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Desert Fox

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Legal Help Thread -- Bring your bullshit procedural questions here

Postby Desert Fox » Thu May 25, 2017 5:46 pm

No real factual information, we aren't practicing law here. Just asking about DA LAW period.
Last edited by Desert Fox on Sat Jan 27, 2018 12:25 am, edited 2 times in total.

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Re: Settle a bet: is there such a thing as waiver in briefing

Postby Barrred » Thu May 25, 2017 5:54 pm

Is the hypo that after the Opposition is filed, but before the Reply is filed (so one week), SCOTUS comes down with a decision that changes the law? If that were the case, I imagine the judge would order re-briefing, or at least issue an OSC/request for supplemental briefing on the change in law. Maybe i'm misunderstanding your hypo.

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Desert Fox

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Re: Settle a bet: is there such a thing as waiver in briefing

Postby Desert Fox » Thu May 25, 2017 5:58 pm

Barrred wrote:Is the hypo that after the Opposition is filed, but before the Reply is filed (so one week), SCOTUS comes down with a decision that changes the law? If that were the case, I imagine the judge would order re-briefing, or at least issue an OSC/request for supplemental briefing on the change in law. Maybe i'm misunderstanding your hypo.


yea that is exactly the hypo. But the original motion argued for exactly the outcome that scotus gave.

Basically, the standard was either A or X. opening brief said, if it's X then Y.

oppo brief said. Don't be stupid, the law is A.

SCOTUS kicked down the doors and said the law is X.

Did other side waive the ability to argue against Y ina surreply or supplpemental breifing.
Last edited by Desert Fox on Sat Jan 27, 2018 12:25 am, edited 1 time in total.

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Re: Settle a bet: is there such a thing as waiver in briefing

Postby jd20132013 » Thu May 25, 2017 6:01 pm

No that's not waiver, waiver is discretionary and equitable. Only a lazy or biased court would prevent them from arguing y lol, most judges would affirmatively ask for supplemental briefing . Is this hot shot junior person fresh off a clerkship or something

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Re: Settle a bet: is there such a thing as waiver in briefing

Postby Barrred » Thu May 25, 2017 6:20 pm

To play the devil's advocate, the non-moving party was on notice that the Court might accept that X is the law, and knew that the moving party was arguing that "if X, then Y." By only arguing "Not X, but A," (and not arguing, "Assuming arguendo X, then Z") the non-moving party was essentially conceding that if they lose the "X vs A," debate, they lose the motion. I could see a judge not asking for supplemental briefing and just granting the motion if Y was a very clear logical extension of X.

This is one reason why, even if you think your formulation of the law is correct, it is worth arguing why even under your opponent's formulation of the law, you still win. Even when SCOTUS doesn't intervene, you always run the risk of the court being unconvinced by your argument that the law is A, and in that case, you have essentially conceded that Y is the outcome under X by not addressing it. I am not sure if this is explicitly "waiver."

ETA: Say the there was no SCOTUS intervention, but the Court decided that X was the law, and issued an Order as such. The non-moving party doesn't get to come back and say "but wait! You need to give me a chance to explain why "If X, then Z!!!" Seems similar to your hypo. The Court's answer would likely be: Should have addressed it in your Opposition.
Last edited by Barrred on Thu May 25, 2017 6:28 pm, edited 1 time in total.

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Re: Settle a bet: is there such a thing as waiver in briefing

Postby sublime » Thu May 25, 2017 6:23 pm

I had to look up something like this. Iirc For non rule 12 shit, it is an uphill battle, probably not winnable, especially with the change in law.

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Re: Settle a bet: is there such a thing as waiver in briefing

Postby Desert Fox » Thu May 25, 2017 6:28 pm

sublime wrote:I had to look up something like this. Iirc For non rule 12 shit, it is an uphill battle, probably not winnable, especially with the change in law.


Is there a better term for this than waiver? or some vein of caselaw. as far as i can tell its not even a thing, but I might be using the wrong terminology.
Last edited by Desert Fox on Sat Jan 27, 2018 12:25 am, edited 1 time in total.

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Re: Settle a bet: is there such a thing as waiver in briefing

Postby TatteredDignity » Thu May 25, 2017 6:31 pm

Desert Fox wrote:
sublime wrote:I had to look up something like this. Iirc For non rule 12 shit, it is an uphill battle, probably not winnable, especially with the change in law.


