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Lawyer submits inapplicable case law. Dirty Tricks? Oops?—How to Legal

How to Legal. Tilting justice
Will a Judge break his oath by citing defendant’s inapplicable case law as if applicable to thwart justice?

Welcome back to How to Legal, where we use the good side of the Internet to combat the dark side in this Internet era of fake news, misinformation, disinformation, and defamation.

To simplify, hereinafter, “fake news,” refers to “fake news, misinformation, disinformation and/or defamation.”

Today we will:

  1. define “Table of Authorities”;
  2. do a Table of Authorities real case demonstration;
  3. look at a defamation case where a lawyer submits case law that’s not applicable to the case–good faith versus bad faith? Dirty tricks? Oops?;
  4. learn how to look up case law to see if it’s applicable to a case;
  5. learn how to find the elements for all counts, torts, and causes of action; and
  6. see a judge faithfully apply applicable defamation case law in a federal district court case pursuant to his oath, the canons, and rules of the U.S. justice system.

Okay, let’s do this.

What’s a Table of Authorities?

In legal briefs, you will see what’s typically called a “Table of Authorities,” or a “Memorandum of Authorities.” This is like a Table of Contents in books. The difference is in legal briefs the table of contents cites court cases. Cases aka “authorities.”

Dictionarylaw.com, an excellent go-to-place, defines “authorities” like this:

authorities

n. 1) previous decisions by courts of appeal which provide legal guidance to a court on questions in a current lawsuit, which are called “precedents.” Legal briefs (written arguments) are often called “points and authorities.” Thus, a lawyer “cites” the previously decided cases as “authorities” for his/her legal positions.

Read the full definition at dictionarylaw.com *

The definition of “authorities” sums up why all the parties, including the judge, must follow the rules, and the judge must faithfully apply the laws.

If a judge does not faithfully apply the law they are showing you that they are an oath-breaking judge according to the judicial oaths, canons, and the rules. We saw this with some of the judges in the Reuters and Wall Street Journal investigations exposing judicial misconduct.

This is serious. Judicial misconduct does not only adversely affect the victim/survivor who was robbed of due justice by an oath-breaking judge. It undermines the integrity of the justice system. Why? Because when an oath-breaking judge does not faithfully apply the law their bad case law becomes part of the legal system. It can be cited in other cases as it were legit and lawful (see below).

As such, it’s a very big deal, and I am pretty sure it is among the reasons why we saw rulings vacated as a result of the Wall Street Journal’s important investigation exposing judicial misconduct at the federal level.

* Dictionarylaw.com, like casetext.com, and other open source legal resources I’ve been showing you offer both free and paid subscription services.

As you can see, you do not have to be a lawyer to use these services to learn about the justice system, if you are willing to do the work, and take the time to learn.

Table of Authorities Real Case Demonstration

Below is what a Table of Authorities can look like. This Table of Authorities is from the defamation, deceptive trade lawsuit, Dominion, Inc. v. Sidney Powell et al. The Table of Authorities begins on page 3. (Scroll down)

To demonstrate an “authority,” we will use one of the cases Dominion’s lawyers cited in their Table of Authorities,” Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998).”

The case [authority] breaks down like this:

Blumenthal” = Plaintiffs Sidney and Jacqueline Blumenthal.

Drudge” = Defendant Matt Drudge.

992 F. Supp. 44: Citation.

D.D.C 1998 = U.S. District Court, D. Columbia, year case was filed.

And so on and so on …

Defendant’s attorney submits case law that does not apply to the case. Dirty tricks? Oops?

Questions

In Dominion, Inc.’s defamation, deceptive trade practices lawsuit against defendant Attorney Sidney Powell, Dominion’s lawyers caught Sidney Powell (and/or her attorney(s)) citing case law in their motion to dismiss which were “not defamation cases.”

As such, if true, these cases [authorities] would not apply to Dominion’s defamation case, and Defendant Powell’s team has filed inapplicable case law in their motion to dismiss.

