gastonette. (1988) A dilatory “dance” in which each of two responsible parties waits until the other party acts–so that the delay seems interminable; esp., a standoff occurring when two courts simultaneously hear related claims arising from the same bases and delay acting while each court waits for the other to act first. The term was coined by Judge Jon O. Newman in In re McLean Industries, Inc., 857 F.2d 88, 90 (2d Cir. 1988), on the model of an old vaudeville act: “After you, my dear Alphonse.” “No, after you, Gaston.”
As discussed in a recent post, Plaintiff Thull sued Techtronic for injuries Thull suffered in a table saw accident. An expert retained by Plaintiff in the case who resides in Oregon refused to produce documents in response to a valid subpoena and this brought the exquisite and rare idea of the gastonette to mind (which, by the way, reminds me to remember to remind readers to remember renvoi, but I regress).
U.S. District Court Judge Patrick J. Schiltz (D. Minn.) rejected Defendants’ motion to the U.S. District Court (D. Minn.) to compel production of the documents, saying they had to go to Oregon to get documents from a non-party in Oregon.
Minnesota Litigator recently posted about DPPA (Drivers Privacy Protection Act) class actions taking the stand that these cases are examples of opportunism and “rent-seeking.” These lawsuits enrich some parties (and their lawyers), they strip money from other parties (and, sometimes, their lawyers), but they provide negligible, if any, social benefit.
But, here’s the puzzle and problem: we very much want the civil justice system to vindicate the rights of meritorious claims of the poor and exploited. How do we strain out the rent-seeking and reward those parties and their risk-taking lawyers as they deserve?
Builders Association of the Twin Cities (BATC) stepping on MN Monthly Home Tour Turf
Update (April 16, 2014): Greenspring Media, the owners of Minnesota Monthly, tried and failed to stop a former employee, Thomas Gavaras, from working for a competitor based on a weak and unenforceable non-compete agreement, as discussed below in a Minnesota Litigator post from January.
Plaintiff Greenspring lost but, more recently, Plaintiff asked the Court (U.S. District Court Judge Ann D. Montgomery,(D. Minn.)) if the Court would pretend Greenspring won pending its appeal of her adverse judgment. (That is, they asked that the Court “preserve the status quo” and bar Mr. Gavaras from taking his new job because otherwise, they argued, Minnesota Monthly would suffer “irreparable harm.”)
It’s tax day. If we lived in an extreme “dog eat dog” libertarian society, presumably we would be paying far lower taxes. Instead, the poor, the vulnerable, and the exploited would be taxed directly, in a sense, by the rich and the powerful. To some extent, taxation in our society is exactly what some of its harshest critics say, wealth redistribution. Like a lot of civil litigation, actually.
Consider two situations:
1. A table saw, which presents an open and obvious risk of very serious injury, is sold with a safety device designed to prevent users from injury. A user disables the safety device, suffers serious injury, and then sues the table saw manufacturer for selling the “defective” product.
2. A table saw is sold with a supposed safety device that is difficult to use, that cannot be used in all circumstances, that compromises users’ ability to use the table saw by blocking sight of the blade, and, finally, commercially available alternative designs exist that sharply reduce or perhaps even eliminate the risk of injury (for example, SawStop).
Do your sympathies lie with the saw company in the first instance and with the injured person in the second instance?
The federal rules of appellate procedure were amended effective December 1, 2013. The old rules required two separate sections at the beginning of the brief: a separate statement of the case and a statement of facts. Now, a single section called the “statement of the case” is required. That section includes both the key facts, and the relevant procedural history. And it specifies the rulings presented for review.
Maybe not a momentous change. But one that gives practitioners some flexibility.
The change recognizes that, depending on the issues being raised, some appeals are based on procedural errors, and some are based more on facts. Some deal with both.
You may want to start with a section dealing with facts and follow that with a relevant procedural history. The facts may not be that relevant to your appeal, and you may want to go straight to the procedural history. The facts may be the guts of the appeal, with no emphasis needed on the procedural history.
You can organize your statement according to the rulings that are to be reviewed, with the relevant facts and procedural history presented separately for each. If you do that, the advisory committee comments encourage you to use subheadings to highlight each ruling.
It does bear some thought. The statement of the case is one of the first sections of the brief judges will read. You want to use it to orient and focus the judges, without distracting them with extraneous materials.
When you are ready to prepare your next federal appellate brief, check out the brief templates on Minnesota State Bar Association’s practicelaw site (link accessible to MSBA members only). (They are filed under the materials of the Appellate Practice Section.) The brief templates have been revised to reflect the most recent federal appellate rule changes.