Oops!

Second Time is the Charm?

Just 48 hours after the defense team filed their Response to the Motion to Intervene, they asked for a do-over.

To correct the missteps and record, in the accompanying Praecipe they write to, “inform the Court that an earlier draft of the above named Defendants’ Response to Media Intervenor’s Motion to Intervene was erroneously filed on November 16, 2010. In an effort to correct this error, the above named Defendants have filed on November 18, 2010 the intended and complete Response to Media Intervenor’s Motion to Intervene.”

Since posting the first document, several sharp readers pointed out typos and some possible holes in the legal arguments.

A quick side-by-side comparison of the two motions demonstrates not just additional proof-reading that may have been done, but possible tweaks to the defense team’s legal strategy moving forward on the gag order and perhaps too, a rethinking of their strongly worded charges made against Wone family attorney and wrongful death specialist, Patrick Regan.

 

For starters, the new doc weighs in at fourteen pages; the old one was sixteen.  Sharper legal eyes may first note the new filing reflects a pivot on a key element of the precedent they put forward, notably the reliance on Sheppard v. Maxwell, 384 U.S. 333, 362  (1966).  Gone from page 8 of the original motion is a much of the section devoted to that case.

The new motion also walks back some language regarding Regan and the DC Bar Rule 3.6, which addresses pretrial publicity. Whereas page 12 of the original motion floated the idea that, “Defendants do not know whether such a statement (Regan’s status hearing remarks on the 5th amendment) violated DC bar Rule 3.6…,”  the new text is somewhat softer and that sentence has been struck.

Also missing from the new motion is the mixing of criminal and civil.  As readers have pointed out, there is a clear distinction in civil court between “guilty” and liable.”  Deleted from the new doc is this particular line concerning Regan, “The particular statements that have been made by Plaintiff’s Counsel have the ability to influence potential jury panel members, and have the potential to destroy the pillar of our justice system: “Innocent until proven guilty.” ”

A central point of the defense argument is that extrajudical statements such as Regan’s may “pollute” the future coming jury pool as they wind their way through the press coverage of the case.  A notable change in the new document reflects a tweak in how the defense characterizes the media’s reporting:

Old:  “…a blanket ban from statements to the press from counsel for the parties is the only viable solution to ensure that counsel focus on the legal issue before this Honorable Court, not how it is portrayed by the press.”

New: “…a blanket ban from statements to the press from counsel for the parties is the only viable solution to ensure that counsel focus on the legal issue before this Honorable Court, not on manipulating press coverage of it.”

Deleted from the new motion in another characterization of the press coverage.  Regarding the September 17 Washington Post story on the status hearing, “media obsession with the case,” is nowhere to be found in the new filing.  

The inclusion of Keith Alexander’s piece that day raises an interesting question:  If the defense found that WaPo story and the comments it generated so injurious, then why publicize it even more by attaching it as an exhibit to the motion and republishing it?  Not just once, but twice.

The only other inconsistency we note from the defendants’ paperwork is in the page one headers, the Next Event.  On both versions of the motions they list a February 11 deadline for discovery requests, but in the new Praecipe, it shows February 14.  We show the next event being the December 8 status hearing.  It’s a small point but we don’t think it will necessitate them filing for a third time. 

Praecipe for New Response

New Response to Motion to Intervene

Original Response to Motion to Intervene

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59 comments for “Oops!

  1. KiKi
    11/19/2010 at 12:01 PM

    This is really odd! Is this something that happens in civil cases? If I would have ever filed something like this in criminal court, I would have surely received a notice to appear for an arse whooping by the presiding judge.

    I know the signatures are electronic, but they are still signatures! Lawyers do (should) not be signing anything that they do not intend to submit to the court. My guess is a 1st year associate or law clerk wrote the first one and submitted it but while there may be no excuse for typos, there is certainly no excuse for this type of mistake. Wow!

    • Cat from Cleveland
      11/19/2010 at 2:57 PM

      KiKi-

      I’ve never practiced in the criminal arena-my practice is exclusively civil litigation. I’ve never seen anything like this. And by “this,” I mean not only this “oops,” but also all the other issues that have been addressed here, most notably the filing of summary judgment briefs without supporting affidavits. It makes me wonder if anyone is watching the children. Perhaps if the experienced lawyers in these firms are too busy, they should hire a nanny?

      • Bruce
        11/19/2010 at 4:18 PM

        Hey Cat and Kiki:

        At least in my area, competition between law firms is at a very high level.

