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SCO Loses Again - Kimball Affirms Wells' Order! |
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Friday, December 16 2005 @ 05:43 PM EST
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Feast your eyes on this! The Honorable Dale Kimball has affirmed Magistrate Judge Brooke Wells' Order of October 12, 2005. Here is the Order [PDF]. Judge Kimball rules that Wells didn't make a mistake (Cf. why I thought she didn't make a mistake). She heard SCO, Kimball in effect says, and she "properly denied" them. The word properly means SCO can give up asking for Linux non-public materials. They'll just have to climb their ladder theory without it. Or they might just try browsing on the web and find the materials for themselves. Linux is developed in public. Even if the Magistrate Judge hadn't specifically mentioned having read everything SCO and IBM submitted, Kimball writes, and even if she hadn't ruled on SCO's alternative request by giving them some of the Linux materials they were asking for (the materials IBM volunteered at the hearing), she at least implicitly had ruled on the request, and anyway "a denial of a motion is routinely construed to encompass all requests made in that motion." Like SCO didn't know that. I think they should that sentence as a little hint. Their word games are not working any more, and they are like a condemned man, about to be shot, who asks for a last cigarette to get a delay of the inevitable. And if I may be permitted to point it out, Groklaw's eyewitnesses at the hearing called it exactly right, once again.
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION THE SCO GROUP, INC., Plaintiff/Counterclaim-Defendant, v. INTERNATIONAL BUSINESS MACHINES CORPORATION, Defendant/Counterclaim Plaintiff. | ORDER AFFIRMING MAGISTRATE JUDGE'S ORDER OF OCTOBER 12, 2005 Civil No. 2:03-CV-0294DAK | This matter is before the court on The SCO Group, Inc.'s ("SCO") "Objection to Magistrate Court's Order of October 12, 2005." A hearing on SCO's Objections was held on December 13, 2005. At the hearing, IBM was represented by David R. Marriott and Todd M. Shaughnessy. SCO was represented by Edward Normand and Brent O. Hatch. Before the hearing, the court considered carefully the memoranda and other materials submitted by the parties. Since taking the motions under advisement, the court has further considered the law and facts relating to the Objection and has read the transcript of the October 7, 2005 hearing. Now being fully advised, the court renders the following Order.
In SCO's Renewed Motion to Compel, dated September 6, 2005 (the "Renewed Motion"), and during the October 7, 2005 oral argument on the Renewed Motion, SCO argued that the Magistrate Judge should order IBM to produce certain Linux development materials.
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Specifically, SCO contended that the Magistrate Judge had previously ordered IBM to produce such materials, and that even if SCO's interpretation of previous Orders was incorrect, the Magistrate Judge should order that IBM produce such materials now.
In its currently pending Objection to the Magistrate's Order denying SCO's Renewed Motion, SCO contends that the Magistrate Judge concluded that IBM had not previously been ordered to produce the requested Linux development materials, but that she failed to address SCO's alternative argument that the court should now order IBM to produce them. SCO, therefore, asks this court to order IBM to produce its non-public Linux development materials, as requested in various document requests propounded by SCO.
I. STANDARD OF REVIEW
This action was previously referred to the Magistrate Judge pursuant to 28 U.S.C. §636(b)(1)(A), which permits the Magistrate Judge to decide certain non-dispositive matters, subject to being set aside by the district judge if the determination is "clearly erroneous or contrary to law." 28 U.S.C. §636(b)(1)(A);see also Fed. R. Civ. P. 72(a). A district court must defer to the Magistrate Judge's ruling unless it is clearly erroneous or contrary to law. See Hutchinson v. Pfeil, 105F.3d 562 (10th Cir. 1997). Magistrate Judges are given wide discretion in discovery rulings. See Soma Med. Int'l v. Standard Chartered Bank, 196 F.3d 1292, 1300 (10th Cir. 1999)> To overturn the Magistrate Judge's decision as clearly erroneous under Rule 72(a), the court must have "a definite and firm conviction that a mistake has been committed." Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988)(internal quotations omitted).
