Pleadings and Motions
Federal Rules of Civil Procedure
http://www.law.cornell.edu/rules/frcp/i ... hapter_iii
Pleadings and Motions
Moderators: family_man, LindaJM
Defendents should be able to know how a "test" works.
There are quite a few old and recent developments and articles on this case.
http://www.msnbc.msn.com/id/11752290/
Drunk driving cases turn on source code
Breath test company refuses to disclose code, to defense lawyers' delight
DUI defense lawyers insist that "full information" means every minute detail about the Intoxilyzer, including the source code used by its computer processor to analyze breath samples, should be subjected to review by expert defense witnesses. Some judges have agreed.
"It seems to us that one should not have privileges and freedom jeopardized by the results of a mystical machine that is immune from discovery," Florida's 5th District Court of Appeal ruled in Muldowny's case, which resulted in his charges being reduced to reckless driving.
There are quite a few old and recent developments and articles on this case.
http://www.msnbc.msn.com/id/11752290/
Drunk driving cases turn on source code
Breath test company refuses to disclose code, to defense lawyers' delight
DUI defense lawyers insist that "full information" means every minute detail about the Intoxilyzer, including the source code used by its computer processor to analyze breath samples, should be subjected to review by expert defense witnesses. Some judges have agreed.
"It seems to us that one should not have privileges and freedom jeopardized by the results of a mystical machine that is immune from discovery," Florida's 5th District Court of Appeal ruled in Muldowny's case, which resulted in his charges being reduced to reckless driving.
http://seattlepi.nwsource.com/local/184 ... hee04.html
Wednesday, August 4, 2004
Wenatchee must pay $718,000 in sanctions over abuse case, court rules
By MIKE BARBER
SEATTLE POST-INTELLIGENCER REPORTER
Wenatchee must pay what may be the largest sanctions ever levied against a city in Washington for withholding key information from people who sued after they were acquitted in the now-discredited investigations into child sex abuse, the state Court of Appeals said yesterday.
The appeals court in Spokane unanimously affirmed a strongly worded January 2003 lower court ruling that socked the city with $718,000 in sanctions after its lawyer failed to disclose information about lead police investigator Robert Perez.
The court affirmed Spokane County Superior Court Judge Michael Donohue's finding of "serious discovery abuse," after he ruled that the city "intentionally misled" not only the plaintiffs, but also him.
"This is a stunning defeat for lawyers who might want to play discovery games; you will pay a heavy price. The court wanted to send a $718,000 message," Tyler Firkins, lawyer with Van Siclen & Stocks of Auburn, said of yesterday's ruling.
The firm represents several families who sued after one or both parents were acquitted in 1995 of sex crimes against children -- East Wenatchee Pastor Robert Roberson; his wife, Connie, and their daughter, Rebekah; Jonathan and Honnah Sims and their son, Daniel; and Donna Rodriguez and her daughter, Kimberly Allbee.
"We think it's a great decision for a number of reasons," Firkins said. "It restores the plaintiffs' rights, it recognizes the city committed egregious abuses, and it sends a clear message to other municipal defendants who might want to withhold discovery."
Robert Christie, a Seattle lawyer representing Wenatchee, was not in his office and could not be reached for comment last night. Firkins said the city has about 20 days to decide whether to ask the court to reconsider or appeal to the state Supreme Court.
The decision restores former Wenatchee police Chief Kenneth Badgley and Perez, once a police detective, as defendants.
Yesterday's decision is unrelated to one earlier this year by the same Spokane appeals court, which reversed an award of $3 million in damages to the Sims family. That decision has been appealed. Firkins' partner, lawyer Robert Van Siclen, said at the time that the Spokane judges did not hear key evidence.
In yesterday's decision, all three appeals judges, Frank Kurtz, Dennis Sweeney and Kenneth Kato, said Wenatchee's claim that it did not commit a discovery violation "is without merit."
Firkins said the city's foot-dragging threaten to push the sanctions higher as interest accrues. An estimated $125,000 in interest already could be tacked to the $718,000 first levied by Donohue in January 2003.
"When you look at that fact, the city could and should have settled these cases long ago," he said.
The Robersons, Honnah Sims and Rodriguez were among dozens of adults caught up in a 1994-95 investigation, when 43 adults were accused of committing 29,726 counts of child sex abuse against 60 children. At least 28 people were jailed; 18 were convicted.
