Another point:
The dilemma filing pleadings especially complaints is what to include and what not to, which is not as easy as it sounds. You don't want to make it too long but on the other hand that's a catch-22 because for example in federal court when pleading fraud it must be done per Rule 9(b) which requires that you plead with particularity, i.e. set forth who, what, where, when and why - and no way you can do that in 3 pages (at least I haven't managed that). Then Rule 8 requires a "short and plain statement of the claim, showing that the pleader is entitled to relief." Those two rules seem at odds with one another in some ways. In fact, Berber and Moor in yet another remarkably bold move first tried to force me to file an amended complaint of a mere 20 pages. Now how to plead years of RICO violations involving dozens of co-conspirators in accordance with the particularity requirements is beyond me. I responded that in reality their aim was to limit any amended complaint to: zero pages. Then they complain about the amended complaint saying I failed to heed Rule 8 - and at the same time they don't say anything at all about rule 9. Also, they completely ignored Judge Sparks order that I filed a RICO Case Statement. He issued that order when I was ordered to file an amended complaint, at the same time. I did my best to fulfill the RICO Case Statement requirements in the AC, referred to its passages when I answered the questions outline in the RCS order. Berber and Moor say 20 pages but for example that clearly was impossible, because the RCS order contained something like 75 parts and subparts, including numerous land mines that if I gave the wrong answer would have sent the case into oblivion. For example, one question was:
State and describe in detail whether you are alleging that the pattern of racketeering activity and the enterprise are separate or have merged into one entity.
If I had said they were merged that would have been the end of RICO claims, because the case law is clear that the pattern of RICO predicate acts (such as for example mail and wire fraud violations) must be separate and apart from the enterprise, the point of RICO being to severely punish anyone committing these kinds of crimes through legitimate American enterprise, through fronts established to shield them, to make their pattern of ongoing crime appear legitimate, to provide a disincentive, and to to prevent and restrain through disgorgement, to infiltrating legitimate enterprise with this kind of garbage.
In fact, the above question was preceded by this one:
If any Defendants are alleged to be the enterprise itself, or members of the enterprise, explain whether such Defendants are perpetrators, passive instruments, or victims of the alleged racketeering activity.
So that's two land mines in a row, a wrong answer to either of which would have led to dismissal. But then one way I knew these RICO claims were viable was carefully reviewing and researching DOJ's tobacco litigation, the RICO complaint it filed. The practices were strikingly similar, so much in common, which is why I closed oral argument after the Chaucer mistake by stating that this case is a textbook example of valid RICO claims. The DOJ complaint was nearly 100 pages. I see that recently a RICO complaint was filed in Seattle regarding an alleged $250 million Internet Ponzi scheme, and that complaint was 143 pages; mine was 83. Then Berber and Moor say it's "plagued with the same problems" contained in the first. I guess then DOJ's complaint being likewise "plagued with problems" is why Philip Morris et al decided to forego any motion to dismiss the RICO claims on pleading grounds? Defense counsel more than likely didn't realize where my pleading was coming from and so attacked it as what he hoped the Court might believe was inept pro se tripe (you have no idea some of the pro se pleadings I have seen, LOL, mostly completely crazed), but now I've let him know how it was constructed. So maybe he shouldn't have followed me out of the courthouse two blocks on 12/3/04, said "Why not drop this case" and when I questioned his sanity making that statement, arrogantly proclaimed, "No way this ever sees a trial." We'll see about that. Even after the tobacco defendants already settled claims with the states for $145 billion, federal RICO claims are proceeding as we speak. I've learned a huge amount from that litigation and owe DOJ a major debt of gratitude because drafting a viable RICO complaint isn't exactly a simple task. On the other hand, lawyers don't operate in a vacuum, I've seen many complaints sharing certain elements, they key when deciding what to file is: Do the facts fit the statute. In this case, I've argued, hopefully in the Court's opinion effectively, that the facts fit RICO.
I posted here earlier that Judge Sparks stated in Court, "If there is any way to dismiss this case, then I will." When he delivered that opinion, it reminded me of that first book I ever bought on the law, before I filed the two ultimately successful writ of mandate petitions in the California Court of Appeal. That book, hugely valuable to me, is entitled "Winning on Appeal," by former Chief Judge of the Third Circuit Court of Appeals. He repeated many times, at the risk of offending the bar, that, in the end, a lawyer is a salesman, and his product is the case of his client, based on facts and the law, and a successful salesman provides the Court with facts and arguments that effectively make it all-but impossible in the Court's eyes to come to any conclusion other than your own. Hopefully, in reference to what Judge Sparks stated on 12/3/04, by presenting the facts and the law supporting trial on the merits under the laws I cited, I have made it completely impossible to dismiss this case. That was certainly my intention and ultimate aim, to present my case in such a way that if Judge Sparks ruled in my favor a denial of the dismissal motions would make any thoughts of appeal completely frivolous. Maybe, guessing here, but maybe that's why the RCS order: if the amended complaint provided the right answers, then there would be no possible way to dismiss it based on the pleadings; if it provided the wrong answers, then dismissal would be mandated.
I posted earlier about Hemingway paraphrasing what Judge Aldisert wrote. Some funny things he wrote, this judge brings the law to life and reading his book I realized the luck I had finding this book first:
Come closer to Hemingway than Beltway bureaucratese...[In legal pleadings, unfortunately][m]ultisyllabic jargon and verbal distortions are the rule, not the exception, and exemplify neatly what was once known as "Haig-ese," in honor of a former Secretary of State who holds a patent on the practice. (According to a story popular inside the Beltway, an aide to general Haig had the audacity to ask for a raise in pay. You and I might have answered in one short adn unambiguous word, "No!" General Haig, mor generous with the language than we are, replied: "Because of the fluctuational predisposition of your position's productive capacity as juxtaposed to government standards, it would be momentarily injudicious to advocate an increment.")
Along these lines, Judge Aldisert also related this story, which is hilarious imo:
You recall the story about a 17th-century judge who was so outraged at the length of a brief that he cut a hole in the middle and hung it around the neck of the lawyer who wrote it. |
