WWTBAM Bored

Here is my opening for the brief I'm writing.

The Defendant, having lost a judgment amounting to $385,253.52, has moved for costs as the prevailing party. Plaintiff’s counsel now in his thirtieth year as a trial lawyer has become somewhat jaded to the antics of his fellow lawyers, but some things are so audacious as to become war stories told and retold at bar meetings, during jury deliberations and depositions breaks. Some are humorous, such as a Complaint filed by a lawyer alleging that he suffered emotional distress upon being served with suit papers by someone he previously sued, others just make one shake their head in bewilderment. This motion will be filed under bewilderment.

IANAL, so I'm sure my definition of "prevailing party" must be all wrong!

themanintheseersuckersuit wrote:Here is my opening for the brief I'm writing.

The Defendant, having lost a judgment amounting to $385,253.52, has moved for costs as the prevailing party. Plaintiff’s counsel now in his thirtieth year as a trial lawyer has become somewhat jaded to the antics of his fellow lawyers, but some things are so audacious as to become war stories told and retold at bar meetings, during jury deliberations and depositions breaks. Some are humorous, such as a Complaint filed by a lawyer alleging that he suffered emotional distress upon being served with suit papers by someone he previously sued, others just make one shake their head in bewilderment. This motion will be filed under bewilderment.

I don't know what the law is in your jurisdiction, but in Georgia, you can file a countermotion for your attorney's fees whenever opposing counsel files a completely frivolous motion like this one. Your client shouldn't have to pay for your time spent engaging in silliness like this.

I've added the following footnote

The Offer of Judgment rule uses a bright line test, not a “closest to” as in the game of horseshoes. It would seem that Offer f Judgment rule uses a reverse “The Price if Right Rule”. On the long running game show, The Price is Right, the winning or best bid is the one closest to the actual Manufactures Suggested Retail Price without going over. A bid over by just one Dollar, loses. For Offers of Judgment the best offer is the closest to the actual judgment without going under. In this case the Defendant’s offer “went under” in that the actual judgment was not “as favorable” to the Defendant as the offer.

themanintheseersuckersuit wrote:I've added the following footnote

The Offer of Judgment rule uses a bright line test, not a “closest to” as in the game of horseshoes. It would seem that Offer f Judgment rule uses a reverse “The Price if Right Rule”. On the long running game show, The Price is Right, the winning or best bid is the one closest to the actual Manufactures Suggested Retail Price without going over. A bid over by just one Dollar, loses. For Offers of Judgment the best offer is the closest to the actual judgment without going under. In this case the Defendant’s offer “went under” in that the actual judgment was not “as favorable” to the Defendant as the offer.

Huh?

This has me confused.

themanintheseersuckersuit wrote:Here is my opening for the brief I'm writing.

The Defendant, having lost a judgment amounting to $385,253.52, has moved for costs as the prevailing party. Plaintiff’s counsel now in his thirtieth year as a trial lawyer has become somewhat jaded to the antics of his fellow lawyers, but some things are so audacious as to become war stories told and retold at bar meetings, during jury deliberations and depositions breaks. Some are humorous, such as a Complaint filed by a lawyer alleging that he suffered emotional distress upon being served with suit papers by someone he previously sued, others just make one shake their head in bewilderment. This motion will be filed under bewilderment.

It's cute. I probably wouldn't do it, though. The judges out here wouldn't like it. I'd just play it straight and let the frivolous of the position speak for itself. --Bob

MarleysGh0st wrote:

themanintheseersuckersuit wrote:I've added the following footnote

The Offer of Judgment rule uses a bright line test, not a “closest to” as in the game of horseshoes. It would seem that Offer f Judgment rule uses a reverse “The Price if Right Rule”. On the long running game show, The Price is Right, the winning or best bid is the one closest to the actual Manufactures Suggested Retail Price without going over. A bid over by just one Dollar, loses. For Offers of Judgment the best offer is the closest to the actual judgment without going under. In this case the Defendant’s offer “went under” in that the actual judgment was not “as favorable” to the Defendant as the offer.

Huh?

This has me confused.

