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VOLOKH CONSPIRACY

Mostly law professors, blogging on whatever we please since 2002 · Hosted by The Washington Post, 2014-2017 · Hosted by Reason 2017 · Sometimes contrarian · Often libertarian · Always independent

I'll Be on Reddit Tomorrow (Wednesday) for an "Ask Me Anything"

Please feel free to come by!

Here's the announcement:

On June 13 r/legaladvice will be very pleased to host an "AMA" by UCLA law professor Eugene Volokh. Professor Volokh teaches free speech law, tort law, religious freedom law, church-state relations law, and a First Amendment amicus brief clinic at UCLA School of Law, Before coming to UCLA, he clerked for Justice Sandra Day O'Connor on the U.S. Supreme Court and for Judge Alex Kozinski on the U.S. Court of Appeals for the Ninth Circuit.

Professor Volokh is also the founder of the noted law blog the Volokh Conspiracy which until recently was hosted by the Washington Post, but has since moved to Reason Magazine. He is an author of several textbooks and over 150 op-eds and law review articles, some of which can be viewed here. In addition he is one of the most cited legal scholars anywhere in the country. His areas of scholarship are wide, however he is noted for his work on internet and technology law and the second amendment....

Questions will go live at 11 am Eastern/8 am Pacific and he will start answering questions at 2 pm Eastern / 11 Pacific, though you can ask some below and we'll port them over.

By sheerest coincidence, this will also be the anniversary of our family's departure from the Soviet Union, 43 years ago.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • MonitorsMost||

    Eugene,
    Would you have any interest in becoming a judge? (irrespective of whether you think you're confirmable with your paper trail)

    PS, I'm aware that the "port over" comment was for the reddit announcement. I don't have a reddit account though and don't particularly want one.

  • AmosArch||

    He'll deny or minimize it of course but I suspect some moderation choices here stem at least in part from a deepseated hope that some future President will maybe just maybe nominate him to a plumb Federal circuit or maybe even the SC. Don't get me wrong, I'm reasonably satisfied with the mod policy but nevertheless especially a while back I'd notice people getting banned for petty stuff like calling Obama Odumbo or something. Stuff you wouldn't want some snooty Presidential headhunting team seeing while at the same time being something that probably wouldn't warrant any ire in normal circumstances. Having said that, with the right going Trumpian, the left going full NeoCommunist, and the overall awkward philosophical position of pro government mandated caking baking libertarians. This faint hope seems to be fading even more.

  • Rev. Arthur L. Kirkland||

    Are you saying Artie Ray Lee Wayne Jim-Bob Kirkland was censored for being too conservative and to promote Prof. Volokh's judicial prospects?

  • Paladin_44||

    Perish the thought!

  • VinniUSMC||

    Artie, no one gives a fuck about you, or your troll account.

  • Rev. Arthur L. Kirkland||

    Prof. Volokh cared enough to censor Artie Ray, who used no profanity, made no threats, defamed no one.

    It appeared to be pure viewpoint discrimination. Enforced by the proprietor of a self-described libertarian (or "libertarianish") blog.

    Other than that -- great comment, Vinni!

  • MonitorsMost||

    Insanely idiotic; nothing resembling a coherent thought; award no points; god have mercy on your soul; etc.

  • theobromophile||

    I appreciate that the VC crew has worked so hard to create and maintain a good comments section, and not just because it's how I met my fiance. The choices bloggers have are essentially to be relatively obscure, engage in regular moderation, or have the comments turn into a dumpster fire.

  • Rev. Arthur L. Kirkland||

    Which choice have the Conspirators made, in your judgment, theobromophile? Thank you.

  • FlameCCT||

    "NeoCommunist" aka Progressive and not so new.
    Progressivism is just Communism with better propaganda!

  • Rev. Arthur L. Kirkland||

    Conservatism is just backwardness and bigotry with a goofy orange thing sitting atop its head.

  • Eidde||

    If you were a tree, what kind of tree would you be?

    Sorry, I'm not on reddit either so I thought I'd get some questions in this comment section.

  • BadLib||

    Someone did ask him on reddit what kind of sandwich he would be if he were a sandwich.

    But, alas, when I last checked, he had not answered.

    Of course we know he probably wouldn't want to be a ham sandwich due to the increased risk of being indicted by a grand jury that would introduce.

  • Eidde||

    I'm glad I'm not a sandwich, I'd get hungry one day and soon there'd be nothing of me left.

  • BestUsedCarSales||

    Have you ever kissed a lady? Follow-up: Was she a cutie?

  • TwelveInchPianist||

    There's enough of a nexus that I'll call this on topic.

    There's a post on r/legaladvice where a gal claims that she was arrested for "profane language" and pleaded guilty. A search of ND court records indicates that this is probably the citation and the person was indeed charged with "profane or indecent language". The listed statute, 12-45, doesn't appear to exist in the ND statutes, and googling doesn't indicate how there could be a basis for such a charge. I wonder if there's anything she can do to undo this.

  • TwelveInchPianist||

    Yuck. The link to the court record seems to have stopped working. The citation no. is
    0005638772

  • Walter Tuvell||

    I just posted a question for Prof. Volokh on Reddit, here it is:

    Why are federal judges permitted to commit crimes with impunity, and no lawyer (or law prof) will complain about it?

    Very explicit example (of Obstruction of Justice, via Falsification of Facts at Summary Judgment): http://judicialmisconduct.us/C.....mokinggun.

  • MonitorsMost||

    Walter,
    The judge didn't do anything wrong. Defendant submitted a statement of facts in support of summary judgment which you through your attorney admitted or denied. When you denied facts in IBM's, you were required to (and did) submit evidence in the form of affidavit testimony.

    You can't defeat summary judgment by filing a separate statement of facts that ramble on or otherwise don't address the facts material to the basis for summary judgment. For an extreme example, if you had submitted a separate statement of facts that recited the plot to Wizard of Oz, it wouldn't somehow filibuster the summary judgment motion.

    You're not getting any traction because there wasn't any judicial misconduct. Each step in your quixotic quest just confirms that you are the crazy person titling at windmills and shrilly yelling to everyone that they are dragons. However, feel free to add me to your list of uninterested neutral observers who are actually part of the vast conspiracy to prevent the truth from being exposed.

  • Walter Tuvell||

    Uh, MonotorsMost, you are completely wrong. You are, instead, regurgitating a false "explanation" about how "you think/wish" Summary Judgement is supposed to proceed, but "your thinking/wishing" is totally wrong.

    The fact is that the PSOF did indeed respond directly/properly/correctly to each and every point of the DSOF. So at that point the judge is bound, by rule/law (including Constitutional Due Process), to "blindly" credit PSOF over DSOF. But she did the exact opposite. Which does amount to Obstruction of Justice, Falsification of Facts, etc.

    In addition to the "Smoking Gun" I pointed to in my previous note (which I must presume you read), I now point you to http://judicialmisconduct.us/C.....velation4, which introduces the 70-page document that proves what I'm saying about PSOF-properly-countermanding-DSOF.

    What say you now, Mr. Uninterested Neutral Observer?

  • Walter Tuvell||

    Also, MonitorsMost: Please read the paragraphs preceding the Smoking Gun (cited earlier), which document the TRUE way that Summary Judgment is conducted in the First Circuit. As opposed to the LIE methodology you're pretending to perpetrate.

  • Walter Tuvell||

    There's also a (correct) write-up about Summary Judgment on the Intro page, http://judicialmisconduct.us/Introduction.

    Where, pray tell, are you getting your (false) write-up from?

  • gormadoc||

    The Reason boards already have a dude who's antagonistic to everyone, isn't self-aware, and overuses his unique typographical conventions; we don't need another.

  • Walter Tuvell||

    Gormadoc: Non-responsive.

    MonitorsMost is lying (about how Summary Judgment works), I'm telling truth. If yoy have a cogent comment (with or without typographic conventions), it would be welcome? Else, why waste electrons?

  • loki13||

    Walter,

    I'm going to point this out nicely; any attorney (of which there are many, including the ones you are responding to, on the VC) who looks at your link is going to think that you're the crazy one.

    They aren't going to engage with you any farther, because it's clear, as your attorneys abandoned you long ago that you don't understand what you don't understand, but I will put this to you very gently ... even if you were right about the standards for summary judgment in federal court (which you aren't), a differing opinion on the standard for summary judgment in federal court isn't judicial misconduct. You might want to consider the small fact that every judge, including multiple appellate panels, as well as your own attorneys, have rejected your arguments. Eventually, either the whole world is crazy, or you are.

    Sometimes, it's better to place your money on the field, buddy.

  • David Nieporent||

    Loki is much nicer than I am.

  • gormadoc||

    It's exactly like loki13 said. It's difficult for me to read that page because the writing itself is unhinged. You should not use Greek letters for footnotes (not everybody is familiar with their ordering and they look terrible in certain fonts), you use slashes too much, there's too much bolding and italicizing, and it emotes too much for the presumably legal point you're trying to make. You should also change the light gray to something darker; it's physically difficult to read.

    The general crusading and allusion to Nazi propaganda doesn't make me want to read it, anyway. Even if the judge erred, isn't it more likely to be an error then some conspiracy?

  • Walter Tuvell||

    For example, Gormadoc: MonitorsMost is saying that "only a Response to DSOF" is permitted at S.J. (in the First Circuit), but that's a completely false lie. Instead, a PSOF is REQUIRED. And then, where they conflict, the judge is REQUIRED to credit PSOF over DSOF (presuming Plaintiff is nonmovant, as here).

    Your cogent, on-point response, please?

  • loki13||

    "For example, Gormadoc: MonitorsMost is saying that "only a Response to DSOF" is permitted at S.J. (in the First Circuit), but that's a completely false lie. "

    That's not what he said; the fact that you don't understand what he said is probably why you don't understand why you're wrong.

  • David Nieporent||

    That's not what he said; the fact that you don't understand what he said is probably why you don't understand why you're wrong.

    This. For instance, he characterizes a routine statement in the district judge's decision as a "smoking gun." The judge blandly wrote, in the intro to the "Factual Background" section of her decision:

    "The facts are as represented in IBM's statement of material facts, D. 74, and undisputed by Tuvell, D. 82, unless otherwise noted."

    He thinks this means that the judge is admitting that the judge didn't follow the summary judgment standard. And he has constructed an entire edifice of judicial corruption around that simple, innocuous statement.

  • David Nieporent||

    You're not getting any traction because there wasn't any judicial misconduct. Each step in your quixotic quest just confirms that you are the crazy person titling at windmills and shrilly yelling to everyone that they are dragons. However, feel free to add me to your list of uninterested neutral observers who are actually part of the vast conspiracy to prevent the truth from being exposed.

    Ah, the kook! I checked out his site when he posted here six months ago; notwithstanding the idiosyncratic typography, I read it in detail because I was morbidly curious, in the same way one can't look away from a train wreck.

    My favorite part, as I noted back then, was how he made up his own version of how summary judgment works and then edited the wikipedia entry on summary judgment to make it match his invention.

  • loki13||

    "My favorite part, as I noted back then, was how he made up his own version of how summary judgment works and then edited the wikipedia entry on summary judgment to make it match his invention."

    Wow!

    You edited wikepedia to reflect your crazy beliefs? And you ate the whole wheel of cheese? Why'd you do that?

    Heck, I'm not even mad, that's amazing!

  • David Nieporent||

    Really. He had said something so weird in one of his screeds -- I don't remember if it was one he had actually filed as a pleading, or just something on his website -- that I googled to see where he had gotten it from. There were no hits anywhere other than his site, except wikipedia. And yes, you could go check the wikipedia version history and see that he had added in his own unique spin on the process.

  • loki13||

    You know, it's funny, because wikipedia is so darn useful as a quick source of really good, usually accurate information. (Quick, what was the episode title of Season 3, episode 4 of some random TV show that was on the CW? TO THE WIKIPEDIA!).

    But then I remember that stuff like this happens and why I don't rely on it for anything more important than quick trivia.

  • MonitorsMost||

    Do not google this guy. You will be subjected to a highly entertaining rabbit hole of comments on a variety of legal blogs and before you know it waste an hour or more of time.

    You mention pro se's "running out of money." Yes, that happened to me alright, but more to the point, I "ran out of lawyers." My then-lawyers refused to "speak truth to power/authority" as I mentioned, but then so did all other lawyers I contacted (I was "radioactive" for daring to insist on the promisorial-justice guaranteed by all the solemn Constitutional/legal/rule advertised/publicized/promulgated precedent). Silly me, I can only read/understand official/formal proclamations, not mind-read the dark recesses of criminals.

  • David Nieporent||

    Do not google this guy.

    You couldn't have told me that six months ago, before I made that very mistake?

  • MonitorsMost||

    My favorite part is that "the Supreme Court falsely denied" his petition for cert.

  • David Nieporent||

    Twice. (They also "falsely denied" his petition for rehearing their denial of cert.)

  • Walter Tuvell||

    I was called away for awhile, back now, will address all comments now, in order.

    To Loki13:

    My lawyers didn't abandon me, they agreed with me, but got too expensive to keep paying them, hence pro se now.

    Yes, I am 100% right about S.J. under FRCP (+ 1st Cir Local Rules). It's proven by my write-ups on my website. You lie when you write otherwise. What are your "alternate facts," with refs/cites, please?

    "A differing opinion on the standard for summary judgment in federal court" absolutely IS Judicial Misconduct (in the strict sense of that phrase, under JCDA/JCDR, as written-up on my website). BECAUSE: There's no such thing as a "differing opinion." S.J. follows strict rules/procedures/standards/laws/precedents. Any breach of those (by a judge, in a case) IS Judicial Misconduct. [For a lawyer writing here, a "differing opinion" is breach of Ethics/ProfResponsibility. For a non-lawyer, it's Just Plain Incompetence/Stupidity.]

    "You might want to consider the small fact that" Everybody also thought sexual misconduct was OK too, until #MeToo came along.

  • loki13||

    "Yes, I am 100% right about S.J. under FRCP (+ 1st Cir Local Rules). It's proven by my write-ups on my website. You lie when you write otherwise. What are your "alternate facts," with refs/cites, please?"

    My "alternate facts" is that I have probably forgotten writing more summary judgments than you have ever read, and I have experience winning some and losing some, and not once did I ever think to myself, "Self, do you know what really happened here? The entire judicial system engaged in a massive conspiracy against me!"

    "A differing opinion on the standard for summary judgment in federal court" absolutely IS Judicial Misconduct (in the strict sense of that phrase

    By "strict" sense of the phrase, do you perhaps mean no sense of the phrase?

    ""You might want to consider the small fact that" Everybody also thought sexual misconduct was OK too, until #MeToo came along."

    Yes, your brand of crazy is just like #MeToo.

    For the record, I was gentle at first ... but we are laughing at you.

  • loki13||

    "My lawyers didn't abandon me, they agreed with me, but got too expensive to keep paying them, hence pro se now."

    Also, as an FYI, for the type of claim you were bringing, an attorney would normally take it on a contingency basis.

    If you were being charged hourly for that type of claim, that meant you didn't have a claim.

  • Walter Tuvell||

    To Gormadoc:

    "The writing itself is unhinged." Particularity, please?

    Griping about Greek letters, etc. Oh Come On. You're complaining about shades-of-gray, but won't address a single substantive issue (truthfully)? The one issue you should be commenting on is the Smoking Gun, where within the space of a couple lines the judge says: (i) she MUST (by law) credit PSOF; (ii) she DOES instead credit DSOF. That is prima facie Obstruction of Justice. You needn't go further, into all the typography you pretend is too difficult for your little brain to comprehend. Just address/rationalize that one little Smoking Gun. I'm waiting.

    Nazi propaganda: The Big Lie paradigm fits, so the judges must wear it.

    "More likely to be an error then some conspiracy." Can't be. The judges have had every possible opportunity to correct any errors, but have committed to Cover-Up instead. Hence, conspiracy.

    "Emotes too much." That's because I keep running into brainless liars. Like you.

  • gormadoc||

    Get an editor for your writings. You need it. It is disjoint. You might think that your cause is righteous enough to do without good clear writing but it isn't, especially considering your target audience. It's a legal matter so it's already difficult to get non-legal profession folks interested. You shouldn't try appealing to legal professionals because you believe they're involved in conspiracy against you. Sadly, that makes it so that you have to appeal to the already disinterested non-ordained, so you should drop the dense legal references sprinkled liberally in your body and have that explanation elsewhere.

    I can comment on whatever the hell I want, tyvm. I'm under no obligation to consider your legal claims.

    What have I lied about?

  • Walter Tuvell||

    To David Nieporent:

    "Constructed an entire edifice of judicial corruption around that simple, innocuous statement." Not exactly. True, that one Smoking Gun statement is the beginning of it all, but the "entire ediface" is built upon all the other docs I've written.

    But wait, if you want, let's pick on just that one Smoking Gun statement. It is a self-contradictory lie ("must credit PSOF, but will credit DSOF instead"), which is contrary to ALL KNOWN RULES/LAWS (as proved/cited throughout my website). So, if you want to scotch me, start there. What's your counter-argument to mine, please? With examples of other cases where the judge does the same? [Hint: don't waste your time, no such case exists. Cf. #MeToo: a movement has to start somewhere.]

  • David Nieporent||

    It is a self-contradictory lie ("must credit PSOF, but will credit DSOF instead")

    You may not realize it, but quotation marks are generally used to quote someone, rather than to make something up & pretend they said it. Hint: the court did not say "must credit PSOF, but will credit DSOF instead." That's a phrase you made up. The court also did not say anything equivalent to "must credit PSOF, but will credit DSOF instead." That's not even remotely similar in meaning to the words the court actually said. No person familiar with the English language could read what the judge wrote and interpret it as you did.

    Moreover, as several lawyers (and courts!) have tried to explain to you, you misunderstand the SJ process. For one thing, the court is not supposed to credit SOFs at all, plaintiff's or defendant's. A SOF is a summary to help the court – but it's the underlying evidentiary record that matters, not the SOF; one can't just (as you tried to do) make conclusory statements and arguments and insist the court adopt those.

    Second, you have to expressly contradict their asserted facts, not just write a novella and hope the judge will assume the volume of your words contradicts theirs. (The court was nice to you; I've seen judges toss such submissions entirely when they're as rambling and prolix as yours was.)

    Third, it's only supposed to be material facts. Many of the facts you argued about were not legally relevant.