Let’s take a look. Excerpted from Dominion Inc.’s Opposition to Powell’s Motion to Dismiss (page 23), in part:

In arguing that she is immune from defamation liability because she was engaged in “advocacy,” Powell relies on cases that are not defamation cases. See, e.g., NAACP v. Button, 371 U.S. 415 (1963); Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 509 (1972); Planned Parenthood of Columbia/Willamette, Inc. v. Am. Coal. Of Life Activists, 244 F.3d 1007, 1009 (9th Cir. 2001); Watts v. United States, 394 U.S. 705, 708 (1969); Members of City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 816 (1984). (Mem. 21, 32, 34.) But the question is not whether the First Amendment protects “advocacy,” but whether people enjoy constitutional immunity to publish defamatory falsehoods. The answer, under settled precedent, is no.

Powell’s statements are actionable because, as the Supreme Court has explained, “there is no constitutional value in false statements of fact.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974). Engaging in “advocacy” does not change that. See Restis, 53 F. Supp. 3d at 722 (“the mere fact that Defendants engage in advocacy does not give them blanket immunity to make false accusations”).

(Underline, mine)

Dominion Inc v Sidney Powell, Case 1:21-cv-00040-CJN. Dkt. No. 39 p. 23

Below is Dominion’s Opposition to Sidney Powell’s motion to dismiss. You should read it, as you should read all the legal filings in a case if you wish to learn more about defamation law, and proper judicial proceedings from lawyers who have demonstrated, (and as you will see again below), are lawyers who follow the Model Rules of Professional Conduct in a court proceeding where a judge faithfully applies defamation law, and conducts proceedings, by his judicial oath.

You can go to Courtlistener to read all the filings in this case.

Applicable? Who is right?

So who is right about the cases [authorities] Defendant Attorney Sidney Powell’s legal team cited? Dominion’s lawyers or Sidney Powell’s lawyers?

Let’s break this down further.

Are the cases relevant to the defamation case, aka are the cases applicable to the case?

How to look up case law to see if it is applicable to the case.

So, let’s look up a couple of cases Defendant (attorney) Sidney Powell (and/or her lawyer(s)) cited in their motion to dismiss to verify or debunk Plaintiff Dominion’s lawyers’ claims as to whether or not the cases were relevant (applicable) to Dominion’s defamation lawsuit.

Again, this is important to know because it goes directly to the proper “application of the law.”

Therefore, this case gives us a wonderful opportunity to demonstrate what the Standing Committee on the American Judicial System was talking about in their Rapid Response to Fake News, Misleading Statements, and Unjust Criticism of the Judiciary (“Rapid Response Guide”).

Here’s the quote:

The focus of these responses is to provide the public with information to help them better understand the legal issues related to a specific situation, including the role of judges, the application of the law, and the restrictions and responsibilities placed on judges in the canons and rules.

(underline mine)

Rapid Response Guide

… “the application of the law.” Okay, great.

Identifying applicable case law is another way you can spot proper judicial proceedings in this highly charged political era so you won’t be duped by fake news and/or political gamesmanship claiming otherwise.

Apples to apples. Apples to oranges

While I am not a lawyer, I have litigated as a pro se plaintiff so an analogy that I think might be helpful for other non-lawyers to learn about the proper application of the law is to think of it this way.

Inapplicable case law cites apples to oranges cases.

It’s like comparing apples to apples — the proper application of the law, versus comparing apples to oranges — the improper application of the law.

I hope that’s clear.

Okay, here we go.

For your convenience below are the cases [authorities] Plaintiff Dominion’s lawyers cited as cases that were not applicable to their defamation case:

See, e.g., NAACP v. Button, 371 U.S. 415 (1963); Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 509 (1972); Planned Parenthood of Columbia/Willamette, Inc. v. Am. Coal. Of Life Activists, 244 F.3d 1007, 1009 (9th Cir. 2001); Watts v. United States, 394 U.S. 705, 708 (1969); Members of City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 816 (1984). (Mem. 21, 32, 34.)

