Claims and Bad Faith Law Blog

"BEYOND A REASONABLE DOUBT": O.J. SIMPSON vs. MICHAEL COHEN AT TRIAL.

The Election Corruption Trial in NYC this past week has been so historic that I am going to indulge "the blogger's privilege" (kind of like the Chair's privilege or the host's privilege, if you're familiar) and write about it here for a brief change of pace.

    Some of Michael Cohen's trial testimony may prove unbelievable to the jury, but not for the reasons you may have heard.  His testimony raises two issues in my mind.  The first issue is the degree of Michael Cohen's credibility as a witness in this trial.  The second question is the effect of Michael Cohen's testimony on reaching a verdict.

          Much ado has been made about, well, one telephone call on I believe it was October 24, 2016.  On the transcript, the big brouhaha sure doesn't seem like much more than one telephone call and the witness handled it well on cross-examination last Thursday.  On the air, cable media freaked out, and in print, columnists wrote like they needed oxygen.  The emotions brought out by Todd Blanche's cross-examination of Michael Cohen over one telephone call seemingly erupted and captured the attention of columnists and cable media.

          They do not seem to have been reading the trial transcripts.  Kudos to the New York State Court System for posting them so that anyone with online access can read them, and a big thanks to the Washington Post for making them truly accessible and even searchable.  I have been reading the daily trial transcripts on the Washington Post website, and I have read all of Michael Cohen's testimony.

          Michael Cohen comes across mostly as unbelievable in the transcripts.  I did not think this would be my reaction, but after reading the transcripts, it is.

          The prosecution understandably rehearsed his witness testimony with Mr. Cohen, but in his case the preparation must have been very extensive, so much so that he actually testified that he remembered just about every phone call, every text, and every EMail that he sent or received over the course of years, so long as the Assistant D.A. asked him about it.  Nobody remembers those things from years ago, and some of us do not even remember what we said or wrote last week.  So Mr. Cohen's recollection of them all is incredible, unbelievable, unconvincing from reading the trial transcript.  It is true that Todd Blanche's cross-examination was long and tedious.  It was so meandering it became infuriating many times.  But perhaps a long cross-examination of Michael Cohen was appropriate here, given the long recitation of calls, texts, and EMails during the Prosecution's direct examination of Cohen.

          That said, Michael Cohen's testimony was credible in corroborating other witnesses and documentary evidence on important points.  He corroborated the plan directed by the defendant to pay witnesses to keep quiet at a critical point in the 2016 presidential election, and then to lie about it in order to cover it up, not just in their records but also in what they said about it publicly.

          The talking heads and opinion artists had a different reaction to all that of course.  Their big takeaway at first was they were impressed that Michael Cohen handled himself well because he did not erupt, forgetting that this jury has seen Michael Cohen only when he took the witness stand in this trial.  They had nothing to compare his performance with, unlike the pundits who were impressed by his controlled demeanor.

          Until the one phone call of October 24th.  Then their hormones apparently woke up.  They responded now with emotion to the words and gestures during Todd Blanche's cross-examination and Michael Cohen's spoken words about one telephone call.  That changed their opinions from "good job, Prosecution" in presenting your case, to "How is the D.A. going to overcome this October 24th telephone call?"

          The difference in reactions between my reading the trial transcript, and people who heard and saw the cross over one telephone call, struck me.  We live in a time when people no longer think as much as they once might have, instead they go with their gut reactions, their emotions, much more than they ever did in the past.  The O.J. Trial is a good example here, I think.  Everyone "knew" that O.J. was a murderer, or at least that was the prevailing opinion on the matter.  Until.  Until everyone could see that O.J. could not get his hand into a glove years later, at trial.  Then they acquitted him.

          That brings me to the second question I have, which is the effect of Michael Cohen's testimony on reaching a verdict in this case.

          Emotions generally seem to rule in reaching important decisions more often than reasons and thinking do.  I think that explains the difference in reactions in the O.J. Simpson Trial.  I think that also explains the difference in reactions to Michael Cohen's trial testimony this past week.