  • Walter Tuvell||

    To David Nieporent:

    "Made up his own version of how summary judgment works." No, there's only one version (under FRCP, with 1st Cir. Local Rules), though there are many ways of languaging it (which is why all those court opinions on S.J. write-up their own languaging). The point is not languaging, the point is factuality: If I'm wrong, point out where, exactly, I am wrong.

  • Walter Tuvell||

    To Loki13 & David Nieporent, in tandem:

    C'mon guys, give just one single place I'm wrong, please, instead of just pretending "something must be wrong somewhere."

    And, BTW, Wikipedia DOES check-up on things like this, and they've — guess what? — decided it's correct/useful, and so have let it stand.

  • Walter Tuvell||

    To MonitorsMost and David Nieporent:

    "Supreme Court falsely denied … twice." Yep.

  • David Nieporent||

    Hint: a denial of cert is not a assertion of fact, and hence cannot be "false" (or true, for that matter).

    (Well, to be pedantic, it could be interpreted as an assertion that the Court is not going to hear the case; that's an assertion of fact. But in that case, it's definitionally true; the Court did not in fact hear the case.)

    (It is not, as many laypeople think, a finding that the lower court decision in question was correct.)

  • loki13||

    Are you sure, DMN?

    I thought that Chief Justice Roberts middle name was "Lower Court Error Correction."

  • David Nieporent||

    Only on 9th Circuit QI cases.

  • loki13||

    HA! That's pretty funny.

    The last time I saw CJ Roberts speak, he had a great bit about how the Supreme Court doesn't do error correction. I would have been really impressed ...

    Except it was the same spiel he gave the time I saw him before that. It's his go-to.

  • gormadoc||

    Oof, that's good.

  • Walter Tuvell||

    To MonitorsMost:

    "Do not google this guy. You will be subjected to a highly entertaining rabbit hole of comments on a variety of legal blogs and before you know it waste an hour or more of time."

    Again with the content/context/reference-free innuendos, huh? But it's not necessary to go "elsewhere" (than this current blog/comment-stream), is it (because, it's all one-and-the-same of-a-piece)? You've got the audience you appear to want right here/now.

    Namely: give us/me one single factoid where you're right and I'm wrong. I'm waiting. I hear crickets.

  • MonitorsMost||

    As long as you disclaim that facts presented by others constitute facts, your position is unassailable.

    The gravamen of your complaint is about how the judge chose to cite to the record in the order granting summary judgment. There is nothing that prevents the judge from citing to the defendant's statement of material facts. LCR 56.1 says the moving party is supposed provide a concise statement of material facts that they contend are not subject to genuine dispute. The opposing party is then to provide a concise statement of the facts it contends there is a genuine dispute regarding.

    Your attorney chose to respond in two separate ways. This is fine, the rule does not micromanage the form of the response. However, the rule also doesn't micromanage how the judge is to cite to the record. A judge can apply the legal standard for summary judgment (facts in the light most favorable to the no moving party and all reasonable inferences therefrom) and still cite to the defendant's statement of material facts within the order. You have incorrectly conflated "how the facts are to be viewed" with "how the facts must be cited."

    There's a whole lot of other things about your style and the weakness of your underlying claim which make it easy for people to conclude you're a crazy person. But even at the heart of your assertion of judicial misconduct, that the judge made a procedural error divorced from the underlying merits of the case, you are wrong.

  • David Nieporent||

    Your attorney chose to respond in two separate ways. This is fine, the rule does not micromanage the form of the response.

    I know nothing about his lawyer; his fame, if any, does not precede him from Massachusetts down to NY. But I have a sneaking suspicion that his lawyer allowed him to draft the "PSOF," and perhaps the Plaintiff's Response to "DSOF," too. They read much more like Mr. Tuvell's voice than a lawyer's voice.

  • MonitorsMost||

    I hit the character limit on my response and had to start cutting. That part was better drafted before I had to start chopping off fingers to get it to 1,500 characters.

  • mad_kalak||

    I don't know much about Walter Tuvell or his case (as I skim past), but I like him. In fact, I don't really care if he's right or wrong, but I just naturally empathize with someone opposed to an entrenched bureaucracy that self-reinforces its own anointed status.

  • loki13||

    He got fired from IBM for being crazy. Said his PTSD because he was once offered a job with Microsoft in 1997 that was rescinded (really, I wish I was making this up).

    Claimed, among other things, that IBM violated the ADA because his crazy meant that he couldn't get along with anyone or participate in group activities.

    It's really quite something. It's good to see that you're a fan of the mooching class.

  • Walter Tuvell||

    To Loki13:

    "By 'strict' sense of the phrase, do you perhaps mean no sense of the phrase?" No, what I mean (as I've said here today) is "JCDA/JCDR, with Judicial Council/Conference." Which is the "legal" sense of the phrase. Obviously.

    "For the record, I was gentle at first ... but we are laughing at you." And I was gentle at first, too, until unwarrantedly attacked. As far as who is laughing at whom, I keep asking, but you(-all) keep dodging: give me one single solid factoid where you're right and I'm wrong. Then we'll see who has the last laugh.

  • loki13||

    "As far as who is laughing at whom, I keep asking, but you(-all) keep dodging: give me one single solid factoid where you're right and I'm wrong. Then we'll see who has the last laugh."

    That would be me, and everyone else, because, and let me repeat this for your benefit-
    Every ... single ... judge ... has .... ruled ... against .... you. And I am quite positive that any person with any legal training has tried to explain things to you multiple times before walking away ... slowly.

    You lost. Deservedly so. You are one of the crazies that everyone tells stories about. You're the proverbial "that guy." There is a reason you were shitcanned, and there is a reason that people don't take you seriously. Please, get some help.

  • Walter Tuvell||

    To mad_kalak:

    "I don't know much about Walter Tuvell or his case (as I skim past), but I like him. In fact, I don't really care if he's right or wrong, but I just naturally empathize with someone opposed to an entrenched bureaucracy that self-reinforces its own anointed status."

    Finally, one sane poster to this stream (besides me)! He admits ambivalence in the face of complexity, which is a mark of sanity. As opposed to all the knee-jerk crazies we're seeing here (who, unfortunately, appear to be lawyers, or at least have some kind of lawyering experience; I sure hope/believe they're not representative of all lawyers, they're sure giving lawyers a bad name …).

  • Walter Tuvell||

    To Loki13:

    "He got fired from IBM for being crazy." No. Still refuse to even read the case, and just make shit up, huh, Loki13?

    Got fired because of (illegal) age discrimination. The PTSD/ADA (fully documented, on my website) came later.

    Which (the age disc, that is), BTW, has now got EEOC looking into IBM, see http://judicialmisconduct.us/CaseStudies/WETvIBM footnote κ (that's "kappa" for the stupid people, like you).

    Oh, another "BTW:" For those who think PTSD is "crazy" ­— you've got a lot of growing-up to do.

  • loki13||

    Dude. You're all over the place. Your ADA claim was interesting, if stupid.

    Your discrimination and/or hostile work environment claims on the basis of ... wait for it ... handicap, retaliation [sic!], race, gender, and age" are laughable. I mean, you didn't put in religion, so there's that.

    I will quote the relevant part, because, well, it's funny if you're an attorney-

    Finally, the Court notes that Tuvell has offered no facts to support his discrimination
    claims based on age, gender and race. Tuvell has alleged no facts, distinct from those addressed
    elsewhere, to sustain a discrimination claim on the basis on age, gender or race. Tuvell appears
    to argue that his transfer within his group, switching projects with Mizar – who is Asian, female
    and younger – may have constituted discrimination. Tuvell offers no support for this opinion,
    however, stating only that it constituted discrimination because "something bigger" was "at
    play" that "had to be illegal." D. 82 ¶ 11 (quoting Tuvell Dep., D. 76-2 at 7). This allegation,
    standing alone, is not enough to rebut IBM's showing that there is no genuine issue of material
    fact as to his age, gender and race discrimination claims. Moreover, as discussed above, Tuvell
    acknowledges that this switching of projects did not result in any change to Tuvell's pay, title or
    rank within the company.

    MUAHAHAHAHAHAHA!

  • loki13||

    On the one hand, it is so mockable.

    On the other hand, I am reasonably sure that Walter Tuvell has serious mental issues.

    *shrug*

  • David Nieporent||

    And, indeed, the uncontroverted fact -- uncontroverted not in the sense that Tuvell doesn't dispute it, but in the sense that there's no contrary evidence -- is that Tuvell was fired because, while purportedly out on complete disability, he took another job and then refused to disclose the facts of that employment to IBM when he did it or when they found out and asked.

  • loki13||

    Hey- don't tell Mad Kalak.

    He'd rather believe this is someone FIGHTING THE POWER instead of being a far-too-common example of just how hard it is to get rid of frivolous litigants in the system.

  • mad_kalak||

    What do you think the litigants were in Baehr v. Miike, which kicked off the whole same sex marriage legal debate, if not frivolous litigants?

    Anyway, I get enough of the point of the other commentators here, that his legal arguments are not perhaps not so strong. Meh. What rankles me, and has others since time immemorial if we look back to Richard the Butcher, is the cult of the robe.

  • loki13||

    "What do you think the litigants were in Baehr v. Miike, which kicked off the whole same sex marriage legal debate, if not frivolous litigants?"

    You seem to miss the point entirely. There should always be a place for the good-faith modification and extension of the law.

    The problem is when you get arguments like this. But what you should really examine is what has gotten you to to the point where you are more willing to credit an obviously disturbed person than the court system. It says a lot about you, and none of it flattering.

    (None of this is to say that court are infallible, but if your default is to trust the deranged person, then something has gone wrong with your heuristics, and you might want to think about how that is influencing the rest of your decision making).

  • mad_kalak||

    Whew, you went from zero to 60 like that.

    The gay marriage advocates in 1990 were kooks, nothing more, but because they won, they get to look back and seem prescient. They weren't. They could have lost, and they would still look like kooks. This guy may be a kook too, but it ain't apples and oranges to compare the two.

    Disturbed, naw, just inordinately passionate. He is no better or worse than a jailhouse lawyer filing what seem like useless lawsuits, some of which stick, some don't. Spare me the high horse you're on.

  • loki13||

    " Spare me the high horse you're on."

    O RLY? My high horse? So I suppose it's just other people that complain about the sclerotic court system and the high cost of litigation, and when people point out nutcases like this guy, you're all like, "Hey, give him a chance!"

    "This guy may be a kook too, but it ain't apples and oranges to compare the two."

    Here's the thing- if you can't tell the difference between people arguing, in good faith (and with proper procedure) for modification and extension of existing law, as opposed to your garden-variety kook/bad employee/vexatious litigant, then there shouldn't be any standards at all, right?

    As for my high horse, it's because we have people like you who can't be bothered to do a modicum of research and then just trust the crazy. You are, quite literally, symptomatic of the worst problems in the world.

  • loki13||

    (In case this is too subtle for you, it's not an issue of people really trying to understand something and then just coming to a good-faith disagreement. That always happens, and always will.

    It's the people like you who can't even bother to understand what's really going on, and just resort to bad heuristics. It's people like you that believe every stupid forward and false facebook meme and lying internet post. Thank, guy.)

  • mad_kalak||

    I ask you to spare me the high horse, and somehow you managed to put another one under you like Yertle the Turtle! Nice.

    People may complain about the sclerotic court and high cost of litigation, but outliers like this guy are not the main drivers, it's the way the judicial system manages itself. His cases seem to be disposed of easily enough. I don't don't think he's a big problem.

    Meh, please try to differentiate a natural sympathy for the underdog with some kind of perverse lack of ability to think logically. You are also conflating of my empathy for his position with defending the rightness of his cause. I don't know if he is right, sounds like he's not. Believe it or not, I trust YOUR legal opinions over his. But perhaps you need to take a step back if you think me being empathetic towards someone who you think is wrong, means that I am attacking you. I'm not attacking you.

    (Side argument: So...since gay marriages advocates won, they weren't kooks in 1990? That's some real 20/20 hindsight vision.)

  • loki13||

    I will address you reply at the end- this threading is terrible, and it requires a longer response.

  • David Nieporent||

    Oh, another "BTW:" For those who think PTSD is "crazy" ­— you've got a lot of growing-up to do.

    As appears to always be the case, one of your big problems is that the words people say somehow get translated differently in your head. Loki didn't say that PTSD is crazy. He said that you were crazy. Just because you found some social worker (! -- not doctor) to claim you had PTSD doesn't mean you do. (It's rather insulting to actual trauma victims to pretend you have PTSD, by the way.)

    That having been said, while the specific diagnosis is absurd, I don't think there's any doubt you're mentally disabled under the ADA. (It's an indictment of the ADA that it allows so many resources to be wasted on such silly arguments, but that's a separate issue.)

  • Walter Tuvell||

    To Gormadoc:

    "Get an editor for your writings." We all come into, and navigate, this world with our native abilities. I'm a mathematician, and write that way. It's all super-cogent — though perhaps a bit "complicated" for the middle-of-the-road C-student that you appear to be claiming to be. Buck up. Rather then me dumbing-down, why don't you consider/try smarting-up?

    "I can comment on whatever the hell I want, tyvm. I'm under no obligation to consider your legal claims." True. But being non-responsive in a give-and-take forum like this is insipid. You're comfortable with being insipid, I take it.

    "What have I lied about?" Uh, everything you (falsely, in-bad-faith) generalize-about, as opposed to addressing-specifically-on-point?

  • gormadoc||

    You're hilarious. Mathematicians don't write that way at all when they're not writing a paper, which, of course, are not intended for a general audience. Good mathematicians write very clearly when they are writing for such an audience.

    It wouldn't be "dumbing down" for you to improve your writing; it would be an attempt at proper argumentation and rhetoric. You should be trying to convince people; it doesn't matter how love your own writing when nobody else can muster the courage to slog through it.

    "Uh, everything you (falsely, in-bad-faith) generalize-about, as opposed to addressing-specifically-on-point?"
    You realize that this is a generalization and you haven't provided any specifics? You responded to my comments that had specific points by hand-waving them away (not very rigorous for a mathematician, eh?) and bringing up unrelated points. Now you're just doubling down on calling me stupid.

  • Walter Tuvell||

    To Loki13:

    "Yes, your brand of crazy is just like #MeToo."

    Fine, I'll align myself with #MeToo, because that stands for "no more surreptitious sexual misconduct" (a Good Thing in my book).

  • loki13||

    Again, you seem unable to understand nuance or meaning. Here, I will help.

    "Yes, you brand of crazy is just like #MeToo."

    That's called sarcasm; I am making fun of you for comparing you (who was fired by IBM after going on several extended leaves than taking another job and refusing to disclose it) with #MeToo.

  • Walter Tuvell||

    To Loki13:

    "Also, as an FYI, for the type of claim you were bringing, an attorney would normally take it on a contingency basis. If you were being charged hourly for that type of claim, that meant you didn't have a claim."

    Interesting theory. But false. The lawyers I've dealt with are much more on the easy-case-make-money track, as opposed to the do-good-by-fighting-evil-and-blazing-new-law track. And you (and everyone else) know that, too.

  • David Nieporent||

    Once again, you read one thing and heard something else. As Loki wrote, employment law is always done on contingency. That has nothing whatsoever to do with "do good by fighting evil and blazing new law." (I don't know if you misinterpreted what he wrote as being a reference to pro bono or something.) If you couldn't find an employment lawyer to handle your case on contingency, it's because your case was meritless.

  • MonitorsMost||

    Oh god, he's adopted the delusion that plaintiff's side tort attorneys working on a contingency are about doing-good-fighting-evil. It usually takes years of legal practice as the plaintiff's attorney to develop this delusion. Usually precipitated by increasingly concerning ethical dilemmas interfering with the dollar signs in your eyes.

  • Walter Tuvell||

    To David Nieporent:

    "Hint: a denial of cert is not a assertion of fact," (blah, blah).

    But that's now what I'm talking about at all, now, is it? As R.R. would say, "there you go again" (distorting out-of-context what I'm talking about).

    What I'm talking about (invoking) is, instead any of your "assertion of fact" shit, the "supervisory power" of the SupCt over the lower fed trial/appeal courts, SupCtR 10, as stated on p.39 of the PetWritCert (available on http://judicialmisconduct.us/CaseStudies/WETvIBM, hard to supply URL here because the stupid blog software chokes on URLs longer than 50 chars). And you know it (or should, if you're not just blowing it out of your ass, which is a distinct possibility).

  • David Nieporent||

    But that's now what I'm talking about at all, now, is it?

    Well, if even you don't understand what you're talking about, I don't know why you'd expect anyone else to. But let me try again:

    You claimed that their denial of cert was "false."
    Their denial of cert was not false.
    QED.

    Nothing in "SupCtR 10" makes their denial of cert "false."

    What I assume you mean is that Rule 10 lists certain factors the Court considers in deciding whether to grant cert, and you think your case satisfies those factors, and therefore the Court should have granted cert. The problems with that are that (a) your case doesn't satisfy those factors because you misunderstand what happened in your case, and (b) Rule 10 is not a promise that the Court will grant cert even if those factors are met. Sometimes the Court does, sometimes it doesn't. It takes only a small subset of even those cases that might seem certworthy. (Which, I repeat, yours was not.)

  • zanctmao||

    Hey professor Volokh - it was great having you today. Thank you so much!

  • MonitorsMost||

    Dude, stay on topic.

  • zanctmao||

    Sorry I didn't realize I was interrupting the "I don't know how to use the reply button" show.

  • loki13||

    lol

    Great job moderating. :)

  • MonitorsMost||

    He's just a computer scientist. He writes the code, but no one ever said he needs to know how to use the final product.

  • gormadoc||

    It looks like you guys moderated well. Good job.

  • zanctmao||

    Thanks!

  • Walter Tuvell||

    To MonitorsMost (your 3:04 p.m. post):

    "As long as you disclaim that facts presented by others constitute facts, your position is unassailable." (Etc.)

    But you're wrong. Because, your "facts presented by others constitute facts" makes no sense (is inapropos) in the context of what's happening. Namely, at S.J. time, the judge (in a jury-trial-demanded case, as Tuvell v. IBM is) is DISALLOWED from "determining/deciding 'whose' 'facts' are valid." Instead, by S.J. rule/law, the judge MUST BLINDLY CREDIT NONMOVANT'S (here, Plaintiff's) ASSERTIONS OF FACTS. PERIOD.

    That's the core rule/law. The remainder (of your 3:04 p.m. post) is gloss on this, but is not additive. That is, there's no need to "go further" than the rule/law I just stated ("judge must credit PSOF over DSOF, period"). To do so would be a "house based on sand" (mental masturbation), which is useless.