Dominion Inc v Sidney Powell, Case 1:21-cv-00040-CJN. Dkt. No. 39 p. 23

To look up cases there are many legal resources you can use. Lawyers typically use West Law. One I like to use is casetext.com, but there are others as I will show you below.

Please don’t get overwhelmed here. I’m not a lawyer, and if I can teach myself how to look up cases [authorities], I can show you how to do it too.

First, start with a Google search. Highlight the case [authorities], put it in your search bar, and start looking where you can locate the case. Once you’ve located the case, you can start reading it to find out what the case was about.

I found Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 509 (1972) at Cornell Law School’s Legal Information Institute (LII), and started reading. You can do that too. See, you can read about this case here.

Briefly, Cal. Motor Transp. Co. v. Trucking Unlimited was a civil action filed “under § 4 of the Clayton Act for injunctive relief and damages against petitioner highway carriers charging that petitioners conspired to monopolize the transportation of goods by instituting state and federal proceedings to resist and defeat applications by respondents to acquire, transfer, or register operating rights.”

It touched on the First Amendment this way: “First Amendment rights are not immunized from regulation when they are used as an integral part of conduct violative of the antitrust laws.” Ah, apples to oranges.

Indeed, Plaintiff Dominion’s lawyers were right. The case [authority] Defendant Powell’s attorneys cited did not apply to their defamation case.

1 for Dominion’s attorneys, 0 for Powell attorneys

Okay, let’s try that again.

This time I looked at Members of City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 816 (1984). I found it at Findlaw.com and started reading.

Members of City Council of L.A. v. Taxpayers for Vincent was about “Section 28.04 of the Los Angeles Municipal Code,” and posting signs on public property. The code, Section 28.04 prevents clutter, not free speech. Ah, apples to oranges.

Thus, this case was also not applicable (relevant) to Dominion’s defamation case. Apples to oranges.

2 for Dominion attorneys, 0 for Powell attorneys.

And so on, and so forth.

So what does it mean when a lawyer cites inapplicable case law in a legal brief? Is it a dirty trick? Good faith v. Bad faith? Oops? A good try? Gamesmanship? Dirty tricks?

A lawyer “zealously” advocating for their client by trying to wear down the other party in time-consuming, costly litigation? It is against the rules (and common decency) to frivolously drag out cases. See:

Rule 3.1: Meritorious Claims & Contentions

Advocate

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. 

American Bar Association. Model Rules

What is this?

I’ll leave that to you to decide.

The oaths of admissions for lawyers

While you are deciding, let’s take a quick look at DC’s oath of admission for lawyers.

Following is the oath lawyers take to practice in the District of Columbia:

I, _________________ do solemnly swear (or affirm) that as a member of the Bar of this Court, I will demean myself uprightly and according to law; and that I will support the Constitution of the United States of America.

District of Columbia Court of Appeals

Remember while the oaths of admission for lawyers are similar, state to state, there are differences. Some oaths are specific while others are more general.

For example, as we saw in: How to Legal: Judges & Lawyers Oaths, Codes & Rules, Alaska’s oath is specific, while the District of Columbia’s oath is general. But the oaths essentially say the same things when you break them down. See for example Alaska’s oath, in part:

I will not counsel or maintain any proceedings that I believe are taken in bad faith or any defense that I do not believe is honestly debatable under the law of the land;

I will be truthful and honorable in the causes entrusted to me, and will never seek to mislead the judge or jury by an artifice or false statement of fact or law;

Alaska – Oaths of Admission of all 50 States lawyers

See also: Model Rules of Professional Conduct – District of Columbia.

So what have we learned here? We have learned that you cannot assume because a lawyer, an officer of the court, cites case law in their legal briefs that it’s automatically applicable to the case, as Plaintiff Dominion’s lawyers have demonstrated in their case.