        What makes me or my firm different from the attorney or firm down the street that does basically the same thing, or the ones 5 floors down in my building?

        One thing you want to impress upon your clients (because clients can decide to go to other firms for a myriad of reasons) is that your firm is very professional and staffed with experienced professional attorneys and staff, that produce a superior and professional product in all they do.

        Maybe none of the attorneys in this case have those considerations, because of the realities of their clients involved here.

        It is doubtful that their clients will have great needs for them after this trial and any resulting appeal (if any),although certainly the defendants may need them if any or all of them are arrested for murder.

        But, despite reasons based upon competition, wouldn’t all the attorneys here want to add to their reputations and their credibility for their own sakes, especially in a media focused case such as this?

        As I have said before, it surpasseth all understanding.

        These are not minor things. A summary judgment motion where nobody files an affidavit, particularly considering the issues involved here, is just unexplainable.

        Filing papers with the court that are filled with typos? It is very easy to remedy that by any attorney or firm. Just read it carefully before filing it! Spell check does not distinguish between “there” and “their.” They both look like nice good words to Spellcheck! You have to sit down and read it.

        • Bruce
          11/19/2010 at 4:30 PM

          I wanted to add, but hit “submit” too quick, that mistakes do happen.

          And I am sure that in the history of my firm, someone has filed the wrong draft of a document, etc., and has probably filed a motion like defendants to file the correct one, although I can think of no such incident.

          You get rushed, you have multiple responsibilities and you are multi-tasking for 30 or more clients. You also have family and off work life that you need to keep tended. All of this is understandable for a mistake.

          It’s not that, it is the PATTERN we are seeing from both sides’ attorneys that is raising a red flag to me.

          Show more pride in your work product, and more respect to this judge, who should not have to deal with these side show issues.

        • 11/19/2010 at 5:28 PM

          Times are tight and competition is fierce so I am sure considering what JP is paying, he may have gone ballistic after reading the initial sloppy work. Also, wonder if Regan called and that’s the reason for the softning concerning him.

          Law firms need to know it is not professional getting initial correspondence with one attorney’s name assigned to you and then months later another says he has been placed with you case with no clarification as to why the change. chow

          • Bill Orange
            11/19/2010 at 7:42 PM

            I would imagine that Joe Price did indeed go ballistic. (I certainly would have.) It wouldn’t surprise me if he was the one who first caught the error(s). But just for the record, I don’t think he’s the one who’s writing the checks here–I’m pretty sure his insurance company is footing the bill. My recollection is that Team Dylan is the only one that’s paying its own legal fees in this case.

            I wonder if Joe Price is still calling the shots in terms of the legal strategy. If so, he might be such a pain in the ass that his lawyers really don’t care if they’re sending sloppy briefs into the court.

            • Clio
              11/21/2010 at 5:05 PM

              Bill O, the terms “pain in the ass” and “sloppy briefs” may evoke difficult memories for Culuket — do not mention those buzz(ed) words to Dyl, of course.

    • Bea
      11/19/2010 at 5:33 PM

      The typos are bad, but the changes in the substantive arguments are actually meaningful. Did their lengthy reliance on a case cut short mean that they were on shaky ground in the first iteration? It’s more than embarrassing.

      And if it’s like most law firms, my guess is that the senior associate or junior partner just below the signatory is the one who will take the arse whipping within the firm. Even though the guy signing it should have at least thumbed through it a final time – many times I’ll have made ONE final correction on a lengthy piece and know I don’t need to read the whole thing again BUT I have my assistant hand me the old draft complete with Post-it and red pen so I can flip to the right spot before adding my signature.

  2. Doug
    11/19/2010 at 12:22 PM

    Let’s hope it isn’t Feb. 14. I have plans for Valentine’s Day.
    -Doug, co-editor

    • Clio
      11/19/2010 at 10:22 PM

      How sweet and well-organized! The big question, though, is: But do the members of the (former?) trouple and/or Brook have plans that special day?

      In lieu of feasting upon bon bons and burnt steaks, of course, Joe and Dyl may be exercising in separate rooms and states that day. In contrast, with the elder Price by his side (if not in bed,) Victor may be watering indoor plants, while complaining about the cable again. Some details may never change, alas!!

  3. AnnaZed
    11/19/2010 at 5:34 PM

    I wonder if clients can band together and mount class action suits for monetary redress against lawyers who spend every waking hour commenting on websites? Maybe instead of being paid by the word some are paid by the hour, isn’t that the usual thing with law firms? I would imagine that there are a few clients out there who would be quite surprised by how their billed hours are being spent.

