Thread by @AkivaMCohen

#LitigationDisasterTourists, it's been a rough few days in the Cohen household (Little Man & Littler Girl both home from school) so I've been slacking. @questauthority did a thread & @5DollarFeminist has a great write up in @atlblog but there's kraken news abovethelaw.com/2022/02/kraken…

Apparently dead set on proving the aphorism that a lawyer who represents himself has a fool for a client, Sidney Powell and Howard Klownhandler decided that they themselves would handle the appeal from the sanctions they got slapped with in Michigan and ... ho boy, it's a lot

Like really a lot.

Let's start with the procedural hackery. As expected from the crack team that gave us "Distrcoict Court," the first filed brief typed without regular use of the space bar, and an attempted appeal to the Federal Circuit, let's just say they didn't exactly cover themselves in glory

I mean look at this. I'd say, with a sardonic grin, "all they got wrong was the name of the case, the order of the brief, and how they cited things" - close to every procedural fuckup you can make in formatting a brief, short of using a disallowed font, but ... that wasn't all.

They ALSO managed to file their brief at nearly 4,700 words above the page limit, which they "addressed" by making a simultaneous motion to expand the word count (you don't do that with your filing! You do it first and make sure it's granted!)

And they topped it off by filing a certificate of compliance with the brief (part of the brief that has the filer state under oath that it complies with the rules governing format by listing the wordcount) that accurately listed the word count as though that was within the rules

The thing about all of this that makes me laugh the hardest, though? Sidney Powell's email on the brief's cover. Not going to tweet it in full, but her email domain? [at]FederalAppeals.com

Now let's read it. Note, they dropped 100 pages of brief on the court, so we're not finishing tonight. And while I've seen some of the excerpts & they are as underwear-outside-the-pants loony as you would expect, the rest of this brief is new to me. We're on this journey together

I ... how?

We haven't even gotten to the table of contents, Sidney! How?

As you can see from the screenshots, this is literally the page immediately after the cover. For some unknown reason, they decided to include a "corporate disclosure statement".

For a group of human appellants, not a corporation among them.

That says "lol we're people"

But wait, Akiva, aren't you being too hard on them? They cited an appellate rule, maybe the courts just require people to certify that they're people, not cleverly named corporations?

Sorry, no. Oddly enough, the rule governing "corporate disclosure statements" only requires "corporations" to file "disclosure statements".

Weird.

They start their brief with a "Statement Regarding Oral Argument" - basically a request for oral argument required by 6th Circuit rules, and wow does it ever set the tone. Not a good one, but the tone

Let's go piece by piece:

1) They're going to be arguing that if you can sanction them for bringing & maintaining frivolous election cases, public officials will be less able to find lawyers willing to represent them. Good luck with that

2) They think that because they were sanctioned personally and referred for bar discipline they have "more than an ordinary party's stake in the outcome".

Are you fucking kidding me?

I mean, the Sixth Circuit hears criminal appeals, where people's literal freedom is at stake. Sometimes their very lives. On the civil side, there's bet the company litigation, bankruptcy, lawsuits over racism, sexism, disability accommodations, religious freedom, etc. etc.

And you think "if this stands a state bar may suspend us from the practice of law and we'll only be able to grift as pundits" is "more than the ordinary party's stake in the outcome"??

3) They also lean pretty hard into "the public is very interested in this lunacy" which is an ... interesting ... strategic choice when you're appealing a sanction issued in part on the basis that the entire litigation was intended for public consumption not legal merit

Moving on, we get to their summary of argument. Let's just say I can see why they blew the word count

No, I'm not going to rewrite their entire brief for them. But that's 44 completely useless words in a single paragraph. Come on now.

Also, can we talk a bit about the persecution complex here? Intended to deprive you of your livelihoods?