          I am not saying that there will be the same result in the Election Corruption Trial in NYC as there was in O.J.'s Trial.  If the results did end up being the same, though, it would not surprise me.

Please read the disclaimer.  ©2024 Dennis J. Wall.  All rights reserved. 

 

877 FEDERAL JUDGES HONOR THE RULE OF LAW.

There are some 900 federal judges in the Courts of the United States.  Let's call it an even 900.  That means that 877 federal judges honor the rule of law.  877 federal judges hire their law clerks, and presumably they also hire federal magistrate judges and other courtroom officers and personnel as well, based on demonstrated capacity for the job.

          In other words, the market determines the hiring practices of 877 federal judges, as it should.  Unfortunately, the 877 do not get the headlines, but they do get the best candidates.

          13 other federal judges honored the students at Columbia University by refusing to consider hiring people who protested the killing of women and children.  Each of the 13 was appointed during the American Apocalypse between January 20, 2017 and January 19, 2021. 

          In contrast, none of the 13 has announced that they have any problems at all with hiring people from a university which is currently under a self-imposed investigation for racism based on developments within the last few days.

          So here is the actual story of hiring practices by all but 877 federal judges today:   Despite the teachings of the market, these 13 prefer hiring from within a racist mob to hiring from within Columbia concern. 

 Please read the disclaimer.  ©2024 Dennis J. Wall.  All rights reserved.

THEIR GOD-GIVEN RIGHT TO EXPORT LIQUEFIED NATURAL GAS.

The State of Louisiana, along with other States where the oil and gas industry holds enormous power, has sued the United States Government which has limited or even refused to issue permits to export Liquefied Natural Gas.

          Louisiana and the other liquefied natural gas-producing States have sued to assert their God-given right to export LNG or liquefied natural gas.  Their lawsuit is Louisiana v. Biden (W.D. La. No. 2:24-cv-00406).  The complaint is too long and not important enough to link here.

          A review of the Public Access to (Federal) Courts Electronic Records or "PACER," reveals what the popular press has not yet reported:  The Judge assigned to the case in the Western District of Louisiana is the Hon. James D. Cain Jr.  He was appointed as a federal judge during the American Holocaust in 2019.  Lawsuits like this one are usually filed in one-judge divisions of federal courts in Texas, but this one has been filed in Louisiana.  You see, when a federal lawsuit is filed in a division with one judge in it, the chances are 100% that you know what judge will be assigned to your case.  They get to pick their own judge.

           The interesting and unanswered, so-far-unasked question is how so many judges appointed during the American Holocaust got assignments to one-judge divisions.  Perhaps journalists and the news media in general can ask that question, and perhaps they can get answers.  I will list some below that can perhaps get answers.

           Oh, and a review of the website of the U.S. District Court for the Western District of Louisiana reveals that only one of its Divisions, the Lake Charles Division as it happens, has only one judge:  Judge Cain.  All the other Divisions have an active sitting judge and a Senior Judge available, except Lake Charles, which has only Judge Cain.  Truly no coincidence, when you want to file a lawsuit to assert your God-given right to export liquefied natural gas but the United States is standing in the way, for now.

           For more on the American Holocaust and how its effects are still with us every day, see UNELECTED TEXAS JUDGES, THE AMERICAN HOLOCAUST, AND MINORITY RULE, published on Insurance Claims and Issues Blog on March 9, 2024.

          So, no coincidence that Judge James D. Cain Jr. was assigned to this LNG exportation lawsuit.  Moreover, Judge Cain has his own track record of ruling against the United States in similar cases.

I am now going to mention the names of people and outlets who have the capacity to answer these questions if they want to.  If I left a tweet on X-which-used-to-be-Twitter, I guess they might find a tweet but so would the trolls most likely and I do not want that.  I do not know whether these people will pay attention to blogs like this one, but I am going to try.  Maybe they will seek out their names since they are in a business where their name recognition is so important to them.