Is there a better term for this than waiver? or some vein of caselaw. as far as i can tell its not even a thing, but I might be using the wrong terminology.


Forfeiture.

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Re: Settle a bet: is there such a thing as waiver in briefing

Postby PeanutsNJam » Thu May 25, 2017 6:31 pm

TC Heartland?

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sublime

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Re: Settle a bet: is there such a thing as waiver in briefing

Postby sublime » Thu May 25, 2017 6:32 pm

Desert Fox wrote:
sublime wrote:I had to look up something like this. Iirc For non rule 12 shit, it is an uphill battle, probably not winnable, especially with the change in law.


Is there a better term for this than waiver? or some vein of caselaw. as far as i can tell its not even a thing, but I might be using the wrong terminology.


Not really that I found. Miller and Wright had a section on the types of stuff that has been found to be waived even if not R 12 shit in their treatise that was kind of helpful iirc.

Mine was res judicata type shit though, so closer than it sounds like you are to rule 12

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Re: Settle a bet: is there such a thing as waiver in briefing

Postby lolwat » Thu May 25, 2017 6:36 pm

A judge doesn't have to buy that Y necessarily follows from X just because the other side argued A not X is the law and didn't address whether Y necessarily follows from X. It would certainly have been more prudent to argue both issues, but (good) judges generally tend to want to get things right.

In any event, I would say most reasonably you might argue that any supplemental briefing should be limited only to X not because they waived any argument against Y but because the only reason for any supplemental briefing is because of the new SCOTUS case that only deals with the question of whether the law is X. It's kind of a waiver concept without specifically arguing waiver. But, who knows. I can't cite anything off the top of my head to support this either way.

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Re: Settle a bet: is there such a thing as waiver in briefing

Postby stego » Thu May 25, 2017 6:36 pm

Interesting question but why is this in the Legal Employment forum?

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Re: Settle a bet: is there such a thing as waiver in briefing

Postby lymenheimer » Thu May 25, 2017 6:40 pm

stego wrote:Interesting question but why is this in the Legal Employment forum?

viewtopic.php?f=23&t=170603

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Desert Fox

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Re: Settle a bet: is there such a thing as waiver in briefing

Postby Desert Fox » Thu May 25, 2017 6:45 pm

cause there is no legal scholarship board.

I think we are all p much in agreement. Thanks bros
Last edited by Desert Fox on Sat Jan 27, 2018 12:25 am, edited 1 time in total.

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Re: Settle a bet: is there such a thing as waiver in briefing

Postby Nebby » Fri May 26, 2017 3:01 pm

Desert Fox wrote:
Barrred wrote:Is the hypo that after the Opposition is filed, but before the Reply is filed (so one week), SCOTUS comes down with a decision that changes the law? If that were the case, I imagine the judge would order re-briefing, or at least issue an OSC/request for supplemental briefing on the change in law. Maybe i'm misunderstanding your hypo.


yea that is exactly the hypo. But the original motion argued for exactly the outcome that scotus gave.

Basically, the standard was either A or X. opening brief said, if it's X then Y.

oppo brief said. Don't be stupid, the law is A.

SCOTUS kicked down the doors and said the law is X.

Did other side waive the ability to argue against Y ina surreply or supplpemental breifing.

No they didn't waive it

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Re: Settle a bet: is there such a thing as waiver in briefing

Postby A. Nony Mouse » Fri May 26, 2017 3:05 pm

stego wrote:Interesting question but why is this in the Legal Employment forum?

Dude, it's about his legal job.

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Re: Settle a bet: is there such a thing as waiver in briefing

Postby Nebby » Fri May 26, 2017 3:12 pm

Desert Fox wrote:cause there is no legal scholarship board.

There should be. I have a boner already

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Re: Settle a bet: is there such a thing as waiver in briefing

Postby beepboopbeep » Fri May 26, 2017 3:16 pm

Can we have an ongoing thread for these kind of annoying procedural questions that have no actual answer because they're either a) so basic that no one bothers to ask/answer, or b) so esoteric that it's not worth putting in a treatise, but also don't get published opinions


Easily my least favorite research assignments
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sublime

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Re: Settle a bet: is there such a thing as waiver in briefing

Postby sublime » Fri May 26, 2017 3:17 pm

beepboopbeep wrote:Can we have an ongoing thread for these kind of annoying procedural questions that have no actual answer because they're so esoteric, but you still need to get to an answer somehow

Easily my least favorite research assignments


Wright and Miller are so helpful for this type of shit.