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DISCUSSION
Having reviewed the parties' memoranda pertaining to SCO's Objection, along with the transcript of the October 7, 2005 hearing and the memoranda submitted in conjunction with that hearing, the court finds that the Magistrate Judge carefully considered SCO's request for more discovery concerning the development of Linux -- and then properly denied SCO's request. Not only did the Magistrate Judge indicate on the record that she had reviewed all of the parties' submissions pertaining to the Renewed Motion -- which contained extensive briefing on SCO's request for more discovery on this issue -- but also, there was extensive oral argument on the issue. The Magistrate Judge denied SCO's motion from the bench and also later entered an Order stating, among other things, that "IBM has complied with the Orders of the Court, and that SCO's Motion to Compel Discovery and request for sanctions therein is denied." Magistrate Judge's Order Dated October 12, 2005 at 4 (Docket #530). And as further evidence that she was well aware of the fact that SCO was seeking additional discovery regarding the Linux development materials, she also stated that, "[i]n accord with IBM's offer, SCO is ordered to provide IBM, on or before October 12, 2005, with a list of the 20 Linux developers. IBM will endeavor to make its production on a rolling basis, but in any case shall complete the production by December 7, 2005." Thus, viewed against the backdrop of the briefing, the oral arguments on SCO's Renewed Motion, and the Order itself, the court finds that the Magistrate Judge explicitly denied SCO's request for additional discovery pertaining to the Linux development materials. In any event, however, SCO's request was at least implicitly denied in the Order, as a denial of a motion is routinely construed to encompass all requests made in that motion. Moreover, SCO has failed to demonstrate that the Magistrate Judge's decision was
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"clearly erroneous or contrary to law." Rather, IBM has persuasively articulated several reasons why Judge Wells properly limited SCO's request for more information regarding the non-public Linux development materials. Accordingly, the Magistrate Judge's Order of October 12, 2005 is affirmed.
III. CONCLUSION
Accordingly, IT IS HEREBY ORDERED that SCO's Objection to the Magistrate Judge's Order of October 12, 2005 is OVERRULED, and the Magistrate Judge's Order is hereby AFFIRMED.
DATED this 16th day of December, 2005.
BY THE COURT:
____[signature]___
DALE A. KIMBALL
United States District Judge
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Authored by: rsmith on Friday, December 16 2005 @ 06:02 PM EST |
n/t
---
Intellectual Property is an oxymoron.[ Reply to This | # ]
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Authored by: Anonymous on Friday, December 16 2005 @ 06:03 PM EST |
Didn't Judge Kimball say he was going to manage the case from here on out? It
sounds like he is doing just that.
I think I see a light at the end of SCO's tunnel... it has a bell and a whistle
attached to it and it is moving their direction.[ Reply to This | # ]
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Authored by: Anonymous on Friday, December 16 2005 @ 06:04 PM EST |
While not a huge victory, it is yet another straw on the camels back, which
looks to be straining a tad under the weight.
We should soon expect to hear the proverbial *pop* as the SCO camel succumbs to
the mounting legal losses.
[ Reply to This | # ]
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Authored by: DaveF on Friday, December 16 2005 @ 06:07 PM EST |
Please make clinks lickable as per the instructions below the comment form.
---
Imbibio, ergo sum[ Reply to This | # ]
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Authored by: Anonymous on Friday, December 16 2005 @ 06:07 PM EST |
Wahoo!!
(Steve Martin, not logged in)
[ Reply to This | # ]
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Authored by: Anonymous on Friday, December 16 2005 @ 06:13 PM EST |
Sounds a little like he was somewhat annoyed they brought this before him.
After all, SCO came before him to argue that the magistrate judge screwed up
when there was no real evidence of that.
It was a desperate move and was seen as such.[ Reply to This | # ]
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Authored by: Anonymous on Friday, December 16 2005 @ 06:16 PM EST |
I really liked the fact that he added the bit about IBM's persuasive argument
against more discovery. It's a double whammy.. not only did Judge Kimball deny
SCO's motion to override Judge Well's ruling because no error of law was
committed... but goes on to slam the door hard with his comments about IBM's
arguments.
Now, when Judge Wells has to rule on the motion they soiled her court's
"welcome mat" with, she can rely on not only her earlier ruling but
the backing of Judge Kimball in the decision _based on argument_.
So... that would be very hard to appeal, methinks.
...D (IANAL)[ Reply to This | # ]
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Authored by: dyfet on Friday, December 16 2005 @ 06:21 PM EST |
I imagine SCO was hoping there would be no ruling before the call on the 22nd.
I guess they will now have to look for some other wookie for the Dec 22nd call.
[ Reply to This | # ]
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- SH! - Authored by: PJ on Friday, December 16 2005 @ 06:57 PM EST
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Authored by: stormkrow on Friday, December 16 2005 @ 06:29 PM EST |
Or to the Judge in SCO vs Novell or SCO vs Autozone or SCO vs (insert name
here). How do they spin this one??[ Reply to This | # ]
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Authored by: kurtwall on Friday, December 16 2005 @ 06:38 PM EST |
It's a small victory. A victory nonetheless, but only a small one. The trend
so far does not bode well for SCO. It also seems clear, from the tactics and
demeanor, that if (or, rather, when) they lose, they are practicing a
scorched earth policy: they intend to foul everyone's house as they go down. [ Reply to This | # ]
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Authored by: grouch on Friday, December 16 2005 @ 06:47 PM EST |
Looks like SCO got that letter off to the Judge in Delaware just in time. Now it
will be 90 days before she reads about this set-back.