        I am not completely sure of how to bring this article to their attention, so I am going to mention their names here in the body of this article as well as in the metadata accompanying it.  Our nation turns its lonely eyes to you, Susanne Craig, David Barstow, Russ Buettner, Andrew Weissmann, Will Bunch, Scott Maxwell, Jackie Calmes, LZ Granderson, Karen Tumulty, Julie K. Brown, David Dayen, New York Times, Washington Post, American Prospect, Guardian, Philadelphia Inquirer, Jamie Raskin, Senate Judiciary Committee, Senator Sheldon Whitehouse, Talking Points Memo, ProPublica, Miami Herald, Sun-Sentinel, Dahlia Lithwick, Mark Joseph Stern, Jackie Calmes, Robin Abcarian, Los Angeles Times, and Slate.

          Thank you in advance, one and all.

Please read the disclaimer.  ©2024 Dennis J. Wall.  All rights reserved. 

"IT'S THE DICTA, STUPID."*

*With apologies again to Mr. James Carville, who famously said during one of the successful Clinton campaigns, "It's the economy, stupid."

 

Dicta is a word that lawyers use to describe the opinions of judges that go beyond what they need to say to decide the case that confronts them.  To paraphrase Black's Law Dictionary, a standard text for many lawyers, dicta are opinions of judges concerning matters which are not necessarily involved in nor essential to determine the case presently before the court.

          In the course of enticing all justices to agree that a candidate of a certain persuasion should remain on all ballots, 5 judges went beyond that case to declare how and why candidates in future cases should not remain on the ballot (which most legal scholars say is self-evident from the Fourteenth Amendment and which did not need to be rewritten).

          When the U.S. Supreme Court took this case, they limited their review to whether they should affirm or reverse the Supreme Court of Colorado.  The Colorado Supreme Court, you will recall, had held that the Fourteenth Amendment barred this particular candidate in this particular case from the Republican primary ballot in Colorado.

          That is what the U.S. Supreme Court said that they would review.  That narrow question.  Of course, as lawyers know, the question of affirmance or reversal on the facts of the particular case is everything that a reviewing court can ever determine without issuing an advisory opinion.

          Here is what the 9 said they ruled on together.  You may or may not agree with it, but you can certainly read it for yourself.  They don't want you to read it for yourself, you know.  Every good trial lawyer, and any lawyer or person for that matter, knows that when they don't want you to look at something, you should look at it.  Read this for yourself:

          A group of Colorado voters contends that Section 3 of the Fourteenth Amendment to the Constitution prohibits former President Donald J. Trump, who seeks the Presidential nomination of the Republican Party in this year's election, from becoming President again. The Colorado Supreme Court agreed with that contention. It ordered the Colorado secretary of state to exclude the former President from the Republican primary ballot in the State and to disregard any write-in votes that Colorado voters might cast for him.

* * *

Because the Constitution makes Congress, rather than the States, responsible for enforcing Section 3 against federal officeholders and candidates, we reverse.

Trump v. Anderson, ___ U.S. ___, ___ S. Ct. ___, 2024 WL 899207, at *1 (U.S. March 4, 2024).

          The U.S. Supreme Court was previously pretty consistent in stating the view that it is or was limited under Article III of the Constitution to the existence of a controversy, and that, unlike State Supreme Courts, the U.S. Supreme Court and other federal courts lacked the power to issue advisory opinions.

          Based on preexisting precedent, the U.S. Supreme Court is accordingly prohibited by the Constitution from issuing an advisory opinion on what action Congress should take to enforce Section 3 against federal officeholders and candidates.  So there were very strong grounds before the U.S. Supreme Court ruled in this case that it would be limited to deciding whether the Supreme Court of Colorado was right or wrong in this particular case.  Period.  End of report.

          Instead, the joint opinion of the 5 rewrote the Fourteenth Amendment to the satisfaction of the 5.  But this is not how all 9 think about the issue they decided, and it is certainly not the view of the other 4 who decided the narrow question of whether this particular candidate in this particular case would remain on the ballot.

