VII. THE CORRECTED BRIEFS SHOULD BE STRICKEN
The objectors' motion to strike the settlement parties' "corrected" briefs is viewable at http:/muchnick.net/StrikePart1.pdf, http://muchnick.net/StrikePart2.pdf, and http://muchnick.net/StrikeMisc.pdf. It shortly will be viewable in a single file, at http://muchnick.net/MotionToStrike.pdf.
Below is the seventh in a series of excerpts from that document.
VII. THE CORRECTED BRIEFS SHOULD BE STRICKEN
The "corrected" briefs should be stricken. Should the Court permit the corrected briefs, appellants should be given leave to file a revised Reply.
Appellants believe that the proper procedure is to strike the corrected briefs, and allow appellees' explanations of the reasons the information is wrong to be part of the record. This is appropriate for these reasons:
1. These are highly relevant factual admissions. There is no prejudice to the appellees to have their original briefs stand, as they chose to make the statements. There is no prejudice to the Court, since the court is advised of how the first statements are flawed.
2. As it stands there is ambiguity about the record in this appeal. If the "corrected" briefs remain, the question is raised as to whether the statements by the appellees i their original briefs are still part of the record. Normally, if something is to be removed from the record, either in a trial court or a court of appeals, it is by a motion to strike.
3. It expedites this already substantially delayed appeal.
Appellants first thought that striking the outside-of-the-record facts was the appropriate step, and proposed a stipulation to do that. (Declaration, Para. 6.) This was before they were told that the facts were wrong. (Id.) The importance of the information, which confirms an even greater likelihood that the district court was misled about the possibility of the C Reduction, convinced them the information should stand in the record of this appeal. (Id.) They also believed that process would provide an opportunity to for a more satisfying explanation of why appellees presented outside-of-the-record information that turned out to be inaccurate.
[Next blog excerpt: THE APPELLEES' ACTIONS AND EXPLANATIONS ARE QUESTIONABLE]
Below is the seventh in a series of excerpts from that document.
VII. THE CORRECTED BRIEFS SHOULD BE STRICKEN
The "corrected" briefs should be stricken. Should the Court permit the corrected briefs, appellants should be given leave to file a revised Reply.
Appellants believe that the proper procedure is to strike the corrected briefs, and allow appellees' explanations of the reasons the information is wrong to be part of the record. This is appropriate for these reasons:
1. These are highly relevant factual admissions. There is no prejudice to the appellees to have their original briefs stand, as they chose to make the statements. There is no prejudice to the Court, since the court is advised of how the first statements are flawed.
2. As it stands there is ambiguity about the record in this appeal. If the "corrected" briefs remain, the question is raised as to whether the statements by the appellees i their original briefs are still part of the record. Normally, if something is to be removed from the record, either in a trial court or a court of appeals, it is by a motion to strike.
3. It expedites this already substantially delayed appeal.
Appellants first thought that striking the outside-of-the-record facts was the appropriate step, and proposed a stipulation to do that. (Declaration, Para. 6.) This was before they were told that the facts were wrong. (Id.) The importance of the information, which confirms an even greater likelihood that the district court was misled about the possibility of the C Reduction, convinced them the information should stand in the record of this appeal. (Id.) They also believed that process would provide an opportunity to for a more satisfying explanation of why appellees presented outside-of-the-record information that turned out to be inaccurate.
[Next blog excerpt: THE APPELLEES' ACTIONS AND EXPLANATIONS ARE QUESTIONABLE]
posted by Irv Muchnick at 11:35 AM
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