At least there should be some more set-backs to report by then.
---
-- grouch
http://edge-op.org/links1.html
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Authored by: kawabago on Friday, December 16 2005 @ 07:04 PM EST |
None of the principals will be spending time in jail over the holidays.
---
TTFN[ Reply to This | # ]
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Authored by: stend on Friday, December 16 2005 @ 07:12 PM EST |
To paraphrase Dr. Seuss, "She meant what she said and she said what she meant.
Judge Wells was right 100 percent.". --- Please see bio for disclaimer. [ Reply to This | # ]
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Authored by: The Mad Hatter r on Friday, December 16 2005 @ 07:15 PM EST |
The release of this order seems really fast. Is this because of the stage of the
case, or because it was a simple situation?
Not that I'm complaining - thank you for the excellant Christmas present Judge
Kimball.
---
Wayne
http://urbanterrorist.blogspot.com/
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Authored by: webster on Friday, December 16 2005 @ 07:28 PM EST |
.
.
"...rather than do us a favor or be extremely cautious, he backed his
colleague, as the Court of Appeals will back him. No surprise here. The
discovery run was good while it lasted. We made them chew on it a while....
"Oh dear, December 22. Now we have to concentrate on code and experts, or
at least some witnesses that can perform as experts. They can put on an
author-witness for every line of Linux!! --including some of our own coders!!!
We can't even tell what Unix code is ours or where it came from and what
licenses it is subject to!! And what does code matter unless we get past
Novell??!! Code is moot without contracts; contracts are moot without code. Or
should we say "mute"? We still have a few tricks. And we have to get
ready for the deluge. Christmas 2005, who would have thought..."
---
webster
>>>>>>> LN 3.0 >>>>>>>>>[ Reply to This | # ]
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Authored by: Jude on Friday, December 16 2005 @ 07:54 PM EST |
"It wasn't a fair trial. The trial judge denied us the discovery we needed
to figure out what we were suing IBM for."[ Reply to This | # ]
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Authored by: Anonymous on Friday, December 16 2005 @ 08:07 PM EST |
Is there any significance in the fact that Kimball didn't just deny SCO's
objection, but rather affirmed the original order?[ Reply to This | # ]
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Authored by: blacklight on Friday, December 16 2005 @ 08:41 PM EST |
"Since taking the motions under advisement, the court has further
considered the law and facts relating to the Objection and has read the
transcript of the October 7, 2005 hearing." judge Kimball
Congratulations, PJ!
Judge Kimball read the transcript of the Oct 7 hearing, just as you did, and
came away with the same conclusion - Judges actually reading transcripts of
hearing? I am impressed (without any sarcasm)!
I notice that judge Kimball makes no mention of conferring with judge Welles: I
am guessing that the protocol is for the District Judge to deliberately create a
distance between himself and the Magistrate Judge when reviewing the Magistrate
Judge's actions, so as not to create a perception of collusion. Hence, judge
Kimball's citing the Oct 7 transcript rather than any conversation he may have
had on the subject with judge Welles.
If what I am saying is correct, I just learned today something new about how the
American judicial system works. And it is to its credit.
---
Know your enemies well, because that's the only way you are going to defeat
them. And know your friends even better, just in case they become your enemies.[ Reply to This | # ]
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Authored by: Steve Martin on Friday, December 16 2005 @ 09:16 PM EST |
Just to refresh our memories, there is a hearing scheduled for this Tuesday,
December 20, in front of Judge Wells, for TSG's "New Renewed Motion to Compel"
and for IBM's Motion to Compel Documents on TSG's Privilege
Log:
NOTICE OF HEARING ON MOTION re: 514 MOTION to Compel
production of documents on SCO's privilege log, 534 MOTION to Compel
Discovery: Motion Hearing set for 12/20/2005 at 10:00 AM in Room 220 before
Magistrate Judge Brooke C. Wells. (jwd, ) (Entered:
10/28/2005)
It'll sure be interesting to see how the
hearing on TSG's Motion to Compel goes, in light of today's ruling from Judge
Kimball.
