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Washington Lawyer

Legal Spectator: Short Motions Court

From Washington Lawyer, November 2007

By Jacob A. Stein

Legal Spectator

Counsel, please approach the rostrum. I want to ask you questions about your motion now before the Court.

What was the precedential effect of the Court’s decision on the other motions? It resonated.

Where did it resonate?
It resonated right through the progeny into the four corners of the document.

What legal issues were involved?
It affected substantial constitutional rights and muted the forces of reaction.

In what way?
It had a chilling effect on the standing issue.

Were the constitutional rights real or subjective rights?
Although they were not constitutionally based rights, they were within the penumbra and connected to the gravamen.

How wide was that penumbra? It was an expanding penumbra.

Did the case affect absolute rights?
Yes, it declared that the attorney–client privilege remains an absolute privilege, but with the usual exceptions.

What happens when there is an exception?
The privilege must yield.

Who does it yield to?
The prosecutor.

What was the prosecutor’s evidence?
He said it was in the black box where such things are kept.

How does one open that black box?
It cannot be opened because it is grand jury testimony.

Well, how can the Court decide the issue?
By relying on the integrity of the politically motivated prosecutor.

What is the present status of the Sentencing Guidelines?
If judges visited the jails, the Sentencing Guidelines would disappear.

Was it criminal contempt or civil contempt?
It was both but, as in most cases, it depends on the facts.

What kind of facts?
The true facts, our facts, their facts, the material facts, neutral facts, disputable facts, bare facts, unsubstantiated facts, indisputable facts, demonstrated facts, and the relevant facts.

Was there an appearance of impropriety?
It only made a brief appearance entering through a breach of the fiduciary.

What was the main issue?
Yelling “fire” in a crowded theatre without balancing the equities.

What was the cause?
It was a proximate cause of the specific intent, but not the general intent, and, as Your Honor knows, what passes in the mind of man is not scrutable by any human tribunal.

What was the standard of proof?
Beyond a reasonable probability based on the clear and convincing reasonableness of the possible.

Will there be an appeal?
It will be a de novo appeal relying on the applicable rules.

What rules?
The Federal Rules, the circuit rules, the local rules, the trial judge’s rules, the administrative rules, the appellate rules, the Professional Rules, and, of course, the amended rules.

Counsel, why did you find it necessary to submit such a lengthy memorandum?
This case bristles with simplicity.

Counsel, this dispute really comes down to expert testimony, is that right?
Yes, Your Honor, each side has impressive witnesses qualified to give authoritative misinformation supported by learned articles in the biased scientific journals.

Have you appeared in this Court previously? You look unfamiliar.
Only pro vice.

What is your interest in the case?
I do so with the solemn realization of the awful responsibility that rests upon us in this hour of unprecedented national stress.

Where did you find the constitutional original intent?
I was surprised to find it in my glove compartment, next to my parking tickets.

You insist in your papers that your client is entitled to justice.
I do, Your Honor.

This is a court of law, not a court of justice. Counsel, how wide is my discretion?
Your Honor, let me put it this way; your discretion is wide and you never abuse it.

Do you have a capacitas rationalis order you want the Court to sign, embodying the free will retributive idea that man is a rational being with the capacity to understand his actions intelligently and control them accordingly?
Your Honor, in the little town where I come from, we speak of nothing but capacitas rationalis.

Jacob A. Stein can be reached by e-mail at jstein@steinmitchell.com.