• December 1, 2015
Julie Andrews Still Photo From The Sound of Music

Julie Andrews Still Photo From The Sound of Music

Update (12/1/2015): Sometimes obstructionist lawyering (described in the post below) is ultimately explained by litigants who have no real defenses, who cannot bring themselves to admit it, and so their lawyers pepper the other side with duds, fire-crackers, snow balls, or whatever other harmless silliness they can get their hands on. The simple goal: to buy their clients a day or two, a week or two, or, sadly, in some cases, a year or two…On the other hand, sometimes defendant businesses (or individuals) are brought to their knees (or worse) because even defending against bogus claims can destroy livelihoods… We cannot know which model best suits the Best Buy/JACO case but it looks like JACO is not long for this world….

Original post (November 23, 2015): I have no doubt that long-time Minnesota Litigator readers (HI MOM!) will cry out loud in excitement at a the arrival of a new TAAFOMFT, an acronym for “These are a few of my favorite things,” highlighting my favorite things about civil litigation (NOT).

It has been a while since my last TAAFOMFT post; these posts are reserved for the most meaningful, intellectually stimulating parts of my professional life: vehement arguments over what “thirty days” means or defending against an adversary’s claims that are truly without merit and having to explain to my client why this could cost my client tens of thousands of dollars. (This conversation grows funner as I go on to explain that the client still might lose the case though the adversary’s arguments have no merit because lawyers can very rarely eliminate downside risk–or guaranty upside reward–entirely, and more fun still when I say that although we may win everything the court will not award any attorneys’ fees.)

Another of my favorite things: in civil litigation plaintiffs must meet a fairly rigorous standard in drafting a complaint to bring a lawsuit (defense lawyers will disagree, to be sure). Too often, defendants respond to plaintiffs’ complaints with a so-called “answers” that provide no answers at all.

This is best understood with an example. The Minnesota titan tech/appliance retailer Best Buy had a deal where Best Buy store visitors could all dump old unwanted appliances (“junk”) at Best Buy locations. Best Buy turned around and entered into contracts with other businesses (one called “JACO”) to take the junk away. Businesses like JACO would pay Best Buy for the opportunity to truck away the junk because, of course, there is always resale value and/or scrap value in most of that so-called “junk.”

JACO entered into such a contract and allegedly stopped paying Best Buy under their “Hauling and Recycling Services Agreement.” So Best Buy sued JACO, alleging that JACO failed to pay Best Buy the money owed.

Normal humans might respond to a complaint like this in a number of ways, like, “I already paid you all that you are owed,” “You failed to hold up your side of the bargain,” “We have no money,” “You tricked us into a bad contract,” “You sued the wrong company,” “It’s too late for you to make that claim,” etc. etc. etc. Not so, in U.S. civil litigation.

In U.S. civil litigation, more often than most people might think, defendants answer that they “lack sufficient information to admit or deny the allegations set forth therein and therefore denies the same and puts the plaintiff to his strictest burden of proof thereof” (or some other maddening and verbose variant of sound and fury signifying nothing).

In U.S. civil litigation, far more often than most people think, when a plaintiff pleads, “We entered into a written contract (attached here as an exhibit) by which Plaintiff agreed to pay $Y and Defendant agreed to do X,” the defendant answers, “The referenced document speaks for itself and defendant denies all remaining allegations set forth in this paragraph and puts plaintiff to its strictest burden of proof thereof.”

"Alice in Wonderland". Licensed under Public domain via Wikimedia Commons - http://commons.wikimedia.org/wiki/File:Alice_in_Wonderland.jpg#mediaviewer/File:Alice_in_Wonderland.jpg

“Alice in Wonderland”. Licensed under Public domain via Wikimedia Commons

Admittedly, I have been known to invoke the “talking document” myself in pleadings, but it still annoys me. The exchange brings “Alice in Wonderland” to mind:

For heaven’s sake, I don’t know what the document says!” sputtered the indignant red-faced Barrister. “Why don’t you ASK THE DOCUMENT what it says, you crude stripling, you tasteless middle-aged milquetoast (or you antediluvian fossil, as the case may be)?!?

In referring the plaintiff back to the document itself, defending lawyers typically want to avoid adopting or ratifying the plaintiff’s “construction” or “interpretation” of the language  in the document. When a plaintiff’s lawyer describes, summarizes, or characterizes a writing, the defendant lawyer wants to deflect or defer any concessions and just refer the plaintiff (and the court) to the writing itself. I get that. As with all of my TAAFOMFTs, I understand why these situations exist, but it does not mean that I (or anyone) has to like them or fail to recognize the frustration they cause.

One can almost feel the aggravation in plaintiff Best Buy’s memorandum of law in support of its motion to strike JACO’s pleading seeking judicial intervention to get a straight answer out of JACO, the evasive answering/non-answering defendant. (On the continuum of obfuscation, JACO appears to rely particularly heavily on not answering in its answer.)

At the end of the day, Best Buy knows that JACO knows that Best Buy knows that JACO knows what really went down here. Does Best Buy get its case any closer to full final resolution with its motion to strike JACO’s non-answering answer? Even if Best Buy has a point or several good points and notes a handful of obfuscations, is its motion a $5,000-$10,000 dust-up that gets the case no closer to resolution?




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