Posts by MikeDunford

    It would seem worthwhile to try to get the transcripts into the public domain before the expiry date.

    Sorry, I think I was unclear. Transcripts are an exception to the usual rule of immediate online availability. The court reporters, who are in part compensated through the sale of transcripts, get a 90-day exclusive window. During that time, transcripts must be purchased directly from the court reporter and tend to be pricey. After 90 days, the transcripts may be purchased on PACER like any other document (except that the .10/page cost isn't capped at $3.00 like other filings.) Once on PACER, they remain available indefinitely, and may be purchased at any time.


    Punishment was never on the agenda in this case. Punishment isn't a thing in contract law. The maximum likely outcome would have been for Rossi to lose his case, lose the counterclaim, and (maybe) have to repay a portion of IH's legal fees. And I've always had serious doubts about the counterclaim. IH paid the first two installments; that kind of thing can be fairly convincing evidence that you agreed to modify the contract.


    As far as IH is concerned, their most realistic best case was probably for them to win on Rossi's claim but lose on their own and have to eat their own legal fees. From that perspective, a favorable settlement for IH could still have them paying Rossi anything up to their full likely legal bill for the length of the trial (because even that would save legal fees from an appeal while providing certainty and letting them put the whole thing behind them).

     

    Hey, Mike and Woodworker... Abd said the case was probably settled "with prejudice"... does that concept even apply to civil actions? Can't IH and Rossi resurrect either lawsuit in the future if they choose?


    And something I'd like to know: do the depositions and other exhibits on line remain public record? And if someone knows, do they remain on line?

     


    With prejudice absolutely applies in civil actions. This case is (or will be with the filing of the Rule 41 stipulation) officially dead. As in pining for the fjords. As in is no more, ceased to be, expired and gone to meet its maker, run down the curtain and gone to join the choir invisible. This is an ex case.


    The docket, on the other hand, will be available indefinitely via PACER; any transcripts from recent hearings, opening statements, etc will probably become available for purchase via PACER over the next 90 days.

     

    1 Cranch 137, 177


    What in the world does THAT mean, Mike?

     


    tl:dr - it's a short version of the legal citation for one of the fundamental statements in American constitutional law: "It is emphatically the province and duty of the judicial department to say what the law is. "


    Long version:

    If I'm honest, it means I was being a bit of a dick when I set up the account, and I've been too lazy to change it since. When I signed up here, I did not know that abd had moved on from here, and he and I had just had a bit of a frank exchange of views on a couple of things at a different forum. Along the way, he commented on the smugness and insiderness of the sig (while not actually being able to identify the quote). There was a spot to put a sig in the profile when I was getting things set up, so I decided I'd just stick with the same sig instead of doing what I usually do and thumbing through the Terry Pratchett novel closest to hand until I find an appropriate quote.

    notice they settled after IH's opening arguments, not after Rossi's. That says a lot.


    I suspect that the timing had more to do with the break for the weekend than anything else. Opening statements on Friday let everyone walk to the edge of the cliff. Then they got to stand there, wiggling their toes over the edge and looking down, for four days deciding just how badly they wanted to test the stretch on those suspiciously-thin looking bungee cords.

     

    COMPLETE NONSENSE. Winners: attorneys (BIG TIME!)

     


    Yes. And that was avoidable.


    Something worth (IMO) keeping in mind:

    Medical doctors can be split into two very broad groups: the primary care docs and the cutters. Cutters are bad news. They're expensive, and they will hurt you. They are fixing you (hopefully) in the process, but they're still going to be inflicting pain on you and they're still going to be making you pay dearly for that privilege. But if you go to your primary care doctor on a regular basis and do what the primary care doc tells you to do, you can often postpone, reduce, or eliminate the need for the cutter.


    Lawyers can also be split into two very broad groups: the transactional lawyers and the litigators. (See where I'm going with this?)


    To a certain extent, this case might have been unavoidable. But there's a good chance that more time, care, and thought at the contract drafting stage, and during the contract performance, would have saved everyone a great deal of time and money during this suit.

     

    Financially, IH must be better this way than if the trial had proceeded. The legal fees would then be much higher and not clear that Rossi could pay them, nor was it clear IH would win everything so completely as to recoup their money.

     


    As woodworker alluded to in an earlier post, many contracts have clauses which make attorneys' fees available to the prevailing party in a contractual dispute. The Rossi license did not. A fee award would have been potentially possible depending on the outcome, but by no means certain - it would require a statute authorizing a fees award, and the judge has a great deal of discretion to award a different amount than the one requested. Such modifications are generally in a downward direction. (In other words, I don't think IH ever had a snowball's chance in hell of recovering all their legal fees.)