As such, you can apply this same practice of looking up case law in other cases, whether it’s a defamation case, or another count (cause of action, torts, i.e. civil conspiracy, unjust enrichment, deceptive trade practices, etc., etc. ) to see if a party is filing applicable case law or not.

Apples to apples. Apples to oranges …

If you do this, it’s probably a good idea to first find the elements of the count, tort, or cause of action you are looking for.

How to find the elements for different counts, torts or causes of action

To find the elements for different counts, I like to start over at Findlaw.com, but as I have been showing you in How to Legal, there are several open source legal resources you may use.

For the count of civil conspiracy for instance, we learn at findlaw.com:

“Most states do not consider civil conspiracy to be a separate action, meaning that there must be an underlying tort to bring a civil conspiracy claim.” Further:

Proving a Civil Conspiracy

In order for a person to succeed in a civil conspiracy case, he or she must prove the elements. The elements of a civil conspiracy are as follows:

1. Two or more people who;

2. Make an agreement to act together;

3. With the intention to accomplish an unlawful goal with the purpose of harming another;

4. That results in damages.

Findlaw.com

From there I typically drill down by looking up case law in the jurisdiction I am looking at, looking for any nuances with the elements. But as always, if you have a better way, you do you.

So how does a judge who faithfully applies defamation law, (all laws ), and who conducts proceedings following his oath, and the laws of the United States, handle an apple to oranges case law situation as we saw in Dominion, Inc. v Sidney Powell et al?

Let’s take a quick music break, stretch, move around, and come back to find out. For me, I’m in the mood for Florence + the Machine. “What the water gave me.” What about you? See the official website.

How to Legal music break. Get up from your computer, stretch and move around.
How to Legal music break. Stretch, Move around.
Marinka Peschmann's The Break Free from Media Echo-

Are you stuck in a media echo-chamber, or know someone who is, and need help breaking free? Take The Break Free from Media Echo-Chambers 30-Day Challenge. 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.

Available in paperback and hardback at Amazon.

Okay, we’re back.

Here we turn to Federal District Court Judge Carl J Nichols’s ruling in Dominion Inc. v Sidney Powell et al to find out.

Federal Judge who faithfully applies defamation laws rejects inapplicable case law defense and moves forward all the provable true or false statements citing applicable case law.

Remember when you How to Legal to think like a judge is supposed to think you need to throw away any preconceived notions or political bias you may have. Whether you like one party over the other for whatever reason is irrelevant. A judge must remain impartial, follow the rules, and their oaths, and faithfully apply the law, to preserve the integrity of the justice system, and ensure justice is served.

Balanced scales
The scales of justice are balanced.

Therefore, Hon. Carl J Nichols rejected Defendant Powell’s inapplicable case law and moved Plaintiff Dominion’s case forward in its entirety, citing only applicable (relevant) case law.

The scales are balanced.

A judge who faithfully discharges their duties under the Constitution and the laws of the United States would never cite inapplicable case law, or echo-chamber a party who cited inapplicable case law in their ruling as if it were legit to dismiss statements that were capable of defamatory meaning or do that with any count, right?

Right. Because that’s what the proper application of the law is all about. A judge who cites inapplicable (apples to oranges) case law is not faithfully and impartially discharging their duties.

See: Judicial oath:

Scales of Injustice
Scales of injustice.

28 U.S. Code § 453 – Oaths of justices and judges

“I, ___ ___, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ___ under the Constitution and laws of the United States. So help me God.” (underline mine)

Cornell Law School Legal Information Institute

Read Judge Carl J Nichols Opinion

You can read Judge Carl J Nichols’s entire order here, and all the legal filings in this case at Courtlistener here.

And now that I have shown you how to look up cases you can verify for yourself that Judge Nichols cited applicable case law in his opinion.