In 1998, the Seattle Post-Intelligencer published a series of stories called "The Power to Harm," documenting abuses of justice in the cases. Perez's techniques and the investigation by police and Child Protective Services have been largely discredited. The criminal charges were based largely on inconsistent accusations from two emotionally disturbed girls who were foster children in Perez's home.
The state Appeals Court in 1998 began aggressively reviewing the cases through a "reference hearing" process, while at the same time volunteer lawyers and University of Washington law students and faculty members formed the Innocence Project to handle appeals for many of the accused, who were often poor or developmentally disabled.
To date, those convicted have been freed by higher courts, had their convictions overturned or pleaded guilty to lesser, often unrelated, charges. Five, however, served full terms before their convictions were overturned; many saw parental rights terminated and their children grown by the time they were released.
Wednesday, August 4, 2004
Wenatchee must pay $718,000 in sanctions over abuse case, court rules
By MIKE BARBER
SEATTLE POST-INTELLIGENCER REPORTER
Wenatchee must pay what may be the largest sanctions ever levied against a city in Washington for withholding key information from people who sued after they were acquitted in the now-discredited investigations into child sex abuse, the state Court of Appeals said yesterday.
The appeals court in Spokane unanimously affirmed a strongly worded January 2003 lower court ruling that socked the city with $718,000 in sanctions after its lawyer failed to disclose information about lead police investigator Robert Perez.
The court affirmed Spokane County Superior Court Judge Michael Donohue's finding of "serious discovery abuse," after he ruled that the city "intentionally misled" not only the plaintiffs, but also him.
"This is a stunning defeat for lawyers who might want to play discovery games; you will pay a heavy price. The court wanted to send a $718,000 message," Tyler Firkins, lawyer with Van Siclen & Stocks of Auburn, said of yesterday's ruling.
The firm represents several families who sued after one or both parents were acquitted in 1995 of sex crimes against children -- East Wenatchee Pastor Robert Roberson; his wife, Connie, and their daughter, Rebekah; Jonathan and Honnah Sims and their son, Daniel; and Donna Rodriguez and her daughter, Kimberly Allbee.
"We think it's a great decision for a number of reasons," Firkins said. "It restores the plaintiffs' rights, it recognizes the city committed egregious abuses, and it sends a clear message to other municipal defendants who might want to withhold discovery."
Robert Christie, a Seattle lawyer representing Wenatchee, was not in his office and could not be reached for comment last night. Firkins said the city has about 20 days to decide whether to ask the court to reconsider or appeal to the state Supreme Court.
The decision restores former Wenatchee police Chief Kenneth Badgley and Perez, once a police detective, as defendants.
Yesterday's decision is unrelated to one earlier this year by the same Spokane appeals court, which reversed an award of $3 million in damages to the Sims family. That decision has been appealed. Firkins' partner, lawyer Robert Van Siclen, said at the time that the Spokane judges did not hear key evidence.
In yesterday's decision, all three appeals judges, Frank Kurtz, Dennis Sweeney and Kenneth Kato, said Wenatchee's claim that it did not commit a discovery violation "is without merit."
Firkins said the city's foot-dragging threaten to push the sanctions higher as interest accrues. An estimated $125,000 in interest already could be tacked to the $718,000 first levied by Donohue in January 2003.
"When you look at that fact, the city could and should have settled these cases long ago," he said.
The Robersons, Honnah Sims and Rodriguez were among dozens of adults caught up in a 1994-95 investigation, when 43 adults were accused of committing 29,726 counts of child sex abuse against 60 children. At least 28 people were jailed; 18 were convicted.
In 1998, the Seattle Post-Intelligencer published a series of stories called "The Power to Harm," documenting abuses of justice in the cases. Perez's techniques and the investigation by police and Child Protective Services have been largely discredited. The criminal charges were based largely on inconsistent accusations from two emotionally disturbed girls who were foster children in Perez's home.
The state Appeals Court in 1998 began aggressively reviewing the cases through a "reference hearing" process, while at the same time volunteer lawyers and University of Washington law students and faculty members formed the Innocence Project to handle appeals for many of the accused, who were often poor or developmentally disabled.
