Posts by MikeDunford

Quote from [email protected]

 

You, like so many others, are not getting it. It is in IH's interest to get this supposed offer onto the docket where it can be made "real". If it's for a refund of only $1 then the judge can throw Rossi's case under the bus in a hundred ways. If it is for a real refund of the whole amount and IH declines, the judge can make IH's life difficult as well.

That makes this a pivotal issue in this trial. Whether or not Rossi used illegal aliens to install his supposed heat exchanger is not a pivotal issue.

 

Still digging...

If it was me, and if many, many people weren't 'getting' something I was saying, I'd seriously wonder if what I was saying made sense. But maybe that's just me.

Seriously, the "offer" is - at absolute best - a fringe issue of trivial importance. More likely, it's not relevant at all. In neither case is it a pivotal issue in the trial. There are substantial reasons to doubt that the offer - if it existed - can be admitted into evidence, and even if it is there's plenty of room for both sides to spin any offer to their advantage. (For example, if it was an offer for the whole amount, IH can spin a choice to decline as being based on factors such as their inability to know if Rossi had used their up-front money to advance the research and was now trying to push them out so he could obtain a better deal for the US license elsewhere.)

And that's setting aside your inexplicable belief that the judge would try to use that evidence to shape the outcome of a jury case.

Quote from ele

 

Sorry sir Mike. I presume that you are not saying the truth.

 

I have no reason to lie. But believe what you want.

Quote from woodworker

 

Mike D:

I have finally figured out Kev's legal arguments. The law is what he wants it be at any particular moment and, if the law in reality is not what he wants, then it should be changed to accommodate him. The alleged offer not being relevant to the case at hand should be relevant because he says so. I think Kev would make an excellent Judge Dredd - "the law is what I say the law is."

Asking Kev to explain how the alleged offer is relevant to the issues at hand is itself irrelevant - IT SHOULD BE THE MAIN ISSUE BECAUSE HE SAYS SO. And, as lawyers, we should acknowledge that the law should be whatever Kev wants at any particular moment.

I will no longer respond to Kev's posts, for which I am sure he will claim I am running away, because I learned long ago that one does not win an argument with a rock, or with someone who either has a vested interest in not learning or is unable or unwilling to learn.

 

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I was actually reading a case related to Judge Dredd earlier today - IPC Magazines v Black and White Music, [1983] F.S.R. 348. Some fun mild snark from the Judge (the real one, that is - not the cartoon or Kev) in a few places, and a good explanation of just how narrowly defined the tort of passing-off is in English law. But I digress.

Yeah, there's a certain obdurateness in play with Kev. Such is life.

At the end of the day, I suspect he'll be one of the many who will not alter their views one iota no matter what evidence is introduced or what the outcome of the case actually is. I strongly doubt he'll be alone.

Quote from ele

 

As I have supposed Woodworker he is not a lawyer. Because Law is a very difficult matter an Amateur Lawyer is not credible and maybe he is simply inventing arguments to bake the Voice of IH. I don't say he is payed by IH, maybe he is simply a mythomaniac (real) woodworker.

Would you trust an Amateur Doctor ? I would not !

 

I've known him online for years and have met him IRL. He's a lawyer.

Quote from [email protected]

You are, IMO, violating the First Law of Holes. I'm happy to keep going, but I thought I'd offer you an opportunity to gracefully step back first.

Quote from woodworker

 

Assuming the agreement has a legal fees provision...

 

As far as I can tell, the only provision relating to fees in the license is in the "Expenses" provision (16.2) and says that each side pays own fees. That provision probably isn't intended to handle disputes, but in the absence of another provision who knows. It's possible, of course, that I might have missed something elsewhere in the thing (it's *really* not a well-crafted contract) that contains the usual prevailing party provision, but I don't think I did.

Quote from Shane D.

• During summer 2015, IH offered Rossi to back out from the test and cancel it, with a significant sum of money as compensation. Rossi’s counter offer was to give back the already paid 11.5M and cancel the license agreement, but IH didn’t accept.

 

There's some serious hearsay within hearsay within hearsay issues involved with this one.

Quote from [email protected]

 

If IH were to get that supposed offer of Rossi into the docket and tell the judge they want to accept it, the $89M thing goes away. And has been posted upthread, the most likely scenario is both sides pay their own legal costs.

IH's lawyers should be all over this. But they aren't. The expression that comes to mind is a lawyer who bills his client twice when he sleeps with them.

 

There appears to be a mismatch between the way the law works in Florida and the way the law works in your head.

