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Nonlawyer Explainer Thread: On Keeping One's Mouth Shut

It occurs to me that certain private-jet-flying seditionists who continue to yammer on Twitter about their DC excursions provide us with the opportunity to do a little hypo to explore the benefits of silence.

 So let's explore what a hypothetical law enforcement interview *might* look like in this situation. I'm not - I want to make clear - drawing from experience as a lawyer here.

I AM NOT A CRIMINAL LAW ATTORNEY.

Instead, I'm mostly drawing from discussions with my father-in-law.
My father in law is a now-retired homicide cop, and we've had a lot of discussions (especially since I started law school) about criminals and interviews over the years.

So with that in mind, let's look at this hypo.
ALSO - Simplifying for Twitter character counts.

*Knock*
*Door opens*
Agent: Ms [Name]? I'm Agent Smith, and this is Agent Jones. We're with Agency. We'd like to talk to you if you've got a minute.
Ms X: Oh? Is this about that thing at the Capitol?

[Yes, it seems insane but if you're worried about something specific and the cops show up, blurting out something like that is totally a thing that can happen.]
Agent Smith: Yes, ma'am. I don't know if you're aware, but some of the media saw some of your social media stuff, so we got a bunch of phone calls.

[Note: The agents will have seen ALL of her social media and they know she's seen it, but will not be above implying otherwise.]
Agent Smith: Anyway, our boss doesn't really like us to close out a file without at least trying to talk with the person first.

[Note: Deliberately implying that they think the whole thing is nonsense that they want to get rid of and that they're completely sympathetic to her.]
Agent Smith: So if you've got a couple of minutes - do you mind if we come in? It's a little cold out for this kind of thing and anyway I don't want having this conversation on the doorstep to look awkward with the neighbors or anything.
Agent Smith: Thanks. This place is beautiful, have you lived here long? Is there somewhere we can sit down?

Ms X: I don't know if this is something I should be talking to you about. Should I have my lawyer here for this?
Agent Smith: Ma'am, you certainly can if you think you need your lawyer, but we came down because we were hoping to be able to clear this whole thing up before it gets to that point - we'd like to get things taken care of without too much fuss.

[Note: Yes, they can say that.]
[Also: Yes, they can and will respond to that question about the lawyer in ways that convey that insisting on a lawyer will make you look bad in their eyes.]
Ms X: Oh. Are you sure I don't need a lawyer?

Agent Smith: Honestly, ma'am, like I said we're mostly down here because our boss kinda has a stick up-- I mean, he just doesn't really like it if we close something without talking to you. And we don't want to inconvenience you.
Ms X: Oh. I don't know...

Agent Smith: We can always arrange to do this downtown later on if you want. I mean, I don't really think we need to do that, and I was really hoping to get this wrapped up today so I can get back to some of my other cases that involve, y'know, crimes.
[Note: Asking if you need an attorney isn't the same as asking for an attorney. And they can lie about their boss, and hint that they don't think you really did anything wrong.]
Ms X: Oh, well if we can get this taken care of today...

Agent Smith: I mean I can't promise anything, of course - the boss will need to see that we checked the boxes and all that, but I'll certainly do my best. And this seems pretty clear-cut to me, so this shouldn't take long.
Ms X: Oh, well if you'll come this way...

Agent Smith: Thanks.
*sitting down, possibly refreshments, possibly touring house in process*
Agent Smith: OK, so I saw y'all got to fly up to see President Trump give his speech Wednesday in a private plane. That's pretty cool. I ain't never done that. Heck, they make us fly Southwest half the time.
Ms X: We were pretty excited about that.
Agent Smith: I would be too. How do you get something like that set up?

I'm going to close this here, because hopefully the basic point is clear: it's not that hard for someone who sounds sympathetic to get someone to talk.
This isn't a custodial interview. She's not under arrest. They're talking in her house. They haven't even told her she *has* to talk to them.

That means they don't have to read the Miranda warning.
They also don't have to tell her that charges are seriously being contemplated, and they can imply that they think she's done nothing wrong and they want to help her clear things up.
That can be very tempting.

With something like this, where her social media shows that she has no conception she was in the wrong, I think there's a very good chance that would work.
Seriously, if this happens to you some morning (or late evening, but never at a comfortable or convenient time of day), there is only one right answer:

"I'm not going to talk to you without my lawyer."
They will try to make you feel even more uncomfortable if you say that, because they know that there's probably not going to be much of a conversation if your lawyer is there.

Don't fall for it.

Stay silent. Get a lawyer.
Good question.

@HaygoodLaw
@LutherEvers
@greg_doucette
@ASFleischman

Are better positioned to answer than me.
https://t.co/BJDlnjMSuE
For those who have been saying things like "I still don't know anyone" or "I can't afford someone" -

Then just don't talk to the police about it.