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beepboopbeep

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Re: Settle a bet: is there such a thing as waiver in briefing

Postby beepboopbeep » Fri May 26, 2017 3:18 pm

sublime wrote:
beepboopbeep wrote:Can we have an ongoing thread for these kind of annoying procedural questions that have no actual answer because they're so esoteric, but you still need to get to an answer somehow

Easily my least favorite research assignments


Wright and Miller are so helpful for this type of shit.


I'm talking like more obscure shit than that even

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Re: Settle a bet: is there such a thing as waiver in briefing

Postby Anonymous User » Fri May 26, 2017 3:20 pm

They've conceded the point by failing to argue it. Suppose SCOTUS never issued its ruling and the court on its own found that it's X, and not A. At that point, the court will do one of two things, both of which are reasonable. First, it might say, "Defendant does not argue that Y is not the outcome if X. Defendant argues only that it's A to begin with, not X." Then it'll say it found X and therefore the motion should be granted, essentially adopting if X then Y without consideration. Second, and more likely, the court might do research on its own to verify that indeed if X then Y even if it isn't resisted. But it likely won't do a full analysis, just to make sure that it's plausible. Either way, failing to argue that if X then something other than Y is a practical concession. No need for additional briefing just cause SCOTUS ruled on the argued issue. Otherwise, it would be like allowing more briefing just because one batch of your arguments failed and you thought of more to add. Lol. What would be the point of briefing rules if you get unlimited tries till something sticks?

Edit: yes courts will want to get it right. But when I clerked I got so tired of lawyers submitting bad briefs that barely got the legal standard right let alone proper arguments. There seemed to be some sort of an assumption that as long as you say buzz words and indicate you're asking or opposing something that the court will do the heavy lifting for you. But ain't nobody got time for that. It's your job to do your job. If you didn't argue against "if X then Y," it's unreasonable to expect the court to do the research for you and apply the research for you to rule in your favor AND at the same time analyze away the other side's arguments. Uhh. No. So long as "if X then Y" is legally plausible, it's getting adopted.
Last edited by Anonymous User on Fri May 26, 2017 3:35 pm, edited 2 times in total.

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sublime

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Re: Settle a bet: is there such a thing as waiver in briefing

Postby sublime » Fri May 26, 2017 3:21 pm

beepboopbeep wrote:
sublime wrote:
beepboopbeep wrote:Can we have an ongoing thread for these kind of annoying procedural questions that have no actual answer because they're so esoteric, but you still need to get to an answer somehow

Easily my least favorite research assignments


Wright and Miller are so helpful for this type of shit.


I'm talking like more obscure shit than that even


Yea, but everything I have ever been able to think of so far has been addressed somewhere in there. At the same time, if it's not in their sever thousand page treatise, I doubt anybody here will know it.

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Re: Settle a bet: is there such a thing as waiver in briefing

Postby Desert Fox » Fri May 26, 2017 3:23 pm

sublime wrote:
beepboopbeep wrote:
sublime wrote:
beepboopbeep wrote:Can we have an ongoing thread for these kind of annoying procedural questions that have no actual answer because they're so esoteric, but you still need to get to an answer somehow

Easily my least favorite research assignments


Wright and Miller are so helpful for this type of shit.


I'm talking like more obscure shit than that even


Yea, but everything I have ever been able to think of so far has been addressed somewhere in there. At the same time, if it's not in their sever thousand page treatise, I doubt anybody here will know it.


You are right that these sorts of procedural questions are best answered in treasties. My problem is I often don't know the right terminology to look up.

Secondary sources ftw usually though.
Last edited by Desert Fox on Sat Jan 27, 2018 12:25 am, edited 1 time in total.

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sublime

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Re: Legal Help Thread -- Bring your bullshit procedural questions here

Postby sublime » Fri May 26, 2017 3:25 pm

For sure.

And beepboop, feel free to make a thread if you want. It probably fits best in the grad forum, but here works too.

Just be careful about the hypos compared to actually soliciting legal opinions/advice part.

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Re: Legal Help Thread -- Bring your bullshit procedural questions here

Postby beepboopbeep » Fri May 26, 2017 3:33 pm

sublime wrote:Just be careful about the hypos compared to actually soliciting legal opinions/advice part.


Good point that's probably why this doesn't already exist, huh

edit: and also like 1Ls asking basic civ pro shit or whatever



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