Seriously, I can't see how the supposed Rossi offer makes the breach of contract claim go away. Under any circumstances. Woodworker has explained some of this (inadmissibility of settlement negotiations; can't use future events to meet prior conditions, etc). And he's only covered a limited set of the reasons. (To give you another example, when an offer has no fixed time limit attached, courts will generally consider there to be an implied "within a reasonable time" limitation on when the offer can be accepted; whatever that limit might be here, it had definitely run out by the time the jury was sworn in.)

In other words, there are reasons that the IH lawyers aren't all over your plan. They mostly involve being lawyers and knowing the law.

Quote from [email protected]

 

Whether or not the alleged settlement offer is credible is immaterial. By allowing it into the docket as evidence, the judge can use his authority to make it a credible offer.

As far as the sidenote case that if Rossi doesn't pay, he ends up in trouble with the court, which is nothing new to Rossi. But if he does not pay he would not end up with his IP.

This is a battle over what Industrial Heat calls worthless IP. Rossi wants it and claims he is willing to pay for it (at least on his blog). His claim is admissible in evidence because other claims on JONP have been admissible as evidence.

 

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I said this once already, but it's worth repeating:

No, a claim that Rossi makes on his blog does not become admissible just because other claims on the same blog are admitted. Just no. The law doesn't work that way. The admissibility of each and every claim is always judged independently. And, because of the way the rules of evidence work - particularly the hearsay rules - whether or something is admissible as evidence often depends on who is seeking to admit it and why they are offering it.

And, no, the judge has no ability to use her authority (seriously, dude, have you actually been paying attention to this case? The judge was assigned when the case was filed) to "make" something credible. Actually, to put it more accurately, she has no such authority in the first place.

Quote from woodworker

My thoughts related to Johnson's testimony. Does he get on the stand and say he lied (which exposes him to professional jeopardy), say he didn't lie but based his statements on Rossi's assurances (throws Rossi under the bus), pleads the 5th (plays badly with jury) or asserts that someone told him but that statement is privileged (plays badly with jury). I don't see any good responses for him.

I'm thinking that the best play would be - if possible - to ask Rossi before asking the lawyer. Because if Rossi throws the lawyer under the bus, the privilege goes along for the ride.

Quote from woodworker

 

IIRC, nominations are publicly disclosed for some significant time, if at all. Only winners.

Also, on another issue: does anyone immediately recall what lawyer told IH that Rossi had no involvement in the fake company (a/k/a JM). That lawyer may have issues with his state bar.

 

I think you're right as far as disclosure is concerned. But that probably wouldn't prevent them from calling whoever nominated him.

Quote from JedRothwell

 

So, the jury has to decide the whole kit-and-caboodle? It can award Rossi what he wants, or I.H. what they want, or nothing either way. I guess that will take 5 weeks. It is a tangled mess.

I hope I.H. wins, or at least, that they do not lose.

 

Yup. The claim, the counterclaim, and the claims against the third-party defendants. The whole shooting match. Wednesday morning, the jurors will find notebooks and writing implements laid out on their seats (a duty, usually, of the judge's law clerk). And they'll be given as many notebooks as they feel they need. And encouraged to make use of them.

Poor bastards.

Quote from oldguy

 

notice in the original opening they made the claim that Rossi was nominated for a Nobel prize. I sure would like to see the evidence for that.

 

My recollection is that basically anyone can nominate anyone for a Nobel. So there's probably some evidence for that, but it's easily explained as the meaningless thing that it is.

Quote from JedRothwell

 

Is that how it works? Are you sure? I wouldn't know, but I think a lawyer said the counter-suit would call for another trial.

If they can do them both at the same time that reduces expenses and saves time.

 

Positive. It's basic civil procedure.

And, if you want to check my work, take a careful look at the order denying summary judgment. The cover sheet has the full breakdown of the parties, and lists IH both as the defendant and counter-plaintiff; Rossi is the plaintiff and counter-defendant. (And there's the third-party stuff, but that's more than we need to go into here.)

Quote from [email protected]

 

Good. If they have been allowed as evidence then other JONP Rossisays items should be allowed as well. If I were the judge I'd be focusing on the Rossisays "I would refund IH if I got my IP back" and this whole trial could get wrapped up in 20 minutes rather than 5 weeks.

 

Ummmmm -

One, it's a jury trial, not a bench trial. That's a peculiarity of the American legal system, and not one that makes a huge amount of sense particularly in highly technical cases, but it would take an amendment to the Constitution to change it, so it's here to stay. So the judge doesn't really have to focus on anything.

Two, technically nothing has been allowed in as evidence yet. Given the right circumstances, they may be allowed. But, again, not everything that is admissible will necessarily get used. There's a very good chance that the ones that are listed will make it there, but they might not. The right question might not get asked, there may be authentication issues, any number of things could happen.