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This is a bit surprising, given that as of last time I checked nobody had been served and no appearance had been entered. I suspect it's an effort to make sure the case isn't "pending" on the 6th.


And, sure enough, still no proof of service on ANY defendant, still no appearance from defense counsel. And this is denying the motion for preliminary injunction but does NOT dismiss the case - which is potentially ominous for plaintiff's counsel.


This isn't a "happy judge" kind of first paragraph. Not even a little bit. Nope.


Y'all, this isn't even directed within a few hundred miles of my direction and I sill just instinctively checked to make sure that there's room for me to hide under my desk if I have to - this is a very not happy, very federal, very judge tone.


Also - the judge just outright said there's a bunch of reasons for dismissal. And not in "might be" terms. In definite fact ones. But the case isn't dismissed yet.

If I was plaintiffs counsel, I'd definitely be clearing under my desk right now, and possibly also my underwear.
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Mike Dunford
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Good afternoon, followers of frivolous performative litigation.

New filing in Orly Tatiz's bonkers attempt to halt the 2nd Impeachment trial. It's a gloriously burning train wreck of mangled formatting and hideous typography.

Let's dig

For those who may have forgotten, this is the case we saw last week - the one where Orly took the 12(b)(6) game to the next level by LITERALLY forgetting to include actual claims in her complaint.

So technically it's still unclear what she's suing over.

And, frankly, it's not like I can talk about the merits of this one because there aren't any. But the sheer stunning insanity of the formatting alone makes this worth a thread.

Even though, honestly, it's not the worst Orly has produced.

For context, the text below comes from the State of Hawaii's 2012 response to a motion for reconsideration in one of the birther cases.

"an inartfully collated, defectively stapled, and misordered collection of pages" is still one of my favorite descriptions of a filing ever.


Just to start with, apparently we're putting the caption on both sides of the (incomplete) line now. Single spaced on one side, double spaced on the other, no less. With everything but the judge's name in caps.
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Mike Dunford
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Good morning, post-election frivolous performative litigation followers - we've got another new filing in Seditionists v 117th Congress et al.

It's yet another motion for a Temporary Restraining Order - making it the 3rd in 3 days.

And it's a

Now, you'd think that if you kept throwing 'emergency' paperwork at the court and the court kept saying nothing in reply that you might want to take some time and figure out what you're doing wrong, but nope. Not these buffoons.

They're still not within 50 miles of complying with Fed R Civ P 65 - and my guess is that this judge might view that as entirely a "them" problem which the court has no obligation to explain.

So they're still stuck at Step 1.

But that's honestly the least of their issues.

They have, apparently in lieu of attempting to comply with Rule 65, put "ORAL HEARING REQUESTED" in all caps right after the heading.

I'm not a litigator but I don't think that's a recognized alternative to attempting to provide notice to the adverse party.


They want to "preserve the status quo" by placing two of the three branches of government in a state of "stewardship." That's...

...unique.
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Mike Dunford
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Election Litigation Thread - Georgia:
OK, so since my attempt to sit back while Akiva does all the work of going through the latest proof that not only the pro se have fools for lawyers has backfired, let's take a stroll through the motion for injunctive relief.


At the start, I'd note that the motion does not appear to be going anywhere fast - despite the request that they made over 80 hours ago to have the motion heard within 48 hours.

The most recent docket entries are all routine start-of-case stuff.


Why isn't it going anywhere quickly? Allow me to direct your attention to something that my learned colleague Mr. Cohen said


Now I'm not a litigator, but if I had an emergency thing that absolutely had to be heard over a holiday weekend, I'd start by reading the relevant part of the local rules for the specific court in which I am filing my case.

In this case, this bit, in particular, seems relevant:


My next step, if I had any uncertainty at all, would be to find and use the court's after-hours emergency contact info. I might have to work some to find it, but it'll be there. Emergencies happen; there are procedures for them.

And then I'd do exactly what they tell me to do.
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Mike Dunford
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@questauthority
Yes, I have seen the thing about Texas suing other states over the election. Yes, the US Supreme Court has original and exclusive jurisdiction over cases between states.

No, this is not a thing that will change the election. At all.

If this is real - and I do emphasize the if - it is posturing by the elected Republican "leadership" of Texas in an attempt to pander to a base that has degraded from merely deplorable to utterly despicable.

Apparently, it is real. For a given definition of real, anyway. As Steve notes, the Texas Solicitor General - that's the lawyer who is supposed to represent the state in cases like this - has noped out and the AG is counsel of


Although - again - I'm curious as to the source. I'm seeing no press release on the Texas AG's site; I'm wondering if this might not be a document released by whoever the "special counsel" to the AG is - strange situation.

Doesn't matter. The Supreme Court is Supremely Unlikely to take this case - their jurisdiction is exclusive, but it's also discretionary.

Meaning, for nonlawyers:
SCOTUS is the only place where one state can sue another, but SCOTUS can and often does decline to take the case.
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