Doc. 740, IBM legal auth. re: Otis Wilson Deposition


August 18, 2006

Once again, I am speechless.

After contemplation, I think the word "Never" applies quite well.  I never would have considered going to North Carolina and filing for service, without noticing up IBM by at least a month.  Two days is not notice.  If it was mailed and not faxed, IBM learned about the hearing in North Carolina after the hearing.  Under the Rules, two days is not notice.  Note that there is nothing like an emergency here.

Lawyers with an active Civil trial practice spend a tremendous portion of their time attending motion dockets.  For some firms, this will run to 20- or 35% of their time between 9:00 AM and 4:30 PM.  I worked for firms with active trial practice.  You have to be there when the docket starts.  Cases will be called in the order the judge prefers, not the way they are listed on the docket sheet.  You have to stay there and listen.  If two or three cases get resolved in two minutes, your case might be called for hearing while you are in the restroom.  I saw that happen a few times, and it was not pretty.  As a result, I have had to listen to thousands of motions in Civil cases.  Not once, in any of those cases, "Never", did I hear anything like what has been going on in SCO v. IBM.

A refused subpoena is not notice to the other party.  Simply because a law firm may represent a party in some matter does not automatically mean thay they represent the party in all matters.  Unless the firm has been retained on the matter in the subpoena, it is malpractice to accept a subpoena on the non-client's behalf.  Every 1L Moot Court participant understands this.  Notice of a deposition is sent as a formal notice, not included in a subpoena. 

Attorneys are people.  They are human and they make human mistakes.  Wise attorneys recognize when they err, and avoid bringing the court's attention back to their little faux-pas. 

I have never seen or heard of them compounding the problem by misrepresenting the situation in the case to another judge in another State, to gain a temporary advantage, and to achieve the misrepresentation by giving opposing counsel inadequate notice. 

Note that back in January, Judge Wells previously advised the attorneys for "The SCO Group" about inadequate notice.  Here, we see it again.  I saw cases dismissed with prejudice for less.  In SCO v. IBM, this would be dismissal of all the SCO claims, leaving IBM counter-claims for disposition.

I can see why attorneys keep quitting B,S,&F after one hearing each.  To be told by your boss that you will have to commit the same malpractice the judge warned you about before is to risk jail time or be fired on the spot.  Better to have another job somewhere else, when you get to choose the time and manner of your leaving. 

FWIW, and IMHO, I also never saw any judge tolerate this level of contempt of court for so long.  I never even read about it or heard about it in law school.  IMHO, the attorneys for "The SCO Group" are out of control, and Judge Wells invites contempt of her orders while she tolerates it.
AllParadox - Retired Attorney, no legal opinions, just my opinion.

4:41:30 PM

Re: Doc. 740, IBM legal auth. re: Otis Wilson Deposition


August 18, 2006

Thank you Sir for you opinion. This happening has greatly upset me;
to some extent Justice died many years ago in the USA; but at least
I had hoped that some vestige of honour and honesty still existed.

You may not be able to answer these questions, but I must ask them:

Why were IBM not informed
Why did the judge in North Carolinia not look at the previous case law
Why did Mr Wilson not inform IBM lawyers, (OK he is old)
This is not a criminal case; since when has it been normal to interrogate
an old man, in the hope that some mud sticks.

6:32:17 PM

Re: Doc. 740, IBM legal auth. re: Otis Wilson Deposition


August 18, 2006

ChrisLingard asked:

>>> Why were IBM not informed? <<<

I cannot answer this.  Wild speculation: some Big Boss at B,S,&F put an FNG (new guy) on the case and ordered him to send out the notices.  Equally important: why did the the judge in North Carolina proceed, in the face of inadequate notice?  Lack of proper notice is jurisdictional.  He had no power to enter the order in the first place, absent proper notice.

>>> Why did the judge in North Carolinia not look at the previous case law? <<<

Again, I do not know.  My best guess is that the North Carolina Magistrate Judge did not have the Utah court file available, and was totally unaware of the mess in SCO v. IBM. Absent unusual circumstances, that Judge's actions were proper. 

However, lawyers call this "sandbagging".  I do not know the etiology of "sandbagging".  I do know that judges have exquisitly detailed and long memories.  They get even with you, time and time again, after being sandbagged.

>>> Why did Mr Wilson not inform IBM lawyers, (OK he is old) <<<

Ok.  I don't know this either.  Actually, we do not know if Wilson or his attorney told IBM or not: my guess is that they did. 

Be careful about the "old" bit.  Rush Limbaugh's grandfather was the oldest attorney in the State of Missouri for a number of years, and he still practiced law.  It was competent practice at that, in spite of approaching the century mark.

In the instance, IBM was better off not to have appeared.  Without their restraining influence, "The SCO Group" got everything they wanted.  Now IBM can ask Judge Wells to skip the depo entirely, simply for bad faith by "The SCO Group".

>>> This is not a criminal case; since when has it been normal to interrogate
an old man, in the hope that some mud sticks. <<<

Our Federal Courts are out of control when it comes to demands that everyone bow to their power.  Obvious examples are the depositions of President Bill Clinton regarding Monica Lewinsky.  Nothing about his relationship with Miss Lewinsky was legally admissable in the Paula Jones trial.  Nothing about his relationship with Miss Lewinsky could reasonably have lead to legally admissable evidence in the Paula Jones trial.  The U.S. Supreme Court even got a chance to weigh in, when they allowed the Jones v. Clinton trial to go forward: they said that any such questions would not be put, because they were irrelevant, therefore the trial could proceed.  IMHO, the Federal trial judge in Jones v. Clinton did our Country and the legal profession a terrible disservice.

Incompetent attorneys sometimes try to get a contrary opposing witness, like Mr. Wilson, to trip up in his statements.  This is a fool's errand.  Counsel only intends to bring in the witness to get him to say something, so that the witness can be discredited with prior inconsistent statements.  These inconsistencies are then argued as proof that the contrary of the witness' statement is actually the truth.  Usually, however, the confusion only exists in the mind of the interrogator, who does not clearly understand all the details.  It all becomes shockingly clear in cross-examination by the friendly opposing counsel, when all the details are revealed. 

Besides: proof of a fact is only demonstrable with affirmative evidence, not by discrediting contrary evidence.

AllParadox - Retired Attorney, no legal opinions, just my opinion

11:10:54 PM

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