Comment on the Panache case

[Miestră Schivă, UrN]

Presiding Judge Nordselva comments:

I don't know what it is about this case that draws such dramatic reactions from both sides.

At a guess:
1) both sides have picked somewhat "dramatic" personalities as their advocates;
2) this is the first actual criminal case in Talossa for a long time. High stakes.

[Magniloqueu Épiqeu Ac’hlerglünä da Lhiun]

Indeed, I find this case to be of the utmost importance to Talossan jurisprudence. I really hope that the Cort will write up a more detailed reasoning of their judgement, just to understand what exactly they hold to actually be valid in the Talossan legal system.

[Viteu]

"Indeed, it can be argued that if a trial did occur, it was rather loose."

Oddly, if the Cort is of the mind that no trial occurred, then there could be no acquittal.  So I find it hard to reconcile the two.  It is implied, of course, that the lower cort erred significantly in its application of law.

That said, in my professional practice, when I have lost or won a motion, I do not really care to relitigate the matter outside of the courtroom.  So that's that. 

In any event, I thank the Cort, the Government, and the Defendant for their hard work on this case.  But I remind everyone involved that this matter is not binding, and to the extent that this provides some persuasive authority, it's that the lower cort's application of the law was erroneous and Panache got off on a technicality. 

[Magniloqueu Épiqeu Ac’hlerglünä da Lhiun]

While this matter cannot be further appealed, and therefore is indeed not binding per se, it can still prove at least persuasive to future Corts and general jurisprudence in Talossa. And I think it should be given the chance to do just that; there were a lot of arguments from all sides that merit deeper contemplation, debate, recording, and reasoning. All in all, the obiter dicta and rationes dicendi of this case would be invaluable to future jurisprudence.

[Viteu]

Indeed, I find this case to be of the utmost importance to Talossan jurisprudence. I really hope that the Cort will write up a more detailed reasoning of their judgement, just to understand what exactly they hold to actually be valid in the Talossan legal system.

That would not be appropriate as the Order is final and entered.  Also, it's not binding precedent.  The only valid import I see in this matter is that the lower cort got the law wrong.  The only other purpose this case serves is that a single errant justice, which an appellate cort held made "serious errors in law and procedure," can, in effect, let a defendant walk away from any crime simply by defendant mislabeling a motion and thus only based on a minute technicality.  That should, of course, alarm all Talossans.

That said, you put forth a good argument and you should be proud of yourself--pyrrhic or not.

[Viteu]

While this matter cannot be further appealed, and therefore is indeed not binding per se, it can still prove at least persuasive to future Corts and general jurisprudence in Talossa. And I think it should be given the chance to do just that; there were a lot of arguments from all sides that merit deeper contemplation, debate, recording, and reasoning. All in all, the obiter dicta and rationes dicendi of this case would be invaluable to future jurisprudence.

There's no need for deeper contemplation.  The case will be recorded on the Wiki, and it can be cited, and a wise attorney will note that it is not binding and that the case helps your client in the short run but hurts the Rule of Law by allowing a single errant justice to disregard statutory law.  I really don't see how you can splice this any other way.

[Magniloqueu Épiqeu Ac’hlerglünä da Lhiun]

Sure, it is not binding, as I said, but we touched upon many subjects such as double jeopardy, what constitutes a trial, what are the elements of a trial in Talossa, etc. At least, the Ziu and the Ministry of Justice should take notice of this, and maybe implement some of these findings into law. But in order to do that, knowing what arguments the Justice actually accepted might be helpful, if not strictly necessary.

And, as for example in England, the Government can still try to have points of case law overturned or corrected in another appeal, if it believes that things were handled incorrectly. This case has effectively only found that any such appeal, correction, nullification, etc. would have no effect on an acquittal handed down, because of the bar on double jeopardy.

[Viteu]

Sure, it is not binding, as I said, but we touched upon many subjects such as double jeopardy, what constitutes a trial, what are the elements of a trial in Talossa, etc. At least, the Ziu and the Ministry of Justice should take notice of this, and maybe implement some of these findings into law. But in order to do that, knowing what arguments the Justice actually accepted might be helpful, if not strictly necessary.

And, as for example in England, the Government can still try to have points of case law overturned or corrected in another appeal, if it believes that things were handled incorrectly. This case has effectively only found that any such appeal, correction, nullification, etc. would have no effect on an acquittal handed down, because of the bar on double jeopardy.

How can the Ziu and the Ministry of Justice take notice of this case when the only reason that Panache got away with committing a crime is because a single errant justice completely disregard statutory law?

