Wednesday, December 02, 2020

"With Prejudice"

I've been wanting to explain the idea of dismissing "with prejudice," and this is a good excuse to do it, even though this court order doesn't involve the concept.

Basically a civil suit (v. a criminal action) can be dismissed by the court on grounds (just leave it at "grounds," it's simpler).  Usually that is done "without prejudice" to refiling the action, because dismissal means they got it so wrong the first time the suit can't go forward ever, at any time, for any new purpose.  That's kind of the situation described in these tweets, but without a motion to dismiss filed by the defendants, the most the court is likely to do there is refuse to grant Powell anything she asks for ("relief" is the legal term) until she gets her ducks in a row.  She'll basically have to refile her case or see it tossed out sooner than later (and by the time it is corrected it will be moot.  No court is going to undo the decision of the electoral college.  Period.)

Courts run on rules, although the Supreme Court runs on ideology (witness the case out of NYC, which should have been dismissed for mootness, and would have been in any other court.  But the Supremes are unreviewable, and that kind of power pretty easily goes to one's head.  Judges are supposed to be restrained by the "majesty of the law" if nothing else.  Supreme Court justices too easily decide they are the "majesties."  But I digress....).  Courts are reluctant to dismiss suits without the right to try again, so it is rare a suit that hasn't gone to trial is brought to a halt by being dismissed "with prejudice."  The courts won't give you two bites at that apple (a trial ends a civil suit and terminates all issues raised there, or those that should have been raised there), but neither will they take the apple away before you've had a chance to bite it.  Usually.

Dismissal with prejudice means you can't bring up those issues again, ever.  You had your chance to bit the apple, and you blew it so badly you get no second chance.  It's the equivalent of losing the case at trial, except you didn't get a trial.  You got a hearing, in which limited issues were heard, limited evidence presented, and your opportunities to make your case were limited to responding to the issues raised in the motion to dismiss.  Courts don't like to put their thumbs on that scale; it tends to preclude the purpose of a adversarial justice system where everyone gets their "day in court" and "right to be heard."  But sometimes it's necessary.

Even rarer is when the court dismisses with prejudice sua sponte, that is, on the court's own motion.  I don't know if the recent cases that have been dismissed with prejudice against the Trump campaign were sua sponte, to be honest, but I tend to think they were, since it is rare for a defendant to ask for such extreme relief (because the courts just won't grant it).  For the courts to dismiss a case with prejudice means the court is saying:  "Get this shit out of my court and don't even THINK about bringing it back again."  Pretty much the only step left from there is to sanction counsel for wasting the court's time, and courts are even more reluctant to do that.  It looks petulant, it looks petty, it looks subjective and courts prize their "objectivity" above all.  Still, hard not to see even that happening to Sidney Powell before it's all over:
Courts be gettin' tired of this shit.  The sheer incompetence of these cases is why they are being dismissed so rapidly (I've never seen anything like it).  Dismissal with prejudice underscores the courts won't be playgrounds for Trump's fantasies; or his fundraising.

(This showed up late, after I'd written the above, but the highlighted language illustrates the usual attitude of a court.  Powell's motion was a farrago of a legal pleading, and was rightly denied, but not denied with prejudice.  The court understands grounds for an injunction may yet be shown.  That's the common approach.  Shutting off all such chances is usually so extreme it isn't done, especially in a dismissal of a case.  But as Rick Wilson likes to say, "Fuck around and find out."  That's pretty much what Trump's lawyers and associated lawyers have done, and what the courts have said in response.)

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