We found it very hard to believe that it was actually true, that so many judges were breaking the law. I mean, these are judges. They're lawyers. Judges interpret the law. They enforce the law. They don't break the law. But judges very rarely receive any kind of scrutiny, federal judges in particular. And they're used to being sort of the king and queens of their own domain. ---- James V. Grimaldi, The Federal Law That 138 Judges Have Broken, Wall Street Journal, October 1, 2021
Welcome back to How to Legal where we use the good side of the Internet to combat the dark side in this era of fake news, misinformation, disinformation, and/or defamation.
To simplify, hereinafter, "fake news" refers to "fake news, misinformation, disinformation, and/or defamation."
In this next installment we’ll look at:
- what are pleadings;
- different pleading (complaint) standards;
- Bell Atlantic Corporation v. Twombly and Ashcroft v Iqbal, bedrock cases in U.S. law;
- defamation + related tort complaints, length and exhibits;
- lawyers who follow the Model Rules of Professional Conduct file true and correct exhibits in court versus;
- lawyer(s) who don’t file true and correct exhibits in court with a real case demonstration;
- how judges who conduct proper proceedings typically view “good faith” versus “bad faith” between parties based on real cases; and
- a real case demonstration of a judge calling out a lawyer who files alleged altered/doctored exhibit pursuant to the rules.
Remember, don’t overload, and burn out. There’s a lot of information here. Pace yourself. Scroll down to whatever is of interest to you. Bookmark How to Legal and come back later. Nobody learns about the legal system in a day. I didn’t. Lawyers don’t. I’m still always learning.
Thank you for coming back to How to Legal and for being a part of the solution to combating this online information crisis so we can focus on real problems.
Okay, let’s do this.
What are pleadings?
“Pleading” according to dictionary.law.com, a legal dictionary, is:
1. every legal document filed in a lawsuit, petition, motion and/or hearing, including complaint, petition, answer, demurrer, motion, declaration and memorandum of points and authorities (written argument citing precedents and statutes). Laypersons should be aware that, except possibly for petitions from prisoners, pleadings are required by state or federal statutes and/or court rules to be of a particular form and format: typed, signed, dated, with the name of the court, title and number of the case, name, address and telephone number of the attorney or person acting for himself/herself (in pro per) included. 2) the act of preparing and presenting legal documents and arguments. Good pleading is an art: clear, logical, well-organized and comprehensive.dictionary.law.com
Whoa… complaint, petition, answer, demurrer, motion, declaration and memorandum of points and authorities (written argument citing precedents and statutes). What are those?
Dictionary.law.com is your friend
You can use dictionary.law.com to find out (the good side of the Internet). For example, “complaint,” according to dictionary.law.com is:
n. the first document filed with the court (actually with the County Clerk or Clerk of the Court) by a person or entity claiming legal rights against another. The party filing the complaint is usually called the plaintiff and the party against whom the complaint is filed is called the defendant or defendants. Complaints are pleadings and must be drafted carefully (usually by an attorney) to properly state the factual as well as legal basis for the claim, although some states have approved complaint forms which can be filled in by an individual.
A complaint also must follow statutory requirements as to form. For example, a complaint must be typed on a specific type of paper or on forms approved by the courts, name both the party making the claim and all defendants, and should state what damages or performance is demanded (the prayer).
When the complaint is filed, the court clerk will issue a summons, which gives the name and file number of the lawsuit and the address of the attorney filing the complaint, and instructs the defendant that he/she/it has a specific time to file an answer or other response. A copy of the complaint and the summons must be served on a defendant before a response is required….Read the full definition at dictionary.law.com
Here’s another example. What’s a “motion?”
n. a formal request made to a judge for an order or judgment. Motions are made in court all the time for many purposes: to continue (postpone) a trial to a later date, to get a modification of an order, for temporary child support, for a judgment, for dismissal of the opposing party’s case, for a rehearing, for sanctions (payment of the moving party’s costs or attorney’s fees), or for dozens of other purposes. Most motions require a written petition, a written brief of legal reasons for granting the motion (often called “points and authorities”), written notice to the attorney for the opposing party and a hearing before a judge. However, during a trial or a hearing, an oral motion may be permitted.dictionary.law.com
And so on.Flash promotion: Get 3 months free on any annual shared managed WordPress hosting plans with coupon code WPE22. Valid until January 31.
Next, as demonstrated in How to Legal: The Rules, you can find the rules at the court’s website. You can also find them at legal research platforms such as casetext.com.
Remember, while procedures, rules, and laws, are similar state to state, there are some differences, so be mindful that you’re looking in the right place.
By using casetext.com, for instance, you can look up all the permissible pleadings in Idaho. In this example, you will find Idaho Rule Civil Procedure Rule 7: Pleadings Allowed; Form of Motions and Other Papers [Idaho R. Civ. P. 7 ] about the pleadings.