--- "When I say something, I put my name next to it." --
Isaac Jaffee, "Sports Night" [ Reply to This | # ]
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Authored by: blacklight on Friday, December 16 2005 @ 10:24 PM EST |
At this point, both judges have learned better than to take anything that SCOG
says at face value: for the SCOG lawyers to put words in the judges' own written
rulings is a bit much.
With SCOG's credibility utterly destroyed, judge Kimball will have to rely on
his own interpretation of the contracts to make his decision - And that is how
SCOG will be destroyed in court.
---
Know your enemies well, because that's the only way you are going to defeat
them. And know your friends even better, just in case they become your enemies.[ Reply to This | # ]
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Authored by: TheBlueSkyRanger on Friday, December 16 2005 @ 10:37 PM EST |
Hey, everybody!
Has anyone else noticed that there is a deafening silence from some key
individuals? Such as:
1) Biff
2) Laura DiDio
I'm sure there are others, but those are the two biggies that I find myself
wondering about. Anybody hear anything from them lately?
Dobre utka,
The Blue Sky Ranger
"I...love a party...with cakes and clowns...."
--Mouse Fitzgerald
12 oz. Mouse[ Reply to This | # ]
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Authored by: Anonymous on Saturday, December 17 2005 @ 12:39 AM EST |
Ha ha ha ha hee hee hee
HAAA HAA HAA HAA HAA!!!
Sorry, couldn't resist... hope they got their 30 million worth![ Reply to This | # ]
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Authored by: AllParadox on Saturday, December 17 2005 @ 02:39 AM EST |
First: this was very, very fast. Look at the times. Kimball had to write the
response practically the moment he received it. He had about ten minutes for
serious legal research. You can tell when judges start to get ticked-off; their
response time goes from months to hours. Have to respect Kimball's legal
skills, too. He hit all the critical points, right off the cuff.
I still don't want to be any one of the attorneys for "The SCO Group"
when they start hearing motions again in front of Kimball.
Second, Kimball was very much correct in his sharp answer. The
"appeal" was a nasty slap at Judge Wells. Any time you, as an
attorney, think a judge has overlooked something, you give the judge a chance to
look at it and fix it. Judges do make mistakes. They do overlook things. You
can contact them. In this kind of case, with this importance, the judge will
have his secretary set up a conference call with just himself and the attorneys.
Cuts right through all the procedural nonsense and gets things solved.
Besides: you, as attorney, get a record. If the judge agrees with you, then you
win. If the judge disagrees with you, you have something in writing on which
you can base your appeal.
This conduct drives appellate courts up the wall. Far too many attorneys are
willing to spend a fortune of their clients money appealling something that
should have been referred back to the trial court in the first place. These
folks just grabbed the order and ran to file the appeal.
---
PJ deletes insult posts, not differences of opinion.
AllParadox; retired lawyer and chief Groklaw iconoclast. No legal opinions,
just my opinion.[ Reply to This | # ]
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Authored by: sonicfrog on Saturday, December 17 2005 @ 04:09 AM EST |
Oh darn:-( That means we'll never know what hijacked and stolen SCOde was going
to be in the 2.7 kernel.
Sonicfrog = pool guy, hack musician, soon to be teacher, and linux nut since RH
7.0. Definitely NOT a lawyer.[ Reply to This | # ]
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Authored by: Anonymous on Saturday, December 17 2005 @ 05:09 AM EST |
Bear in mind that SCO are still on the attack. This doesn't cost them anything,
it doesn't lose them anything, it just didn't win them anything either.[ Reply to This | # ]
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Authored by: Anonymous on Saturday, December 17 2005 @ 05:57 AM EST |
IANAL
I seem to remember from some time ago that PJ said that most cases
don't reach trial. I may be wrong but I think she explained that pre-trial
activity was deliberately long and exhaustive to allow the participants time to
settle their dispute before the court was forced to come to a decision at
trial.
However, if no settlement was reached(and IBM don't want one) the
courts would take a dim view if a case was bought to trial with little or no
evidence to support the claim
of the "accuser".
Reading these latest attempts
by SCOG to misunderstand the court's intention makes me wonder if they
are looking for a way out whilst escaping the wrath of the judge.
Are they
intending to use their inability to obtain good evidence because of
discovery rulings as an excuse to drop their case?
The dog didn't eat
my homework because I know that IBM have hidden it and I can't get in to find
it.
They cannot possibly have expected success with their recent
pleadings. There is no logic. Only an alien could misunderstand what's been
ruled by the court in English. These people are lawyers and judges aren't
stupid. Brian S.
[ Reply to This | # ]
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Authored by: Observer on Saturday, December 17 2005 @ 10:08 AM EST |
> they are like a condemned man, about to be shot...