  • David Nieporent||

    Instead, by S.J. rule/law, the judge MUST BLINDLY CREDIT NONMOVANT'S (here, Plaintiff's) ASSERTIONS OF FACTS. PERIOD.

    That is vaguely in the ballpark, in the same way that if you run an idiomatic sentence through Google Translate from English to Foreign Language A, and then from Foreign Language A to Foreign Language B, and then back from Foreign Language B to English, the result will kind of resemble the original statement. But it's not actually right.

  • MonitorsMost||

    Your rule statement is incorrect, or at a minimum lacks nuance. The court is prohibited from assessing credibility at the summary judgment stage. It is not prohibited from reviewing the factual assertions and determining whether they are supported competent evidence in the record.

    So, let's apply that to a small sliver of your case. You allege that being assigned to band 7 after getting into a pissing match with Feldman constituted an "adverse employment action." Whether something constitutes an adverse employment action is a legal term of art. Essentially, it's an action that effects your current compensation or is reasonably likely to effect your future compensation. In this case, the transfer was to a position for the same hours, same pay, same title. You claim that the non-wahoo project was boring and made you less desirable to other employers, but what was the evidence for that conclusion? Are you an expert in the computer science job market? Did you get an affidavit from a computer science employer to that effect? No? Then your assertion is speculation and not admissible under the rules of evidence.

    We're lawyers. It's all mental masturbation.

  • Walter Tuvell||

    To Loki13:

    "let me repeat this for your benefit- Every ... single ... judge ... has .... ruled ... against .... you."

    And I'll repeat, for your benefit: NOBODY (and that includes all the judges, and all other, including YOU) has yet given one single/solitary reason WHY I'm wrong. Just like #MeToo was alleged-to-be-"wrong" — until it's wasn't.

    We're talking about "the law" here, not just "arbitrary opinions." If you can't cite an authority as to "why," then your argument is worthless. Got it? Wanna try again, WITH CITES?

  • loki13||

    ....because any attorney that knows anything about employment law can scan the opinion from the District Court and tell you that you are a loser?

    I assume you've been told that enough already, but hey, if it helps I can tell you again. You don't seem to understand very basic principles, like these-
    1. The difference between a statement of facts, and facts that the Court considers in summary judgment.
    2. The application of facts to the law, as in what is "material."
    3. The standards that apply for the claims that you had.

    But hey- you keep being you. I would suggest, as has already been offered, that you clean up your typography; as it stands, your website is really hard to read, and it probably keeps a lot of people from finding the pure comedy gold that you have.

    In the alternative .... why not do a little Sovereign Citizen bit for a change of pace? There's a gold-fringed flag with your name on it somewhere.

  • MonitorsMost||

    Too late. I already released my strawman by filing a UCC financing statement.

  • David Nieporent||

    NOBODY (and that includes all the judges, and all other, including YOU) has yet given one single/solitary reason WHY I'm wrong.

    Uh, yeah, they did. Judge Casper explained quite clearly why you were wrong. You asserted certain causes of action against IBM. Those causes of action have elements that need to be established in order for you to prevail. There was no genuine factual dispute about those elements in your case.

    Whether there were disputes about other things -- such as whether one of your supervisors lied to another about you failing to do a project -- is just not relevant to your claim of disability discrimination. So whether you know how to use Excel or choose not to use Excel has nothing to do with the price of tea in China. And yet you spend time arguing about pointless things like that in your submissions.

  • Walter Tuvell||

    To Loki13:

    "I will quote the relevant part, because, well, it's funny if you're an attorney- Finally, the Court notes that Tuvell has offered no facts …"

    Uh, except for one little teeny-tiny factoid: The judge/court, when writing this, wasn't looking at the "facts Tuvell offered"! Remember??!! Instead, the stupid judge (lying, obstruction-of-justice-ingly) was CREDITING/READING ONLY THE "FACTS" IBM/DSOF OFFERED, NOT WHAT TUVELL/PSOF OFFERED! Which (the latter) is what the judge/court is BOUND BY RULE/LAW TO DO!

    What does it take to get this fundamental factoid wedged into the little teeny-tiny brain of yours?

  • loki13||

    The judge was actually exceedingly nice to you. In fact, what you think of as damning evidence on your webpage (the judge usually denying summary judgment in employment cases) .... most attorneys would see as evidence that the judge is more sympathetic to the Plaintiff in employment claims ... which, if you think about, means that your case is that much more terrible.

    But if you review the employer's response to your statement of facts, you should understand- yours was literally so bad that the judge could have (but did not) strike it; this is mentioned in the opinion as well.

    This has been pointed out several times- you don't cite law. You don't bring up stuff that doesn't matter (material facts). You can't assert without record evidence (sworn affidavits, depositions, etc.) that a fact is disputed because you think someone is lying. And so on. It's pretty simple if you know what you're doing; in fairness, I've seen attorneys screw this up.

    But your obsession is a bad look.

  • David Nieporent||

    Instead, the stupid judge (lying, obstruction-of-justice-ingly) was CREDITING/READING ONLY THE "FACTS" IBM/DSOF OFFERED, NOT WHAT TUVELL/PSOF OFFERED!

    What would it take to get it through your head that the judge didn't say that? (It would not constitute "obstruction of justice" if the judge did say that, but the judge did not say that.) You have misunderstood. Very very very badly.

    I am a procrastinator/masochist, so I actually read your SOF. You cite to no fact anywhere in that rambling monstrosity that evidences discrimination on the basis of sex, race, or age. There was nothing for the judge to cite.

  • Leo Marvin||

    A quick perusal of his website reveals that the Netezza/IBM supervisor to whom Walter reported was Fritz Knabe.

    I used to own a Knabe piano. (True story!)

    Coincidence?

    If you think so, you probably also believe John Barron was Donald Trump masquerading as his own publicist.

  • Walter Tuvell||

    To David Nieporentf:

    "You may not realize it, but quotation marks are generally used to quote someone, rather than to …"

    Yes and no, i.e., partially true.

    The distinction is between "direct/verbatim-quotation" and "indirect/paraphrase-quotation." In the tradition I come from (science/mathematics/engineering), these two are both acceptable usages of quotation-marks, and are disambiguated by providing source/citation-references. Because that way, the reader can then go to the source to discover whether direct- or indirect-quotation is being used/abused/nuanced/whatever.

    You/others may come from other traditions (such as law vs. science). Both are acceptable, in their contexts. But what is abundantly clear is that there's no problem with either/any tradition, provided that no mistakes are made (which, being human, we all may do once in awhile, though I'm not aware that I've committed any here in this stream).

    … to be continued in following post …

  • gormadoc||

    Coming from a materials engineering/science POV and reading in optics, physics, and electrical engineering, I haven't seen quotations used as a paraphrase in these fields. When they are used (which is rare and always as a thing, eg "invisibility criterion") it's always for direct quotations. It may be the case for math and CS but I've never seen it in engineering relevant to me.

  • Walter Tuvell||

    To David Nieporentf:

    … continued from preceding post …

    "Hint: the court did not say "must credit PSOF, but will credit DSOF instead." That's a phrase you made up."

    Right and wrong. Consistent with my preceding post ("direct/verbatim quote" vs. "indirect/paraphrase quote"), while the judge didn't verbatim write these exact words, this is certainly a correct/faithful paraphrase of what she said/did/meant.

    … to be continued in following post …

  • Walter Tuvell||

    To David Nieporentf:

    … continued from preceding post …

    "Moreover, as several lawyers (and courts!) have tried to explain to you, you misunderstand the SJ process."

    False/lie. I'm still waiting for an "explanation." You appear to be trying to provide one here (a laudable service, thank your). Lets continue:

    "For one thing, the court is not supposed to credit SOFs at all, plaintiff's or defendant's. A SOF is a summary to help the court – but it's the underlying evidentiary record that matters, not the SOF; one can't just (as you tried to do) make conclusory statements and arguments and insist the court adopt those."

    Fine, I'll stipulate that by "SOF" short-hand I mean the long-hand "SOF per se together with underlying evidentiary record as presented to the court." (I had thought this was well-understood, but if not, then it is now.)

    Your business about my "making conclusory statements/arguments" is false/lie. Look at the records, all online at http://judicialmisconduct.us/CaseStudies/WETvIBM. PS: Anything I write in court filings "under oath/pain of perjury" does indeed count as "evidence," for the purposes of S.J. That is, the judge MUST accept/credit it, at least for nonmovant at S.J. time (only the jury can do otherwise, later, at trial).

    … to be continued in following post …

  • David Nieporent||

    Your business about my "making conclusory statements/arguments" is false/lie. […] PS: Anything I write in court filings "under oath/pain of perjury" does indeed count as "evidence," for the purposes of S.J. That is, the judge MUST accept/credit it, at least for nonmovant at S.J. time (only the jury can do otherwise, later, at trial).

    Nope. As I said, you misunderstand the SJ process. Conclusory statements/argument are not evidence, and need not be accepted merely because you swore to them. Your PSOF & your response to DSOF are replete with inadmissible material. Let me give you examples, from one minor part of the latter pleading.

    The following hypothetical statements (or similar ones) would be statements of fact:

    "Mizar is younger than plaintiff,"
    "Mizar has fewer years of experience / education than plaintiff,"

    The following paraphrases from your response to the DSOF are not statements of fact.

    "Mizar is less qualified than plaintiff."
    "It is prima facie evidence of discrimination to switch the jobs of Mizar and plaintiff because she is less qualified."
    "Because IBM's statements are pretextual, a jury must decide whether it was discrimination."

    And quotes like this are just utterly confused:

    "First sentence is denied as it relies on the testimony of a biased witness that a jury is not required to believe."

    That's not how SJ works. You need to present contrary evidence or it doesn't get to a jury.

  • Walter Tuvell||

    To David Nieporentf:

    … continued from preceding post …

    "[Y]ou have to expressly contradict their asserted facts, not just write a novella." This was done, exactly as you say, in the RespDSOF and the PSOF. Why do you pretend otherwise?

    "Third, it's only supposed to be material facts. Many of the facts you argued about were not legally relevant." This was done, exactly as you say. (Recalling that I had a good/competent lawyer at S.J. time.) Why do you pretend otherwise?

  • David Nieporent||

    Uh, because you lost? Repeatedly? And because I reviewed your papers, and they're bad?

  • Walter Tuvell||

    To David Nieporent:

    "I know nothing about his lawyer; his fame, if any, does not precede him from Massachusetts down to NY. But I have a sneaking suspicion that his lawyer allowed him to draft the "PSOF," and perhaps the Plaintiff's Response to "DSOF," too. They read much more like Mr. Tuvell's voice than a lawyer's voice."

    Cut the crap. I did not draft the PSOF (my lawyer did, and I reviewed it for accuracy, which it was 99% correct).

    Furthermore: In the 1st CIR, DSOF and PSOF are REQUIRED by FRCP-LR (while RespDSOF and RespSOF are optional, but customarily supplied, as we did). Why are you pretending/inventing/smirking otherwise? It doesn't exactly do you credit to keep lying like you are, you know.

  • David Nieporent||

    Furthermore: In the 1st CIR, DSOF and PSOF are REQUIRED by FRCP-LR (while RespDSOF and RespSOF are optional, but customarily supplied, as we did). Why are you pretending/inventing/smirking otherwise? It doesn't exactly do you credit to keep lying like you are, you know.

    See, it's delusions like this that cost you both your job and your lawsuit. There is literally nothing I have written in this thread that supports those accusations about what I have said.

    And, also, what you just wrote is wrong. (Local rules are by judicial district, not by circuit, so saying, "In the 1st CIR" is wrong. What you probably should have been trying to say is that these are the requirements of the local rule in D.Mass.) And, also, you misinterpret Local Civ. R. 56.1, as MonitorsMost tried to explain to you above. The non-moving party must respond to the moving party's SOF or those SOF will be deemed admitted. Nothing requires that there be two separate documents.

  • Walter Tuvell||

    *** PROGRAMMING NOTE ***

    I have a prescheduled can't-break date I must now keep (with wife), and may not get back to this blog until tomorrow, but fully intend to do so. In the meantime, it would sure be great if somebody/anybody would point out, CORRECTLY, why the Smoking Gun doesn't display a priori Obstruction of Justice (Falsification of Facts at S.J. time). All attempts to date are nothing but snide innuendo, with the pretension that bad-lawyers always proffer, but not one iota of good-lawyer reasoning/argumentation.

  • Walter Tuvell||

    To mad_kalak:

    /*Too long, >1500 chars, breaking up into two posts.*/

    1/

    "Anyway, I get enough of the point of the other commentators here, that his legal arguments are not perhaps not so strong." Too bad, you seem to have caved-in to the mob mentality, whereby you're taking your clues from what "other commentators" are (falsely) saying, instead of making your own de novo evaluation/determination. For, there has not yet been, either in this stream or in any other place, a refutation of the Smoking Gun claim of Judicial Misconduct. For example, the Stupid People here (Loki13 being a prime example) say things like: "all the judges/courts have ruled against you." That's not the case. Only the District judge (Casper) ruled against the IBM case, then all the others "passed" by saying "we won't engage." None of them (Appeals, Supreme, Judicial Council) actually address the Smoking Gun claim, that Casper FALSELY CREDITED DSOF OVER PSOF (where "PSOF" is shorthand for PSOF + RespDSOF + associated exhibits/evidence/appendices/etc.).

  • Walter Tuvell||

    /*2nd part of too-long post.*/

    2/

    The District judge did do that (abridged SJTOR, Summary Judgment Tenets of Review). It is irrefutable (the proof is there, per the Smoking Gun, and all existent court filings, available on my website). What she did is wrong/illegal (because contrary to all known/promulgated rules/laws of Summary Judgment). It is Obstruction of Justice (because it Falsifies the Facts, since "the facts at S.J." MUST be those proffered by the Plaintiff/nonmovant, not the Defendant/movant). [Regarding criminal illegality, see "Twilight Zone" essay, mentioned in "Revelation #3" on http://judicialmisconduct.us/CaseStudies/WETvIBM.]

    If you're a lawyer, or even a "lawyer-in-all-but-degree" (like me), these materials are a slam-dunk. Or, if I'm wrong, point out where, from your own first-hand reasoning. None of the "other commentators" here have done (or can do) so. Instead, they rely on "their own prior practice," which insofar as I can tell amounts to "not understanding what S.J. is all about in the first place, and/or just guessing what's happened in my case but refusing to look at the actual facts/filings themselves."

  • Walter Tuvell||

    To David Nieporent:

    "As appears to always be the case, one of your big problems is that the words people say somehow get translated differently in your head. Loki didn't say that PTSD is crazy. He said that you were crazy." Look at his post again ("loki13 | 6.13.18 @ 2:22PM," which may refer to Eastern Daylight Time, your display may differ), he inextricably/intentionally links PTSD and "crazy," so my paraphrase ("For those who think PTSD is 'crazy' ­— you've got a lot of growing-up to do") is fair/correct.

    You also slur my "social worker (LICSW)," but she's fully qualified/credentialed/good, and it's precisely people like her who do the vast majority of PTSD-diagnosing in this country. Why are you so biased against perfectly competent mental/medical practitioners?

    You also write: "It's rather insulting to actual trauma victims to pretend you have PTSD, by the way." You are fucking insane. To pretend that "actual trauma" can only result from (say) bombs blowing your legs off is sub-human primitive.

    You also write: "You're mentally disabled under the ADA." Now you're really climbing way too far up the flagpole and showing your ass. You're (obviously) trying to paint PTSD as "really bad thing that makes one unemployable" ("paraphrasing!"), along the lines of serious organic brain-damage, which if a false/stupid understanding of PTSD.

    Oh, BTW, on this topic-area: What's your PhD field, and where did you get it from?

  • Walter Tuvell||

    To David Nieporent:

    "You claimed that their denial of cert was 'false.' Their denial of cert was not false. QED."

    Cut the crap. In the context of this stream/discussion, my use of "false" there obviously meant "in-bad-faith," "mala fides," "fraudulent," "duplicitous," "deceptive," "perfidious," "insincere," "illusory," etc., which are accepted synonyms in-context. I know you know this, and are just trolling (you're "falsely" conflating my usage of the word "false" with the "false/true" attribute of "facts," but that's out-of-context). See any good dictionary, you'll see the synonyms I just listed are acceptable in-context.

    As for what "in-context" means (in the "legal context"), cf. the "six lines aphorism" of Cardinal Richelieu, as written-up in my SupCt PetWritCert p.18 f.28.

  • Walter Tuvell||

    To David Nierporent:

    "The problems with that are that (a) your case doesn't satisfy those factors because you misunderstand what happened in your case …"

    By this, I assume you mean I "don't understand what S.J. is all about." I do. You don't. I've written it about it here (and on my website), and I'm 100% right, and nobody here has faithfully/truthfully/correctly said otherwise (they've just hand-waved, falsely).

    Let's try this experiment. The most recent SupCt pronouncement on S.J. is Tolan v. Cotton (I believe it's the most recent), which I've written-up as a Case Study on my website (there's an annotated version of the case there). It contains the following snippets/passages. Please show me the daylight between what I say about S.J. and what Tolan says (hint: there isn't any):

    /*Too long, >1500 chars, the snippets are in the following post.*/

  • Walter Tuvell||

    To David Nierporent:

    /*The Tolan snippets mentioned in the preceding post.*/

    (1)
    In articulating the factual context of the case, the Fifth
    Circuit failed to adhere to the axiom that in ruling on a
    motion for summary judgment, "[t]he evidence of the
    nonmovant is to be believed, and all justifiable inferences
    are to be drawn in his favor."

    (2)
    [C]ourts may not
    resolve genuine disputes of fact in favor of the party seeking
    summary judgment. … This is not a rule specific to
    qualified immunity; it is simply an application of the more
    general rule that a "judge's function" at summary judgment
    is not "to weigh the evidence and determine the
    truth of the matter but to determine whether there is a
    genuine issue for trial."

    (3)
    [T]he Fifth Circuit failed to view the evidence
    at summary judgment in the light most favorable to
    Tolan with respect to the central facts of this case. By
    failing to credit evidence that contradicted some of its key
    factual conclusions, the court improperly "weigh[ed] the
    evidence" and resolved disputed issues in favor of the
    moving party …

  • Walter Tuvell||

    To David Nieporent & MonitorsMost (jointly):

    "That is vaguely in the ballpark … But it's not actually right."
    "Your rule statement is incorrect, or at a minimum lacks nuance."