    • Bruce
      11/19/2010 at 6:19 PM

      You take care of your bitness; I take care of my bitness.

      • Bruce
        11/19/2010 at 6:26 PM

        Bit!

        • Bruce
          11/19/2010 at 7:25 PM

          AnnaZed:

          In re-reading your post, I see that you are suggesting (actually doing more than suggesting) to me and the blog that I am dishonest.

          I neither deserve in any way nor appreciate that. It goes beyond the pale, and is pretty low and despicable.

          Please do not respond to my posts or reference me (by name or otherwise)in any of your posts in the future.

          • Rich
            11/19/2010 at 11:58 PM

            A Logical and FAIR response.

            • Rich
              11/20/2010 at 12:06 AM

              Needless to say, WMRW goes only so far in this marriage. As James would be elated if I found a new murder.

              In our discussion just now about the blog, its posters, its direction, and the warfare-he clearly articulated what I have always felt and couldn’t quite identify.

              We are going head to head with Jerry Springer.

              And, he has good ratings, as well.

              • carolina
                11/20/2010 at 8:45 PM

                “James would be elated if I found a new murder”

                Ronni Chasen’s available.

                • Rich
                  11/20/2010 at 10:54 PM

                  I don’t know this murder.

                  Does it involve Trios and Sex Toys?

                  Or, is it just another everyday murder?

                  • carolina
                    11/20/2010 at 11:14 PM

                    It’s worth a Google.

                    • Rich
                      11/21/2010 at 12:36 AM

                      Will Do!

                  • CDinDC (Boycott BP)
                    11/21/2010 at 6:25 PM

                    Rich, there is no such thing as an “everyday murder.” Every victim deserves respect and there are myriad indirect victims as a result of this kind of brutality. As an indirect victim, I blanched at your unsymphathic manner. Would you consider the murder of my elderly aunt who was beaten to death in a convenience store robbery one of those “everyday murders?” Nothing special since it didn’t involved sex toys or a trio of gay men?

                    • Rich
                      11/21/2010 at 7:11 PM

                      You get bored on Sundayevenings, right?

                    • CDinDC (Boycott BP)
                      11/21/2010 at 7:20 PM

                      You are a cold human being, Rich.

              • Clio
                11/21/2010 at 4:18 PM

                Buh-bye, Rich.

                • Rich
                  11/21/2010 at 6:07 PM

                  Hate to bum you our, but, I’m not going anywhere.

                  But, thank you for the respite the past few days. 🙂

                  • Clio
                    11/21/2010 at 9:19 PM

                    Buh-bye, Rich, take two.

          • AnnaZed
            11/20/2010 at 12:17 AM

            How very interesting that you lept to the conclusion (not supported in any way by the actual post) that my remarks were directed at you, how very fascinating.

            • Bruce
              11/20/2010 at 12:47 AM

              Don’t keep being a fool, AnnaZed.

              You know as well as I do that there is a history of your obsessing on my work life and time spent posting.

              The latest was AnnaZed on 11/09/2010 at 3:37 PM (Going to the Chappelle)

              Do you want me to post all of them and show everyone what a true asshole you are?

              “Please do not respond to my posts or reference me (by name or otherwise)in any of your posts in the future.”

              • AnnaZed
                11/20/2010 at 1:09 AM

                The lady doth protest too much, methinks.

              • Clio
                11/21/2010 at 4:26 PM

                Cringe! It’s only a blog, girlfriend, and this is the comments section.

                Everyone has both an opinion and an a—–e, and, in this country (since 2003 with the striking down of state sodomy laws), we are free to express both.

          • carolina
            11/20/2010 at 5:13 PM

            No offense, honey, but the only thing you can do is fail to respond to AZ. She’s free to post at will.

            • Bruce
              11/20/2010 at 7:13 PM

              Oh, I know, Carolina. But with no hint of an apology, you would think that a decent thing would be to at least follow my request.

              • carolina
                11/20/2010 at 8:46 PM

                I understand. I was only hoping to make it easier on both of you.

              • She did it
                11/20/2010 at 9:21 PM

                Oh, Bruce. To quote my favorite millionaire uber-mom, don’t be such a ninny [sigh, take dramatic pause, slowly reach for water, and continue with your script].