          So the command of the 5 to Congress on how to implement Section 3 against federal officeholders and candidates is dicta.

          That is what it is.  Meaning no offense but stating it clearly:  "It's the dicta, stupid."

Please read the disclaimer.  ©2024 Dennis J. Wall.  All rights reserved.

LEST WE FORGET TO ASK: WHO PAID THE $1,031,788.33 BOND?

One month ago today, on February 6, 2024, U.S. District Judge Donald Middlebrooks entered an Order approving the payment of a  $1,031,788.33 bond into the Registry of the U.S. District Court for the Southern District of Florida.  [Redacted, Unreconstructed] Plaintiff v. Hillary Clinton, Marc Elias, Glenn Simpson, Christopher Steele, James Comey, and the United States of America, et al., Order Granting Unopposed Motion for Stay of Final Order and to Approve Bond To be Paid to Registry of Court, DE 309, filed Feb. 7, 2024 (S.D. Fla. No. 2:22-14102).  Download [Redacted Unreconstructed] P v. [Lots of Ds], Order Granting Unopposed M.Stay and Approve Bond to be Paid to Registry of Ct. DE 309 filed Feb. 7, 2023 (S.D. Fla. Case No. 2.2022-14102).

         The payment of $1,031,788.33 into the Court Registry took the place of the Redacted, Unreconstructed Plaintiff and his lead lawyer in the case, Alina Habba and her law firm, Habba Madaio & Associates – lawyers who would also be his lawyers in other cases including the recently concluded and well-known litigation which Judge Kaplan presided over  --  placing a supersedeas bond as they appealed their joint and several liability to pay sanctions of $937,989.39 for filing this frivolous litigation in which they sued many, many defendants.  [Redacted, Unreconstructed] Plaintiff v. Hillary Clinton, Marc Elias, Glenn Simpson, Christopher Steele, James Comey, and the United States of America, et al., Order Granting Joint Motion for Sanctions, DE 302, filed Jan. 19, 2023 (S.D. Fla. No. 2:22-14102).  

         PACER does not show when the bond amount was filed or who filed it.  There is a lot of speculation in the press and on cable television, podcasts, and radio asking how the same Redacted, Unreconstructed party will be able to fund his appeals, several of which he has already filed.  Those are good questions.  You would think the payment of another Million Dollars (actually, more) would be added to the pot.  The payment of another Million Dollars+ to appeal hasn't even been discussed so far as I can find, let alone the fact that this appeal involves sanctions for filing a frivolous lawsuit.

          Yet the Sanctions Order filed January 19, 2023 seems to be forgotten already, and the Order Approving over $1Million to be Paid Into the Court Registry entered a month ago does not even enter the equation, yet it presents an identical question:  How did the Redacted, Unreconstructed party pay it, in other words, where did he get the money?  These are good questions as well.

         I am going to mention the names of people and outlets who have the capacity to answer these questions if they want to.  If I left a tweet on X-which-used-to-be-Twitter, I guess they might find a tweet but so would the trolls most likely and I do not want that.  I do not know whether these people will pay attention to blogs like this one, but I am going to try.  Maybe they will seek out their names since they are in a business where their name recognition is so important to them.

        I am not completely sure of how to bring this article to their attention, so I am going to mention their names here in the body of this article as well as in the metadata accompanying it.  Our nation turns its lonely eyes to you, Susanne Craig, David Barstow, Russ Buettner, Rachel Maddow, Andrew Weissmann, Will Bunch, Scott Maxwell, Jackie Calmes, LZ Granderson, Karen Tumulty, Julie K. Brown, David Dayen, New York Times, Washington Post, American Prospect, Guardian, Philadelphia Inquirer, Jamie Raskin, Senate Judiciary Committee, Senator Sheldon Whitehouse, Talking Points Memo, ProPublica, Miami Herald, Sun-Sentinel, and American Prospect.

          Thank you in advance, one and all.

Please read the disclaimer.  ©2024 Dennis J. Wall.  All rights reserved.

 

 

CAN THERE BE BAD FAITH OFF-SHORING TAX LIABILITY?