    Of course, that's sort-of right, because it's a "10-words-or-less paraphrase," but it "is right/correct insofar-as-it-goes." For the long/correct/nuanced version, see my website (the Introduction page).

    "So, let's apply that to a small sliver of your case. [Feldman pissing contest.]" No, let's not go there, not useful, confusing — because that has NOTHING TO DO WITH JUDICIAL MISCONDUCT, which is what this stream/discussion is about. That pissing contest was a (tiny sliver, as you say) of the UNDERLYING SUBSTANTIVE CASE-IN-CHIEF. The Judicial Misconduct has nothing to do with substance, it's all procedural (bias against Plf, in favor of Def, by abridging S.J.).

  • Walter Tuvell||

    To Loki13:

    "I assume you've been told that enough already, but hey, if it helps I can tell you again. You don't seem to understand very basic principles, like these-
    1. The difference between a statement of facts, and facts that the Court considers in summary judgment.
    2. The application of facts to the law, as in what is 'material.'
    3. The standards that apply for the claims that you had."

    Yes, of course I do understand those principles, and have abided by them. What YOU keep forgetting is that, at S.J., I wasn't pro se, I was represented by a very competent lawyer, and he did all the drafting of all the S.J. materials (including the attachments, and all the "facts," which were indeed on-the-record properly, for example, my initial Complaint was "verified").

    I really don't get why you keep harping (in your item 1.) about "SOF" and "facts the court considers." The SOF incorporates-by-(explicit-)reference the facts-the-court-considers (this has been stipulated earlier in this stream, too, though it's already blindingly obvious to everyone and doesn't need explication, not even at the level of adumbration). You appear not to have a cogent/relevant point about "SOF vs. facts-the-court-considers."

  • Walter Tuvell||

    To Loki13:

    "In the alternative .... why not do a little Sovereign Citizen bit for a change of pace? There's a gold-fringed flag with your name on it somewhere."

    I, too, do some crazy-bashing on my website Home page (footnote epsilon). You argument appears to be, "I think you're wrong, therefore you're crazy." But I'm not wrong, I'm right. Alternatively, please point out where the Smoking Gun is wrong. For if it is wrong, then so is Tolan v. Cotton, ad infinitum, all the way back to the S.J. trilogy (discussed on my website Introduction page).

  • Walter Tuvell||

    To David Nieporent:

    "Uh, yeah, they did. Judge Casper explained quite clearly why you were wrong. You asserted certain causes of action against IBM. Those causes of action have elements that need to be established in order for you to prevail. There was no genuine factual dispute about those elements in your case."

    No, that's insipidly false. For, the "REASON" "found" "no genuine factual dispute about those elements in your case" is that she DIDN'T EVEN READ MY "FACTS" (PSOF), MUCH LESS CREDIT THEM AS SHE WAS BOUND TO DO. Instead she ONLY READ IBM'S "FACTS." This is exactly what she wrote in her Smoking Gun. And since IBM's facts didn't conflict/dispute IBM's facts, she decided there was "no dispute." All tautologies are tautologies.

  • Walter Tuvell||

    To Loki13:

    "The judge is more sympathetic to the Plaintiff in employment claims." That is absurdly false. Federal judges are distinctly/notoriously anti-Plaintiff in empl cases. The very opposite is true. This is very well known. See the book "Unequal" by Sperino & Thomas. Also see the NYLS Symposium (mentioned on my Resources webpage), http://www.nylslawreview.com/2.....-number-4.

    "But if you review the employer's response to your statement of facts, you should understand- yours was literally so bad that the judge could have (but did not) strike it; this is mentioned in the opinion as well." Huh? Where? (I don't recall this.)

    /*Another 1500 char barrier.*/

  • loki13||

    /1

    So I'm going to point this out for your benefit, because this is a continuing theme. You appear unable to understand basic concepts, even when they are your own. Let's try this, shall we? This is what you tried to quote-

    "The judge was actually exceedingly nice to you. In fact, what you think of as damning evidence on your webpage (the judge usually denying summary judgment in employment cases) .... most attorneys would see as evidence that the judge is more sympathetic to the Plaintiff in employment claims ... which, if you think about, means that your case is that much more terrible."

    Now, notice what I actually wrote. I was discussing not judges in general, I was discussing "the judge" in your case. And then I refer to the evidence you cite on your own webpage. Remember- your "Revelation #2" that this Judge somehow was incredibly biased against you because of ... um ... the statistically significant eight other opinions in employment cases.

    So the point that you seem to have missed, and the hole you just dug deeper, is that if you have found evidence that *this* judge is more sympathetic in employment claims, then the reasonable inference is that your claim is particularly bad.

  • loki13||

    /2

    (Also, fwiw, there are some issues with that study. Employment claims in federal court are hard to make, but the study doesn't properly take into account the winnowing effect- most bad claims or claims that can be procedurally barred are litigated, most good claims are settled, which means that very few claims make it to trial and a verdict, usually only when there is a profound mismatch between the valuation of the claim).

    Anyway, the whole point of the comment is the same thing that has been pointed out to you numerous times on this, and many threads on the internet. You aren't hearing what people are saying.

  • Walter Tuvell||

    To Loki:

    /*Continued from preceding post.*/

    "This has been pointed out several times- you don't cite law. You don't bring up stuff that doesn't matter (material facts). You can't assert without record evidence (sworn affidavits, depositions, etc.) that a fact is disputed because you think someone is lying. And so on. It's pretty simple if you know what you're doing; in fairness, I've seen attorneys screw this up." This is all PLAINLY FALSE. ALL this is certainly done, in the case materials on my website (but of course all that can't be imported en bloc in this stream). How can you possibly make such a facially false lie?

    "But your obsession is a bad look." I don't like it either, but there's no other course. Martin Luther King looked bad/obsessed too, and the #MeToo people, etc. (though I certainly don't hold myself up to their heroic levels, it's just an exaggeration-to-make-a-point example).

  • Walter Tuvell||

    To David Nieporent:

    "You have misunderstood. Very very very badly. I am a procrastinator/masochist, so I actually read your SOF. You cite to no fact anywhere in that rambling monstrosity that evidences discrimination on the basis of sex, race, or age. There was nothing for the judge to cite."

    That's insanely false. There's a list of 25 (tagged "A"-"X") such facts, excerpted from the PSOF, in the 70-page doc mentioned in "Revelation #4" at http://judicialmisconduct.us/CaseStudies/WETvIBM. All those facts are properly pled/briefed in the filed court papers (recalling, of course, that PRETEXT is The Biggie when it comes to disc cases). Written by a very good specialized plaintiff-side employment lawyer, one of the best in Mass (Robert S. Mantell). Are you a plf empl specialist? How can you say that?

  • David Nieporent||

    That's insanely false. There's a list of 25 (tagged "A"-"X") such facts, excerpted from the PSOF, in the 70-page doc mentioned in "Revelation #4" at http://judicialmisconduct.us/CaseStudies/WETvIBM

    No; it's true. I assume you refer to this, since it's a 70-page document with a table labeled A-X. (Not sure why you insist on linking to your site rather than to the specific document(s) to which you are referring.)

    In any case, there is indeed a list of facts in that document – though, as I previously noted, many of the things you label as facts are really conclusions. But I didn't say that you didn't list facts. I said that you didn't list facts that evidence discrimination on the basis of sex, race, or age. The vast majority of A-X have nothing to do with sex, race, or age. Of the ones that do, the only things they say are that Mizar was younger/femaler/Asianer than you. But so what? You have nothing even in the same zip code as evidence that any decision was made because of your age/race/sex. Moreover, you can't even establish the first factor (an adverse employment action), so the issue of pretext never arises. That you subjectively felt the position was less desirable is insufficient.

    Oh, and yes, I do employment law.

  • Walter Tuvell||

    To Gormadoc:

    "Coming from a materials engineering/science POV and reading in optics, physics, and electrical engineering, I haven't seen quotations used as a paraphrase in these fields. When they are used (which is rare and always as a thing, eg "invisibility criterion") it's always for direct quotations. It may be the case for math and CS but I've never seen it in engineering relevant to me."

    Yes we (maths) do use it these ideas technically. It comes from (Meta-)Mathematical Logic, in the distinction between meta-language and object-language, which means roughly "how does one speak about a language inside of another language?" This also comes up in comp sci, where code-language is to be distinguished from descriptive-language (usually with a different font and set-off typography).

    /*Too long, cont'd.*/

  • Walter Tuvell||

    To Gormadoc:

    /*Cont'd.*/

    Beyond the (math/sci/eng) technical, when we/I get into something "non-technical," such as legal writing (though law is certainly technical in its own way, just not the math/sci/eng way), the idea ("language languaging about language") naturally carries over, so we (math/sci/eng) solve it in our own native way, as I said earlier.

    The basic problem is over-loading of the quotation-mark symbols. What would makes sense is to use different kinds of quotation-marks for the different kinds of quotations, say reserving single-quotes for direct/verbatim, and double-quotes for indirect/paraphrase (with maybe angle-quotes thrown in somewhere for spice). Or different fonts. Or whatever. But the problem isn't big enough to do any of those things: the mechanisms we have in place suffice. It's really not a big deal (here, in the non-math/sci/eng realm). Really.

  • Walter Tuvell||

    To David Nieporent:

    "Nope. As I said, you misunderstand the SJ process. Conclusory statements/argument are not evidence, and need not be accepted merely because you swore to them. Your PSOF & your response to DSOF are replete with inadmissible material. Let me give you examples, from one minor part of the latter pleading."

    Wrong (more below). These (all the things/facts in PSOF, RespDSOF) aren't "conclusory," they're all supported by evidence/arguments (and yes, the facts I swore to MUST be accepted/credited at S.J., because they constitute ADMISSIBLE EVIDENCE TO TRIAL).

    "The following hypothetical statements (or similar ones) would be statements of fact:
    'Mizar is younger than plaintiff,'
    'Mizar has fewer years of experience / education than plaintiff,'
    The following paraphrases from your response to the DSOF are not statements of fact.
    'Mizar is less qualified than plaintiff.'"

    Here's where you go off the rails. Of the three statements you cite about Mizar, ALL THREE are indeed given in the PSOF/RespPSOF (and/or the Appendix or other docs properly filed for the S.J. Motion). As you correctly note, the 3rd stmt would not withstand evidentiary muster ("be conclusory") if it were stand-alone WITHOUT MORE (it would just be narrative, which it was intended to be, not evidence). But there IS MORE, namely, the 1st ad 2nd stmts (and they're properly supported by sworn docs, such as interrogatories/depositions/discovery/etc.).

    /*cont'd*/

  • Walter Tuvell||

    To David Nieporent:

    /*cont'd*/

    "It is prima facie evidence of discrimination to switch the jobs of Mizar and plaintiff because she is less qualified. Because IBM's statements are pretextual, a jury must decide whether it was discrimination."

    This is fully acceptable in PSOF (probably, or maybe RespDSOF, wherever you found it), because it is ARGUMENT (as opposed to EVIDENCE), which is indeed one of the things expected to be found in PSOF. "Prima facie" is a term-of-art (esp. in empl disc cases, where it's enshrined in innumerable cases), meaning just what it looks like: "on-the-face," i.e., "you don't need additional/supporting evidence, because it just-so-obvious." Similarly with "pretext" (term-of-art in empl disc). The kind language you cite here occurs, successfully, in just-about-every empl disc case ever litigated.

    /*cont'd*/

  • David Nieporent||

    This is fully acceptable in PSOF (probably, or maybe RespDSOF, wherever you found it), because it is ARGUMENT (as opposed to EVIDENCE), which is indeed one of the things expected to be found in PSOF.

    This couldn't be more wrong if it were a description of a perpetual motion machine. It couldn't be more wrong if it were a Donald Trump tweet. It couldn't be more wrong if it were, well, it was anything else you have said.

    It is 100%, completely, totally, and utterly wrong. A Rule 56.1 statement is supposed to be a concise statement of the facts in dispute or not in dispute, along with citations to the evidentiary record. That's it. Period. Finis. (Your memorandum of law is the place for argument.)

    "Prima facie" is a term-of-art (esp. in empl disc cases, where it's enshrined in innumerable cases), meaning just what it looks like: "on-the-face," i.e., "you don't need additional/supporting evidence, because it just-so-obvious."

    I take it back. You could get more wrong than the previous thing you said. (It was a challenge, but you rose to it.)

    Similarly with "pretext" (term-of-art in empl disc).

    No, pretext is not a term of art. It carries with it its ordinary meaning.

  • Walter Tuvell||

    To David Nieporent:

    /*cont'd*/

    "And quotes like this are just utterly confused: First sentence is denied as it relies on the testimony of a biased witness that a jury is not required to believe." Wrongo. It comes straight from the SupCt itself (and is for that reason standard fare in S.J. brief writing): Reeves v. Sanderson Plumbing. Read about it on p.3 of the essay at https://theemploymentlawyers.com/wp-content/ uploads/2016/11/Opposing_Summary_Judgment.pdf (wrtten by MY LAWYER in the Tuvell v. IBM case). {Note: space inserted to defeat the 50-char limit in this blog's software.}

    "That's not how SJ works. You need to present contrary evidence or it doesn't get to a jury." Well, yes, that's how S.J. works, and THAT'S WHAT I'VE DONE, as just proved.

  • David Nieporent||

    Well, your lawyer has a, let us just say, idiosyncratic view of how summary judgment works.¹ (Maybe this explains why you have been misled.) As a plaintiff's lawyer, it's easy to see why, but... no. (Juries are not required to believe any witness, biased or neutral, so his idea would read summary judgment out of the federal rules.) As the Supreme Court has repeatedly noted, elephants are not hidden in mouse holes; a single sentence out of context from Reeves did not overturn Rule 56 sub silentio. Reeves does not stand for the proposition that if a non-moving party stubbornly stomps his feet and says, "lalalalalalaIcan'thearyou" that the moving party can be denied summary judgment. That's not what Reeves is about at all; Reeves is about whether, after making out a prima facie case, proving pretext was sufficient to get a case to a jury even without direct evidence of discrimination.

    And the First Circuit has expressly rejected your attorney's interpretation of Reeves. See Dennis v. Osram Sylvania, Inc., 549 F.3d 851, 856 (1st Cir. 2008), so, sorry. No.


    ¹At least in federal court; I do not presume to opine on Massachusetts civil procedure.

  • Walter Tuvell||

    To David Neiporent:

    "Uh, because you lost? Repeatedly? And because I reviewed your papers, and they're bad?"

    As I've been proving throughout this discussion stream, I AM right, and you ARE wrong, but the reason for this mismatch in understandings is just now starting to dawn on me. You may be competent/experienced in some kinds of law, but not in empl disc, which is where my case lives, where you just don't have the relevant competence/experience. I conclude this because of your dumb statements in my preceding 3 posts, just above, where you display ignorance about the basics of empl disc pleading/briefing. Or to paraphrase yourself: "You're bad."

  • David Nieporent||

    I routinely handle employment cases. Successfully. You lost, repeatedly, the only employment case you were involved with. QED.

  • Walter Tuvell||

    To David Neiporent:

    "And, also, what you just wrote is wrong. (Local rules are by judicial district, not by circuit, so saying, 'In the 1st CIR' is wrong. What you probably should have been trying to say is that these are the requirements of the local rule in D.Mass.)." Oops, your are right, I inadvertently misspoke (here in this blog, got it right on my website), and stand corrected. You/we should also mention that 1st Cir (appellate) does also have its own separate set of local rules.

    "And, also, you misinterpret Local Civ. R. 56.1, as MonitorsMost tried to explain to you above. The non-moving party must respond to the moving party's SOF or those SOF will be deemed admitted. Nothing requires that there be two separate documents." Perhaps this is another example of inadvertent misspeak. Here's what I DID write, with now-interpolated parenthetical remarks indicating what I SHOULD have written:

    /*cont'd*/

  • Walter Tuvell||

    To David Neiporent:

    /*cont'd*/

    "The fact is that the PSOF {+ RespDSOF + Appendices/etc.} did indeed respond directly/properly/correctly to each and every point of the DSOF. So at that point the judge is bound, by rule/law (including Constitutional Due Process), to "blindly" credit PSOF over DSOF {and also to credit RespDSOF over RespPSOF, etc.}. But she did the exact opposite. Which does amount to Obstruction of Justice, Falsification of Facts, etc."

    Apart from this little correction/clarification, I'm completely right, and any conflicting arguments by anyone else in this discussion stream is wrong (modulo potential additional tweak-fixing, which will all be similarly minor, if they exist at all).

  • David Nieporent||

    "The fact is that the PSOF {+ RespDSOF + Appendices/etc.} did indeed respond directly/properly/correctly to each and every point of the DSOF.

    See, you're demonstrating the same problem as in your papers -- an inability to understand what a "fact" is. That you "responded correctly" is not a "fact." That's a legal conclusion, and in this case it's an ill-informed one.

    So at that point the judge is bound, by rule/law (including Constitutional Due Process), to "blindly" credit PSOF over DSOF {and also to credit RespDSOF over RespPSOF, etc.}.

    Once again, no. You misunderstand the SJ process. (Multiple lawyers and judges have told you this.)

    If (hypothetically) defendant cites as a fact, "Tuvell was rude to his supervisor, and so we fired him," and you cite as a fact, "When I said that, I did not mean any disrespect to my supervisor, so it isn't legitimate grounds for termination," the court is required to treat the issue of whether you intended to insult your boss as disputed. But the court is not required to therefore treat as disputed whether it was actual and legal grounds for termination.

    But she did the exact opposite. Which does amount to Obstruction of Justice, Falsification of Facts, etc."

    The judge did not do the opposite, and it does not "amount to" either of those things. Random capitalization does not make arguments more compelling.

  • loki13||

    /1

    @mad kalak-

    This was your original post that I disagreed with-
    "I don't know much about Walter Tuvell or his case (as I skim past), but I like him. In fact, I don't really care if he's right or wrong, but I just naturally empathize with someone opposed to an entrenched bureaucracy that self-reinforces its own anointed status."

    So, I assume you've seen his website (ahem) and his posts in this thread. How do you like him how? This is why you should care if he is "right" or "wrong." Someone like this should set off alarm bells before you pass judgment. And here is why these things (and using natural inclinations, like, if he's fighting people that know stuff, he's okay by me) can be problematic.