Many, admissibility of evidence is always decided based on the exact evidence being offered, not the source. So just because one thing from the site is offered does not automatically mean everything from the site will be admitted.

Lots, just because you think that something should be put in front of the judge doesn't mean the lawyers will agree. If I was IH's lawyers, I don't think I'd want to put anything suggesting that Rossi offered to refund out there - particularly if it wasn't a formal offer. It would do little to help with the defense of the breach claim, and could actually end up hurting depending on how (and how effectively) it's spun by the plaintiffs. And it would definitely not help them with the counter-claim, because they'd end up looking like they want to keep the IP and the money. And while the posts might be admissible if offered by IH, that does not mean that they'd be admissible if Rossi offers them. Under the rules of evidence, statements made out of court by the other side generally aren't hearsay. But your own out of court statements can be and often are. And that assumes that Rossi's attorneys would want to offer the blog stuff in the first place, which is questionable.

Quote from JedRothwell

 

If he loses this trial, he doesn't have to pay back anything. He is the plaintiff. If he loses the counter-suit he will have to pay back some money.

I believe that's how it works.

 

The counter-suit is part of the proceedings. In other words, the jury in this case will have to decide both the main suit and the counter-suit.

Basically, the test is whether a particular claim involves all the same parties and arises out of the same set of facts. If it does, you have to litigate it now or forever hold your peace. It's done that way both to save time and to reduce the possibility of conflicting judgments in a single case.

Quote from [email protected]

Wouldn't that be a kick if Rossi claimed that he could PROVE his bloviations with a demo to the jury? It would just take a couple of million dollars to set up, blah blah blah, but why bother because the ERV report verifies his bloviating claim... Most of the time I see that Rossi has very little chance of prevailing, but there are some bloviating rabbits he could pull out of his hat.

There are a few reasons the demo offer wouldn't be allowed to happen. Unfortunately, I don't have time to go into them now, but will try later, if woodworker doesn't beat me to it.

Quote from [email protected]

So then the only admissible bloviating is the relevant bloviating. That seems to be what both skeptics and Rossi fans have wanted, the bloviating to be addressed. This could weigh heavily against Rossi. But other things would work out well for Rossi, such as his claimed offer to refund IH if they relinquish claims to Rossi's supposedly worthless IP.

The skeptics and fans still might not get what they want. There are reasons (potentially, many reasons) why attorneys might not seek to admit relevant evidence.

The biggest reason is that not all relevant evidence is created equal. Legally speaking, relevance is like pregnancy. It's a yes/no question; while even lawyers might use phrases like 'marginally relevant' in casual conversation, there's no such thing as 'a little bit relevant' as far as the Frederal Rules of Evidence are concerned. And it's a low threshold. If the evidence has any tendency to make any material fact more likely, it's relevant.

In other words, just because a fact is relevant doesn't mean it's likely to be persuasive. And the lawyers will be dealing with a need to make sure that the jury (and judge) remain responsive to their witnesses and evidence. Overloading the jury with unnecessary evidence is to be avoided as much as possible.

To the extent that the bloviations are directly relevant to events at issue, they'll probably come in. Beyond that, there's a good chance that some of the bloviating will be used to attempt to establish that Rossi is an unreliable bloviating bloviator with a history of making unsubstantiated claims. But that will likely be done using the minimum amount of bloviation evidence that the attorneys feel will make the point, and the specific examples will be selected more with than in mind than any intent to survey the full range and depth of his bloviations.

I'm going to go ahead and make a prediction (more of a wild-ass guess, really) as to the outcome of this trial. It should be noted that: (1) this is more of a gut instinct call than anything else; and (2) my track record on trial predictions is mixed.

My prediction is that everyone is walking away from this one with nothing. Rossi loses his case, but IH loses their counterclaim, and each side ultimately pays its own attorneys fees and share of the costs.

Quote from Shane D.

MD,

IH has submitted a couple JONP Rossisays into evidence. Forget which exhibit, but they are in there, and they are relevant. Not sure if one of them was Rossi claiming JMP's product (FTR, there was no product)) absorbed 100% of the supplied thermal, but if not in the docket now, it will probably be presented at trial. JONP is a rich source for Rossi contradictions (Rossisays), and no doubt JD has gone over it with a fine tooth comb.

I would be shocked if they haven't gone through it in great detail. And I would be shocked if nothing from the blog made it into testimony. I wouldn't be surprised if Jones Day starts the process of getting those statement in by making Rossi explain, on the record and in front of the jury, the difference between a "journal" and a "blog." (That's a choice that would depend on their feel for him as a witness, how he'll respond, if it would provoke him in ways likely to help their case, etc.)

But the selection of what goes in from the blog will be limited by relevance, available time, and jury tolerance.