Clift note version

For a clift note version about Hon. Nichols ruling, Politico’s Josh Gerstein does a thorough job reporting on it, in “Judge refuses to toss out Dominion defamation suits against Powell, Giuliani, and Lindell” so there is no reason for me to rehash it here when you can read it there. So …

Excerpted in part:

Judge Nichols wrote in part: “As an initial matter, there is no blanket immunity for statements that are ‘political’ in nature,” Nichols wrote in his 44-page opinion. “It is true that courts recognize the value in some level of ‘imaginative expression’ or ‘rhetorical hyperbole’ in our public debate. … But it is simply not the law that provably false statements cannot be actionable if made in the context of an election.”

Nichols said many of the statements cited in the suit qualified as comments that could be seen as making factual claims capable of being proved true or false.

“The question, then, is whether a reasonable juror could conclude that Powell’s statements expressed or implied a verifiably false fact about Dominion,” the judge wrote. “This is not a close call.”

The judge noted that Powell repeatedly said the founder of Dominion claimed he could change vast numbers of votes at his whim.

“These statements are either true or not; either Powell has a video depicting the founder of Dominion saying he can ‘change a million votes,’ or she does not,” Nichols said.

Nichols also dismissed Powell’s defense that her allegations could not have met the “actual malice” standard because she was relying on sworn statements from people claiming to have knowledge of alleged improprieties and vulnerabilities in Dominion’s software.

“There is no rule that a defendant cannot act in reckless disregard of the truth when relying on sworn affidavits — especially sworn affidavits that the defendant had a role in creating,” the judge wrote. “And Dominion alleges that Powell’s ‘evidence’ was either falsified by Powell herself, misrepresented and cherry-picked, or so obviously unreliable that Powell had to have known it was false or had acted with reckless disregard for the truth.”

Judge refuses to toss out Dominion defamation suits against Powell, Giuliani and Lindell

As you can also see in Judge Carl J Nichols’ opinion (like we also saw in Dershowitz v CNN) all the alleged true, false provable statements read in context (in accordance with defamation law) promptly moved forward to the next stage of litigation.

See below:

“The question, then, is whether a reasonable juror could conclude that Powell’s statements expressed or implied a verifiably false fact about Dominion,” the judge wrote. “This is not a close call.

”The judge noted that Powell repeatedly said the founder of Dominion claimed he could change vast numbers of votes at his whim.

“These statements are either true or not; either Powell has a video depicting the founder of Dominion saying he can ‘change a million votes,’ or she does not,” Nichols said.

Judge refuses to toss out Dominion defamation suits against Powell, Giuliani and Lindell

Judge Carl J Nichols, as we saw in Dershowitz v CNN, also presented both parties arguments in his ruling demonstrating his even hand. He did not omit or distort pleadings either, or ignore applicable case law. He filed his opinion after the parties filed one motion to dismiss, one opposition, and one reply, demonstrating that Judge Carl J Nichols is conducting this proceeding in accordance with his judicial oaths and canons.

Proper application of the law

Citing applicable case law, apples to apples is a big deal in all cases, and especially in high damages cases, like defamation cases where millions of dollars of damages are at stake. In this case, the plaintiff (Dominion) is seeking over a billion dollars in damages.

As such, Judge Nichols’ ruling verifies he’s not an unethical, oath-breaking judge. He’s not a judge who could be seen as possibly being in the tank with one party by trying to throw out this case for some unjust gain. He did not echo-chamber inapplicable case law with an attorney, and dismissed provably, yes, no, true, false statements that are capable of a defamatory meaning.

Hon. Carl J Nichols faithfully applied defamation law whether you like the plaintiff, the defendant(s), or the outcome.

Judges faithfully apply the law or they don’t. Those who don’t show you they don’t in their rulings, orders, and/or opinions. This is why you need to follow the docket, and read all the court filings, so you won’t be deceived by fake news or political gamesmanship involving an ethical, oath-following judge.

