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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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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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Election Litigation Update - Gohmert.

Reply brief is in. Let's have a look. They are, mercifully, underlength. They had 50 pages available, the PDF is 43 and some of that is cover page, signatures,

Interesting table of contents. Looks like they're packing a lot in, until you realize that much of the material that's important - like their response to the "you sued the wrong person" material and "injury in fact" take up very little space.


Looks like they decided to skip the table of authorities. Presumably GoogleDocWord ate it too bad for them to fix. This will certainly further endear them to the judge.


This is going to be interesting - leading off a reply brief with a "here's what our cause is about" is certainly a strategy. It's even a bold strategy.

Shall we dig deeper, Cotton?


"We live in a democratic republic in which the Vice President, who will more often than not be a candidate in the election, has the sole and unchallengeable power to decide who wins the election" is a hellofa take.
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Texas - WTF is this even - a very short reassurance thread:

1: The Texas "lawusit" against four other "battleground" states in the United States Supreme Court is legally stupid.* It is so legally stupid that I was reluctant to believe that even Ken Paxton would file it.

*My patience level is not ginormous today. Please don't try to explain to me why you think it isn't stupid for whatever other reasons because I'll be making liberal use of the airlock. Thx.

2: Yes, one state can sue another at the US Supreme Court. However, the Supreme Court gets to decide whether to take the case. One factor that they will **undoubtedly** look at is the factor of "injury."

Texas is claiming two things. First, that the states have a special interest in who becomes Vice President because of the tiebreaker. Second, that their electors are injured if their votes are "diluted" by electors from states that, in Texas's view, didn't obey their own law.


There is very little argument presented for "injury." Even less - barely a paragraph - was presented for how the defendant states caused that injury.

For lawyers, this is a signal that this is a performance of politics by "litigation" and not a serious effort.
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Mike Dunford
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Happy Monday! Dominion Voting Systems is suing Rudy Giuliani for $1.3 billion.

As Akiva notes, the legal question is going to boil down to something known as "actual malice."

That's a tricky concept for nonlawyers (and often for lawyers) so an explainer might help.


What I'm going to do with this thread is a bit different from normal - I'm going to start by explaining the underlying law so that you can see why lawyers are a little skeptical of the odds of success, and only look at the complaint after that.

So let's start with the most basic basics:
If you want to win a defamation case, you have to prove:
(1) that defendant made a false and defamatory statement about you;
(2) to a third party without privilege;
(3) with the required degree of fault;
(4) causing you to suffer damage.

For Dominion's defamation cases, proving 1 and 4 is easy. 2 is, in the case of the lawyers they're suing, slightly more complex but not hard. And 3 - degree of fault - is really really hard to prove.

A false statement of fact that is defamatory is a slam dunk element here - all the fraud allegations against dominion are totally banana-pants. They are also allegations which are clearly going to harm Dominion's reputation.
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@questauthority
Election Litigation Update: DC - the "let's sue the Electoral College" case.

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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