    As far as additional costs, even if a very low billing rate is assumed, and even if the attorneys put in no more than 10 hours of billable work each per day of trial, IH could still have easily been looking at 6-figure attorneys fees for the entire trial.

     

    From Vortex, Jones Beene's thought:

     


    I don't know. The ethical rules on client perjury are a quagmire. Basically, the rule of thumb is that a lawyer must not offer testimony that the lawyer knows for a fact is false. The lawyer may decline to offer testimony that the lawyer reasonably believes is false, and may seek the court's permission to withdraw if the lawyer reasonably believes the client will commit perjury, but the lawyer is also generally permitted to give the client every benefit of the doubt. So my take would be that unless Rossi volunteered to the lawyer that the whole heat exchanger thing was a lie, the lawyer is permitted to 'believe' the highly improbable story around the heat exchanger for the purposes of trial.


    This case being what it is, anything's possible. But these attorneys kept Rossi as a client when they shifted firms and have had no trouble sticking with him. I doubt that a last-second ethical decision was the spark for the settlement.

     

    Yes if IH or Rossi ever go public would they not have to disclose certain things about this agreement? Even if they remain private? Maybe they can handle this In Perpetuam with NDA's. I don't know but I imagine so.

     


    I think both sides have every reason to NDA the hell out of the settlement agreement. Unless that agreement goes belly-up and results in additional litigation, I seriously doubt that the details will fully become public. However, given the acumen IH demonstrated in signing the original license and Rossi's nature, there's probably a non-negligible chance of the agreement going belly-up.

     

    I would be interested in knowing the status of the IP. Do the IP rights return to Rossi? Does IH get a cut of future earnings derived from the IP? It seems to me that this would not be confidential only the details.

     


    Generally speaking, none of the details about a settlement become part of the public record. I've actually got a settlement filing open on another tab right now (related a writing project I'm working on). I'll quote it here; we'll see something similar filed in the near future in this case:


    Quote

    Plaintiffs Paramount Pictures Corporation and CBS Studios Inc. and defendants Axanar Productions Inc. and Alec Peters, by and through their counsel, stipulate to the dismissal of this entire action with prejudice as to all parties pursuant to Fed. R. Civ. P. 41(a)(1). It is further stipulated that all parties will bear their own attorneys' fees and costs.


    IT IS SO STIPULATED


    The settlement in that case actually involved things we know about - like Paramount issuing new fan film guidelines - but that's all entirely discretionary. If the parties want to make details public, they can. If they don't - and I suspect they don't - they won't.

     

    The only thing the judge will say is "call your first witness."

     


    In fairness, I wouldn't at all be surprised if at least the clerks and possibly the judge have had - in the privacy of chambers - more than a few choice things to say about this case, particularly when it became clear that a trial would be required.


    This thing is a nobody-wins contract dispute, which exists in part because the investment fund people were willing to sign an abysmally drafted contract which they then apparently permitted to be modified. They also apparently made at least one substantial payment without objecting to variations from the contracted requirements, making it substantially easier to argue around the integration clause. There aren't a lot of interesting legal issues involved in the case, but it's going to take weeks to get the record firmly established on the factual disputes.


    Meanwhile, it looks like SD Fl is averaging about 1 new civil case per judge per day. Which means, when criminal cases are factored in, that chambers staff are going to need to make the time during the trial (as in mornings, evenings, and weekends) to clear about 20-30 cases from their docket just to keep up with the inflow. And that's not considering whatever discovery motions etc get filed in other pending cases during this time. Which undoubtedly means that the law clerks probably didn't spend nearly as much time as they wanted to at the beach this weekend.


    I don't think either Rossi or IH is gonna be on the Altonaga Chambers Christmas Card list this year.

     

    You are just oversimplifying. Adversial trials are the norm in Italy... with few exceptions (labor trials, family trials and administrative trials). Yes, a judge in a Italian civil trial can choose an expert "ex officio" (by himself), but only to evaluate facts already proved by the parties... And the parties can cross examine these experts...

     


    I agree completely. I am grossly oversimplifying, and I believe you will see that I said so at the start of my post.

     

    As i'm not an expert i ask "all experts here" to light up my understanding. (Dewey and others).


    Is it possible that the judge decides a third way ? For example, plan an Independent expertise on Rossi technology to check validity ?


    I expect that a court must have a horror of deciding in a hurry, even if both parties are pressing to defend their cause ? No ?

     


    THHuxleynew basically nailed it.


    It seems that there are a fair number of Europeans here, so I think it might be helpful to touch on the role of the court in this trial. For simplicity, I'm going to be grossly oversimplifying most of the points, so this should be taken as a rough outline, not a detailed explanation.