    • 11/19/2010 at 8:42 PM

      there is a case I believe before SCOTUS that bizness is trying to do away with class action suits. JP probably did input given there are some meaningful changes–what a joy for those insurance co.

    • denton
      11/20/2010 at 11:22 PM

      I don’t usually do this but:

      AZ – As a witness, I interpret your post that you are commenting ALL (your quote) “lawyers who spend every waking hour commenting on websites.”

      If you stopped at: “I wonder if clients can band together and mount class action suits for monetary redress against” and replace with “on topic” in solving this crime, or something else much more “away” from commenting “lawyers who spend every waking hour commenting on websites,” you would be in a “better position” than you are now because you are offending ALL “lawyers who spend every waking hour commenting on websites.”

      Don’t forget, other “lawyers” on this site are reading your post too. Don’t forget that you probably are sending “lawyers who spend every waking hour commenting on websites” a wrong message.

      I quote: Offense is, an untasteful thought, emotion, action or other behaviour.

      Never mind the rest of your post. I would be offended too if I have spent my lifetime going to law school, take the bar exam, spending all my waking hours defending or serving clients, with pay or on Pro Bono, even in my sleep.

      Please give the “profession” and those who practice this profession a rest, and most of all “respect.”

      • Bea
        11/21/2010 at 12:21 AM

        Hi Denton (and AnnaZ) – I think far too much is being made out of her post. She and I have always gotten along just fine and she knows I’m one of the lawyers among us. She has a right to be snarky – and I make lawyer jokes as much as the next person. As a group, we do post long posts (sometimes painfully long – me included).

        • Clio
          11/21/2010 at 2:34 PM

          I do not find it surprising that professionals of all sorts, and not just barristers, have lent an inordinate amount of their time and expertise in analyzing this fascinating, if not all mysterious, case.

          Indeed, on this weblog, lawyers get to be professors for a moment at a time: I’m sure that the practice writing here has helped our loyal cadre of legal analysts to improve their billable hours and (paid-for) rhetorical flourishes.

  4. boofoc
    11/19/2010 at 9:50 PM

    All this wrangling about typos and misstatements by counsel for the parties leads me to point out to our esteemed editors that OOOPS above is misspelled; correctly it’s OOPS, an interjection (same as WHOOPS, an interjection uttered after a slip of the tongue). Literal translation is “I f#CK%d up.”

  5. boofoc
    11/19/2010 at 9:53 PM

    Craig: Just playing with you (figuratively, of course).

  6. Clio
    11/19/2010 at 10:38 PM

    Well, it is reassuring to note that, for all of his expenditures on attorneys and their accoutrements, Mr. Price is getting bad grammar and worse spelling. But, of course, Covington has not been that much better in reference to conventional language arts.

    This particular flurry of paper is turning into an indictment of the expensive undergraduate and professional school experiences that are supposed to yield the Clarence Darrows and William Howard Tafts of today. The emperors and empresses of the bar indeed may have no clothes, and we have only this blog to thank for putting the spotlight on their careless and needless errors!!

  7. Clio
    11/21/2010 at 5:13 PM

    Editors, BTW, who is the model tripping in the photo above?

    The use of that photo does raise some interesting questions: Are most lawyers fashion models? Do most lawyers know how to walk a catwalk? Did Bernie ever hear of “Project Runway” before he took up Joe’s defense?

    • Hoya Loya
      11/21/2010 at 5:35 PM

      An associate at the last firm I worked for was a contestant on the first season of “Project Runway. Seriously. I think she was eliminated in week two, three or four, but said she had a blast. She’s since organized fashion benefits for pro bono charities.

      • Clio
        11/21/2010 at 9:25 PM

        I love that anecdote, Hoya! It really does pay to wear many hats these days, but, in the end, judicial robes can never compete with the “little black dress.”

  8. Rich
    11/21/2010 at 7:31 PM

    Actually, I’m priased for being quite compassionate.

    It’s just real EZ to lose any sense of human kindness on this blog.

    But, you know that already.

    • CDinDC (Boycott BP)
      11/21/2010 at 7:46 PM

      speak for yourself, Rich. I would never disrespect the loss of a human life, even if it were someone in YOUR family.

  9. Rich
    11/21/2010 at 7:55 PM

    As for losses of human life, I own a corner on that block.

    My mentor, Former Surgeon General C. Everett Koop, awarded me, “The American Who Cares Award,” for my early response to the AIDS Epidemic in 1987 when I was a National, Regional and Local spokesman/volunteer for the AIDS Community.