To date, those convicted have been freed by higher courts, had their convictions overturned or pleaded guilty to lesser, often unrelated, charges. Five, however, served full terms before their convictions were overturned; many saw parental rights terminated and their children grown by the time they were released.
http://www.falseallegations.com/cps-dss-minnehan.htm
Minnehan v. Dept. of Social Services
Memorandum and Decision on
Cross Motions for Judgment on the Pleadings
...if it determines that the substantial rights of any party may have been prejudiced because the [DSS] decision is--
(a) In violation of constitutional provisions; or
(b) In excess of the statutory authority or jurisdiction of the agency; or
(c) Based upon an error of law; or
(d) Made upon unlawful procedure; or
(e) Unsupported by substantial evidence; or
(f) Unwarranted by facts found by the court on the record as submitted or as amplified under paragraph (6) of this section, in those instances where the court is constitutionally required to make independent findings of fact; or
(g) Arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law.
Minnehan v. Dept. of Social Services
Memorandum and Decision on
Cross Motions for Judgment on the Pleadings
...if it determines that the substantial rights of any party may have been prejudiced because the [DSS] decision is--
(a) In violation of constitutional provisions; or
(b) In excess of the statutory authority or jurisdiction of the agency; or
(c) Based upon an error of law; or
(d) Made upon unlawful procedure; or
(e) Unsupported by substantial evidence; or
(f) Unwarranted by facts found by the court on the record as submitted or as amplified under paragraph (6) of this section, in those instances where the court is constitutionally required to make independent findings of fact; or
(g) Arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law.
http://www.law.com/jsp/tx/LawDecisionTX ... 2944928389
OPINION DISSENTING
In this important case of first impression, the panel holds that the Texas Tort Claims Act*fn23 does not waive the Texas Department of Family and Protective Services' (DFPS's) sovereign immunity to liability for claims arising from the death or injury of a child caused by the use of tangible property or by a premises defect in a licensed foster home. Because of the potentially far-reaching effects of the opinion in this case on the protections afforded children in the custody of the State and the liability of foster parents and licensed child-care facilities, I respectfully dissent from denial of en banc consideration. See Tex. R. App. P. 41.2(c). I would affirm the trial court's denial of DFPS's plea to the jurisdiction and remand for further proceedings in accordance with this opinion.
...
The question before this Court is whether the Atwoods have pleaded claims that fall within the Tort Claims Act's waiver of immunity because
(1) their pleadings allege that an employee or employees of DFPS
(2) the pleadings state a claim for a premises defect by adequately alleging that an employee or employees of DFPS, acting within the scope of their DFPS duties,
...
Although the Atwoods' pleadings appear to place their claims squarely within the Tort Claims Act's waiver of sovereign immunity, the panel opines that section 101.021(2) waives immunity for a use of tangible property only if the governmental unit is itself the user, and it reasons that DFPS was not a "user" of personal or real property at the foster home where Jonathan Atwood drowned because the Roes owned the home and above-ground pool and they were not DFPS employees as that term is defined by the Tort Claims Act.
I respectfully disagree with the panel's conclusion that the Roes were not DFPS employees or agents; and I also disagree with the panel's conclusion that only the Roes were "users" of the property for DFPS purposes---i.e., for foster care and all of the duties arising out of the foster care relationship between the Roes and DFPS---and not DFPS, which licensed the Roes' home as a child-care facility, placed the Atwood children in the Roes' home as an agency foster home, and retained statutory rights and duties to supervise and inspect the home and to enforce legislative and agency standards.
...
OPINION DISSENTING
In this important case of first impression, the panel holds that the Texas Tort Claims Act*fn23 does not waive the Texas Department of Family and Protective Services' (DFPS's) sovereign immunity to liability for claims arising from the death or injury of a child caused by the use of tangible property or by a premises defect in a licensed foster home. Because of the potentially far-reaching effects of the opinion in this case on the protections afforded children in the custody of the State and the liability of foster parents and licensed child-care facilities, I respectfully dissent from denial of en banc consideration. See Tex. R. App. P. 41.2(c). I would affirm the trial court's denial of DFPS's plea to the jurisdiction and remand for further proceedings in accordance with this opinion.
...
The question before this Court is whether the Atwoods have pleaded claims that fall within the Tort Claims Act's waiver of immunity because
(1) their pleadings allege that an employee or employees of DFPS
(a) caused the Atwoods' injuries by the use or misuse of tangible personal or real property or
(b) provided property that lacked an integral safety component and the lack of this integral safety component led to the Atwoods' injuries or
(2) the pleadings state a claim for a premises defect by adequately alleging that an employee or employees of DFPS, acting within the scope of their DFPS duties,
(a) breached a duty not to injure the Atwoods through willful, wanton, or grossly negligent conduct or
(b) had knowledge of a dangerous condition that the Atwoods did not have and had a duty to warn the Atwoods or to make the condition reasonably safe, but did not.