The Court referred you for possible discipline. It'll be up to the disciplinary agencies whether you get discipline. You'll have a chance to defend your conduct there, too

In other words, you know how you lose your law licenses, Sidney & the Klown? If not just this district court, but the disciplinary authorities in your state, decide that you were engaged in misconduct

(Side note: completely accidentally, I've locked "Sidney & the Klown" into my brain to the tune of the Pinky & the Brain theme song and now I want to write lyrics for their title sequence and also this is 100% how they wrote this brief)

Oh God y'all I'm so so sorry for doing this to you but I just had to and apparently I'm more tired than I thought this is cursed but I had to.

I'm just going to show it to you, OK?

That's out of my system now, mostly, so a little more of the brief before I call it a night.

They're essentially arguing that attorneys have no real pre-filing obligation to be sure their case has arguable merit. That's not the way this works

As a lawyer, I'm generally entitled to rely on my client's truthfulness, yes. If a client comes to me and says "John and I had an oral agreement to split the profits on a car I helped him repair" I'm allowed to file a breach of contract suit even if it turns out my client's lying

But I have to do at least some pre-filing investigation to satisfy myself that there's a good faith basis for the claim. I'll ask the client for details of the promise, the backstory, etc. - to make sure *I'm* not getting fed an obvious lie

If the client comes to me and says, oh, to choose a random example, "I saw a couple hand a sealed bag to a postal worker and they looked happy, I bet those were ballots" I can't go file an election fraud lawsuit on the basis of that.

If the client comes to me and says "I saw poll workers run the same batch of ballots through the machines five times" I can sue based on that. But once I hear that's exactly what you would do to calibrate the machine, I better have some basis to believe that's not what happened

And if I'm going to file a lawsuit based on an expert's data analysis, I better be damned fucking sure that they're actually an expert, not a serial fraudster or fabulist. No, "he said he was an expert" won't cut it unless it was reasonable to be fooled.

Bottom line: No, you don't need to plead evidence, & your complaints don't need to be under oath. We don't want the barrier to getting a case into court - where you can find in discovery the evidence to prove what you allege - to be too high. But that doesn't mean anything goes!

That's exactly why we as lawyers have a duty, as officers of the court, to ensure we conducted a reasonable inquiry and have a basis to say that our allegations are either supported by evidence or are likely to be. Here's the rule:

Oh, this is not a good start, Sidney & the Klown

Let's talk about why this is bad, and then I'm going to call it a night, do a wordle, and go to bed

1) Pinky and the Klown cite only one case in which the courts denied sanctions. The other cases didn't request them. There's literally nothing to be learned from "cases where the defendants didn't bother to seek sanctions"

2) They say that in THIS VERY CASE some defendants were denied sanctions. That's not a helpful argument to them, given that they're insistent on arguing that the district judge was out to get them come hell or high water.

3) The Wisconsin case cite is egregiously distorted.

They say it was a nearly identical case. It absolutely wasn't.

To recap, Sidney's Squidigation was focused on the nonsense "hacked election" claims - that someone tampered with the vote counts, faked votes that didn't exist, etc.

Trump's Wisconsin case that she's citing had absolutely nothing to do with any of that.

He was making the argument that Wisconsin officials violated Wisconsin's election procedures and thereby unconstitutionally changed the "manner of selecting electors" set by the legislature

That claim (based on the correction of absentee ballots by clerks and the other issues Trump brought up in his rejected *state* election challenges) was wrong and ridiculous, but it at least rested on actual facts and legal arguments about how statutes should be construed, plus

the additional argument that every little bit of election management procedure has constitutional significance as part of the "Manner" of choosing electors.

The Wisconsin court took those claims more seriously than it should have, but rejected them on the merits

So when Sidney & the Klown tell the 6th Circuit that the Wisconsin Election Commission case was "identical in all relevant respects" to their conspiratorial nonsense, they are flat-out lying to the court. That's really really bad

Well, you'd think so, gif-lady, but

Yeah, it gets worse.