You can find the same rules at an Idaho’s court’s website within the local rules. Here, the link takes you to the Idaho Supreme Court’s website.
The same applies if you’re looking for forms to attach to a pleading. Simultaneously, you’ll learn that most pleadings don’t need forms. Don’t worry. It’s not confusing. The forms tell you which pleading they go with.
To demonstrate, below is a screenshot that shows you where to locate forms for new cases in the District Court of Columbia. As you can see, the first pleading, the complaint, definitely needs forms.
The forms are boilerplate forms. The courts have their own forms. As such, if you need any go to the court’s website.
Are you beginning to see how learning about the legal process, state to state, court to court, works? I hope so.
Bell Atlantic Corporation v. Twombly and Ashcroft v Iqbal.
To take a deeper dive into the pleading standards for a complaint (the first pleading), the standard is based upon two cases, Bell Atlantic Corporation v. Twombly and Ashcroft v. Iqbal.
Here are a couple articles which explain the cases:
- Ashcroft v. Iqbal: The New Federal Pleading Standing, Jones Day, June 2009; and
- Civil Pleading Requirements After Bell Atlantic Corporation v. Twombly and Ashcroft v. Iqbal, EveryCRSReport.com, July 1, 2010.
In addition, the New York University School of Law held an interesting discussion about Iqbal/Twombly you can watch.
In brief, there are two pleading standards you can use. It depends on the circumstances of your case.
Here, Thomas Reuters Westlaw breaks down Rule 8: General Rules of Pleadings.
Over here, the Fordham Law Review breaks down Rule 9b.
The Financial Poise provides a helpful overview of Rule 9, in It’s all in the details: The Importance of FRCP [Federal Rule Civil Procedure] Rule 9 in fraud cases.
As always, Cornell’s Legal Information Institute (LII) is a reliable go-to open source to find the answers. See LII’s Rule 8 and Rule 9. Pleading Special Matters. As you can see there are plenty of open source resources you can use when you How to Legal.
Okay, that’s a lot of information to digest. Let’s take a break, enjoy some music, and move around, before going on to defamation and related tort complaints.
This time, for me, while I love the original, “The Sound of Silence,” with Simon & Garfunkel, I also like Disturbed’s version (official website). What about you?
Defamation + Related Tort(s) Complaints
Okay, we’re back.
One of the best ways to learn How to Legal, in my opinion, is by reading complaints and legal briefs. The more you read, the more familiar you become with the similar formats, categories, and structure they follow.
Complaints vary in length and specificity. It depends on the facts of the case, the number of torts (also known as counts or causes of action) and in defamation complaints, it also depends on the number of alleged defamatory statements.
For example, in actor James Wood v. John Doe et al in California’s Superior Court, of Los Angeles county, and Edward Henry v NPR, David Folkenflik, Turner Broadcasting Systems Inc., Alisyn Camerota and Brian Stelter in Southern District of New York, the complaints were less than 15 pages.
Please note: The Woods case was filed in State court. The Henry case was filed in Federal Court. By reading defamation cases in different venues and states, you’ll see while there are similarities there are differences too. This is why it’s important to make sure you are following the rules and laws in that jurisdiction.
Conversely, some complaints are longer.
In Dominion, Inc. v. Sidney Powell (1:21-cv-00040) the complaint is over 100 pages and the lawyers attached 100 + exhibits.
Lawyers who follow the Model Rules of Professional Conduct file true and correct exhibits in court
You can read Dominion, Inc’s Exhibits 1-107 at Courtlistner.com with all the other filings.
As you read the exhibits, you’ll see Dominion’s lawyers submitted exhibits that are properly formatted, legible, and true and correct copies.
The exhibits that are preserved from online sources have the date the document was accessed and the urls to the source website at the bottom. The urls are necessary as they show the Court that they go to the original source and the date the document was last accessed. See for e.g, Exhibit 8, Exhibit 13, Exhibit 23, Exhibit 59, Exhibit 89, and so on and so on.
I added the red arrow (below) for clarity sake so you can see how a law firm preserves a document to submit as evidence using what appears to be some type of law office technology, as opposed to a layman who would typically use chrome, firefox or another browser’s PDF maker to preserve exhibits. This also shows the urls and the date the website was last accessed.
As such, after reading the complaint and the exhibits, you would know Dominion’s lawyers, Thomas A. Clare, P.C., Megan L. Meier, and Dustin A. Pusch of Clare Locke, a leading U.S. defamation law firm, are lawyers who are following the Model Rules of Professional Conduct.