  • loki13||

    /2

    Yesterday, while participating in this thread, I got an email forward from an attorney. You know what it was? It was one of those that started with the "McDonalds Coffee" lawsuit and ended with the "giant award for leaving your Winnebago on cruise control." It was BS. A real attorney should have known better, because almost everything in it was either mischaracterized or 100% fabricated. AND THIS EMAIL HAS BEEN GOING AROUND FOR YEARS AND YEARS AND YEARS. But it keeps on truckin', because it appeals to people that want to believe it is true, even though it takes exactly 5 seconds to verify it is BS.

    And the most frustrating thing is that I have received it before, and told the person who sent that email that it was total BS, and been told that it didn't matter because it reflected the truth. Wtf? And this gets to your issue- you see someone who is clearly ... not right .. I mean, even moreso than MICK11!!!!11 (if you remember him), and your default is to say, (I am paraphrasing, not quoting) "Hey, I don't know what the truth is, but I like anyone that doesn't like them judges and lawyers, so he's all right by me."

    That's the type of knee-jerk anti-expert crud that will get you into trouble, and I would hope that you don't practice in your real life.

  • loki13||

    /3

    For example, you don't say, "I know I need surgery, but I'd rather go to a Filipino psychic surgeon than a medical doctor because experts suck." Or, "Hey, I have a serious Title VII claim, but instead of hiring an attorney, I'll consult with Walter Tuvell on the sly because he seems to know summary judgment standards better than those stupid lawyers or judges." Or even, "My kid got a free ride to NAME BRAND IVY LEAGUE, but I'd rather he go to Podunk Community College, because those eggheads don't know what they are doing."

    This doesn't mean that expert are always right, or that you can't practice skepticism (or get the proverbial second opinion). But this wholesale rejection of ... expertise and knowledge and this widespread gullibility is alarming. And I think that it does need to be called out. If you are accrediting equal wait to the rants of Walter Tuvell, with a finger on the scale because he's fighting the man, you need to seriously re-consider the heuristics you are using in life.

  • loki13||

    /4

    And since you asked about SSM marriage in 1990, I will answer. I probably do not have the same view of this as you do. Law isn't stasis. Law evolves and changes over time. Often with tentative steps (the NAACP strategy is well known, as is the gradual efforts through multiple ways to ensure civil rights for gay people).

    So when we discuss what is frivolous versus what isn't, one issue that has to be discussed is a good-faith modification, extension, or reversal of current law. But that can be contrasted with, for example, arguments that are not based in that- arguments that are doomed on procedural grounds that could not be modified (for example, a statute of repose that could only be modified by the legislature).

    Then we have the instant case. The original suit was colorable, not frivolous. I would argue that it was borderline at best when the complaint was filed, and had I been the defense attorney, I might have gone for Rule 11 after discovery (which federal courts are loathe to give for multiple reasons ... even truly objectively frivolous lawsuits are tough to sanction and run into the American rule). But just look- not only the continued meritless appeals, but the multiple complaints of judicial misconduct etc. that eventually required the courts to warn this individual that further activity would result in sanctions.

    That you conflate the two is surprising.

  • David Nieporent||

    Loki: come on, there's no way you'd have gotten Rule 11 against Tuvell. (Maybe if you limited it to the sex/race/age discrimination nonsense, I guess. But even then, it would fall into the vast gulf courts wish to see between meritless and frivolous.) Even the appeal was -- while it spent far too much time making factual arguments rather than legal ones -- not frivolous. (The original appeal, I mean -- not the one to SCOTUS.) The claims of judicial misconduct, of course, are utterly frivolous.

    As to the Hawaii issue (as Loki knows, but the person who raised the issue seemingly does not) there's a massive difference between, "The law has been interpreted to say X, but I think the law should also be interpreted to include Y, for the following reasons," and "The law says Y, and I'm going to stomp my feet about it and call you a liar if you don't agree with me." The former is a good faith argument for modifying existing law. The latter is just being obstreperous.

  • loki13||

    That's why I wrote colorable, especially at the complaint stage.

    I've had some limited luck with Rule 11 provided that there is clear evidence in a deposition (for example), and the claim isn't withdrawn after the point, but even in the most egregious cases courts hate to grant it.

    Which goes back to the whole issue with why it is so hard to deal with lawsuits like this, and why so many employers simply settle out nuisance claims.

  • MonitorsMost||

    I'd got under 42 USC 1988. I have better luck arguing it than Rule 11 even though they are essentially the same standard.

  • Walter Tuvell||

    David Nieporent:

    "I assume you refer to this, since it's a 70-page document with a table labeled A-X. (Not sure why you insist on linking to your site rather than to the specific document(s) to which you are referring.)" Yes, that's the doc I refer to (is it as simple as hard-coding the HTML?, I'll try that in the next paragraph).

    "The vast majority of A-X have nothing to do with sex, race, or age." WTF?? Of course not, because SEX/RACE/AGE ARE NOT CLAIMED COUNTS/CAUSES OF ACTION!! Where the hell did you get that idea? There's nothing like that in the Complaint.

  • loki13||

    " WTF?? Of course not, because SEX/RACE/AGE ARE NOT CLAIMED COUNTS/CAUSES OF ACTION!! Where the hell did you get that idea? "

    Counts V-VIII of the Complaint that you just posted?

  • less lean eel son||

    wow. Walter, You are clearly off-base here, in a way I think you can undertstand and which you can't plausibly deny. Are you able to acknowledge that you are incredibly wrong here, to the extent we can safely interpret your imprecise language?

    when you say this: " WTF?? Of course not, because SEX/RACE/AGE ARE NOT CLAIMED COUNTS/CAUSES OF ACTION!! Where the hell did you get that idea? "

    You must mean "SEX/AGE/RACE (DISCRIMINATION) ARE NOT (ELEMENTS or FACTORS in) CAUSES OF ACTION (listed in your complaint", right? But you were very clearly demonstrably wrong in that statement, right?

    Are you capable of pointing to one single fact you cited in your PSOF that is relevant to a claim you made that was wrongly ignored by the judge in favor of the DSOF?

  • Walter Tuvell||

    To Loki13:

    "I'll consult with Walter Tuvell on the sly because he seems to know summary judgment standards [satircally] …"

    It's easy to write satirical words, much harder to actually prove something. Why don't you try doing what David Nierporent tried, picking out one or two actual/explicit errors, as opposed to hand-waving/white-washing the world? At least he had the balls to try (and was proved wrong, hopefully he'll come back with another attempt).

  • loki13||

    Because you honestly don't know what you don't know.

    I've dealt with your kind before, and after the judge rules against you, you move on. On the internet, I just have to remember that I have a job and a life doing this, and you're a weird obsessive that anyone that googles will shy away from.

  • loki13||

    But, seriously, keep proclaiming yourself a winner. I mean, how has that worked for you so far?

  • David Nieporent||

    I actually had a client like Mr. Tuvell once. He knew far more than me -- just ask him! -- which raised the question of why he hired me. I won him summary judgment as to liability, but ultimately had to withdraw from representing him because I would get ten-page long emails on a daily basis explaining all the ways in which people (including me) were wronging him. Said wrongs often consisted of quoting the words he had previously used, and they/we were liars for doing so.

  • David Nieporent||

    Forgot to mention that -- as with Mr. Tuvell -- ordinary interactions were always called "harassment." (One egregious example during the course of the litigation: before he retained us to represent him, my client was pro se briefly.¹ At one point during that stage of the case, the defendants wanted to submit some documents to the judge in camera; the client for the next two years kept referring to that request as "harassment.")


    ¹Yes, I know that's a red flag! I argued against taking on the case, but was overruled. I was vindicated in the end. (We actually received a tidy sum in attorneys' fees on the case, but... it wasn't worth it.)

  • loki13||

    Oh noes, the harassment! It's always harassment!

    Another good red flag- complaints of judicial misconduct, or ... this is a favorite, ex parte communications.

    Contacting the assistant to get hearing dates to offer to the other side isn't an "ex parte" communication. It's not all a giant conspiracy.

  • loki13||

    My usual rule of thumb is that if a client wants to pay me for my time to deal with his nonsense, I'll happily take his money.

    But there are certain people that no amount of money would be worth it.

    (A rule that I have also adopted is that I will never, under any circumstances, substitute in if another attorney has withdrawn no matter what the client says. Because that will never end well. The only time I take a case that another attorney had previously appeared in is if that attorney calls me to ask me to take it as a referral.)

  • Walter Tuvell||

    To Loki13:

    "Counts V-VIII of the Complaint that you just posted?"

    Count V = Failure to Reassign Retaliation under ADA availment of reasonable accommodation under ADA (and the Mass state version, Chap. 151B).
    Count VI = Tangible Job Action Retaliation under ADA/151B.
    Count VII = Harassment under ADA/151B.
    Count VIII = Failure to Investigate/Remediate under ADA/151B.

    (Other verbiage just comes statutory language, "not my fault.")

  • loki13||

    Um, so, why don't you look at your complaint. Now look how it has to be analyzed. Then look at the DC's opinion on the issue.

    If you don't understand why this matters, and why this has been pointed out to you here (and assumedly elsehwere) by multiple attorneys, you don't want to understand. K?

  • Walter Tuvell||

    To Loi13:

    "Because you honestly don't know what you don't know."

    Wow, that's a tough on-point criticism that really hits home hard. I'll think twice before I ever post anything ever again. Thank you so much for sharing your great wisdom.

    (Now if you want to get back to generating a really relevant comment, I'm still waiting …)

  • Walter Tuvell||

    To Loki13:

    "So the point that you seem to have missed, and the hole you just dug deeper, is that if you have found evidence that *this* judge is more sympathetic in employment claims, then the reasonable inference is that your claim is particularly bad."

    Huh? Here's what I think you're saying (paraphrase): "Most attorneys would see that Smoking Gun screenshot [which refused to even look/cite at PSOF] as more sympathetic to the Plaintiff." [Where "PSOF" is shorthand for "and everything else it incorporates by reference," as always.] I just don't get how "refusing to 'hear' the Plaintiff" can possibly be viewed as "sympathetic to the Plaintiff." Enlighten me, please.

    Your citation of my Revelation #2 is absurd: nowhere in it do I cite it as "admissible evidence" (as you claim, paraphrasing) it's just a (perfectly valid/useful) "revelation for the purposes of analysis/understanding," hence the name.

    And: yes, I know "there are some issues with various 'studies'." Except that, in addition to such "studies," we have explicit judges admitting it, such as Judge Bennett's dissent in http://judicialmisconduct.us/C.....SSYMPHONY. And also the Sperano-Thomas book, which is very much more than a "(mere, law-review-type) study."

  • loki13||

    Dude, you seriously don't understand anything, do you? This is comical. Look at this goober-

    "nowhere in it do I cite it as "admissible evidence" (as you claim, paraphrasing) it's just a (perfectly valid/useful) "revelation for the purposes of analysis/understanding," hence the name."

    Nope. You should probably avoid paraphrasing, my friend. That was kind of the point. But again, missed.

  • loki13||

    Oh, and I should ask because I am morbidly curious now.

    Why don't you tell the group where big bad Microsoft touched you?

    Did you petition the Supreme Court over that as well?

  • Teavee||

    Found this:

    "Sleepless in Boston - How Microsoft Raped My Family While Recruiting Me"
    https://my.mixtape.moe/jeagcz.pdf

  • loki13||

    Having an informal job offer rescinded is ... rape.

    Right. Okay, then.

  • David Nieporent||

    And: yes, I know "there are some issues with various 'studies'." Except that, in addition to such "studies," we have explicit judges admitting it, such as Judge Bennett's dissent in http://judicialmisconduct.us/C.....SSYMPHONY.

    Folks, Mr. Tuvell is why people who want to eliminate judicial immunity are misguided.

    TL;DR: A guy sued an orchestra claiming disability discrimination. The district judge granted summary judgment for the defendants, finding that the plaintiff failed to supply sufficient evidence to meet his burden. The 8th circuit agreed with the district judge's analysis, but there was a dissenter. Tuvell claims that because there was a dissenter, the majority necessarily engaged in "judicial misconduct" (his term) in upholding the grant of summary judgment. There are kooky litigants who think that any adverse ruling means not that the litigant was wrong, not that the judge made a mistake or was stupid, not that it represents a difference in perception, but that it's wrongdoing. And they try to sue every judge who rules against them. Which turns every lawsuit into ten lawsuits, or more. People like Tuvell simply cannot comprehend that they might be wrong, and that judges who rule against them are not corrupt.

    And also the Sperano-Thomas book, which is very much more than a "(mere, law-review-type) study."

    Not really, no. (It's Sperino, by the way.)

  • Walter Tuvell||

    To David Nieporent:

    "A Rule 56.1 statement is supposed to be a concise statement of the facts in dispute or not in dispute, along with citations to the evidentiary record." Hmm, I agree, you seem to have a point, maybe I wasn't so clear (here, in my writing on this blog stream, as opposed to the court filings themselvs), and I was conflating PSOF/RespDSOF with some Appellate Brief stuff. So here's a clarification: You (D.N.) were saying this PSOF/RespDSOF paraphrase is not statement-of-fact, "It is prima facie evidence of discrimination to switch the jobs of Mizar and plaintiff because she is less qualified." I said it was OK. I should have clarified I was referring just to the "switch" part being statement-of-fact, not the prima facie part (which I agree is argument, however correct).

    And, yes, "prima facie" and "pretext" are most certainly indeed very much terms-of-art in empl disc cases. They arise in the cases all the time. (And they're also used elsewhere too, I didn't say anything about exclusivity.)

  • Walter Tuvell||

    To David Nieporent:

    "See, you're demonstrating the same problem as in your papers -- an inability to understand what a "fact" is. That you "responded correctly" is not a "fact." That's a legal conclusion, and in this case it's an ill-informed one." Wrong. When I said "responded correctly," it means "rebutted the facts proferred by the DSOF" (and also proferred the Plf's own versions of facts). Obviously. I don't get what you're getting at here, are you trying to double-talk me?

    "Once again, no. You misunderstand the SJ process. (Multiple lawyers and judges have told you this.)" No, I'm not wrong/misunderstanding, namely, what I'm writing is just (intended to be) yet another re-paraphrasing of the Tolan v. Cotton passages, quoted earlier. Again, I don't get what you're getting at here, am I missing something, or are you double-talking?

  • loki13||

    "When I said "responded correctly," it means "rebutted the facts proferred by the DSOF""

    That is an assertion that, as others have repeatedly pointed out, is belied by the evidence of your own documents.

    Again:

    A: The car is red. D's Depo. Tr. 45:3-5.

    B: The car is green. Pl's Depo. Tr. 3:4-6.

    That is a dispute of facts.

    A: The car is red. Witness Depo. Tr. 45:3-5.

    B. That statement is denied, as the witness is biased and the jury would get to determine credibility.

    That is not a dispute of facts.

  • loki13||

    So that's one easy example. Another is materiality. Here, I'll show you.

    A: The car is red. D's Depo. Tr. 45:3-5.

    B: The car is green. Pl's Depo. Tr. 3:4-6.

    Court: The color of the car is irrelevant to the issue of whether there was an adverse employment action.

    In other words, the disputed facts have to be *material* to the cause of action. I gave you the simple version, but your SOF is replete with facts that aren't material to the causes of action; I know that you are way too down the rabbit hole to ever understand, but compare and contrast your SOF with the D's SOF.

  • David Nieporent||

    Another example is being conclusory:

    A. The car was driving at 50 MPH. Witness Depo. Tr. 45:3-5.

    B. The driver carelessly hit me. Pl's Depo. Tr. 3:4-6.

    Court: A is a statement of fact. B is a conclusory statement that does not refute A's statement. Therefore, it is undisputed that the car was driving at 50 MPH.

    In other words, you can't refute a specific factual statement by simply arguing about what the other person did and placing labels on it. (Like "careless," or in your case, "harassed.") You must directly deny that the statement is true, and then cite something admissible in the record that would refute the statement. That establishes a GIMF (the "D" you keep using is redundant). (Well, it establishes a GIMF if the fact is indeed material. Whether it's material is not determined by how much you personally care about it; it is determined by whether it is relevant to one of the elements of the cause of action.)

  • Walter Tuvell||

    To Loki13:

    "Um, so, why don't you look at your complaint. Now look how it has to be analyzed. Then look at the DC's opinion on the issue. If you don't understand why this matters, and why this has been pointed out to you here (and assumedly elsehwere) by multiple attorneys, you don't want to understand. K?"

    Indeed, I cannot parse what you're writing here. I have no idea what "look at complaint, how to analyze it, DC's opinion" means. (And remember, "I" didn't write it, Rob did, but I will defend it, if I just knew what it is I'm supposed to defend.)

  • loki13||

    "because SEX/RACE/AGE ARE NOT CLAIMED COUNTS/CAUSES OF ACTION!! Where the hell did you get that idea? There's nothing like that in the Complaint."

    Look at your own complaint.

    Understand how your causes of action would have to be analyzed. Concentrate on Counts V - VIII.

    If it helps, re-read the DC (district court) opinion again.

    Then you will understand why DMN (and others) have stated that. Actually, you won't, but you should.

  • Walter Tuvell||

    To Loki13:

    "Why don't you tell the group where big bad Microsoft touched you?"

    OMG, no, ancient history, where I was represented by atty, incompetent one that time. The case was about what is now known as "indirect discrimination," in the sense MS didn't like my wife (not me), which was pretty-much unknown at the time, hence hard row to hoe.

  • loki13||

    It must be very difficult, for you, to have all of these employers discriminating against you, and to be continually represented by incompetent attorneys.

    At a certain point, you might notice a pattern. Just saying.

  • David Nieporent||

    By the way, although he proclaims that he was represented by the bestest employment lawyer in the whole world in his case¹ and therefore couldn't have lost through bad lawyering, he neglects to mention that he was represented by a different lawyer on appeal. NTTAWWT, but it might be indicative of… something.


    ¹Note to Tuvell: this is hyperbole. Please don't trot out your favorite "false" in response.

  • Walter Tuvell||

    To Loki13 (& D.N. by designation):

    "Look at your own complaint. Understand how your causes of action would have to be analyzed. Concentrate on Counts V - VIII. If it helps, re-read the DC (district court) opinion again. Then you will understand why DMN (and others) have stated that. Actually, you won't, but you should."

    No, I shouldn't, for the following reasons: The DC did absolutely no whining about any of this kind of stuff you're writing about. You (& D.N.) are simply double-talking, i.e., making-up pretend "issues" where none whatsoever exists. You may have some kind of very-secondary points to make (akin to "shade-of-gray"), but none what you write reaches the real issue on the table. Which is: The Smoking abridged the "must-defer-to-plaintiff's-story" commandment, as enshrined in S.J. rule/law, most recently ratified by Tolan v. Cotton.