Know why the Wisconsin court rejected sanctions? Because the defendants didn't ask until months after the court dismissed the case and the dismissal was affirmed on appeal, so it had no jurisdiction.

And while the court said that if it had jurisdiction, it would have denied 2 of the 3 sanctions motions, it also said that it would have granted sanctions to the third set of defendants because the claims against THEM were so unsupportable

So, to recap: Sidney and the Klown *lied to the court* about the facts of the Wisconsin case and *lied to the court* about what the Wisconsin case held about the propriety of sanctions.

And that's the precedent they think is BEST for them.

Anyway, that'll do for now, we'll pick it up in the morning

OK, good morning. A couple of folks who practice in the 6th Circuit have mentioned that the Circuit's rules actually require individuals to file corporate disclosure statements, which ... I was not expecting. Didn't even go look. Apparently the 11th, too.

This is an excellent question, but here's the thing about a SCOTUS decision that says "this isn't precedent" - it's *still* going to be cited as precedent, because it gives an indication of how SCOTUS might rule. These folks distort Bush v. Gore but it's

not crazy that people doing election challenges would cite to Bush v. Gore. I just wish they'd understand the case correctly

Oh, Pinky, Pinky, what are you doing?

Seriously, how the fuck do Sidney & the Klown feel like this can possibly help them? "We've filed way more than just the one frivolous lawsuit, and our frivolous claims have convinced millions of rubes and also state legislatures are screwing with voting law based on them" ...

What part of that do you think makes sanctions *less* likely rather than more?

"Your Honors, how can we be sanctioned in this case when our *particular* frivolous conduct was repeated and uniquely dangerous?"

And honestly, the "and perhaps they are" at the end of that paragraph is just the *chef's kiss* cherry on the shit sundae of that paragraph.

You could have left it out. And if you had to mention it, you could have gone harder core: "Appellants continue to believe they are". Nope

Instead, you gave the mealy mouthed "and perhaps they are," which has the the effect suggesting to the court that you don't fully stand behind your allegations ("well, I haven't been completely DISproven to my satisfaction") & highlighting that you don't have affirmative support

All I'm saying is that I wouldn't trust these two to design my piece layout in a game of Stratego, let alone a litigation campaign.

"What if we put the flag right up front? Nobody will expect that!"

Next they make a First Amendment argument that they can't be sanctioned for making claims of election fraud - which is true, as long as they either (1) didn't bring a court filing or (2) had a good faith basis to bring it

This argument is, for lack of a better word, batshittery. You don't have to be able to *prove* your claims before you bring them. But you can't just go "well, maybe it's true, why not take a shot" - you need a solid basis to believe what you're alleging

That's not some special rule for election litigation, btw. That's the rule for every case.

Presented without comment

Next we finally get to the meat of their substantive argument: we acted fast enough, so the Court couldn't sanction us.

They're also just going whole-hog on attacking the District Judge personally, which the 6th Circuit is going to just absolutely totally love

No, I'm not being sarcastic about that, why do you ask?

That takes us to the end of their summary of argument, and I'm going to take a break to do some client work. Will pick this up later

OK, back for a bit. Next we have Sidney & the Klown's "Statement of Issues" which ... well, see anything unusual about this?

I mean, unless I missed something, they didn't mention that first bit at all in their summary of argument, did they?

Also, sorry for the delay, had to take a phone call and now I'm going back to look at the dismissal-sanctions timeline in the district court

Yeah, what in the world are they talking about on the timeline? Here's an excerpt from their brief opposing the City of Detroit's sanctions motion in the District Court - that motion was served on December 15, 2020, and filed on January 5, 2021. The voluntary dismissals were 1/14

So the City's sanctions motion was categorically made before any dismissal. Only the state's motion for sanctions was made after the voluntary dismissal, and the Court still had jurisdiction over the parties because there was an open sanctions motion.