A lawyer shall not:
(a) unlawfully obstruct another party’ s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;
(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;ABA Model Rules of Professional Conduct
According to Rule 3.4: Fairness to Opposing Party & Counsel, a lawyer who does the opposite of any part of Rule 3.4 would be violating Rule 3.4.
See also how the American Bar Association (ABA) provides the latest technology information for law firms and shares best practices. 2020 Legal Technology Survey Report Vol III: Law Office Technology.
Do all lawyers adhere to the Model Rules of Professional Conduct? Nope.
Why did I make a big deal about lawyers submitting true and correct documents in a court of law? Because it should be a given that lawyers adhere to the Model Rules of Professional Conduct in any court, and a lawyer, (any ethical person for that matter), would only submit true and correct copies of documents, particularly in a U.S. Federal District Court, right?
Unfortunately, the answer is “no” because as Dominion, Inc. v. Sidney Powell et al proves it’s not a given that all lawyers follow the Model Rules of Professional Conduct.
As substantiated above, according to the Model Rules of Professional Conduct, Rule 3.4: Fairness to Opposing Party & Counsel filing unlawfully altered documents is not permitted in court during proper proceedings.
Lawyer, officer of the court, files alleged altered exhibit
In Dominion’s Complaint Dominion’s attorneys demonstrated for the Court that Sidney Powell (or whoever works with her) filed an altered exhibit in a lawsuit she filed in Georgia involving the 2020 Presidential Elections.
See also: Jerry Lambe, “Sidney Powell’s ‘Kraken’ Lawsuit Included Altered Exhibit of Georgia’s Certification of Dominion Voting Machines,” Law&Order, December 1, 2020.
As you can see below, Dominion’s lawyers filed a true and correct copy of Powell’s exhibit she (and/or whoever was working with her) to compare with the original unaltered document. They also filed the documents separately as exhibits.
See, Dominion’s Complaint § p. 37 (below), and footnote 60.
Good faith versus bad faith. Lawful versus unlawful
While some people might say Attorney Sidney Powell made an innocent mistake, or blame it on technology, or whatever, like Attorney Powell apparently did, the problem here is Attorney Powell has reportedly demonstrated a pattern of doing this, and of misrepresenting facts, in other court cases.
See for e.g.: “How Sidney Powell Misrepresents Her Evidence in Her Fake Brady Motion,” emptywheel, October 28, 2019; and see also: Matt Naham, “Peter Strzok’s Lawyer Sends Letter to Judge in Michael Flynn Case: Flynn’s Lawyers [including Sidney Powell] Filed ‘Altered’ Notes and Irrelevant Texts,” Law&Crime, September 28, 2020.
So how does a judge typically determine what is good faith versus bad faith? An honest mistake versus a potential dirty trick? In other words, in legalese, pursuant to Rule 3.4: Fairness to Opposing Party & Counsel, how does a judge typically determine what is a “lawfully” altered document versus an “unlawfully” altered document?
You can find the answers by looking at other court cases
People make mistakes. It happens in court too. To distinguish the difference between an innocent, “lawful” mistake made in good faith, and an intentional “unlawful” “mistake,” made in bad faith, because we’re always learning here at How to Legal, we can turn to other cases to find the answer.
Ethical lawyers correct honest, “lawful” mistakes
According to the court cases cited below when an ethical lawyer makes an innocent, good faith, “lawful” mistake, they correct it. They notify the court, and it doesn’t happen again.
For instance, in the Southern District of New York, in the State of New York v. U.S. Dep’t of Commerce, the New York’s Attorney General notified the Court when they corrected a list of exhibits.
The attorney provided the Court with the corrected exhibit list. Based on this court filing we can see how lawyers who make honest mistakes, in good faith, a lawful mistake, conduct themselves when found in error.
In addition, according to another court filing, this one, in a California Federal District Court. When one party is notified by the other party that there was a problem with their filing, the party in error may file a motion requesting permission from the Court to correct the mistake.
This occurred, for instance, in Apple Inc. v. Samsung Electronics Co. Ltd. et al. In that case, Apple’s lawyers filed a “Motion to Remove Incorrectly Filed Documents” after being notified by Samsung Electronics lawyers that there was a problem. See below.
So what have we learned? Good faith, honest, “lawful,”mistakes are fixed and they don’t happen again, likely because no ethical judge would tolerate it. If a judge did, according to the rules, that’s a judge who would be violating the rules and their judicial oath.
How can justice be served where one party acts in good faith and the other does not?
As such, it didn’t look good for Defendant Attorney Sidney Powell.
Let’s take a quick music break here. For me, it’s Peter Gabriel’s “Games without Frontiers,” what about you? See Peter Gabriel’s official website.