Lawyers who follow the Model Rules of Professional Conduct

Here again, we also learned and could confirm again, that Dominion’s DC lawyers, Thomas A. Clare, P.C., Megan L. Meier, and Dustin A. Pusch of Clare Locke LLP, are lawyers who are following the Model Rules of Professional Conduct, telling the truth. They are lawyers who file applicable cases in their legal briefs, in accordance with their oaths, as all lawyers should do, but don’t, as was demonstrated in this case.

While there is a reason why lawyers spend years in law school, and some cases are indeed complicated, and specialized skills and experience are necessary, the law is not always complicated. It is what it is.

As such, thanks to the good side of the Internet, if you have doubts about the integrity of a court case for political and/or for whatever reason, you can look up the cases, aka authorities, yourself to verify if the judge has faithfully applied the law or not, as I have demonstrated for you above.

Let’s wrap this up.

I hope this latest installment has been empowering and heartening for you. It feels good when you can have confidence in a court case and when you can verify for yourself when judges are honoring their oaths, following rules, and faithfully applying laws. Doesn’t it?

Especially in light of all the judges who don’t.  See: Michael Berens and John Shiffman, “Thousands of U.S. judges who broke laws or oaths remained on the bench,” Reuters, June 30, 2020, and James V. GrimaldiCoulter Jones, and Joe Palazzolo, “131 Federal Judges Broke the Law by Hearing Cases Where They Had a Financial Interest: ” Wall Street Journal, September 28, 2021.

See also: Erik Ortiz, “Robed in secrecy: How judges accused of misconduct can dodge public scrutiny: Thousands of complaints are filed against judges every year, but very few result in discipline. Ethics experts say the time for states to transform the judiciary is now,” NBC News, December 26, 2021.

The more you learn about the justice system, the more you will appreciate, admire, and respect all the honorable, ethical officers of the court, who live by their oaths, and who are preserving the integrity of the U.S. justice system and democracy. Officers of the court who stand firm against corruption and cannot be corrupted.

It’s time for another musical interlude before we move to more How to Legal:  WILL A JUDGE GIVE A LAWYER A FREE PASS TO BREAK THE RULES? —HOW TO LEGAL. Get up. Move around. Stretch.

Dancing in nature
Take breaks and spend time in nature when you How to Legal

This time for me, it’s The Cure’s “A Forest.” What about you?

The Cure’s official website.

Update: Here’s some more interesting conduct with attorneys in Donald J Trump v Twitter. See below.

You can read the court filings and follow this case at Courtlistener: Trump v. Twitter, Inc (3:21-cv-08378).

Updated again by including ABA’s Model Rule of Professional Conduct: Rule 3.1: Meritorious Claims & Contentions

Update: See another case where a lawyer(s) submits case law that has been distorted. It cites a page number that does not exist. Good faith or bad faith mistake? You decide.

Up next: WILL A JUDGE GIVE A LAWYER A FREE PASS TO BREAK THE RULES? —HOW TO LEGAL

Nothing on this website may be construed as legal advice. While I have litigated as a pro se defamation plaintiff, I am not a lawyer. This information is for educational purposes, and to serve as a public service to help combat fake news, misinformation and defamation. If you need legal advice, please consult with a licensed professional in your area.

If you would like to show support for my efforts to make the Internet a safer and more honest place you may send donations here.  If you are stressed out by fake news, real news, or for any reason you might want to check out Stuff for Stress. Here’s some merch.

Marinka Peschmann's The Break Free from Media Echo-

ARE YOU STUCK IN A MEDIA ECHO-CHAMBER, or know someone who is, and need help breaking free? Take The Break Free from Media Echo-Chambers 30-Day Challenge. 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.

Available in paperback and hardback at Amazon.

Lastly, if you see any typos or mistakes, kindly send me an email so I can fix them. No lawyers like Sidney Powell. I’ve read the rules countless times. Thanks.

+ This post was updated to include NBC’s reporting, “Robed in secrecy: How judges accused of misconduct can dodge public scrutiny.” And with the oaths of admissions lawyers take.

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