    Address that. Why won't you? Why keep piling epicycles-upon-epicycles instead of getting to the heard of the matter?

  • loki13||

    So, if you really wanted to be taken seriously, you would drop all of this nonsense.

    What you would do, instead, is the following:

    Identify, with specificity, the exact facts that remained in dispute after the respective SOFs (and responses) were filed. And by "facts" I mean facts supported by the record (cites to affidavits, declarations, discovery, etc.).

    Then show that these facts are material (in other words, that these disputed facts would have made a difference ... it would also help to tie them into the your specific causes of action). I would recommend, if you were to do this right, using the DC's opinion because it nicely goes through the ... issues with your action.

    Then you could make a plausible case that summary judgment was incorrectly granted for the Defendant. And it should be something you could do in a page or less.

    You've had years and time to do the most basic things ... and you haven't. Instead, it's all about the perfidy of the justice system, and smoking guns, and how everyone else is wrong except you. Go on. Make that webpage. Show all us fancy types exactly how we are wrong. It should be easy. Have fun!

  • Walter Tuvell||

    To less lean eel son:

    "You must mean "SEX/AGE/RACE (DISCRIMINATION) ARE NOT (ELEMENTS or FACTORS in) CAUSES OF ACTION (listed in your complaint", right? But you were very clearly demonstrably wrong in that statement, right?"

    Yes, I am right. No, I am not wrong. (Noting that my lawyer languaged it that way, per custom in 1st Cir, not me.) Namely the charges (of, say, Counts V–VIII quoted above) are brought "under ADA/151B, which just happens to cover a bunch of stuff, as mentioned." But those charges do not claim "'all that stuff covered by ADA/151B' are causes-of-action." Instead, only the things explicitly captioned in the Count titles (Failure-to-Reassign/Accommodate, Tangible-Job-Action, Harassment, Failure-to-Investigate/Remediate) are claimed as causes-of-action, as subsumed under the specified laws.

    What's not to understand here? I repeat, you people harping on this appear to be double-talking/trolling, carping on shade-of-gray trivialities that the District Court had no trouble at all understanding.

    "Are you capable of pointing to one single fact you cited in your PSOF that is relevant to a claim you made that was wrongly ignored by the judge in favor of the DSOF?" There are 24 of them in the 70-page table.

  • loki13||

    "What's not to understand here? I repeat, you people harping on this appear to be double-talking/trolling, carping on shade-of-gray trivialities that the District Court had no trouble at all understanding."

    The District Court did address the fact that you raised these claims, as we have all seen! It's also in the First Circuit opinion, remember?

    "As for his race, age, and gender-based discrimination claims, the court decided that Tuvell alleged no facts to support these claims and only appeared to vaguely argue that his being required to switch projects with a younger Asian female must have constituted discrimination."

    The appellate court states you do not contest the dismissal of those claims on appeal .... that YOU RAISED. See n.2.

    You really are a joke- you understand you are denying what is in the very documents everyone can see? Right?

  • David Nieporent||

    From his memorandum of law in opposition to the MSJ:

    VIII. DEMOTION WAS BASED ON AGE, HANDICAP, RACE AND/OR GENDER

    There is sufficient evidence that Plaintiff's demotion of June 10, 2011 was based on his
    age and/or gender. A prima facie case of age, race, handicap and/or gender discrimination is established by the following.

    [...]

    Feldman assigned Tuvell to switch roles with Sujatha Mizar, a less qualified female of East Asian heritage. PSOF8. Tuvell was decades older that Mizar, who was well under forty, and he had decades more relevant experience for the position. PSOF8. Mizar had no Ph.D. PSOF8. Such evidence constitute a prima facie case of discrimination based on age, race, gender and handicap.

    [...]

    Thus, there is ample evidence that the demotion was based on age, gender, handicap, and/or race.

    (Emphasis, of course, added.) By the way, the parts I elided do not actually provide any discussion of age, gender, or race, which sort of calls into question what "ample evidence" he's referring to.

  • Walter Tuvell||

    To D.N.:

    "Well, your lawyer has a, let us just say, idiosyncratic view of how summary judgment works. … And the First Circuit has expressly rejected your attorney's interpretation of Reeves."

    No, what the 1st Cir said in Dennis is: "At summary judgment we need not exclude all interested testimony, specifically testimony that is uncontradicted by the nonmovant." Nobody disagrees with that, but it's inapplicable in Tuvell v. IBM (wherein the Plf denied/contested "all" relevant/important Def's facts). That is, the Reeves "language" (which is what you objected to) is still good in my case.

    Nobody ever said, or ever will, that "Reeves stands for the proposition that if a non-moving party stubbornly stomps his feet and says, "lalalalalalaIcan'thearyou" that the moving party can be denied summary judgment." Again, you're double-talking there. Please stop.

  • David Nieporent||

    No, no. The 1stC continued:

    See Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 271-72 (3d Cir.2007)("We cannot believe that the law precludes a party from presenting his own testimony on a summary judgment motion.... The fact is that in considering a motion for summary judgment the court should believe uncontradicted testimony unless it is inherently implausible even if the testimony is that of an interested witness."). Indeed, the exclusion of interested testimony would make it difficult for an employer to present a legitimate non-discriminatory reason when defending against a retaliation claim. As the Sixth Circuit has noted, a rule barring all testimony from interested witnesses would "lead[] to absurd consequences because defendants will often be able to respond only through the testimony of their employees." (citation omitted). Here, Dennis' argument is unpersuasive given his failure to present evidence to contradict the declarations of Sylvania officials in which they present a non-retaliatory motive.

    See the highlighted part? It's the part you and your attorney fail(ed) to grasp.

    Nobody disagrees with that, but it's inapplicable in Tuvell v. IBM (wherein the Plf denied/contested "all" relevant/important Def's facts).

    (1) You're not competent to understand which facts are material.
    (2) "Denying" isn't good enough. As I pointed out above, you need to have contrary evidence, not just claiming they're liars.

  • Walter Tuvell||

    To D.N.:

    "I routinely handle employment cases. Successfully. You lost, repeatedly, the only employment case you were involved with. QED." OK, then please forward to us a case you've had like mine, where the judge refused to EVEN CITE (much less credit) Plf's facts.

  • David Nieporent||

    But that wouldn't be a case like yours, because that's not what happened.

  • Walter Tuvell||

    To D.N.:

    "Once again, no. You misunderstand the SJ process. (Multiple lawyers and judges have told you this.)" Actually, no. No judge has said/"told" a word about that. They just "did" it, silently.

  • loki13||

    "Under the plenary standard of review for summary judgment, we perceive no genuine issue of material fact and agree with the district court that IBM is entitled to judgment as a matter of law. See Veléz-Vélez v. Puerto Rico Highway & Transp. Auth., 795 F.3d 230, 235 (1st Cir. 2015); Fed. R. Civ. P. 56(a). Simply said, the district court got it right. It closely considered each of Tuvell's arguments and, in clear terms and for persuasive reasons, rejected them. " Tuvell v. IBM, Inc., No. 15-1914 (1st Cir. 2016).

  • Walter Tuvell||

    To D.N.:

    "Tuvell claims that because there was a dissenter, the majority necessarily engaged in "judicial misconduct" (his term) in upholding the grant of summary judgment." No, I nowhere said that. Instead, I said that Bennett (who covered this same stuff in his presentation at the NYLS Symposium) admitted that Fed judges falsely give short-shrift to empl disc plfs. All reliable authorities agree, see Sperino & Thomas, et al.

    But, if you rephrase (to what-you-may-have-meant), then I certainly DO agree with: "Denial of Right To Be Heard, via abridgment of SJTOR, is Judicial Misconduct.'" Do you deny that assertion?

  • Walter Tuvell||

    To Loki13:

    "Red-car vs. green-car stuff." Yep, agree with the substance of what you're saying. Disagree that it has any applicability to my case. Examples? (I don't any-color cars in my case.)

  • Walter Tuvell||

    To Loki13:

    "It must be very difficult, for you, to have all of these employers discriminating against you, and to be continually represented by incompetent attorneys. At a certain point, you might notice a pattern. Just saying." I only had the one incompetent atty, in the MS case, so your characterization of "continually" is false (all others were competent, incl. Rob Mantell, who you & D.N. seem intent on trashing). Nevertheless, it's a "folk theorem" that empl disc is rampant in my high-tech/compsci industry. "Proof:" the newest EEOC-&-friends initiatives against IBM and others.

  • Walter Tuvell||

    To Loki13:

    "So, if you really wanted to be taken seriously, you would drop all of this nonsense. What you would do, instead, is the following: … Go on. Make that webpage." DONE.

    Now that I've done my job, you go and do your job: Explain to us how the Smoking Gun is "not Judicial Misconduct." And this time, don't use subterfuge/double-talk. Just say it straight-up: Why is "Denial of Right to be Heard, via refusal to hear/cite plf's SOF" good/legal law?

  • loki13||

    That isn't it, Walter. We've all seen that webpage, and that is what makes you look crazy.

    This is what I mean, to use a hypothetical:

    The Defendant alleged that I took another job before I was terminated.

    However, I was never employed by anyone else, as my statement of facts states.

    Then cite to the relevant SOF of the Defendant, and Plaintiff, preferably the full sections, so people can see that you have properly created a factual dispute per the rules, instead of continually alleging something that no one can see other than you.

    As for your other thing, plenty of people have already explained this to you- for that matter, it has already been adjudicated as NOT judicial misconduct. So ... you just don't want to hear it. But further explanation isn't helping.

  • David Nieporent||

    Explain to us how the Smoking Gun is "not Judicial Misconduct." And this time, don't use subterfuge/double-talk.

    I think I explained it in overt single talk: it doesn't say anything remotely like what you think it says. It's not a smoking gun at all. It doesn't say that she didn't consider your submissions. It doesn't say that she resolved disputed facts in favor of IBM.

    It's routine boilerplate language before introducing the factual background section of a judicial opinion.

  • Walter Tuvell||

    To Loki13:

    "As for his race, age, and gender-based discrimination claims, the court decided that Tuvell alleged no facts to support these claims and only appeared to vaguely argue that his being required to switch projects with a younger Asian female must have constituted discrimination." We're all in agreement here! Nothing was ever alleged regarding race/age/gender. The Court is sort-of pretending/double-talking that was alleged (keying off the titles of the ADA/151B statutues), but it wasn't.

    Instead, it was disability disc (in various aspects, esp. retaliation) that was alleged. And that supported voluminously. Show me where the court(s) considered that properly (PSOF/RespDSOF, etc)?

  • loki13||

    "The Court is sort-of pretending/double-talking that was alleged (keying off the titles of the ADA/151B statutues), but it wasn't."

    Please stop. This is in YOUR complaint. This is in YOUR opposition to the motion for summary judgment.

    The district court had to go through YOUR arguments because YOU raised them.

    At some point, you have to own this. Please stop peeing on our legs and telling us it's raining.

    Seriously man, how can you maintain that the Courts and everyone is just Pretending and Doubletalking (what?) when these are in your own documents?

  • Walter Tuvell||

    To D.N.:

    "From his memorandum of law in opposition to the MSJ: VIII. DEMOTION WAS BASED ON AGE, HANDICAP, RACE AND/OR GENDER … Thus, there is ample evidence that the demotion was based on age, gender, handicap, and/or race."

    Again, we're all in agreement here! There never was any cause of action based on age/race/gender, period, only on handicap/ADA. See that little word "or" in there? In case you've forgotten (or never knew): "or" ≠ "and."

    Rob Mantell told me at the time that this was just art-of-lawyering drafting technique; that's just the way it's done, explaining to me exactly what I said ("or" ≠ "and"). Which is true, right? Why is any of this a big deal to you-all? You're just double-talking, right? It's a tempest-in-a-teapot, signifying nothing (thank you, Shakespeare).

    I repeat: Tell me why the judge was permitted to ignore all plf facts? Why was Tolan v. Cotton ignorable in Tuvell v. IBM? Smoking Gun?

  • David Nieporent||

    Rob Mantell told me at the time that this was just art-of-lawyering drafting technique; that's just the way it's done,

    Then Rob Mantell is an idiot.

    One does not write in one's brief that one was the victim of discrimination based on age, race, sex, and/or disability if one's only argument is that one was the victim of discrimination based on disability.

    Moreover, your argument is belied by the fact that he kept repeating that the woman whose position was swapped with yours was a woman, an Asian, and younger. None of those facts would be relevant unless one was claiming sex, race, or age discrimination.

  • David Nieporent||

    Rob Mantell told me at the time that this was just art-of-lawyering drafting technique; that's just the way it's done,

    Then Rob Mantell is an idiot. One does not write in one's brief that one is the victim of age, race, sex, and/or disability discrimination if one's actual argument is only that one is the victim of disability discrimination. That's beyond stupid.

    Moreover, the claim is belied by the fact that he kept repeating that she was younger than you, a woman, and an Asian. None of those facts would be relevant unless one was claiming discrimination based on age, sex, and race. And, notably, everyone else -- IBM's counsel and the judge -- all understood that you were claiming age, sex, and race discrimination.

  • Walter Tuvell||

    *** PROGRAMMING NOTE ***

    The wife needs a husband for another while, see you tomorrow …

  • Walter Tuvell||

    To Myself:

    I wrote: "Again, we're all in agreement here! There never was any cause of action based on age/race/gender, period, only on handicap/ADA. See that little word 'or' in there? In case you've forgotten (or never knew): 'or' ≠ 'and.' Rob Mantell told me at the time that this was just art-of-lawyering drafting technique; that's just the way it's done."

    Here's some clarification/deconstruction (of the sex/race/age/handicap nexus):

    I, PERSONALLY (as opposed to what Rob wanted to write-up, legalistically-dancing-around in papers/Complaint/PSOF/Briefs/etc.) never ever thought there was sex/race (or anything other than age/handicap) issues involved. The fact that one of the players was Sujatha Mizar, an Asian woman, gave Rob a sufficient smidgen of evidence to mention sex/race, giving the jury a chance (modulo jury instructions, etc.) to make up their minds on those things.

    I, PERSONALLY (and Rob did too) believe (then and now) that age disc was the real ORIGINAL/INITIATING reason for IBM's actions. But, we couldn't dredge up serious evidence for seriously charging age disc and expecting to win at trial.

    /*cont'd*/

  • Walter Tuvell||

    To Myself:

    I wrote: "Again, we're all in agreement here! There never was any cause of action based on age/race/gender, period, only on handicap/ADA. See that little word 'or' in there? In case you've forgotten (or never knew): 'or' ≠ 'and.' Rob Mantell told me at the time that this was just art-of-lawyering drafting technique; that's just the way it's done."

    Here's some clarification/deconstruction (of the sex/race/age/handicap nexus):

    I, PERSONALLY (as opposed to what Rob wanted to write-up, legalistically-dancing-around in papers/Complaint/PSOF/Briefs/etc.) never ever thought there was sex/race (or anything other than age/handicap) issues involved. The fact that one of the players was Sujatha Mizar, an Asian woman, gave Rob a sufficient smidgen of evidence to mention sex/race, giving the jury a chance (modulo jury instructions, etc.) to make up their minds on those things.

    I, PERSONALLY (and Rob did too) believe (then and now) that age disc was the real ORIGINAL/INITIATING reason for IBM's actions. But, we couldn't dredge up serious evidence for seriously charging age disc and expecting to win at trial.

    /*cont'd*/

  • David Nieporent||

    I, PERSONALLY (and Rob did too) believe (then and now) that age disc was the real ORIGINAL/INITIATING reason for IBM's actions. But, we couldn't dredge up serious evidence for seriously charging age disc and expecting to win at trial.

    Or to survive summary judgment!

    As an employment lawyer, my experience is that the reason so many discrimination cases do get tossed at summary judgment is because so many plaintiffs think, "I just know that the REAL reason was my membership in a protected class" without having the slightest shred of actual evidence for their belief. Your submissions don't supply one iota of evidence for age discrimination - not even the proverbial "stray remark."

  • Walter Tuvell||

    To Myself:

    /*cont'd*/

    I, PERSONALLY (and Rob did too) believe (then and now) that handicap/PTSD disc was the real FOLLOW-UP reason for IBM actions. Namely, after it was clear to me (as it clearly was, correctly) that they were trying to (very seriously) bully/harass me to quit (motivated by age disc), I told them that I couldn't handle such harassment because of PTSD. KNOWING THAT, they doubled-down with the bullying/harassing (all documented in my case, posted on website), thereby RETALIATING on the basis of the PTSD (protected, under ADA/151B).

    For the reasons just stated, sex/race/age became mere hangers-on for the case (in the sense of legal/trial strategy), and handicap became the only real viable charge (in the sense of legal/trial strategy, though again noting that age disc was almost-certainly the ORIGINAL/INITIATING reason).

    Hope this helps.

    PS: Yes, the PTSD is real, well-established, properly diagnosed/documented/treated, for decades. Apart from earlier-life traumas, it became deeply entrenched in the mileau of job/bully disc, when Microsoft "fired" me (strictly speaking, refused to carry through with hiring me after multiple verbal/handshakes to hire, and after I'd already quit my then-current job, telling my then-employer about the MS opportunity), based on their "determination" (so they told me) that my wife's mental condition made them think I would choose her over MS if necessary, and thereby be a less valuable employee to them.

  • David Nieporent||

    That's not what the insane 'rape' narrative you posted online said. It said that they told you that it didn't sound like you/your family were ready to make the move, and when you pushed they admitted it was your business judgment. Which to a normal sane person sounds like they were trying to be polite, but to you it was evidence that there was a conspiracy to harm you and your wife.

    (Still, not something traumatic that causes PTSD. Disappointing. Even upsetting. But not traumatic.)

  • Walter Tuvell||

    To D.N.:

    "By the way, although he proclaims that he was represented by the bestest employment lawyer in the whole world in his case¹ and therefore couldn't have lost through bad lawyering, he neglects to mention that he was represented by a different lawyer on appeal. NTTAWWT, but it might be indicative of… something."

    Yes, like I've said (or at least hinted), the 2nd lawyer on appeal is indicative of lack of money to keep paying Rob at his more expensive rate. Rob was, BTW, totally shocked by the District judge's dismissal, and would have been happy to keep representing me, but the cost made that prohibitive. [And no, don't give us any bullshit about "all viable empl disc cases are on contingency." That's bullshit, besides being irrelevant to the legal issues being discussed here. As just counter-argument: not all (good) lawyers are well-heeled enough to float (good) clients on contingency, for long-haul cases like mine.]

