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Thursday, March 04, 2021

Twiqbal meets the Kraken and Gondor

The Kraken and other pro-Trump/pro-Republican lawsuits about massive election fraud are fictitious nonsense brought by terrible lawyers. The litigation efforts, and the lawyers who brought them, have been justly ridiculed, But I am curious about one point of criticism--that the plaintiffs failed to offer proof of this massive fraud and the pleadings have been absurd because they included allegations of wrongdoing without proof. The same critics distinguished the leaky press conferences and Holiday Inn legislative "hearings" from courts, where the latter have rules governing proof.

Under notice pleading, however, the plaintiff is not required to plead its evidence or to offer proof of its allegations; the idea is to plead skeletal facts showing wrongdoing and leave it to discovery to find evidence behind allegations. Twiqbal requires more than that, of course. But even Twiqbal does not require a plaintiff to identify the evidence supporting its allegations, only that those allegations be more detailed. In any event, many people criticizing the Kraken pleadings decry Twiqbal for ratcheting up what plaintiffs must do to get into court and proceed to discovery.

Part of the issue is that the plaintiffs not only filed complaints, they sought immediate preliminary injunctive relief, which does require evidence beyond the allegations. something the plaintiffs were unable to provide. That made the motion, which must be supported by proof, more salient than the complaint which does not. Still, responding to a ridiculous complaint by demanding proof seems to ignore how federal litigation begins and the idea that the demand for proof comes later--discovery, summary judgment, and trial. And demanding that Gondor and the Kraken have proof at the outset, when we criticize the courts for demanding the same from a typical civil rights plaintiff, seems disingenuous.

Again, I am not saying these cases should have succeeded. Plaintiffs did need evidence for preliminary relief and did not provide it. But the framing outside the courts seems wrong.

Posted by Howard Wasserman on March 4, 2021 at 08:52 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


Very interesting post. As I understand it, you're saying that
the attorneys filing these cases, who on other evidence I gather we know are not very competent to begin with, made the strategic mistake of filing for preliminary injunctions rather than for other relief. And this was a mistake because a preliminary injunction requires considerably more evidence at the start of the process than other relief. Right?

Note that even if these were frivolous suits brought as publicity stunts, they still still made a strategic mistake. If they hadn't asked for pre. injunctions, they wouldn't have lost so quickly and looked so bad so soon.

Posted by: Eric B Rasmusen | Mar 12, 2021 12:13:56 AM

The OP only refers vaguely to "critics" and "many people criticizing" (the latter sounds a bit like T—"Many people are saying"!), so the lack of specifics makes it a little challenging to come up with a targeted response. However, C.E.P. notes the Rule 11 requirement separate from Twiqbal and I would think if any "critics" are clued in enough to be familiar with Twiqbal, then likely their criticism was based not on that, but on the failure to satisfy the Rule 11 factual investigation requirements. The Rule 11 aspect was of course discussed at length previously on this very blog. Again though, it's difficult to say more when only presented with generalities.

SS brings up Rule 9, which is an interesting point. Maybe that's why sometimes Powell & Giuliani et al. actually denied that their claims sounded in fraud, so they could bypass the more demanding requirements of Rule 9 (or state equivalents).

As for the "without evidence" observations, again, these are vague so responding is tough, but I'll try. I think one could have a solid basis for making such observations. We all know that when someone has good credibility and a reputation for honesty, s/he gets the benefit of the doubt when making an assertion. T is obviously the diametric opposite of that, given his compulsion for lying and making preposterous claims; he's like the love child of Pinocchio and Tommy Flanagan. So yes, when someone with that reputation opens his mouth, people will default to assuming—correctly—that whatever he says is false and/or unsupported. The only exception would be in the rare case when actual evidence is presented, but I think all our great-great-great-grandchildren will be taking dirt naps before that ever shows up.

Posted by: hardreaders | Mar 5, 2021 12:05:31 AM

FRCP 9(b) also is relevant in some of these cases, isn't it? "In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally." Doesn't this require even more specificity than Twiqbal?

It was kind of a constant theme during the Trump years that every statement Trump made was described as being "without evidence," as if someone needs to produce binders of evidence for every statement they make. I think that same reporting/commentating tic just bled over into the discussion of the post-election suits. (I'm not defending any of the law suits or Trump's statements, just talking about the way the press and others framed his statements as erroneous/unsupported.)

Posted by: SS | Mar 4, 2021 12:46:43 PM

One wonders (no, really) how much of this is wound up in skepticism that the lawyers filing this stuff even paid attention to, let alone followed, FRCP 11(b)(4)... and that the "failure of facts in the complaint" meme reflects skepticism that ANY prefiling investigation resulting in the particular allegations COULD be reasonable under the circumstances. It's grimly amusing to see some of those whose firms are huge advocates of we-demand-direct-fact-pleading-regardless-of-the-rules in so much litigation on other aspects of fundamental rights caught up in the reasoning that typically appears in their "12(b)(6)" motions.

Posted by: C.E. Petit | Mar 4, 2021 10:06:10 AM

Hereby for example, in Michigan (western district of Michigan). Although not too many votes were at stake, and the issue was petitioning after the election (not during). I quote:

" Plaintiffs seek unprecedented and unconscionable relief in this case. Over a week after the presidential election ended, and after all votes across Michigan had been properly counted, the Plaintiffs filed this lawsuit, seeking to throw out results from just one of Michigan’s 83 counties. See Compl. p. 30, cl. B. By targeting Wayne County, the Plaintiffs’ requested relief would effectively disenfranchise over seven hundred and fifty thousand voters, including nearly half of Michigan’s Black population. Plaintiffs argue that this undemocratic, heavy-handed, and racially disproportionate remedy is necessary to address vague, unsubstantiated claims about alleged voter fraud, purported irregularities with voting machines, duplication of ballots, and other aspects of election administration impacting a small number of votes, and the amount and quality of access Republican challengers had to review election processes and alleged interference with that access. No court has ever granted the sort of relief sought under any circumstances, let alone the frivolous allegations pressed by Plaintiffs here. Plaintiffs had ample opportunity to assert several of their claims earlier, in a less disruptive manner, but chose to wait until now in an effort to overturn entirely the democratic will of voters in Wayne County and Michigan."



Posted by: El roam | Mar 4, 2021 10:04:03 AM

Courts have explained it over and over:

This is a sacred or at the core of US constitutional rights. Simply to vote. One needs proofs in order to stop or to hold such train from traveling to its destination. You can't put on hold, votes of millions of voters, just for unfounded allegations. This is not ordinary civil case.

There is also, presumption here, presumption of regularity ( as administrative action or alike). Threshold or burden of proof here, should be different simply.

We shall demonstrate it later.


Posted by: El roam | Mar 4, 2021 9:50:04 AM

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