    Most of the nations in Western Europe (the UK and Ireland being the major exceptions) have legal systems that have their roots in the Napoleonic legal reforms; these reforms, in turn, took heavy inspiration from the Code of Justinian. The role of the courts in these systems can be broadly described as inquisitorial, with the idea being that the judge is there to actively seek out the truth. It is common for a judge in one of these legal systems to take a very active role in questioning witnesses, etc. My understanding is that it is not unusual for courts in these systems to seek independent expert advice in a case.


    The common law nations (basically England and former colonies - US included) are an adversarial system, with roots in the king's role (originally in person, later delegated) as an arbiter of disputes. In an adversarial system, each side presents its evidence and arguments to the court (which includes the judge and jury). Courts in adversarial systems tend to take a more passive (and listening-based) role in the process. Judges and juries may sometimes ask questions of witnesses, but that will typically be in a supplemental role, seeking clarification of points already brought out by the lawyers.


    So there are probably places where the judge could order independent testing or evaluation of the technology, but the USA is not one of them. The judge's discretion is much more limited, as are the possible options. The parties have set out their claims. The judge narrowed those claims in preliminary proceedings. The jury will rule on each of the remaining claims after listening to all evidence and deliberating as a group to determine how to best interpret the evidence. Their ability to rule, however, is limited to ruling on the specific claims in front of them. They have no ability to go beyond that scope.

    This is the rare and unique case of you going out of your way not to address the hypothetical. You're exhibiting about the same level of fallacy usage and lack of common sense that your other lawyer friend did. Anyone with a lick of common sense would easily answer that hypothetical with the obvious, that it is MORE likely rather than less likely to mean it's admissible.


    I answered your question directly, honestly, and based on a knowledge of the law. You don't like the answer. Your own "common sense" answer, which you prefer, is still blatantly, obviously, and utterly wrong.


    But at this point it's beyond obvious that one of two things is going on: you are either fucking with me, or you are so insanely obstinant that you lack the capacity to step away from your counterfactual conviction that you have a clue about what is going on. In either case, it's clear that arguing with you is a spectacular waste of time. Bye.

    The way you intersperse your response is making it very difficult for me to respond directly.


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    I was told that blog entries were inadmissible. Now we know they have been admitted as evidence.

    Whoever told you that blog entries are always inadmissible was: (1) not me; and either (2) wrong or (3) actually making a much less general statement which you misunderstood. Both 2 and 3 are possible; given what I've seen of your antics so far, I'd say 3 is more likely.


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    And for the 987th time, you will not answer a hypothetical but I'll ask anyways because I like to see how lawyers twist. Does the fact that some of the blog entries have been admitted mean that the supposed offer blog entry is more likely or less likely to be admitted as evidence?

    1: That's not a hypothetical.
    2: I don't know how much more clearly I can say this: the fact that a particular blog entry has been admitted makes it neither more likely or less likely that the "supposed offer" entry would be admitted, because each and every individual entry offered as evidence must be admitted on its own merits. The admission of other entries from the blog makes no difference. At all. Of any kind. None.


    As far as your tl:dr lawyer stuff, that's known on planet Earth as the law. It's possible that nobody listens to it on Planet Moonbat, but a copy of it will be in a well-thumbed book on the judge's bench in Florida. And the judge pays attention to it. If she doesn't, she gets overturned on appeal.

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    I have been saying this is a vehicle to get the 5 week trial whittled down to 20 minutes.

    You are wrong. As in, so far from 'right' that you cannot see right anymore because the curvature of the universe is blocking your view.


    The statement is almost certainly inadmissible, and even if it's admitted it doesn't demonstrate what you think it demonstrates. There are no circumstances in which the alleged indefinite offer to settle from months in the past would settle a suit over whether Rossi completed his performance and is now owed millions of dollars.

    It has already been accepted upthread that Rossi claimed to offer IH a refund. So I'm not going to play fetch.


    Other things on Rossi's JONP blog have been entered as evidence.

    And - for the 986th time - even if other things on the blog have been entered into evidence1, that doesn't mean that everything from the blog is admissible.


    And, as woodworker and I have both told you, stuff that happens in settlement talks generally isn't admissible. Federal Rule of Evidence 408:


    (a) Prohibited Uses. Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:

    (1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and

    (2) conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.



    So your mythical offer to settle probably doesn't come in either as evidence that Rossi thought Rossi owed the money or as evidence that Rossi lied. Both uses are explicitly banned. (The rationale being that settlement negotiations should be encouraged as much as possible.)



    1: Technically, nothing has been entered into evidence yet. There are things that have appeared in the various things we've seen from discovery, and lists of stuff that the parties intend to admit, but they still have to jump through all the right hoops in the right order to get the stuff admitted.