...
Although the Atwoods' pleadings appear to place their claims squarely within the Tort Claims Act's waiver of sovereign immunity, the panel opines that section 101.021(2) waives immunity for a use of tangible property only if the governmental unit is itself the user, and it reasons that DFPS was not a "user" of personal or real property at the foster home where Jonathan Atwood drowned because the Roes owned the home and above-ground pool and they were not DFPS employees as that term is defined by the Tort Claims Act.
I respectfully disagree with the panel's conclusion that the Roes were not DFPS employees or agents; and I also disagree with the panel's conclusion that only the Roes were "users" of the property for DFPS purposes---i.e., for foster care and all of the duties arising out of the foster care relationship between the Roes and DFPS---and not DFPS, which licensed the Roes' home as a child-care facility, placed the Atwood children in the Roes' home as an agency foster home, and retained statutory rights and duties to supervise and inspect the home and to enforce legislative and agency standards.
...
http://www.michbar.org/journal/article. ... olumeID=52
(Plain Language in writing Legal Affadavits)
Writing to the Trial Judge
by Wayne Schiess
A bold synopsis for the original affidavit might look like this:
This bold synopsis tells the reader, in a brief and forceful way, the critical point of the affidavit, right up front. Beginning affidavits this way benefits both the writer and the reader.
The writer benefits because creating the bold synopsis makes you think hard about what you’re asserting in the affidavit. The bold synopsis helps you to focus your writing on the critical point. It makes you articulate your point, succinctly.
Readers benefit because the bold synopsis allows them to quickly grasp the point of the affidavit even if they do not have time to read the whole thing. But for readers, the bold synopsis is more than just a time-saver. When readers scan the bold synopsis before reading the main text, it becomes easier to follow the story in the affidavit; the story makes sense the first time through. Plus, when the ending is spelled out up front, readers tend to fit the story to the ending—and that’s persuasion.
******
Use headings to ease the reader’s way
To make affidavits more readable, easier to follow, and more inviting to the eye, use headings.
Headings in affidavits can be very effective. They cue the reader about content and organization. They break up long blocks of text. They make documents easier to skim.
******
In this revised affidavit, the reader gets
This is an affidavit a judge can use.
(Plain Language in writing Legal Affadavits)
Writing to the Trial Judge
by Wayne Schiess
• Write a brief synopsis of the main point of the affidavit and identify the affiant.
• Keep the synopsis to 40 or 50 words.
• Put the synopsis up front, indented, and in boldface type.
A bold synopsis for the original affidavit might look like this:
This affidavit, by Kenneth Ivey’s supervisor Dennis Ragley, explains that Ivey was demoted because he missed his shift—after his cat had died—and because he did not find someone to cover his shift. Ivey was not demoted because he is a male.
This bold synopsis tells the reader, in a brief and forceful way, the critical point of the affidavit, right up front. Beginning affidavits this way benefits both the writer and the reader.
The writer benefits because creating the bold synopsis makes you think hard about what you’re asserting in the affidavit. The bold synopsis helps you to focus your writing on the critical point. It makes you articulate your point, succinctly.
Readers benefit because the bold synopsis allows them to quickly grasp the point of the affidavit even if they do not have time to read the whole thing. But for readers, the bold synopsis is more than just a time-saver. When readers scan the bold synopsis before reading the main text, it becomes easier to follow the story in the affidavit; the story makes sense the first time through. Plus, when the ending is spelled out up front, readers tend to fit the story to the ending—and that’s persuasion.
******
Use headings to ease the reader’s way
To make affidavits more readable, easier to follow, and more inviting to the eye, use headings.
• Put headings in boldface type so they stand out.
• Use some topic headings (one or two words each).
• Use some phrasal headings—cogent phrases that preview the factual assertions.
Headings in affidavits can be very effective. They cue the reader about content and organization. They break up long blocks of text. They make documents easier to skim.
******
In this revised affidavit, the reader gets
a bold-synopsis summary right up front,
highlighted headings to guide her through the story,
and a clutter-free document that is easy to read and understand.
This is an affidavit a judge can use.
Motion to Produce Evidence on Appeal
http://www.angelfire.com/ca5/nojustice/ ... iserr.html
http://www.angelfire.com/ca5/nojustice/ ... i208d.html
http://www.angelfire.com/ca5/nojustice/ ... iserr.html
http://www.angelfire.com/ca5/nojustice/ ... i208d.html
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