    And: your snide remark about "neglected to mention [2nd lawyer on appeal]" is unfair/prejudicial double-talk, because I haven't tried to hide it (it's freely available in the docs), I didn't know anybody cared, and it's totally irrelevant anyway.

  • David Nieporent||

    Common English phrases that Walter uses differently than other English speakers: "falsely," "double talk."

  • Walter Tuvell||

    To D.N.:

    The Dennis v. Osram Sylvania case.

    Hmm, you may have a point here, but it'll take some study on my part (I wasn't aware of this case before you mentioned it yesterday, just skimmed it very quickly then). Will try to do that today …

  • Walter Tuvell||

    To Loki13:

    I said: ""Once again, no. You misunderstand the SJ process. (Multiple lawyers and judges have told you this.)" Actually, no. No judge has said/"told" a word about that. They just "did" it, silently."

    Loki13 quoted from the Appellate decision: ""Under the plenary standard of review for summary judgment, we perceive no genuine issue of material fact and agree with the district court that IBM is entitled to judgment as a matter of law. See Veléz-Vélez v. Puerto Rico Highway & Transp. Auth., 795 F.3d 230, 235 (1st Cir. 2015); Fed. R. Civ. P. 56(a). Simply said, the district court got it right. It closely considered each of Tuvell's arguments and, in clear terms and for persuasive reasons, rejected them.""

    There is no discrepancy between the above two (thereby proving my point). Namely, both the District and the Appeal decisions "just did silently ignore the SJ process, by silently refusing to consider PlfFacts, and instead crediting DefFacts."

    In particular, the last line of Loki's quote, about "the DC considered each of Tuvell's arguments," is DEMONSTRABLY FALSE/LIE. Namely, the DC itself very clearly said (in SmokingGun) it was only going consider DefFacts, and would NOT consider PlfFacts, and that's exactly what it did (70-page table).

  • David Nieporent||

    Namely, the DC itself very clearly said (in SmokingGun) it was only going consider DefFacts, and would NOT consider PlfFacts, and that's exactly what it did

    The so-called smoking gun that purportedly "clearly" says it will "only" "consider" defendants' facts and "not" "consider" plaintiff's facts has neither the word "only" nor the word "consider" nor the word "not" in it.

  • Walter Tuvell||

    To Loki13:

    "This is what I mean, to use a hypothetical: The Defendant alleged that I took another job before I was terminated. However, I was never employed by anyone else, as my statement of facts states. Then cite to the relevant SOF of the Defendant, and Plaintiff, preferably the full sections, so people can see that you have properly created a factual dispute per the rules, instead of continually alleging something that no one can see other than you."

    You're right about "I (WT) am not getting this (what you're writing)." For two reasons: (i) What you're writing is wrong, because that's not the way S.J. is supposed to work; (ii) what you're asking for was indeed done anyway. (Recalling always that we're working under D.Mass. rules here.) Here's the explanation, starting with (i):

    The way S.J. is supposed to work is that the Plf FIRST makes accusations/complaints/facts/args/etc. (we call this "PSOF" for shorthand, but by abuse-of-language it's understood to includes all Plf facts/args/etc.]), all of which are supposed to implicate the Def in wrongdoing. THAT'S THE FUNDAMENTAL BASIS from which the Court is supposed to work, i.e., the Court MUST, BY RULE/LAW, CREDIT the PSOF as the STARTING-POINT of the S.J. analysis. SJTOR, Tolan v. Cotton, etc., all say so.

    /*cont'd*/

  • David Nieporent||

    The way S.J. is supposed to work is

    ...not remotely the way Walter Tuvell, who has a bizarrely high opinion of himself as a lawyer despite not being a lawyer and never coming close to winning a case, thinks it is supposed to work.

    Pardon my French, but you don't know what the hell you are talking about regarding summary judgment. The more you pound the table and scream that you do, the more you embarrass yourself. With respect to your description of the process, well, I think this cliched response is the only appropriate one:

    Mr. Madison, what you've just said is one of the most insanely idiotic things I have ever heard. At no point in your rambling, incoherent response were you even close to anything that could be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.
  • Walter Tuvell||

    To Loki13:

    /*cont'd*/

    The Def THEN is supposed to counter-argue against the PSOF, with its own set of stuff (call it "DSOF"). If there's any conflict (DGIMF, Disputed Genuine Issue of Material Fact), then Plf wins, Def loses (on each individual DGIMF). If there are ≥1 DGIMFs remaining, the case goes to trial; otherwise, if 0 DGIMFs, case is dismissed. [This is fair simplification, sufficient for making the present point.]

    BUT THE DISTRICT JUDGE SCREWED THE POOCH. The judge REFUSED to start-with (in fact, silently ignored, didn't even mention, much less credit) PLOF at all. Instead just blindly assumed/credited DSOF. This is Obstruction of Justice, by Falsification of Facts at Summary Judgment Time.

    /*cont'd*/

  • Walter Tuvell||

    To Loki13:

    /*cont'd*/

    Going further through the S.J. doc-passing process, the Plf did then submit RespDSOF. Which did indeed properly rebut the DSOF (which is what you're asking for in (ii)). But in doing so, the RespDSOF pointed-to the PSOF (19 times, with particularity) — WHICH THE COURT THEN CONTINUED TO IGNORE!!! (Is that enough exclamation marks?) That is, the Court did not credit the language of RespDSOF (though it was required by rule/law to do so), and the Court did not follow any of those 19 RespDSOF pointers into the PSOF.

    All of this is illegal (in any sense of that word you want to mention) breach of the S.J. process. And it's summarized in the Smoking Gun screenshot.

    Now do you see why I keep complaining about "double-talk?" Because what you're doing is pretending that the S.J. process is supposed to START with the CREDITED DSOF (putting the Def in the driver's seat), but that's wrong/false. It's supposed to starts with the CREDITED PSOF (putting the Plf in the driver's seat [assuming always that the Def is nonmovant, as is 99% the case]). The judge was wrong. And you're speaking double-talk.

  • Walter Tuvell||

    Quick clarification (about linguistic ambiguities):

    I'm using abuse-of-language, as is common, by saying:

    (i) PSOF is shorthand for Plf's facts/args/etc. Also sometimes called "PlfFacts", but that's also a shorthand, and also susceptible to the same abuse-of-language ambiguities being discussed here.

    (ii) PSOF must be credited (by the court, at S.J. time).

    The latter (ii) really means ONLY that the PSOF FACTS (incl. evidence, but not incl args) must be credited. This ambiguity is why it's an abuse-of-language.

  • Walter Tuvell||

    To Loki13:

    "As for your other thing, plenty of people have already explained this to you- for that matter, it has already been adjudicated as NOT judicial misconduct. So ... you just don't want to hear it. But further explanation isn't helping."

    No, "it" has NOT ever yet been adjudicated as "not judicial misconduct." Namely, the Judicial Misconduct Complaint I'm making has NEVER YET EVEN BEEN ACKNOWLEDGED in any judicial opinion (by Judicial Councils [case is currently sitting at Judicial Conference]). That is, my very specific "SJTOR abridgment" complaint, about "judge falsely ignored PSOF and credited DSOF instead" has never yet even been mentioned/quoted/echoed in any judicial opinion.

    Instead, what has been happening is that all the judicial opinions have IGNORED (passed over in silence) my "abridged SJTOR." This parrots/mirrors, exactly, the way that the District Court itself IGNORED (passed over in silence) my PSOF. Instead, they've said false crap, such as "it's merits-related, so non-cognizable."

    So, I repeat for the 1,000,000th time: Tell me, if you can, why you claim/argue that (i) ignoring PSOF doesn't abridge SJTOR, and (ii) why abridging SJTOR doesn't amount to Judicial Misconduct? You keep dancing around these issues, not engaging them.

  • Walter Tuvell||

    To D.N.:

    "A guy sued an orchestra claiming disability discrimination. The district judge granted summary judgment for the defendants, finding that the plaintiff failed to supply sufficient evidence to meet his burden. The 8th circuit agreed with the district judge's analysis, but there was a dissenter. Tuvell claims that because there was a dissenter, the majority necessarily engaged in "judicial misconduct" (his term) in upholding the grant of summary judgment."

    This is false quotation/implication, and you know it. I did NOT "claim J.M. because there was a dissenter." Nothing near that. Instead, what I did was look at the wording of Bennett's dissent, where he writes things like the following, and concluded that the fed judicial routinely illegally abridges S.J., and that doing so constitutes J.M. (because it "seriously erodes a fundamental/sacred right"):

    "The federal courts' daily ritual of trial court [blind/unthinking] grants and appellate court [blind/unthinking] affirmances of summary judgment in employment discrimination cases across the land is increasingly troubling to me. I worry that the expanding use of summary judgment, particularly in federal employment discrimination litigation, raises the ominous specter of serious erosion of the "fundamental and sacred" right of trial by jury."

  • Walter Tuvell||

    To D.N.:

    "I think I explained it in overt single talk: it doesn't say anything remotely like what you think it says. It's not a smoking gun at all. It doesn't say that she didn't consider your submissions. It doesn't say that she resolved disputed facts in favor of IBM."

    Wrongo, David (it baffles me how you can say this with a straight face, after 2 days and hundreds of lines of discussion). It (the Smoking Gun, both per se, and together with the opinion as a whole, which the Smoking Gun is an abbreviation/stand-in for) DOES do both of those two things:

    (i) It DOES say she didn't consider PSOF/PlfFacts — by omission, that is, she named the sources she used, and PSOF/PlfFacts weren't listed, hence by clear/justifiable implication they weren't used.

    (ii) It DOES say she resolved disputed facts in favor of Def — because there's a whole 70-page table that goes through 24 DGIMFs explicitly proving that the decision resolved disputed facts in favor of Def every single time, hence provably the PSOF/PlfFacts weren't used/read/consulted/credited/etc.

  • Walter Tuvell||

    To Loki13:

    ""The Court is sort-of pretending/double-talking that was alleged (keying off the titles of the ADA/151B statutues), but it wasn't." Please stop. This is in YOUR complaint. This is in YOUR opposition to the motion for summary judgment. The district court had to go through YOUR arguments because YOU raised them. At some point, you have to own this. Please stop peeing on our legs and telling us it's raining. Seriously man, how can you maintain that the Courts and everyone is just Pretending and Doubletalking (what?) when these are in your own documents?"

    I'm maintaining correctly, and have explained why, but maybe a little more gloss will help (even I think so):

    /*cont'd*/

  • Walter Tuvell||

    To Loki13:

    /*cont'd*/

    The distinction here (as I've already explained) is between "reality" and "legality." In "reality," there's never been any thought of sex/race disc; that happens only in "legality" (that is, lawyerism drafting technique/style), so I've always treated/thought of it as pretending/double-talking. Similarly for age disc (which did IMHO "happen" in "reality," but could never be found to have any usable-in-court evidence dredged up about it, hence was only ever carried-on in "legality"). So when those charges (sex/race/age) were killed by the court, I didn't care (and Rob didn't either, I suspect he just left them in just to "throw the court a bone they could gnaw at").

    The ONLY remaining "prosecutable charge" is (or has ever been) retaliation (& related) based on my needing ADA/PTSD accommodation for IBM's (age-motivated) bullying/harassment. Basically, if they just-plain fired me (age disc), either before or after learning about my PTSD, there's be no case (because no evidence). But that's not what they did. They bullied/harassed instead, KNOWING it would cause serious/irreparable/unjustifiable/avoidable mental damage/suffering. As it has. That's illegal (and, BTW, people should be protected from suffering such ordeals in future).

  • David Nieporent||

    But that's not what they did. They bullied/harassed instead,

    They didn't.

    Yes, I know you supposedly have 17 examples of them doing so in your papers. The problem is none of those examples constitute actionable harassment. They are just ordinary workaday interactions.

    (To the extent that you subjectively perceived them as cripplingly harassing, that just illustrates another reason why you wouldn't be able to prevail on a disability discrimination claim: you wouldn't be a qualified individual with a disability. Someone who can't handle any criticism from a supervisor that he does not agree with is not capable of doing the job.)

  • loki13||

    Very briefly Walter-

    I'm just going to single out one example of why people that actually understand what they are doing, eventually, will not engage with you further. After you made a big show about how you never made any claims under sex/age/race. But after it was repeatedly pointed out that it was in your complaint, and that you argued it (poorly) at summary judgment, and that DC had to go through your arguments, and the CoA had to acknowledge that you had waived them, all you is present the following shifting explanations:
    1. Everyone else is a liar, and I never made those arguments.
    2. Those arguments aren't really arguments, but those references only track statutorily required language because my attorney told me it had to be in there.
    3. No, really, this was just "art of lawyering" but I never really wanted to follow those claims. Except age, which I now realize I was claiming, even though there was no evidence.

    Look, losing a case isn't fun. But when other people take the time to (sometimes gently, sometimes not so gently) point these things out to you, well, if you keep responding by calling everyone else liars and with shifting explanations, then you're doing something wrong. K? ...contd.

  • loki13||

    There is a lot in your .... things that would be immediate red flags. If, for example, you knew a lot about employment law (and employment lawyers), you would know that for any *good* employment claim such as yours, it would be done on contingency. Why? Because most of these types of claims have an allowance for attorneys' fees ... for the Plaintiff.

    I have honestly, never ever ever in my life, heard of someone paying out of pocket for an ADA (or other similar) claim against an employer.* Obviously, I have now heard of it, but it is truly weird for people like me and DMN to see someone get hopping mad and indignant when someone points out that contingency is how Plaintiff's employment attorneys work. I would be almost as shocked if someone told me, "Yeah, I didn't have the money to "float" my attorney for my FLSA claim."

    So a few final points- given your tendency to continue litigating this issue over and over, you might want to remember that discussing your prior conversations with counsel (even on this forum) can constitute a waiver of ACP. It will be difficult for many people to take you seriously (which I assume is what you want) when you characterize the withdrawal of an informal offer of employment as "termination" and "rape" that causes or contributes to PTSD.

    ...contd.


    *Breach of contract, etc., or non-statutory claims, or statutory claims that do not involve the presumption of attorneys' fees for plaintiffs would be different.

  • loki13||

    ....contd.

    Finally, I don't think you are being paid for this continuing crusade. And given that most employers google prospective employees now, I'm not sure that this is what you want to be known for.

    Although I litigate, it is always my advice (to friends, family, and anyone who asks) to avoid litigation whenever possible. If this is bringing you happiness, knock yourself out. But ... aren't there other things you could be doing?

  • David Nieporent||

    I have honestly, never ever ever in my life, heard of someone paying out of pocket for an ADA (or other similar) claim against an employer.*

    The reason, Mr. Tuvell, is that virtually no plaintiffs can afford to fund these cases up front. If plaintiffs' employment lawyers waited for an hourly paying client, we'd have a lot of vacation time. Employment lawyers take them on contingency out of necessity. We're willing to do so because these types of claims involve fee-shifting statutes for prevailing plaintiffs. That's why we only charge hourly fees if the case is so bad that there's little chance of prevailing.

  • Walter Tuvell||

    To D.N.:

    "Then Rob Mantell is an idiot.. One does not write in one's brief that one was the victim of discrimination based on age, race, sex, and/or disability if one's only argument is that one was the victim of discrimination based on disability." I disagree, that "one does not [necessarily]." It seems to me just a matter of legalistic style. And, in the event, I did indeed not want to have any of that sex/race/age stuff put in, but Rob insisted, saying it was "legalististically justified" (which might even be a historically exact direct-quote, see next paragraph). [Though, as I've said, I continue to "own"/defend all Rob's filings as my own.]

    "Moreover, your argument is belied by the fact that he kept repeating that the woman whose position was swapped with yours was a woman, an Asian, and younger. None of those facts would be relevant unless one was claiming sex, race, or age discrimination." That's what I just said, above, about Rob claiming "legalistically justifed." Sujatha was indeed different sex/race/age than me, hence that constituted "prima facie" evidence of discrimination (Rob's own words, and they're correct), hence the sex/race/age charges became a jury question. The court's killing them at S.J. was in fact improper, for that very reason. But since those (sex/race/age) were ultimately untenable anyway IMHO, I didn't continue prosecuting them upon Appeal.

  • David Nieporent||

    Sujatha was indeed different sex/race/age than me, hence that constituted "prima facie" evidence of discrimination (Rob's own words, and they're correct),

    Please stop. No. They're not. Not even close. Loki has told you that. I've told you that. Multiple judges have told you that.

    Causes of action have elements.

    hence the sex/race/age charges became a jury question. The court's killing them at S.J. was in fact improper, for that very reason.

    Wrong. You had no evidence. None. Zero. Zilch. One doesn't get to take accusations or beliefs to a jury. Only facts.

  • Walter Tuvell||

    To D.N.:

    "As an employment lawyer, my experience is that the reason so many discrimination cases do get tossed at summary judgment is because so many plaintiffs think, "I just know that the REAL reason was my membership in a protected class" without having the slightest shred of actual evidence for their belief. Your submissions don't supply one iota of evidence for age discrimination - not even the proverbial "stray remark.""

    Pretty much. There is one "real"/shred of evidence, namely the fact that Sujatha was younger(/sexier/racier) than me, hence passing the "prima facie" threshhold (which should, as I've said, won at S.J., except for the fact that the judge IGNORED all PSOF/PlfFacts). But it's a thin reed, as I've said, and while we "all" "know" age disc was the "real" reason, Rob & I decided it was a non-winner at trial.

    But, to repeat yet again: None of this age/sex/race stuff has the slightest iota of the real issues that are before this forum: (i) Smoking Gun, i.e., whether "ignoring PSOF at S.J., thereby violating S.J. rule/law, is OK"; (ii) whether (i) constitutes Judicial Misconduct.

  • loki13||

    "Pretty much. There is one "real"/shred of evidence, namely the fact that Sujatha was younger(/sexier/racier) than me, hence passing the "prima facie" threshhold (which should, as I've said, won at S.J."

    /facepalm

  • David Nieporent||

    There is one "real"/shred of evidence, namely the fact that Sujatha was younger(/sexier/racier) than me, hence passing the "prima facie" threshhold (which should, as I've said, won at S.J.,

    You indeed have said that. You were wrong when you said it. You're still wrong now.