 

(Photograph courtesy of NASA)

Jesse Drucker has written an informative investigative report about off-shoring activities designed to reduce tax liabilities.  Apparently, if a corporation large enough to move certain financial activities off-shore -- such as Bristol Myers in this article -- and if that corporation retains its own accountants and lawyers to give it opinions that the off-shoring activity is "legitimate," "that can protect the company from accusations that it deliberately broke the law."  (Apparently, we only know about this particular activity because reporters were able to pierce the redactions in a report which the I.R.S. posted a year ago in April, 2020 about the Bristol Myers activity which actually took place in 2012-2013.)   Jesse Drucker, Slip-up Bared Tax Trick Used by Drug Giant / Bristol Myers Disputes $1 Billion I.R.S. Bill, New York Times, Friday, April 2, 2021, at A1.

          This possibility of legalized chicanery, if you will, raised some questions about Bad Faith in my mind that went beyond what was reported here.  Is there immunity "from accusations that it deliberately broke the law" if, hypothetically, a company deliberately hires accountants and lawyers for the purpose of giving it bogus opinions so that the company can shield itself from liability?

           If there is a "bad faith" exception to this kind of immunity, what would it look like?  Barring authorities on point, resort to general principles of good faith law like the principles governing insurance companies might well provide the answers.

           In the interim, if anyone knows what provisions of statutes or regulations confer the kind of immunity at issue in the Tax Trick article, supra, please leave a Comment below or send me an EMail via my website and let me know.  I have researched them myself, including via Westlaw, and I have come up empty so far.  Thank you for any help you can give.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

IS INSURANCE BAD FAITH TOO DIFFICULT FOR 21st CENTURY JOURNALISM?

Insurance bad faith may be too difficult for 21st Century Journalism.  Hear what I have to say and decide for yourself.

My example is taken from the Code of Federal Regulations.  I will not embarrass you by telling you the grade I got in Administrative Law in Law School.  (Actually, I will not embarrass myself and so I will not tell you the grade.)  It is enough for my present purpose to say that I have recently learned some things about how Federal Rules and Regulations are written, adopted, and issued.  This will be a broad, general overview so if you find yourself thinking of many exceptions, that will be natural.

Most rules are published in draft with a Comment Period.  The Comment Period can vary from proposed rule to proposed rule, but it is usually 30 or 60 days.  The Comment Period begins when a proposed rule is officially published for public comment.  The key concept here is that during that entire time it is only a proposed rule.  It is not yet the law.  The corporate media very often gets this wrong.  It's as if they cannot process the actual concept.

The current regime posted a draft rule on June 12.  It would purport to abolish LGBTQ rights under the Affordable Care Act by allowing discrimination.  The corporate media reported that the current regime changed the law that day.  The regime did not.  They did not have the power.  21st Century Journalism conferred that power on them, but they did not have it before that.

Further, what the current regime published on June 12 was a draft rule expressly slated for official publication on June 19, a week later, when the official Comment Period will begin.  So, the earliest that the proposed discriminatory rollback rule can take effect is 60 days (the end of the Comment Period for this particular proposed Rule) from Friday, June 19 (not from Friday, June 12), or what I calculate as the end of business on Tuesday, August 18, 2020.  (Courts will certainly have something to say about all this, as well.)

Accordingly, diary your calendars to leave your Comment on regulations.gov against the regime's proposed discrimination in healthcare against LGBTQ patients, by Tuesday, August 18, 2020.

But back to the point at hand before coming to the end of this article.  It is a simple point, in the end:  If the commercial media cannot get proposed rules right, do not expect that they will get anything about insurance bad faith right when they report on any of its developments.  Rather, take advantage of what 21st Century Journalism does well and use their reports of developments as the starting point for your own forensic investigation, i.e., your own research in this case.  As the respected journalist John Nichols has himself very recently observed, the media are very good at reporting on a fire but not so good at reporting on a movement.

Please read the disclaimer. ©2020 Dennis J. Wall.  All rights reserved.