OK, anyone
taking bets on how long it takes for someone in either SCO or their press
groupies to accuse PJ of threatening to shoot someone in SCO?
:-(
---
The Observer [ Reply to This | # ]
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Authored by: sk43 on Saturday, December 17 2005 @ 11:30 AM EST |
During the hearing in front of Wells, Marriott made the
offer to provide the materials of an additional 20 Linux
programmers just before Wells ruled from the bench, without
SCO being offered a chance to respond until the end of the
hearing. In retrospect I think this was a brilliant move.
SCO was caught flat-footed, since even though they had asked
for materials from 300 programmers, they did not object to
this limited offer of 20. IBM is now able to claim, as
Kimball himself accepts in his current ruling, that SCO's
request for new discovery (including the current request in
front of Wells) has already been litigated and decided, but
on terms dictated by IBM, not SCO.
[ Reply to This | # ]
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Authored by: GLJason on Sunday, December 18 2005 @ 06:43 AM EST |
Or they might just try browsing on the web and find the
materials for themselves. Linux is developed in public.
Not
to nitpick, but the materials they are asking for aren't available to the
public. They are asking for designer notes and project documentation. I
haven't taken the time to research myself, but it seemed from earlier briefings
that IBM got their contributed code to work and just made a 'dump' of the code
into the Linux kernal source tree. The documentation on how the code was
designed and all the versions of the code prior to the final one are not
available publicly.
I agree with IBM however, there should not be any reason
for them to turn over the materials that are being asked for. The proper
procedure would be for SCO to SHOW some code they think may be infringing, and
then ask for those materials for THAT section of code. I guess they're not
talking about copyright infringement though anymore, but breach of contract. So
they should show some code in Linux they believe was caused by a breach of
contract, then ask for the materials for that code. [ Reply to This | # ]
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Authored by: Thomas Downing on Sunday, December 18 2005 @ 08:59 AM EST |
There have recently been a number of posts about settlement. So in that
spirit I offer my bet.
I'm betting that SCO and IBM will settle,
and that the settlement will be complete renunciation by SCO of all claims,
and
a stipulation that IBM did not infringe any SCO rights by any of it's AIX/Dynix
or Linux activities.
Further, I'm betting that this settlement will come
at one of two points. First, if SCO enters bankruptcy, the trustees will,
within a very few months, hammer out the agreement with IBM. Second, if SCO
does not enter bankruptcy, they will reach the final agreement with IBM the day
jury selection begins.
There is no incentive for SCO to settle sooner
(given the likely settlement IBM would demand) and there is great incentive for
them to avoid a jury trial.
Needless to say, I am not speaking ex
cathedra, nor from the bench or bar! (Nor will I give better than
evens.) --- Thomas Downing
Principal Member Technical Staff
IPC Information Systems, Inc. [ Reply to This | # ]
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Authored by: DaveJakeman on Monday, December 19 2005 @ 11:56 AM EST |
It seems like Judges Kimball and Wells are trying to say "no" pretty
loudly.
But how many times does it need repeating? Maybe they should try another
language that SCO can understand. Neither legalese nor plain simple English
seem to work. PRspeak? Sign language? Goo goo gaa gaa? Klingon? There must
be some language with the word "no" in it that SCO can understand.
And that would be "no" as in "denial or refusal", not
"no" as in "yes" or "no" as in "maybe"
or "no" as in "mostly no, but possibly yes, subject to appeal.
In fact emphatically "no" as in "no, no, no, no, no, no and
no". Period.
---
Should one hear an accusation, first look to see how it might be levelled at the
accuser.[ Reply to This | # ]
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Authored by: Anonymous on Monday, December 19 2005 @ 01:36 PM EST |
Practice Pointers
Judge Kimball reports that most lawyering before him is very good. Much better
than he expected when he took the bench. He finds that lawyers generally are
well prepared and don’t waste the Court’s time.
* Tips for practitioners appearing before Judge Kimball include:
* At oral argument, know the cases that you cited in your briefs.
* Behave responsibly and civilly to witnesses, the court, and opposing
counsel.
* Don’t try to stretch your position. If you have weakness, admit to the
weakness, and try to persuade the Judge that you should win anyway.
* Brevity is appreciated and highly effective as a tool of advocacy. This
applies both in briefs and oral arguments.
* If you have a bad argument, leave it out of your brief and your oral
argument. Making bad arguments hurts your credibility with the Court.
http://www.utahbar.org/sections/litigation/html/kimball_judicial_profile_2002.ht
ml
don't know how to make the clickable link yet.
[ Reply to This | # ]
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