I have an interest in what to do if a trial court just... doesn't rule. For whatever reason I've consulted on many of these situations. Just happenstance. We have a new mandamus petition on this issue arising out of Sd Miss. today. Here is counsel's dilemma - #AppellateTwitter
One question that always comes up is whether to bring up the judge's other delayed rulings (if you're in the position of complaining, surely it's because the judge is behind, not that they're ignoring *you*). Here is the answer these Petitioners chose. /2
Another perennial question - how do you nod to the fact that you *really* don't want to be doing this? /3
And finally, what do you tell the district judge about the whole thing. Here, counsel did what I think is more or less the gold standard. Ask sadly for a ruling, then ask + note that you will be compelled to seek mandamus. (even this will often make the judge mad, tbc) /4
I've no idea what factors pushed these lawyers to seek relief now. I have nothing to do with the case. But I will say that it's one of the hardest strategy decisions - delay isn't costless but on the other hand one of these mandamuses is a full-bore gauntlet across the face.
One clarification: when I said "we" in tweet #1, I meant all of us, not my firm or me or anyone that has anything to do with me. I just found this on PACER.
Oh, one more thing: relief. The Fifth Circuit, if it is persuaded that the delay is unjust, usually issues the "grumpy denial."
Viz: "We deny relief, but are confident that the learned district judge will resolve these motions expeditiously/within 30/60 days/ASAP"
Quick update: the Fifth Circuit asked for a response last night. That doesn't mean they will grant relief (at all!). But it means someone has noticed the mandamus and will look into it.
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Re: Judge Cannon - in civil cases, we normally do jury instructions at the end of the trial. Is criminal different?
Again, I think she's wrong not to sort out the mess now, but there's a lot of magic thinking in the articles I'm reading about how she's behaving.
The reason it's unusual here is that the former President is being prosecuted. But I've got to assume in 99.99% of other cases the charge conference is after the close of evidence.
One time, I had a case where the judge up and wrote some jury instructions 2/
Before trial and read them to the jury, but he said they were preliminary and he would change them after taking argument.
Otherwise it's at the end. And yes, this often involves major decisions (like the rule of law that governs the case).
Unless I'm interrupted by a call, I am going to take the time to live-tweet the SB4 stay argument this morning at CA5 at 10 am.
For those new to CA5 and its characters: the panel is Chief Judge Richman, Judge Andrew Oldham, and Judge Irma Ramirez, the newest judge. 1/
For those who don't know, Chief Judge Richman has been on the Court for some time. You may know her as Priscilla R. Owen, her name until recently (she changed her name upon marrying Chief Justice Nathan Hecht of Texas). She will be the voice you hear presiding. /2
J. Oldham is a Trump appointee and former staffer for Governor Abbott (I think - unless it was Paxton). As I noted yesterday, he has twice voted for Texas's border policies, plus he dissented from the Court's decision to block SB4 last night. So I assume his mind is made up. /3
So I think the point that Trump doesn’t need to bond to appeal has been made, so let me quickly address one other thing: unless someone shows me otherwise, the $450,000,000 judgment is enforceable right now (realistically, Monday) 1/
Yes, Trump has 30 days to appeal, that’s true. /2
And it’s also true that under CPLR 5519, the stay if he gets a bond is effective upon filing of the notice of appeal /3
Again, I do not understand why people are having such trouble getting this, but it is absolutely not true that Trump has to pay the judgment or bond the judgment or do anything to the judgment to appeal.
Yes, it is likely going to be very hard for Trump to bond $450,000,000, I agree. But he can still appeal.
All an appellate bond does is prevent the plaintiff from executing on the judgment during the appeal. That's it. It has nothing to do with whether you are allowed to appeal.
Because those orders have this strategic element, he says, men are sometimes subject to unwarranted restraining orders (and thus deprived of their "first class" right to arms /2
And, he adds, because judges feel compelled to issue "mutual" protective orders, women are deprived of the guns they need to fight abusers. Indeed, abusers might invoke 922(g)(8) to "taunt" and "subdue" their victims.