Federal District Court Judge calls out alleged altered/doctored exhibit demonstrating a proper proceeding and an impartial judge following the rules
Hon. Carl J Nichols, the Federal District Court Judge, in Dominion, Inc. v. Sidney Powell (1:21-cv-00040), is a judge who is following the rules and conducting a proper proceeding. We know this because look at what he wrote about Attorney Sidney Powell’s alleged altered/doctored exhibit:
But the only evidence to which Powell points in support of this claim is an undated (and allegedly doctored) Georgia state certificate stating that Dominion’s systems had “been thoroughly examined and tested and found to be in compliance with” Georgia law. Id. ¶ 39. That certificate provides no evidence of illicit payments to public officials’ families; it is certainly not, as Powell has argued, “evidence . . . from various whistleblowers that are aware of substantial sums of money being given to family members of state officials who bought this software. . . . $100 million packages for new voting machines suddenly, in multiple states, and benefits ranging from financial benefits for family members to sort of what I would call election insurance, because they know that they can win the election if they are using that software.”Dominion, Inc. v. Powell, Giuliani, and My Pillow Inc,, Hon. Carl Nichols Order, Docket Number 36, p. 18
Federal District Court Judge Carl Nichols didn’t give Sidney Powell, an officer of the court, a Super Lawyer, (or whoever works for her), a free pass to keep filing “alleged” altered/doctored exhibits, when, as the two cases cited above demonstrate, when a lawyer acts in good faith, and makes an honest, “lawful,” mistake, they correct it. They notify the court, and it doesn’t happen again.
Moreover, as Judge Nichols’ order confirms, he did not defend Attorney Powell (or whoever works for her) for filing an alleged altered/doctored document in a federal court proceeding. On the contrary. He nailed her. In addition, the judge didn’t give the lawyer (or whoever works for her) a free pass to cite “evidence” as if it were legitimate when it wasn’t even what the lawyer had claimed it was.
As such, Hon. Carl J Nichols is not a judge who is tilting justice in one party’s favor in violation of Rule 3.4: Fairness to Opposing Party & Counsel. He’s following the rules and honoring the judicial oaths he took. He upheld and protected the Constitution of the United States, 5 U.S.C. § 3331.
Thus, he’s not a judge who could be seen as being in the tank with attorney Sidney Powell et al, in a defamation lawsuit where there’s big money on the line — not millions of dollars in damages, but billions of dollars.
The scales are balanced.
See? I know it’s a lot of reading, but it’s cool learning the rules and seeing an ethical judge conducting proper proceedings, isn’t it? This way you won’t be duped by fake news about an ethical judge, freak out, disseminate fake news, do something stupid, and possibly end up in prison or something because you believed a lawyer who violates justice system rules.
Do the people who stormed the U.S. Capital on January 6, 2021 know that Attorney Sidney Powell (or whoever works for her) had filed an alleged altered/doctored exhibit in a federal district court, that didn’t even say what she said it said?
See: Madison Hall, Skye Gould, Rebecca Harrington, Jacob Shamsian, Azmi Haroun, Taylor Ardrey, and Erin Snodgrass, “684 people have been charged in the Capitol insurrection so far. This searchable table shows them all.” Insider, updated October 19, 2021.
I don’t know. You’d have to ask them. I don’t cover U.S. politics anymore.
Let’s wrap this up.
I hope you’ve found this latest How to Legal helpful, informative, and you feel empowered by learning more about the justice system. I also hope How to Legal gives you an appreciation and respect for all the ethical officers of the court, who live by their oaths, and stand firm against corruption. Thanks for being a part of the solution to combating the fake news online crisis.
It’s time for another musical interlude. Get up and move around before moving on to the next installment of How to Legal: The docket, and following proper procedures in a defamation case.
For me, it’s the Alan Parsons Project, “Games people play.” What about you?
Nothing on this website may be construed as legal advice. This information is for educational purposes and to help combat fake news against ethical judges and innocent people.
If you have learned something and would like to show support for my efforts in trying to make the Internet a safer and more honest place you may send donations here. Thank you. If you are stressed out by fake news, real news, or for any reason, you might want to check out Stuff for Stress. Check out some merch. Isn’t everyone supposed to have merch these days?
If you are stuck in a media echo-chamber and need help breaking out, or know someone who is, check out The Break Free from Media Echo-Chambers 30 Day Challenge. It’s time to heal and make fact-based decisions.
There are problems on both sides of the political aisle and real problems that need to be fixed. Acting on fake news just creates more problems that need to be fixed.
Lastly, if you see any typos or mistakes, kindly send me an email so I can fix it. Thanks. No lawyers, like Sidney Powell, please. I’ve read the rules countless times and can spot lawyers who violate them. Hence, you did not see me reporting lies about the 2020 U.S. Presidential elections or storming the U.S. Capital enraged over BS.