Back in July (the 12th I believe) the District Court in Detroit Michigan held a hearing on imposing sanctions on the team of lawyers who filed a lawsuit seeking to have the election results thrown out. An all day hearing, which was interesting to listen to and watch. The judge permitted the parties to file supplemental briefs, which have now been filed. I want to discuss the hearing, although it was a month ago. But before that a couple of notes about other related developments.
First, the District Court in Colorado has imposed sanctions on the Kraken legal team who filed there: they must pay the legal fees of the defendants, who ranged from Dominion Voting Systems to the Secretaries of State for Georgia and Pennsylvania. Sanctions are likely to run to several hundred thousand dollars. Sanctions were imposed under Rule 11 and the inherent powers of the Court.
Second, in the District of Columbia, Sydney Powell is facing a defamation suit by Dominion Voting Systems, based on Powell’s claims of voter fraud, stolen elections, switched votes. In her motion to dismiss the suit, Powell argued that no reasonable person would believe her statements were factual. A reasonable person would consider her various allegations that Dominion Voting Systems rigged election outcomes and manipulated tabulation were merely opinions and not statements of fact. That Dominion Voting Systems’ Complaint labels the allegation as wild, and outlandish was part of her argument. I guess the idea was that the more outrageous the defamatory statement the less likely it is that a reasonable person would believe it a statement of fact, and so no defamation action would be possible. Well, that theory is not quite so bad as Powell’s claims, or the theories of Kraken suits, but it is pretty bad. My guess is that it is just short of sanctions. More interesting is the conversations that occurred in drafting the motion. I wonder what the lawyers told one another as they wrote it, and what they said in signing it. The Motions to Dismiss (by Powell, Giuliani, and Mike Lindell heard together as related cases) were denied. In D.C., Powell and Lindell claimed that the court did not have personal jurisdiction over them. Unfortunately, Powell made defamatory statements in D.C., transacted business there, and Dominion suffered injury there. So too Lindell.
Third, there are host of disciplinary complaints still pending. Or they might be pending. Attorney disciplinary processes are almost always secret, at least until sanctions are imposed, so it is hard to tell when there is an investigation. But given that court imposed sanctions are still coming down, it is likely that disciplinary investigations are also still going on.
Now to the arguments at the July Kraken hearing in Detroit. The judge held he hearing so that she could hear from the plaintiff attorneys what basis they had for the allegations of their complaint, in other words, what was the evidence from which a reasonable attorney might conclude that the allegations had a plausible basis in fact. The attorneys over and over again pointed to declarations attached to the complaint as providing reasonable grounds for the complaint. And then to ask for an evidentiary hearing. Neither line of argument got traction with the judge. The recurring problem for the plaintiff attorneys was that the declarations either had no relevance to the allegations of the complaint, or were facially implausible or incredible, giving the attorneys reason to check on the veracity of the witness statements. In response to such points the attorneys raised the argument that they were entitled to believe sworn statements without more, and that some at least had been filed with other courts and so were entitled to be believed. To which one might reply, and the judge did several times, that attorneys are not entitled to just accept whatever a client or witness says particularly when the statements are facially implausible. And, in many instances, the the declarations had no relevance and so did not support any of the allegations or claims. This went round and round and round, the judge asking for the basis for reasonable belief in the allegations and claims and the attorneys pointing to declarations and asking for an evidentiary hearing (so the witnesses would be before the court and they could answer any questions). This did not strike me as a persuasive course of argument. And repetition did not make it more persuasive, but instead less. The strategy seemed to be to stand on the work and ask for a hearing over and over becuase at a hearing they would be able to put on their case. As the judge had dismissed the complaint, it seems oddly hopeful to think the judge would now relent and have an evidentiary hearing on a case that was already dismissed. But what else could they have done? Admit the errors and hope for leniency? Well, yes, that does seem to be what reasonable lawyers would do as there was no defense.
Only one lawyer seemed to me to be deserving of leniency, perhaps even dismissal form sanction, a contract attorney who had put in a few hours (5) on the case. Seemed to em that such a person does not have sufficient control or influence over the work to be tagged with sanctions.
As noted above, the supplemental briefing is done. We await the decision of the judge. Given the outcomes in other Kraken cases, I think it will be a bad day for plaintiffs’ counsel.
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