At least, that's my quick thoughts on it; will be interested to read whatever cases they're citing in support of a different rule

k, be back in a bit

Anyway, here's the rest of the issues our unlearned friends will be arguing, and the start of their summary of the case

Oh, Sidney, *you* don't get to describe *other people* as "gadfly serial litigants"

Anyway, she's making the argument that the City of Detroit, DNC and Michigan party didn't really have to be in the case if they didn't want to be

Also, you filed a case seeking to disenfranchise voters in Detroit and to overturn the election of the Democratic Party's Presidential Candidate. Calling them "volunteer litigants" - as though "just sit back and let whatever happens happen" was a realistic option - is absurd

1) Dates almost always matter, what are you talking about? To pick a totally random example, if you're suing on a claim that someone's mean tweets about you cost you your job and some convention appearances, it's important for the tweets to come BEFORE the firing etc.

2) I can't think of a way that Sidney & the Klown could have picked to piss off the appellate panel more than constantly referring to an opposing party as "the gadfly"

And considering everything else they're doing to piss off the panel, that's saying something

You can't treat opposing parties or the court system like that

Break for errands, be back in an hour or 2

This footnote is amazing.

For those of you who don't recall, after getting their motion for an injunction denied, these clownshoes first filed a notice of appeal to the Federal Circuit (which hears patent cases) then tried to appeal directly to SCOTUS, skipping the 6th Circuit

This was an incredibly stupid tactic with zero chance of success, and in true klown-car fashion, they seem to be arguing that the fact that SCOTUS didn't get around to formally saying "LOL no" until a month after Biden was inaugurated means that it was being taken seriously

Yes, Pinky - they took your request to appeal denial of an injunction to stop the inauguration so seriously that they let it go until late February.

Because they were taking you seriously. Much deliberations, very debate

In classic "the dates are very important" fashion, Pinky and the Klown have left out the date when the City's sanctions motion was filed (Jan 5), and forget to mention whose sanctions motion that extension of time was on (Davis's)

Again, they're trying to fool the court here. By mentioning the 1/5 safe harbor deadline on the City's sanctions motion, and following it up with "and the court gave us an extension of time when we asked for it", they're trying to imply that the 1/5 deadline was extended

For those of you who don't know, Rule 11 is the federal rule that says "you have to have a good faith basis for anything you file, and if you don't, the court can fuck you up"

Because sanctions are so serious, the rule requires a party who wants to seek sanctions to give the bad faith actor formal notice of the motion - but not to file the motion or any supporting papers for 21 days, to give the bad actor time to withdraw the offending filing

If the bad actor withdraws the filing in that 21 day period, the court cannot award Rule 11 sanctions and the motion cannot be filed. That's why it's called the "safe harbor" period.

So as soon as the City of Detroit gave Klown & Co. their notice on December 15, 2020, our intrepid heroes had until 1/5/21 to withdraw the complaint.

They didn't do it, so there was no safe harbor.

And so the City of Detroit filed its sanctions motion on the fifth.

The fact that the court granted Sidney & the Brainless extensions of time to respond on OTHER motions - Davis's motion for sanctions and the motions to dismiss - has exactly fuck all to do with that

If I'm reading this correctly, they voluntarily dismissed their case, stipulated to dismissal of the appeal, but ... just left their cert petition live?!

Also, they appear to really and truly think that "getting an extension of time to respond to Robert Davis's motion" should have meant "the City of Detroit shouldn't have filed its motion for sanctions"

I mean, what the what?

Everything about this makes me laugh. The horror - the absolute horror - of having to do 12 of your biannual CLE hours in nonpartisan election law classes. Terrible.

And "notifying disciplinary authorities" oh no

I mean, do you imagine that there's some universe where the disciplinary authorities in your states were somehow unaware of the fuckery you've been involved in? Or that the 6th Circuit is likely to think you have some sort of right for them to remain unaware?