    "My job assignment was switched for that of someone younger than me" is not sufficient to make out a prima facie case of age discrimination. Again, causes of action have elements.

  • Walter Tuvell||

    To D.N.:

    "That's not what the insane 'rape' narrative you posted online said. It said that they told you that it didn't sound like you/your family were ready to make the move, and when you pushed they admitted it was your business judgment. Which to a normal sane person sounds like they were trying to be polite, but to you it was evidence that there was a conspiracy to harm you and your wife."

    That's a lie. There was never ever any "business judgment" involved (because I'm an technical individual contributor, not a mgr/business type). What they did was separate me and my wife from one another at a "dinner party," and quizzed her down about many things (including the impending cross-country relocation, which involved relocating her business), which caused her to cry (not uncontrollably, just a few tears). They told me (on the phone) that was the reason, namely, they feared she'd eventually be unable to handle the relocation, and would want to move back East, and I'd go with her (rather than abandoning her and sticking with MS). It was only later they invented the "business judgment" lie (which, as an empl lawyer, you know is a catch-all plausible-deniability generator).

    /*cont'd*/

  • David Nieporent||

    That's a lie. There was never ever any "business judgment" involved (because I'm an technical individual contributor, not a mgr/business type).

    Well, you seemingly don't understand the concept of business judgment. Ask your wife; she seems to understand better than you, based on your narrative:

    "While I was in the midst of composing the above message, Linda called me. When I told her about Meg's call and that I was working on another letter, she Implored me to not send the letter, and instead to let it sit for a day and her look at it for editing/sanitizing before sending It I did not heed her advice."

    Sending that email was poor business judgment. Whether the withdrawal was based on your lack of such judgment, or because of the 18-month transition you wanted, I have no idea, and neither do you.

    What they did was separate me and my wife from one another at a "dinner party," and quizzed her down about many things (including the impending cross-country relocation, which involved relocating her business), which caused her to cry (not uncontrollably, just a few tears). They told me (on the phone) that was the reason, namely, they feared she'd eventually be unable to handle the relocation, and would want to move back East…

    You are dramatically embellishing your story from your prior version. Given that the prior one was roughly contemporaneous and this one is 20 years later, I think the original version is likely more reliable.

  • Walter Tuvell||

    To D.N.:

    /*cont'd*/

    "(Still, not something traumatic that causes PTSD. Disappointing. Even upsetting. But not traumatic.)"

    Oh, so now you're a LICSW/MD too (multiple of which have diagnosed me with PTSD, including the most recent bleeding-edge saliva/cortisol tests)? The issue was, of course, not loss-of-job, but rather secret investigation/entrapment/violation/attack/"rape" of family/wife. Obviously.

    If this is your idea of "insane," I'll take it.

  • Walter Tuvell||

    To D.N.:

    "The so-called smoking gun that purportedly "clearly" says it will "only" "consider" defendants' facts and "not" "consider" plaintiff's facts has neither the word "only" nor the word "consider" nor the word "not" in it."

    That's a very cramped reading (and wrong, in this case), for the reasons I've stated: (i) The judge was listing her sources (such lists are traditionally intended/understood to be "complete," are they not?). (ii) The "action" (as opposed to the "mere words" of (i)) of ACTUALLY IN FACT NOT CONSIDERING ANY OF PLF'S FACTS: 70-page table.

  • David Nieporent||

    The judge was listing her sources (such lists are traditionally intended/understood to be "complete," are they not?).

    No.

    (ii) The "action" (as opposed to the "mere words"

    When one claims (as you did) that a person "clearly says" something, one has to point to their "mere words" -- not to actions taken by the speaker. You drawing inferences from something someone did would be the opposite of them "clearly saying" something.

  • Walter Tuvell||

    To D.N.:

    "Pardon my French …"

    Well, that's cute, but what exactly was wrong with my description? Looking at it again, I see only one thing that needs clarification: Where I said "Plf FIRST makes accusations/complaints/facts/args/etc," the word "FIRST" means in the logical sense ("putting the Plf in the driver's seat"), not the chronological sense.

  • Walter Tuvell||

    To D.N.:

    "Yes, I know you supposedly have 17 examples of them doing so in your papers. The problem is none of those examples constitute actionable harassment. They are just ordinary workaday interactions."

    No, it's not "ordinary workaday interactions" for bosses to do things like about giving orders (the Excel graphics)" (as just one example, many others are documented), and I've got decades of relevant experience in the affected industry. Tell me how many clients you've had, from the same industry, at my same professional experience level and degree of education/expertise, who've had the same thing happen to them? Ans: None. Unless they're being constructively singled-out for age-disc firing, for example.

    "(To the extent that you subjectively perceived them as cripplingly harassing, that just illustrates another reason why you wouldn't be able to prevail on a disability discrimination claim: you wouldn't be a qualified individual with a disability. Someone who can't handle any criticism from a supervisor that he does not agree with is not capable of doing the job.)"

    Everything went very far beyond "criticism from supervisor who didn't agree with," and there's the PTSD angle. How many similar PTSD clients have you had?

  • Walter Tuvell||

    To Loki13:

    "If, for example, you knew a lot about employment law (and employment lawyers)." Of course I didn't know that, and I doubt you can prove it.

    "Someone get hopping mad and indignant when someone points out that contingency is how Plaintiff's employment attorneys work." I'm not hopping mad, I just don't see how it's relevant to my question about S.J. Judicial Misconduct. Why do you keep changing the subject?

    "You characterize the withdrawal of an informal offer of employment as "termination" and "rape" that causes or contributes to PTSD." As I've said, it obviously wasn't "withdrawal of FORMAL (multiple handshakes, noting pieces of paper aren't required for contract formation) job offer." It was violation of family/wife. Obviously.

  • David Nieporent||

    It was violation of family/wife. Obviously.

    Oh, obviously.

    I mean, that didn't happen (based on your own long posting of events), but obviously.

  • Walter Tuvell||

    To Loki13:

    "If this is bringing you happiness, knock yourself out."

    Fighting for a Just Cause? Who wouldn't think that was a good/honorable happiness-inducing pursuit? Oh, yes, now I know, lawyers like you, who still refuse to address the Questions On The Table (SJ, JM).

  • loki13||

    We addressed them, you ignored what was said.

    It is exceptionally difficult to talk to someone who doesn't want to understand what they don't understand, and believe people who know what they are talking about are lying to him.

  • Nanahara||

    I believe Mr. Tuvell displays the symptoms of Paranoid Personality Disorder (https://tinyurl.com/y6uadb49) with litigious (aka querelant) affect (https://tinyurl.com/y9z2d8kd). In his writings (both his web site and the email to Bill Gates linked by Teavee above) he exhibits six of the criteria, of which only three (ICD-10) or four (DSM-5) are required for diagnosis. The seminal paper on this topic is Forensic Phase of Litigious Paranoia (https://tinyurl.com/y9z2d8kd).

    PPD is notoriously hard to treat: It doesn't respond to medication, and therapists who attempt to offer alternate explanations to the (usually voluminous) evidence presented are quickly discarded in favor of ones more willing to entertain the narrative of persecution and injustice.

    Disclaimer: This information is not intended to be a substitute for professional medical advice, diagnosis or treatment.

  • loki13||

    I don't know what it is, but it's clearly something.

  • Walter Tuvell||

    To D.N.:

    "Please stop. No. They're not. Not even close. Loki has told you that. I've told you that. Multiple judges have told you that." Rob told me that such prima facie evidence suffices. I believe him (because I've read up on it, and I know it to be right). Even such single incidents as "calling nigger" suffice as prima facie evidence of racism.

    "Wrong. You had no evidence. None. Zero. Zilch. One doesn't get to take accusations or beliefs to a jury. Only facts." Yes, the evidence exists, Sujatha was provably younger/racier/sexier, which constitutes sufficient prima facie evidence.

    (Noting, again, that I never thought any of this was viable at trial.)

  • David Nieporent||

    To D.N.:

    You know, you could save several keystrokes in each comment (and make this thread far more readable) if you would learn to use the "Reply to this" command.

    Rob told me that such prima facie evidence suffices. I believe him (because I've read up on it, and I know it to be right).

    Maybe you should read Judge Casper's opinion. You'll find out that what you "know" [sic] to be right isn't in fact right. If Rob told you that -- something that I can't take your word for, because you repeatedly hear things that people didn't say and fail to hear things that people did say -- then he would have been wrong.

  • Walter Tuvell||

    To D.N.:

    ""My job assignment was switched for that of someone younger than me" is not sufficient to make out a prima facie case of age discrimination. Again, causes of action have elements." Yes, of course, but you know I meant this prima facie thing to stand for just one of the elements, not all of them.

    Random example I just looked up: "It was sufficient that the replacement was younger than him to establish a prima facie case of age discrimination." Do I really have to search the cases for examples of simple prima facie? I'm not going to do that, everybody knows what I'm saying is right (and not relevant to the real issues on the table, SJ & JM).

  • Walter Tuvell||

    To Loki13:

    "We addressed them, you ignored what was said [referring to the Smoking Gun Summary Judgment question, and the question of whether abridging S.J. constitutes Judicial Misconduct]."

    No, you have not. You've bashed everything from shades-of-gray to how bad a lawyer I hired, but you haven't addressed those 2 questions on the table (apart from non-answering with non-substantive/argumentative words like "that's not J.M.").

  • loki13||

    Actually, we have, multiple times.

    But I will simplify the issues for you, not that it will do any good-

    1. Your "smoking gun" is nothing more than boilerplate language.

    2. You don't understand the standard for summary judgment, or what happened in your own case.

    3. EVEN IF you were right about the judge using the wrong standard for SJ (you aren't), that wouldn't be judicial misconduct. That would be grounds for an appeal.

    This has been repeated ad infinitum to you. Assumedly long before this thread.

  • MonitorsMost||

    The first day was like season one of a promising show. A zany, crazy character was introduced who provided real entertainment value. But the show got stale because they didn't have any new material, it was just a rehash of season one. It looked a little promising for a second when the character sent an email to Bill Gates saying that the job recruiting was done in a way that was literally intended to destroy his family. But aside from that small plot arc, nothing worth mentioning. Now we're onto season 3 and hoping desperately that a new show premiers soon so the old show can be cancelled.

  • David Nieporent||

    Maybe we need to add a Cousin Oliver?

  • MonitorsMost||

    I think we need some new material, I don't think a new character is going to cut it (except possibly if Walt's wife starts posting and telling us off). Walt is the star, we shouldn't fight that. We just need to figure out what else grinds his gears since he is a talented ranter. Maybe ask which security suite is better: McAfee or Norton.

  • Teavee||

    According to his site he's also suing a blogger for defamation. From the complaint (Tuvell v. Marshall):

    "[I] realized that Walt is, in technical terms … a few cherries short a sundae."

    False: By invoking "technical terms," Defendant represents/alludes to a scientific/medical/clinical expertise/credentials that he does not possess (which he falsely pretends to "inoculate" as an "opinion"); and even if he did possess the requisite expertise, his conclusion of "a few cherries short of a sundae" is wildly false/insane.

  • David Nieporent||

    Well, there's a compelling argument for strong anti-SLAPP laws.

  • MonitorsMost||

    Mana from heaven. Google ethics alarm and Walt Tuvell and you can find the alleged defamatory post in the comments.

  • loki13||

    It's litigants like Tuvell that really make me question the continuing validity of the American rule.

  • David Nieporent||

    See, and MonitorsMost was worried that there wasn't enough material for a new season.

    Anyway, the pleadings in that case employ Mr. Tuvell's unique sense of typography, not to mention his fondness for neologisms. ("CTXDEFIMPL" is employed repeatedly in one of his briefs.)

    Anyway, when this case is inevitably tossed, because Mr. Tuvell has his own idiosyncratic definition of words like "false" and "defamatory"¹ not shared by the courts or the rest of humanity, we will be able to add a Massachusetts state judge (not sure why Marshall didn't remove the case) to the "judicial misconduct" database.


    ¹ He says that calling him an asshole is "false." He says that mistakenly calling him an "academic," or mistakenly calling his website a "blog," is defamatory.

  • loki13||

    "He says that calling him an asshole is "false.""

    I mean .... it would be interesting to see what type of discovery you would be entitled to with regards to determining the truth of that statement, I guess?

    It would certainly make for some fun interrogatories and third-party production.

    Would Aaron James, the author of "Assholes, a theory" qualify as an expert under either Frye or Daubert?

  • MonitorsMost||

    Loki
    Perhaps Marshall should forgo the defense of "opinion" and just proceed solely under the affirmative defense of truth.

  • MonitorsMost||

    It says the hearing was June 7. I thought that Marshall's motion to dismiss was pretty lousy, but I suppose it didn't need to be A+ material.

  • David Nieporent||

    Yeah, I wasn't impressed with Marshall's motion, either in substance or presentation; he could benefit from someone who knows how to use a word processor. But, you know, at least it wasn't arguing that it constitutes defamation to ban someone from commenting at a blog.(Sorry, to falsely ban someone from commenting at a blog.)

  • MonitorsMost||

    If Walt does have a disorder, I know of one attorney who must have the same condition. Right down to the predilection to use the adjective "falsely" in front of exposition about procedural history.

  • less lean eel son||

    I'm still trying to get a good gloss on his version of 'falsely'. I don't think it lines up with any word or phrase I know, so I wonder what exactly he means, or perhaps it's different each time.

  • Walter Tuvell||

    To D.N.:

    "The 18-month transition you wanted." Correction: My wife wanted. (That was no doubt part of the fake "business judgment" rationale.)

    "You are dramatically embellishing your story from your prior version." I haven't reviewed what I wrote, but I deny "embellishment" (by which I expect you mean fakery). Maybe jiggering a word here/there, but that's normal, because as you know, all re-telllings are slightly different, else they're memorized lies, right?

  • Teavee||

    What David Nieporent might be referring to are parts of the story that have taken on a more malevolent tone with the passage of time, e.g:

    Then:

    "So when Dave asked Linda how the househunting had gone, he inadvertently pushed the one hot button that was guaranteed to generate an unhelpful reaction. Poor Dave! He apologized (though no apology was necessary), and I did my best to reassure him that it was a 'no fault' situation, and Linda later expressed to me her concern about his feelings as well."

    Now:

    "What they did was separate me and my wife from one another at a 'dinner party,' and quizzed her down about many things (including the impending cross-country relocation, which involved relocating her business), which caused her to cry (not uncontrollably, just a few tears)."

  • Walter Tuvell||

    To D.N.:

    "I mean, that didn't happen (based on your own long posting of events), but obviously."

    Like I said, I don't remember what I wrote (haven't reviewed). I may have written more and/or less about the details this time (which is a healer of wounds), but I doubt anything contradictory.

  • Walter Tuvell||

    To Nanahara:

    "Paranoid Personality Disorder."

    Sounds like a respectable new correspondent, clearly not qualified to give long-distance diagnosis without in-depth in-person interview though (as I'm sure he/she would agree). But consider this: ALL people exhibit SOME of the DSM criteria of ALL the "mental disorders" (as they're technically called) (to within epsilon). The real pros (not counting, in particular, the hack IBM paid off during litigation) I've consulted all agree that I exhibit ~100% of PTSD criteria, far more closely than any other DSM MO. I wonder what Nanahara would say about that?

    And I repeat the challenge, for all you people fantasizing about my mental state: What, exactly, is your PhD in, and where did you earn it?

  • David Nieporent||

    And I repeat the challenge, for all you people fantasizing about my mental state: What, exactly, is your PhD in, and where did you earn it?

    Where'd you earn your law degree, exactly?

  • Walter Tuvell||

    To D.N.:

    "You know, you could save several keystrokes in each comment (and make this thread far more readable) if you would learn to use the "Reply to this" command." Really? I admit to novice/newby with blogs, in particular how to re-order the "threaded" posts you suggest into time-order so I can find the most-recent. Some blog systems (google-search for "blogging platfors") even prohibit "threadedness," on the basis that it's confusing. I agree. (FYI, for my website I use Drupal, which is high-tech state-of-the-art, not low-tech like WordPress. BTW, that "shade of gray" some people criticize is professionally designed, Drupal/BootStrap/SpaceLab, not something I cobbled together.)

    "Maybe you should read Judge Casper's opinion." Oh, you mean the one that admitted to not-reading what I/Rob wrote (PSOF)?

  • David Nieporent||

    "Admitted" does not mean what you think it does.

  • Walter Tuvell||

    To Loki13:

    "1. Your "smoking gun" is nothing more than boilerplate language." Deny. For, as I've asked, give me another example of any case where the opinion does the same thing?

    "2. You don't understand the standard for summary judgment, or what happened in your own case." Absurd. Refuted.

    "3. EVEN IF you were right about the judge using the wrong standard for SJ (you aren't), that wouldn't be judicial misconduct. That would be grounds for an appeal." Appeal was taken, the closed ranks (not the first time we've seen govt conspiracy at high levels, now, is it?). Case is now at Jud Conf (4 months and counting).

  • Walter Tuvell||

    To All (writing this before checking latest raft of comments, assuming there are some, in fact, maybe I haven't seen some that've already been posted while writing this comment):

    You know, I sort-of think we're getting close to draining this well dry, so maybe we should give it a rest? Do you agree?

    FWIW, I'm actually grateful for your-all participation. Even though I haven't gotten faithfully responsive answers to the questions I posed (S.J. & J.M.), I do think some progress has been made (not-a-waste-of-time).

    Sincerely.

  • Walter Tuvell||

    To D.N.:

    "Where'd you earn your law degree, exactly?"

    You already know the answer to that, of course, because I uncowardly publish my info on my About page. But you (& others) have the luxury of being anonymous (I assume, I haven't tried websearching any of your seemingly-human display-name). Else, you'll publish your personally identifying info (such as website, email, LinkedIn entry, whatever) here, in this stream. Right?

  • David Nieporent||

    You already know the answer to that, of course,

    Uh, dude. It was a rhetorical question.

  • Walter Tuvell||

    *** PROGRAMMING NOTE ***

    Gotta go for now, that wife thing you know (or if your prefer "bad business judgment").

  • Walter Tuvell||

    To All:

    Oh Wow, I just got a feed read in my news-feed reader (because of today's news) about the existence of a book, "The Big Lie" book, which I never now about before now. In particular, that thing has nothing whatsoever to do with my own usage of the the same (well-known, historical) paradigm! I swear!! (My political/partisan leanings, if any, are opaque, and irrelevant to this forum.)

    (Sigh, so many words/thoughts, there are bound to be inadvertent collisions …)

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