tag:blogger.com,1999:blog-759178030677978044.post7567718134847423898..comments2024-02-19T07:24:42.397-08:00Comments on Anglican Curmudgeon: The San Joaquin Lawsuit: an UpdateA. S. Haleyhttp://www.blogger.com/profile/05108498446058643166noreply@blogger.comBlogger5125tag:blogger.com,1999:blog-759178030677978044.post-46873668984842407242008-09-25T23:20:00.000-07:002008-09-25T23:20:00.000-07:00C.E., thank you very much for that thorough commen...C.E., thank you very much for that thorough comment. You are obviously an experienced trial lawyer (notice I did not say "litigator"), and as one myself, I have to say that I agree with all that you say about the strategy of answering and defending, rather than demurring and fighting over every paragraph.<BR/><BR/>That being said, though, there were other considerations at play here. Chief among them is that each of the grounds for demurrer would have been deemed <I>waived</I> if not raised with the initial pleading---they could not have formed the basis for a subsequent motion for judgment on the pleadings, because they were formal, and not substantive, defects, and could each be easily corrected by amendment. (That is why, I assume, the plaintiffs stipulated to amend rather than take the issues to a hearing.) The second amended complaint is due any day now, and I daresay that the guidelines you have so capably sketched will also inform the defense strategy from this point forward.A. S. Haleyhttps://www.blogger.com/profile/05108498446058643166noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-42345082422585578602008-09-25T09:20:00.000-07:002008-09-25T09:20:00.000-07:00Both the motion to strike and the demurrers, gener...Both the motion to strike and the demurrers, general and special, over the long term, assist the plaintiffs to be able to shore up their theory of the case, relevant law to support it, and other functions. The reason why this strategy is ever usually a good is simple: the Court can and usually does, if it grants the motions, grant with LEAVE TO AMEND. And, of course, it specifically sets forth what amendments would be required to resolve such issues these motions bring--standing to sue, more definite statements, etc. The only support for such a strategy is if it is genuinely believed that the Plaintiff will be unable to return to Court with the proper parties, because of internal divisions remaining, and related scenarios. Usually, the better strategy is to answer and defend and, where proper, cross complain or counter sue, and then move to discovery. Ultimately, you can move the Court for a Judgment on the Pleadings and win the case on the merits, for the same reasons the motion to strike and demurrers were brought and could conceivably be granted and sustained. I often explain it, however, this way to people trying to understand why this strategy is used. Generally, the ultimate decision as to whether or not any motion should be filed rests with the attorney and not with the client. Secondly, absent the "inability to return scenario" I have described, skilled trial lawyers do not bring such motions. Litigators do, but not trial lawyers. Litigators are bullies. They strut and they are glamour on parade but they are no match for the serious trial lawyer. Thirdly, litigators will allow a belligerent client to determine such motions so long as he's willing to pay the fees and costs. In this case, it remains to be seen if the Plaintiffs can return or will return, but I strongly suspect they will return. Thus the motions are about a particular mind set, that is argumentative on every point, at every turn, and is unable and unwilling to make any deals, to reach any compromise. It says I will fight every paragraph and every comma and semicolon. It is simply put--STUBBORN PRIDE. That's a poor captain for litigation strategy. The defense should have waited until the Court would no longer permit amendment, we're past discovery, and the Plaintiffs would be stuck with their pleadings as they are. Then the Motion for Judgment on the Pleadings would have terminated the lawsuit on the merits. All the defense did by its stubborn hardheadedness is assist the Plaintiffs in doing a better job. They helped their lawyers get their case strategy and theory correct before it's too late. It will be very, very interesting to see what happens with this case.Curt Evanhttps://www.blogger.com/profile/10534780937343505517noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-19426565422910288882008-07-22T09:37:00.000-07:002008-07-22T09:37:00.000-07:00I have had the privilege of being taught the true ...I have had the privilege of being taught the true Gospel of Jesus Christ by a true man of God, Father David Schofield and I know that the path he is taking will lead him and those who follow closer to our Heavenly Father.Peter Beckhhttps://www.blogger.com/profile/14077724555665571307noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-44086606404154680592008-07-08T06:22:00.000-07:002008-07-08T06:22:00.000-07:00The problems with the San Joaquin complaint are nu...The problems with the San Joaquin complaint <I>are</I> numerous, as I have suggested in previous posts. The plaintiffs have able California attorneys working for them, so I don't think it's a matter of "east coast/west coast" differences. Rather, it's that TEC's position is flawed from the very start, given how they went about "deposing" Bishop Schofield and then installing Bishop Lamb to give them a plaintiff for their lawsuit. This is just the first round in what I believe will be a lengthy encounter that tests the legitimacy of TEC's actions.A. S. Haleyhttps://www.blogger.com/profile/05108498446058643166noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-938008371228283732008-07-08T02:02:00.000-07:002008-07-08T02:02:00.000-07:00It seems a bit funny to me that a complaint would ...It seems a bit funny to me that a complaint would have as many problems with it as you appear to suggest. Is this a case where an east coast lawyer is trying to practice in a west coast court?Anonymousnoreply@blogger.com