    That Painting/Award sits in my home and draws a supportive response from all of its admirers.

    And, when I look back on my speech for the HRC National Dinner in Washington, DC that elicited such a warm and thunderous welcome as I rallied by 3,000 of our Nation’s Best and Brightest, I cannot help but be suspicious of all of your comments.

    The HRC asked me to speak at the national dinner because of my compassion, kindness and care.

    In all due respect, I’m pretty proven. Are you?

    • Rich
      11/21/2010 at 7:58 PM

      Whoops!

      Should have read…

      “As for the LOSS of human life…”

      But, every one of my postings has typos. 🙂

    • CDinDC (Boycott BP)
      11/21/2010 at 8:13 PM

      I don’t need an award to know the depths of my compassion, Rich.

    • CDinDC (Boycott BP)
      11/21/2010 at 8:31 PM

      And by the way….I don’t believe you. I just googled “The American Who Cares Award” and there is no such thing.

      And the C Everett Koop award goes to corporations. Not individuals. http://www.thehealthproject.com/koop/index.html

      I would think you would know the name of your own award. If you got one.

      By the way, your “warm and thunderous welcome” schpiel was used already. You actually said the SAME EXACT THING in a post on 10/07/2010 at 10:53 PM (Let’s Make a Deal). Do you have this stuff saved for easy retrieval when you need to make yourself feel better?

      LOL (at you)

      • Rich
        11/21/2010 at 8:51 PM

        You Really are a mess, aren’t you?

        You just cannot help yourself. Kind of a sad and pathetic existence.

        Just ask Criag. He was my former neighbor and was around then. We lived around the corner from Swann Street.

        He’ll tell you, Americans Who Care were apart of the National AIDS Network. In the Book, I’m on Page 51.

        As for not finding me on the Net, I said it was in 1987 befor ethe Internet came En Vogue.

        Enjoy your laugh, LOSER.

        • CDinDC (Boycott BP)
          11/21/2010 at 8:55 PM

          Well, then bully for you Rich.

          And that’s probably why Craig et al keep you around. Old neighbor. Too bad they can’t find it in themselves to rid the site of you. We would all be happier. You’re nothing but antagonistic and caustic.

          Over and out.

          • Rich
            11/21/2010 at 8:59 PM

            There you go.

            Now, you’re talking.

            You’re finally saying something relevant.

            “OUT.”

            • CDinDC (Boycott BP)
              11/21/2010 at 9:09 PM

              Just remember there is no such thing as an “everyday murder.”

              • Rich
                11/21/2010 at 9:19 PM

                I have a hunch, based on your social behavior with the immediate world, that if you were murdered, it would be viewed as just another murder.

                CD, you do not seem to be the kind of person who elicits much support or conceren from others.

                It’s a shame.

                Stay Safe.

                • CDinDC (Boycott BP)
                  11/21/2010 at 9:29 PM

                  I don’t even know what to say to such a cold and cruel comment.

                  • Clio
                    11/21/2010 at 9:52 PM

                    Buh-bye, Rich, take three and strike three.

  10. Rebecca
    11/21/2010 at 10:14 PM

    This is so sad! The nasty comments are flying and they are sooo unproductive. So many have made such important contributions to this site but the infighting is very disheartening.

    Please, please everyone….recognize the important contributions of ALL WHO POST, including those who present views that may be different than your own. A variety of opinions make the debate so exciting.

    It used to be that all on the site were devoted to finding the truth, but the comments now seem so personal and nasty. How on earth do the nastigrams help us in our ultimate mission of identifying the murderer of Robert Wone?

    I am especially upset with those who attack Bruce. He has really stepped up since ChiLaw’s death and kept us informed on the legal aspects of the case (which are THE most important aspects at the moment). Let’s be grateful.

    I know we are all frustrated with that this case has not been resolved as we hoped. But let’s not kill the messenger. We are a community….a community devoted to knowing the truth….and that truth is right around the corner.

    • Doug
      11/22/2010 at 9:19 AM

      Rebecca and all others:
      You are correct: nastiness has no productive use. The comments section is not to take out personal attacks, vendettas or campaigns. Moreover, we will not accept vile behavior. Opinions are fine, disagreements are normal. Discussion of bodily harm is not.
      This site is not about one person or another – except for Robert Wone.
      We, as the editorial team, will take appropriate action to ensure our standards are maintained.
      -Doug, co-editor

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