Wednesday, July 18, 2012

3d DCA Watch -- "Willfully Inattentive" Edition!


You know how you have the right to a six-person jury in civil cases unless you make a "knowing and intelligent waiver."

Turns out, according to Judge Shepherd concurring and dissenting in part, that you can also be "willfully inattentive" and thus waive your jury trial right that way:
The right of access to our courts and a jury trial never has been understood as a limitless warrant. If Mr. Aghion did not have the opportunity to exhibit a knowing waiver of his right to a jury trial at the second setting of this case, it was his own fault. I cannot imagine our state founders intended to give more rights to the slothful than the diligent in our society.
"Slothful"?

Ok by me, as long as nobody is making a moral judgment.

11 comments:

  1. for once shepherd is absolutely right. to allow a defaulting party the benefit of a non-waiver on a particular trial issue because they chose not to be there in the first place is patently ridiculous.

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  2. He offers no standard or rule is the problem

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  3. I think you missed the best part of Judge Shepherd's opinion: footnote 4 stating that judges are not pigs hunting for truffles.

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  4. 11:44 - what standard or rule exists that a pro se party has to pay attention to and/or participate in a suit against him? Isn't a garden variety waiver the standard or rule that would apply, even with respect to a fundamental right?

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  5. it is not pro se that is the problem; it is a pro se who DEFAULTED, abandoned the case, didn't show up for the trial, who then complains later that he never had a chance to object to a five person jury. what was the judge supposed to do at that point; stop the trial and issue a notice to his last known address and then give him a period to object??? craziness.

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  6. 3:05, he never executed that standard waiver and the judge wants to excuse compliance under an exception that is formless and purely discretionary.

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  7. You missed fn 4 of Shepherd's opinion as Judge Ramirez pointed out. It's fitting to be posted here:

    4 I am also compelled to record that appellants’ counsel ingeniously parlayed one (ill-gotten) order granting a page enlargement on behalf of one of his clients into more than 600 pages of nearly identically worded briefs, raising more than eighty- five separate arguments for reversal. The majority found just one point to have merit, that being a point highlighted by eleventh-hour counsel retained by Mr. Aghion to file a (fourteen-page) reply brief. But for that point, Mr. Aghion’s fate in this case most likely would have been no different than that of all the other defendants in the case. I hope, without great expectation, this might serve as a lesson to the brief writers of the legal community. “Judges are not like pigs, hunting for truffles buried in briefs.” United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991).

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  8. I can think of better ways to repeat the appellate maxim: put forth your best three arguments and abandon the rest.

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  9. Speaking of "truffle pigs":
    http://www.abajournal.com/news/article/playwright_says_he_cant_afford_fancy_lawyer_to_fight_claim_threes_company_c/

    I bet Judge Shepherd would get all the chicks at the Regal Beagle!

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  10. Your point is apodicticly taken.

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