Again, your claim on appeal is that you did nothing at all wrong and the District Judge was a rabid partisan menace (not a wise approach, but we're past expecting wisdom from y'all). So you should be excited to have a different tribunal - state bar authorities - passing on this

But it turns out no, you're terrified of that. Why?

Because you know what you did isn't going to fly there, either

I ... what's happening? I don't know how to process this

Remember that first appellate issue of theirs? That whole "does the court have jurisdiction where a motion for sanctions is made after dismissal"?

They decided to handle it in a footnote.

To the "ARGUMENT" header.

Seriously, look at this

And the argument itself is, well, dogshit. It starts with acknowledging that the Supreme Court has long held that district courts have jurisdiction to consider sanctions motions after dismissal relating to pre-dismissal litigation conduct, which, you know, kills their argument

So what do the folks who said "hey, that Wisconsin case about Wisconsin election procedure is totally the same as our case about aliens using advanced raygun technology to tweak vote totals" do? They say "but that's about Rule 11 sanctions. This is different!"

Look, here's what the Supreme Court explained in Cooter & Gell (which immediately becomes my favorite SCOTUS case name ever, displacing Schmuck v. US, but still landing behind the best case name ever, Batman v. Commissioner)

In other words, when you walk into District Court with a filing, you're conferring on the court the authority to rule on the merits, *and on your conduct in the litigation*. Voluntarily dismissing the case after you've committed a sanctionable violation doesn't clear your slate

What part of that doesn't map neatly onto Rule 1927, which is the rule that says you can't unnecessarily or frivolously drag out a litigation?

Nothing there says "unless you voluntarily dismiss first"

And of course, the purpose of Section 1927 (section, not rule, I hang my head in shame) is to deter frivolous litigation conduct, exactly parallel to Rule 11's purpose of deterring frivolous pleadings.

And folks, this isn't hard to see from Cooter & Gell, because SCOTUS all but said it expressly there:

This is a terribad argument, and they should feel bad.

And with that, we'll pause for the night on page <checks the brief> 17 of 84. Good lord.

OK, #LitigationDisasterTourists, I'm sitting and waiting on a ruling so this is the best possible time to keep going on this thread

Guys. Again, "we've managed to help convince millions of people that the election was rigged, but we couldn't pass the low bar of 'non-frivolous complaint'" is NOT the way you avoid sanctions

I mean the thrust of your main argument is "OK, sure, this stuff was shitty and untrustworthy, but how were we to know?"

Do you think pointing out that due in large part to your conduct millions of people STILL believe this nonsense *helps* you?

Also, they're still pretending that the standard governing attorneys - me, and them, and every other lawyer filing a claim - is "did you know it was untrue when you filed it"

That is NOT the standard.

The question is "did you have a good faith belief that it WAS true, after reasonable investigation under the circumstances"

And on that, little things like "don't rely on anonymous 'experts' whose qualifications you don't know" and "don't rely on claims already rejected" matter

Also, that bit about "Verification"?

Don't be fooled. A "verified" complaint is one sworn to under oath, and no, "verification" - notarized, at the end of the complaint - isn't typically required. That doesn't mean "you don't have to do anything to verify what a client says"

Well, this is just a shit-onion, just layers and layers of garbage to wade through. Let's take these cases one by one

In Advanced Video Techs, a patent troll managed to fuck up its acquisition of patents so that it didn't have clear title (which it, you know, needed so that it could sue people) but managed to get its ownership recorded in the Patent Office anyway.

Given that recorded title, the court found that the lawyers AVT hired to prosecute the suits were *objectively reasonable* in believing AVT had title; when the PTO records that you have title, attorneys can rely on that (even if it turns out the PTO messed up)

As Judge McMahon put it in that case: there's nothing comparable in King v. Whitmer. Not only did these "attorneys" rely on objectively unreliable claims, they did so from people they did not know or whose credibility they had obvious reason to question, including by ...

people whose testimony had been specifically considered and rejected in prior proceedings. They relied on "anonymous" experts who - once their names were disclosed - turned out to lack any expertise at all

They relied on facially impossible data (like claims of over 100% turnout) and continued to do so after all those defects were pointed out to them.