As it relates to double jeopardy, the Cort is basically saying that the mere act of labeling something an acquittal, even when it was not, makes it an acquittal.  Basically, we needn't define words because you get to make it up as you go.  Anyway, I'm done arguing about this.

[Miestră Schivă, UrN]

Another comment: if we had a functioning National Bar in this country, I would wish that counsel for both the Government and the Respondent* would have been subject to discipline (eg. barred from taking the next UC case) for regular outbursts and talking-out-of-turn in the just-concluded appeal.

In other words: we need a functioning National Bar in this country, because the lawyers are unruly.

(* You can't bar me, I'm the Seneschal  8) )

[Viteu]

Another comment: if we had a functioning National Bar in this country, I would wish that counsel for both the Government and the Respondent* would have been subject to discipline (eg. barred from taking the next UC case) for regular outbursts and talking-out-of-turn in the just-concluded appeal.

In other words: we need a functioning National Bar in this country, because the lawyers are unruly.

(* You can't bar me, I'm the Seneschal  8) )

If I make it on the Cort, this is on my list. The Cort is supposed to set up the bar. I'm sure I could find support.among the justices to get this going.

[Viteu]

It dawns on me that my "I'm done talking about this" may be percieved as cutting off the conversation, rude, and indicative that I was annoyed or sensitive.

None of this could be further from the truth. Ive learned in my career that "relitigating" an issue that is decided outside of the courtroom after you lose fuels resentment and frustration. The loser may want to vent but can come off as whiney. The winner may come off as smug. And nothing gets solved.

In many instances, NY uses short form orders. Meaning, for a lot of cases, after argument, the Court issues it's decision and then tells counsel to write out the order. I have a rule, "the loser never writes the order they lost." It's cruel. But when we confer, it's easy to start arguing again. I often say, "counselor, the Cort made its decision. Appeal it if you don't like it." Why? Because I have to work with these people and it's easy for the loser to lose his temper. Win graciously.  When you lose, someone who doesn't rub it in your face is appreciated.

That is not what, I think, Epic was doing here. But we both stated our positions and that was that. Others can chime in. I saw no reason to relitigate the issue.

So please, do not think I was being dismissive or rude. I will talk legal theory all day, but once we have an answer, especially one with so many tempers, I felt it best to walk away. 

[Sir Txec dal Nordselvă, UrB]

"Indeed, it can be argued that if a trial did occur, it was rather loose."

Oddly, if the Cort is of the mind that no trial occurred, then there could be no acquittal.  So I find it hard to reconcile the two.  It is implied, of course, that the lower cort erred significantly in its application of law.

That said, in my professional practice, when I have lost or won a motion, I do not really care to relitigate the matter outside of the courtroom.  So that's that. 

In any event, I thank the Cort, the Government, and the Defendant for their hard work on this case.  But I remind everyone involved that this matter is not binding, and to the extent that this provides some persuasive authority, it's that the lower cort's application of the law was erroneous and Panache got off on a technicality.

I was merely reiterating some of the arguments made in the case in summary. I believe a trial did occur so the "loosely" reference was my own thinking.

[Sir Txec dal Nordselvă, UrB]

Another comment: if we had a functioning National Bar in this country, I would wish that counsel for both the Government and the Respondent* would have been subject to discipline (eg. barred from taking the next UC case) for regular outbursts and talking-out-of-turn in the just-concluded appeal.

In other words: we need a functioning National Bar in this country, because the lawyers are unruly.

(* You can't bar me, I'm the Seneschal  8) )

Even without a National Bar currently set up, sanctions for the contempt charges were most definitely something I pondered up to and including disqualification from appearing before the UC for a certain period of time. I don't know if that would have been enforceable, however, so I was forced in the end to stop short.

I believe this may be the first time in Talossan history that a counselor has been found in contempt of Cort (not to mention a Seneschal).

[Sir Txec dal Nordselvă, UrB]

Another comment: if we had a functioning National Bar in this country, I would wish that counsel for both the Government and the Respondent* would have been subject to discipline (eg. barred from taking the next UC case) for regular outbursts and talking-out-of-turn in the just-concluded appeal.

In other words: we need a functioning National Bar in this country, because the lawyers are unruly.

(* You can't bar me, I'm the Seneschal  8) )

If I make it on the Cort, this is on my list. The Cort is supposed to set up the bar. I'm sure I could find support.among the justices to get this going.

You have my support and I do hope the king ratifies your election onto the Cort. I and a couple others have been regularly admitted to the bar after successfully passing the old bar exam that Dame Litz once administered. I had at one point offered to take up her work on the Bar but as with many things, this never happened.

If we had a Bar, I would argue that in order to argue before the UC one would need to be admitted or recognized in some way.