Ciceronian Review

A Dugdale Poem

Dawn Chorus
March 29, 2010

Every morning since the time changed
I have woken to the dawn chorus
And even before it sounded, I dreamed of it
Loud, unbelievably loud, shameless, raucous

And for once I rose and twitched the curtains apart
Expecting the birds to be pressing in fright
Against the pane like passengers
But the garden was empty and it was night

Not a slither of light at the horizon
Still the birds were bawling through the mists
Terrible, invisible
A million small evangelists

How they sing: as if each had pecked up a smoldering coal
Their throats singed and swollen with song
In dissonance as befits the dark world
Where only travelers and the sleepless belong

 

Sasha Dugdale

May Issue Poetry

 

I like that poem.  A good issue.

Roma

One of the Masterpiece Mystery shows is Zen, based on the Dibden novels of Aurelio Zen in Rome.  The series is relatively light-weight.  The plots are a bit heavy on serendipity, and quite a distance from Wire.  But I like the series very much, for other reasons.  The role of food and coffee bars, for example.  Great food is just part of the story and the characters discuss real food with enough frequency to make me sad I am not in Rome.  And there are the views of Rome and environs.  That too makes me sad, and wistful for the times in that great city.  The mix of accents is entertaining.  It is like a little tiny vacation, at almost no cost.  Yes, Rome is one of my favorite cities.

Don't Use It and Lose It

This week the utah Supreme Court handed down Allen v. Moyer (2011 UT 44) on whether small claims cases have claim preclusion effect.  (It is not up on the Court's page.)  Allen sues for property damage to his car in small claims, wins.  Later Allen sues for personal injuries in District Court.  Moyer says the claim is barred by claim preclusion.  The background cases hold that issue preclusion does not apply from Small Claims Court decisions, and that counter-claims outside the jurisdiction of the Small Claims Court are not precluded if not brought in the small claims proceeding.  Issue preclusion does not apply because the Small Claims Courts are not courts of record in the sense that there are no records of the proceedings -- no transcripts are possible.  As a result, it would be very hard to tell if the conditions for issue preclusion appy in Small Claims proceedings because it would be all but impossible to determine what issues were actually litigated.  (A judgment does not alone provide that information because one needs to know what was contested.)  As for counterclaims -- they are preserved for litigation in a different forum if the counterclaim exceeds the jurisdictional limit of the Small Claims court -- could not be brought and so not precluded.  (It is worth noting that the rule is different in federal court and some other state courts -- claim preclusion can apply even where the tribunal lacks jurisdiction to hear the claim -- an outcome that strikes me as odd, but is the law.)  So, with that, where does the Supreme Court land?  Unanimously holds that a decision in Small Claims Court has claim preclusive effect for a plaintiff -- whether or not within the jurisdictional limit of the Small Claims Court.  (The Court divided 3-2 on whether the rule applied only prospectively or not (not).)

It now appears that the preclusion doctrines apply in small claims cases in a one-sided way -- against plaintiff's claims but not counterclaims.  That impairs the policy arguments in support of preclusion.  It might move more cases out of small claims and into the district courts.  In the abstract, it should.  But then, people adjust rapidly to changes like this.  For example, the rate of dismissals in Federal court have not risen since Twombly and Iqbal, predictions to the contrary notwithstanding.  (I thought there would be a short term rise and then things would quickly return to status quo ante.) 

Missed Deadline

Back in early May, the Utah Court of Appeals handed down one of its messy procedural decisions, this time concerning final pre-trial disclosures.  In Moa v. Edwards, the trial court excluded certain witnesses because they had not been timely disclosed.  The witnesses were intended as either treating physicians or expert witnesses.  Moa appealed on grounds that there was no finding of willfulness or bad faith.  The Court of Appeals affirmed the trial court (on this and some other issue).  Moa made her disclosure after the cut-off for witness identifications, both fact or lay witnesses and experts.

I see no problem with affirmance on the issue.  The deadlines are not that stringent really.  In general, I think the courts in Utah take too lax an attitude toward the rules of civil procedure, creating a good deal of avoidable motion work and uncertainty, and driving up costs of litigation.  Here, the Court of Appeals has a relatively simple task, made easier by the plaintiff.  Moa did not challenge the trial court's order on excluding the witnesses, so the argument that bad faith or willful violation are necessary findings for such an order was not preserved.  And Moa did not provide a transcript, so there is no way to determine what went on during oral argument.  Fine -- isn't the case over at this point?  The Court can certainly affirm without more.  It doesn't, and not stopping creates issues that could have been left quiet.

In the discussion of the failure to preserve the issue, the Court characterizes the absence of a finding of bad faith or willfulness as an error:  "the trail court was ot provided a chance to correct that error."  Okay -- was it an error?  The rest of the opinion casts some doubt, because the Court spends a good of time explaining why there is plenty of evidence to support finding bad faith or willful violation.  I suppose the point of that discussion is to make clear that the conduct was bad.  But what happens is that the discussion appears to say -- albeit in dictum -- that a trial court may not impose a discovery sanction of this sort without a finding of bad faith or willful violation, but that it can impose the 'sanction' for missing a deadline.  That is a surprise.  As the Supreme Court appears set on adopting the proposed new rules of civil discovery, which impose a host of very short deadlines, this case will give grounds for some draconian enforcement.