Posted in Legal

And Cendali Passes the Buck to Shallman

OK! Here’s the quick and dirty summary on the motions. 

RDR”s Argument as to why the documents should be excluded
There are 900 pages of charts that were only produced under court order. The plaintiff’s had intended to produce them only 3 days before trial
1. Untimely summaries of expert’s reports. Since the Rule 26 Disclosures, the experts have been very much aware of all the issues. They issued declarations that didn’t contain any opinions on issues present from the start of the case. To submit them so close to trial violates the spirit of Rules 26. In addition, it is unclear who created the reports and the methodology that was used to arrive at the conclusions made. Under the Federal Rules of Civil procedure each side must submit Rule 26 discovery lists. Basically you tell your opponent up front who you intend to call as a witness, the source of their knowledge, and you describe the documents in general that you intend to produce. The Federal Rules of Evidence state that Expert witness must give the background and methodology used for all of their opinions for it to be admissible as evidence. Experts have to used the generally accepted principles of their field. If they don’t, then their opinion is worthless. This prevents attorneys from just paying people to say what they want. 
2. Some of the material used is material Rowling doesn’t have copyright to. The law is clear in stating that there is no copyright infringement where the plaintiff has no copyright. This violates legal principles of justiability, which requires amongst other things that there be “injury in fact” and a “real party in interest.” So basically if John hits Suzie and breaks her jaw, Allen (the boyfriend) can’t sue John for Sue’s injuries. The principles of justiability have to be met in every case brought before any court. 

In conclusion, the plaintiffs have given no valid justification for failing to produce these documents. In any case, you need time to get expert opinions on the other sides experts. It’s impossible to do this when you receive the expert reports at the 11th hour. It prejudices the party because their attorney can’t provide them with an adequate legal defense. I’m sure if Hammer did this to Cendali she’d be raising quite a ruckus!!! 

WB/JKR’s Argument as to why the documents should be included
1. The exhibits are admissible under the Rules of Evidence.
a. They are voluminous writing 
b. The underlying documents are admissible. 
c. Defendant’s had access to underlying documents
2. The exhibits are admissible as the basis for Expert Opinion. Generally the facts or evidence upon which an expert is relying is admissible even if otherwise it would not be admissible. 
3. This is classic demonstrative evidence
4. Given that Defendant’s expert report was belatedly given, this is equitable (fair). 

Ok! This brief was written by Shallman, who is now admitted pro hac vice. He writes a better brief than Cendali for sure. However it is deficient. When you write a brief in opposition, you are supposed to be dealing with the issues that the movant raised. Shallman missed the boat. Hammer argued that this is “sandbagging” and that the plaintiff’s are bring in evidence over which the Court has no jurisdiction So what plaintiff’s should have shown was why they had a good excuse for not turning over the documents in a timely fashion and that Rowling has a valid copyright to the chocolate cards, etc. Defendant’s motion was not about the rules of evidence. The rules of evidence determines what type of evidence can be admissible as relevant. However, the rules of the court tell you when the Court can exclude otherwise relevant evidence such as not producing documents in a timely fashion. So basically it was comparing apples to oranges. I personally think the judge will rule in RDR’s favor for one of two reasons: 1. Plaintiff’s did try to sandbag and Cendali was probably using this to delay trial. 2. Plaintiff’s brief was not responsive; they gave no defense for the court to consider in their behalf. 

The arrival of Shallman on the scene is interesting. I checked his attorney profile. He has a lot more trial experience than Cendali. He, like, Hammer was a former prosecutor. Hmm, I’m thinking Cendali realize that she is going to have to try this case and realized that she is heavily outclasses so she brought in Shallman to help level the playing field. But seeing how Shallman is coming in at this late date; I wonder how effective he can be. I mean his brief was so off base. I wonder if WB/JKR are going for some sort of reversible error. Meaning that they may try to argue that seeing how there is new trial attorney, the court should have granted an extension so he could get up to speed. I don’t think it will work, if that’s where they are going. I mean, Cendali has been on notice for a month that trail was going to occur, Shallman could have been brought in long time ago. 

Sorry, I know that’s rushed. But trial starts on Monday. So I wanted to get that out there A.S.A.P. I know I’m about to devastate some of you, but I’ll be MIA next week. I’m starting a new job. I’ll be peeking in on this post. So I’ll try to answer questions if you leave them. Hopefully I’ll have a little bit of time to post an update at some point. 

Just a little bit of trial information for you.

Opening statements. Each side typically gives an opening statement during trial by jury. Since this is a bench trial, there may be none. Basically you summarize your case in chief by stating what the issues are and what evidence you will present. Like I said this might not happen as it is a bench trial, and the judge knows the law and is familiar with what each side is likely to present to prove their case. Sometimes, the Defendant reserves their opening statement till when they present their case in chief. 

Plaintiff presents their case first, as they bear the burden of persuasion. They must establish all elements of the prima facie case to succeed on their claim. Each witness will be sworn in and they will be directly examined by Cendali/Shallman then cross-examined by Hammer. Once they are finished the Plaintiff rests. 
Defendant may given their opening statement at the beginning of their case in chief. They will put their witnesses on for direct examination; then Cendali/Shallman will cross-examine them. 
At the end of the case, each side will give a closing statement which sums the testimony presented. Basically each side will argue we have met our burden for x, y, and z reason. 
Then the judge will render his decision. 

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