This is very much NOT the case they want to be citing - especially given this:

That's right: The case Sidney & the Klown are relying on for the proposition "you can believe what people tell you" actually sanctioned someone for "believing what they were told".

That "objective reasonableness" test doesn't change when it's an attorney and a client

OK, how about that second case? Lucas involved a plaintiff who lied about ever having bought suits from Joseph A. Bank. The attorneys asked for proof that he had, and Lucas provided bank statements. But that story fell apart, so the attorneys withdrew once they put it together

So let's compare that case to this one:

Lucas involved a client lying about whether he had bought suits (a fact clearly within his own knowledge). The lawyers asked for and got what looked like evidence, beyond the client's say-so, that he had done what he claimed. And ...

when it became clear that the client's story was shaky, the attorneys immediately began investigating the contradictions and eventually withdrew once they realized he was a liar.

Now let's think about what the Klown-krew did in King v. Whitmer:

They collected "affidavits" from random people they hadn't met or interviewed, did nothing at all to determine whether the facially implausible claims were true, did nothing to investigate whether the alleged conduct *was even illegal*, let alone whether it happened, etc etc

Again, this is not a case that *helps* Sidney & the Klown; it's a study in "things you need to do to avoid being sanctioned, but that we didn't bother to do"

And that's especially true given that these geniuses maintained their lawsuits even after MULTIPLE dates (12/14, 1/6) by which they assured various courts that the suit would become moot

As for that 6th Circuit decision ... come the fuck on guys!

I mean, note the wholesale lack of the 6th Circuit saying "well, what did their clients tell them?" as the basis for reversing the sanctions in that case

You: The Sixth Circuit says you can't sanction attorneys for believing their clients

Sixth Circuit in the case you cite: Here's an entire list of questions relevant to whether attorneys can be sanctioned for believing their clients

You:

And look, I'm focusing in on the specific issues with some of these arguments, but the big picture is also this: Your brief argues that you actually did sufficient diligence and had an actual, objectively reasonable belief that the claims you were making were true. BUT

nowhere in the brief (that I've seen) have they laid out the basics an appellate court would need to support such a conclusion:

1) Here are the things we said
2) Here were our sources for them
3) Here's what we did to investigate those claims &...

4) It was objectively reasonable for us to believe the claims we were making because ...

Instead, so far all they've argued is "we relied on affidavits"

That's not good enough

Anyway, I have to take a break, and also these mind-blowingly geniustastic attorneys have now filed an emergency motion to stay the nonmonetary portions of the sanctions - the clerk mailing copies to the disciplinary authorities and the requirement that they complete CLE by 2/25

They did NOT first ask the district court to issue a stay of those aspects of its order (which is procedurally required before you can ask an appellate court to stay it, IIRC), and waited until 2/15 to file that request on an order that issued ***8 months ago***

Also, they don't know whether the clerk of the court has already mailed out the notices, but that's ok, they think the appellate court can "stay" the sanctions order by ordering the clerk to send out "recall" letters

(Whispers: That's not a stay!)

And ALSO also, they appear to think "we didn't ask the District Court because we wanted to wait until it issued a ruling on the part of the order we're NOT seeking to stay - the fees - and now we're out of time" is a good argument to make

Like ... guys, you were free to ask the District Court to stay the directions to the Clerk (and the obligation for you to learn how to practice law) at any point after August 25. You didn't need to wait for the monetary sanctions to be fixed

And I mean, if you're really concerned about the clerk mailing that notice, you 100% should have.

I know YOU guys take court orders lightly, but did you really think the clerk was going to look at a directive from a judge and go "ok, ok, I'll just sit on this for a few months"?

Anyway, like I said, break time