over social media, and denies any involvement in it.

There's incompetence, and then there's outright derangement, and then somewhere far beyond even that is filing a lawsuit on behalf of a named plaintiff who never actually consented to the lawsuit (or even to the representation...? Nobody knows. Hopefully disciplinary counsel will sort it out in due course).

Posted by: Paul Gowder | Dec 2, 2020 10:51:34 AM

So as of today, the District Court has issued an order directing persons who are not parties (or agents of parties) not to do something based on an amended complaint that has not been filed? I do not understand why a judge would think such an order not void from the outset. How would it be enforced?

Posted by: J. Bogart | Dec 2, 2020 10:30:29 AM

So as of today, the District Court has issued an order directing persons who are not parties (or agents of parties) not to do something based on an amended complaint that has not been filed? I do not understand why a judge would think such an order not void from the outset. How would it be enforced?

Posted by: J. Bogart | Dec 2, 2020 10:30:23 AM

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