I think I can read between the lines here. Many states have a rule that says that if the defendant makes a settlement offer and it gets turned down, but the plaintiff doesn't do better at trial, then for at least some purposes the defendant, not the plaintiff, is the prevailing party. Apparently, defendant made a settlement offer, plaintiff made a settlement demand, and the result of the trial was in between them (so that defendant did not do better than his offer), but closer to defendant's offer, which defendant is using as his "hook" to claim prevailing party status. --Bob

Close Bob, The Defendant did make an offer of judgment after most of the discovery was completed. The Judgment was for more than the offer, but despite that the Defendant has made a claim for costs, including costs incurred before the offer and has claimed the be the prevailing party. The motion is frivolous, but I am not taking up SSS suggestion to ask for sanctions, but I am leaving my introductory paragraph in, against your advice. There sure is a lot of law as to who is a prevailing party out of California.

This makes almost as much sense to me as Gost's posts about video hook-ups.

MarleysGh0st wrote:IANAL, so I'm sure my definition of "prevailing party" must be all wrong!

Y'know, I'm pretty sure this is one phrase I wouldn't acronymize, given the outcome above.

It sounds like a shouted admission of psychological flaw.

themanintheseersuckersuit wrote:Close Bob, The Defendant did make an offer of judgment after most of the discovery was completed. The Judgment was for more than the offer, but despite that the Defendant has made a claim for costs, including costs incurred before the offer and has claimed the be the prevailing party. The motion is frivolous, but I am not taking up SSS suggestion to ask for sanctions, but I am leaving my introductory paragraph in, against your advice. There sure is a lot of law as to who is a prevailing party out of California.

Dude, there's a lot of law on everything here in California.

I might have written the opening paragraph as follows:

To "prevail" is defined as . . . . {Citing a dictionary.} In other words, to prevail, one must win. Here, defendant lost. More specifically, judgment against defendant is entered in the amount of $385,253.52, an amount greater than his pretrial offer of judgment. In effect, the jury concluded that defendant's offer of judgment was inadequate.

This result is a defeat for defendant in every sense of the word. Notwithstanding his defeat, defendant now is asking this Court to stand the definition of "prevailing" on its head and declare that the losing party actually prevailed. The Court should reject this invitation and reach the common sense conclusion that plaintiff, who procured a sizeable judgment, is the prevailing party. --Bob

Bob78164 wrote:

themanintheseersuckersuit wrote:Close Bob, The Defendant did make an offer of judgment after most of the discovery was completed. The Judgment was for more than the offer, but despite that the Defendant has made a claim for costs, including costs incurred before the offer and has claimed the be the prevailing party. The motion is frivolous, but I am not taking up SSS suggestion to ask for sanctions, but I am leaving my introductory paragraph in, against your advice. There sure is a lot of law as to who is a prevailing party out of California.

Dude, there's a lot of law on everything here in California.

I might have written the opening paragraph as follows:

To "prevail" is defined as . . . . {Citing a dictionary.} In other words, to prevail, one must win. Here, defendant lost. More specifically, judgment against defendant is entered in the amount of $385,253.52, an amount greater than his pretrial offer of judgment. In effect, the jury concluded that defendant's offer of judgment was inadequate.

This result is a defeat for defendant in every sense of the word. Notwithstanding his defeat, defendant now is asking this Court to stand the definition of "prevailing" on its head and declare that the losing party actually prevailed. The Court should reject this invitation and reach the common sense conclusion that plaintiff, who procured a sizeable judgment, is the prevailing party. --Bob

Who'd have thought that listening to lawyers rephrase their legal motions could be so interesting?

Cool!

Watching lawyers discuss and argue is always fun.

Almost as good as watching scientists do the same thing.

Especially when one lawyer practices in a Carolina and the other in L.A.

Dude.

Oh!

I am not a lawyer, nor do I play one on TV,

kayrharris wrote:This thread just made me go "huh?". Attorneys love people like me that need
to pay them to figure this stuff out.

I'm worried: I actually understood all that lawspeak.

Bob Juch wrote:

kayrharris wrote:This thread just made me go "huh?". Attorneys love people like me that need
to pay them to figure this stuff out.

I'm worried: I actually understood all that lawspeak.

I'm worried about me, too. I know as much about the English alphabet as William Shakespeare.