Of Human Bondage Error

I don't have time or energy for this, but lawyers, it's worth reading the Court's recent scheduling order in WI Kraken.🐙 @rickhasen and @gtconway3d I promise you won't be disappointed.https://t.co/9yeTTQjLht

— Marc E. Elias (@marceelias) December 4, 2020

At 5:13 p.m. on December 3, the plaintiff filed a brief in opposition to defendant Tony Evers’s motion to reassign Trump v. Wisconsin Elections Commission, et al., Case No. 20-cv-1785, from U.S. District Court Judge Brett H. Ludwig to this court. Dkt. No. 18. The brief stated that “[w]ith the College of Electors scheduled to meet December 8, there could never be a clearer case of ‘justice delayed is justice denied.’” Id. at 1. The plaintiff stated that the court should deny the motion to reassign and “immediately order briefing and issue its decision no later than 5 p.m. Sunday evening, December 6 so that Plaintiff may have even a few hours to prepare for and seek whatever further relief may be then available in the one day left before the December 8 meeting of electors.” Id. at 2.

The plaintiff reported that the parties had met and conferred regarding a briefing schedule for the motion for injunctive relief, but that the defendants had “refused to agree to the schedule proposed by Plaintiffs, and in fact, refused to offer a proposed schedule of their own,” indicating that they would be seeking reassignment of Case No. 20-cv-1785. Id. at 3. The plaintiff said the defendants also indicated that they could not stipulate to a TRO “to preserve electronic and physical data, materials, and equipment (voting machines in particular) for inspection by Plaintiff’s experts” because the defendants said they had “no control or influence whatsoever over preservation of evidence by local jurisdictions and elections clerks.” Id. The plaintiff concluded the brief by reiterating his request that the court immediately order briefing and that the court issue its decision no later than 5:00 p.m. Sunday evening, December 6.

First thing on December 4, 2020, defendant Tony Evers responded to the request for an expedited briefing schedule. Dkt. No. 25. The defendant noted that although the plaintiff had asserted that the court needed to decide the motion before the electors meet, that meeting was not scheduled until December 14. Id. at 2 n.2. The defendant proposed an alternative schedule by which the defendants would file their briefs in opposition to the motion for injunctive relief by 5:00 p.m. on Monday, December 7; the plaintiff would file his reply brief by 5:00 p.m. on Tuesday, December 8; and the court could exercise its discretion regarding whether to hold an evidentiary hearing or hear argument. Id. at 1-2.

Minutes later, defendants the Wisconsin Elections Commission and its members filed their brief in opposition to the request for an expedited briefing schedule. Dkt. No. 26. They, too, stated that the meeting of electors will not take place until December 14, 2020. Id. at 26. They propose a schedule whereby the defendants will file their opposition briefs to the motion for injunctive relief by 11:59 p.m. on Tuesday, December 8, 2020 and the plaintiff will file his reply brief by 11:59 p.m. on Wednesday, December 9, 2020. Id. at 2,

In seeking an expedited briefing schedule, the plaintiff’s December 3, 2020 amended motion for injunctive relief cites Civil Local Rule 7 (E.D. Wis.), but identifies no subsection of that rule. Rule 7(b) gives a non-moving party twenty-one days to respond to a motion and Rule 7(c) gives the moving party fourteen days to reply. Given the plaintiff’s repeated use of the word “expedited” and the briefing schedule he proposes, the court concludes that he is asking the court for shorter turnaround time than that provided in Rules 7(b) and (c).

There is a provision of Civil L.R. 7 that allows a party to seek expedited briefing. Civil L.R. 7(h), which allows a party to seek non-dispositive relief by expedited motion if the party designates the motion as a “Civil L.R. 7(h) Expedited Non-Dispositive Motion.” When the court receives a motion with that designation, it may schedule the motion for a hearing or decide the motion on the papers and may order an expedited motion schedule. Civil L.R. 7(h)(1). The rule limits such motions to three pages in length, requires the respondent to file its three-page opposition memorandum within seven days unless the court orders otherwise and allows the respondent to attach an affidavit or declaration of no more than two pages. Civil L.R. 7(h)(2).

Although the plaintiff did not designate it as such, the court construes the plaintiff’s request for the motion for injunctive relief to be heard in an “expedited manner”—Dkt. No. 10—as a Civil L.R. 7(h) Expedited Non- Dispositive Motion for an Expedited Briefing Schedule. The court will grant that motion (although it will not order the briefing schedule the plaintiff suggests).

I know, I know; long-winded legalese. It's actually just a recital of facts but, if you don't know the jargon, it's still confusing.  The highlighted portions tell the tale.  Sidney Powell doesn't know the difference between December 8 (the "safe harbor" date by which states should certify their electoral counts in order for their slate to be accepted by Congress in January) and December 14 (the date this year the electoral college meets to cast a pro forma vote).  The other bit is a complete cock-up of the way lawyers are supposed to ask for a quick ("expedited") hearing in this Federal district (every Federal district has its own rules).  The court in that section is treating the plaintiffs as if they were pro se, i.e, without counsel.  Which is a real insult to Powell, if she's not too dim to catch it.  It's also more grace than I give my students who can't follow MLA style when I require it.  The judge, in other words, would have been fully within the rules of the District to reject this request and tell Powell to do it right or forget it (which would have laid her open to a malpractice claim so, again, the judge did her a favor).  It turns out there is another reason for treating the plaintiffs as if they had no lawyer:

Finally, an administrative note: On December 2, 2020 a document was docketed as a notice of appearance for lead counsel Sidney Powell. Dkt. No. 8. The document is blank (except for the designation of the court); the court does not have a completed notice of appearance on file for Attorney Powell.

She's not recognized as a lawyer in this case, IOW.  Oops.  More "human error."

The weirdest part is the plaintiffs only asked for a ruling on a temporary injunction based on the pleadings, not on presentation of evidence at a hearing.  My guess is the quality of the plaintiff's' pleadings are for shit (I'm not gonna wade through 'em and give you my report), and this suit is another waste of time.  

We'll see.

(The plaintiffs are a Trump elector and a Republican voter.  They want the court to decertify the WI vote.  That won't happen, but if it did, the 12th Amendment would just remove WI's electoral votes from consideration.  Why these people are such idiots is another marvel to ponder.)