If you are lawyer, you already know that a U.S. Attorney can’t be trusted.
But if you are an individual planning to bring litigation on your own, you need to be aware from the very start that U.S. Attorneys are the dregs of the judicial system. My guess is that they weren’t good enough to get a job with, or move up, in a private firm so they went with the employer of last resort, i.e., the Department of Justice.
This website, among other things, encourages individuals (or their lawyers) to sue the Patent Office and the Office of Management & Budget (OMB) for all of their violations of the law, particularly those concerned with Form PTO/SB/65.
Most Courts require a “Case Management Report” (CMR) to give the parties (and the Court) an idea of where everybody stands about discovery and other matters. The Plaintiff is normally made responsible for getting the parties together. So I plunged ahead to set up a meeting at my house with the idea that the different agencies could send me a cell phone with a speaker attachment and we could prepare the CMR without their having to come to Tampa. So, I started calling up the agencies to find out who their “lawyer” would be that I should deal with for the CMR.
When you bring a lawsuit against government agencies, the local U.S. Attorney assumes responsibility for the whole lawsuit. I didn’t know this. Lo-and-behold, within a couple of hours after I started calling the agencies, I got a call from the local Assistant U.S. Attorney, Warren Zimmerman (Mr. Z) (813-274-6030), telling me that he would be handling it for all of the agencies involved and to stop contacting the agencies individually. Apparently, someone from one of the agencies gave him a call and told him to get off his ass and contact me.
Mr. Z invited me to come up to his place in Tampa. What a mistake that was…
After driving 35 miles up to Tampa and paying road tolls and paying to park in the garage of his building, it turned out that Mr. Z didn’t even have the authority to pay for my parking in his building. And if you’ve ever wondered what it was like for the Gypsies and Jews in Nazi Germany to wear signs around their necks, when you go to the U.S. Attorney’s Office, they make you wear a red badge. The name-tag was OK but it noted that I was to be accompanied at all times. I think that was intended to intimidate, because surely everyone who works there knows that a red badge means the person is to be accompanied. Between having to pay for parking in his garage and having to wear the badge, the trip aspects of the CMR were not good! So what I learned for later litigation is: “Don’t accomodate the U.S. Attorney by doing him a favor, because he’s out to screw you every way he can!”
And the meeting itself turned out to be even worst…
First he interrogated me in a friendly manner to find out as much as he could about me – my interests, my status in life, etc. In retrospect it was none of his business.
Then he tried to put a guilt trip on me by suggesting that it was unpatriotic to sue the government and that the Dep’t of Justice needed to use its resources to fight the war on terrorism. What a bunch of crap! If he actually felt that way, and in light of the compelling evidence against his “clients”, he should have lectured the Patent Office and the OMB to stop violating the law and to settle then-and-there.
Then he asked if I would agree to delay discovery until the Court decided whether or not his Motions to Dismiss should be denied. Sounds fair enough, doesn’t it? So, I agreed. What I didn’t know was that the Court doesn’t do anything about Motions to Dismiss (when they’re as vague and bad as his was). They just let them languish in the hopes that the guilty parties will decide, over a period of months, that they don’t want to go to trial. And it saves having the Court of Appeals getting involved if the local Court makes a bad decision. So, even though the lawsuit was filed in December of 2003, the Court has never acted on his Motions to Dismiss, so no discovery has taken place. This isn’t that much of problem for me because I have so much hard evidence (which the Court has “judicially recognized”) against Mr. Z’s clients, that what I have so far is more than enough to find his clients “guilty as charged.” And I will demand that several employees from the Patent Office and OMB testify which will supplement the existing evidence. So what I’ve learned for later litigation is: “Never agree to delay discovery for any reason, whatsoever!
The Court system is terribly overloaded and obviously wants the parties to settle out-of-court to avoid using all the resources that have to go into a trial. That’s part of the reason for the CMR and court-ordered Mediation. And I think their laid-back attitude and delay for pleadings is simply an effort to get the parties to reexamine their own positions and evidence. I’ve learned to not be dismayed if the Court doesn’t act promptly. I’ve come to the conclusion that it’s all part of a grand plan.
I had prepared a draft of my version of the CMR and sent it to Mr. Z and Galaxy ahead of time. The Court had ordered that everyone was to be ready to participate at the CMR meeting. Guess what? He wasn’t prepared. He looked me straight in the eye and promised that he would have it to me by that Friday. Of course he was lying! In my draft CMR, I had been explicit about what my discovery plans were. It turned out that when he submitted his draft (ten days later and 90-minutes before the deadline), that one doesn’t have to be all that explicit. You just state that you’re going to abide by the Local Rules and the Federal Rules of Civil Procedure. My gut-feeling is that he delayed until the last moment so that my explicit plans would apply while he would be free to discover to the maximum allowed by the law. Unfortunately for him, I filed the CMR with just my signature, since the Court had made me responsible for preparing it. It turned out that it should have had the signatures of all of the other parties, also – so the Court rejected it and made us file it again. This time I used Mr. Z’s language so that I, too, would get the maximum benefit of the law. So what I learned for future litigation is: “Don’t be honest about your discovery plans – Go for the max!“
During the CMR discussion, Mr. Z asked if I planned to use the full seven-hours allowed for each deposition. My answer was “Yes.” He said he would file a motion against me if I did. I backed-down to four hours per. In retrospect, the four-hour thing was strictly an intimidation move. Now I know that “When U.S. Attorneys know they don’t have a case, they try to bluff a lot!“
You’re guaranteed those seven hours by the Rules and he would have made an ass of himself by filing a motion to the contrary (and would not have done it). By having to refile the CMR, I was able to recover the right to the seven-hour depositions. So from this I learned: “Never agree to less than full discovery!“
In the CMR each party can state whatever they want and the other parties always “object” to whatever they state. One thing that Mr. Z included that was curious was: “4-b. Disclosure of Expert Testimony: Federal defendants request under Fed.R.Civ.P. 26(a)(2)(c), that Defendants’ Fed.R.Civ.P. 26(a)(2) disclosure will be due as noted here: The later of 08/15/04 or the 30th day following the deadline established for plaintiff’s expert disclosures. The Plaintiff objects.” I have no idea why he was so insistant at getting that in as part of his disclosure plan. So, on the refile, I stuck the same language in for me, and he objected. So: “Be sure to object to everything in the CMR and don’t give the U.S. Attorney any benefit that you don’t have!“
And finally, I have learned to: “Always object to anything the U.S. Attorney wants to do that is contrary to the Local Rules or the Federal Rules!” For example, if he wants more time to prepare a pleading – OBJECT! Why should you allow him more time to perfect something that is intended to hurt you?
So, no matter how smooth and friendly he or she may appear: “Never trust a U.S. Attorney!