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Wednesday, March 28, 2007

Comments

Michael A. Marek

Yours is the most cogent and thoughtful analysis re Tellabs that I have read. Excellent distillation. Thank you

Hogwash

This is hogwash.

A decision on a motion to dismiss would not even arguably be outcome determinative nor call for the automatic granting of a motion for a JNOV. You wrote "If, nevertheless, the jury returned a verdict for the defendants on a preponderance of the evidence instruction, the court would have to enter j.n.o.v. for plaintiffs because a defense verdict could not be rational given the overwhelming inferences of intentionally or recklessly deceptive or manipulative conduct the court previously found." Wrong.

PLEADING a strong inference (i.e., a lawyers drafts allegations) is not that same thing a PROVING at trial "the overwhelming inferences of intentionally or recklessly deceptive or manipulative conduct the court previously found." There is no disconnect in pleading a strong inference and then failing to prove it. Your inability to see this point is somewhat shocking.

missed the point

Hogwash you miss the point. The 12b6 motion requires the court to assume the ("well-pled") factual allegations are true. Eric's argument is: assuming the plaintiff PROVES at trial everything alleged in his complaint, the jury would then be in the identical position factually as the judge was at the 12b6 motion. In that situation, the jury could still return a verdict for the defendant, thereby creating the inconsistant findings of what the facts demonstrate. While clearly a plaintiff could fail to prove the alleged facts, what do you do if the plaintiff succeeds, and the jury simply disagrees with the judge on what those facts mean legally?

Eric H. Zagrans

Thank you "Missed the Point." You clearly understood what "Hogwash" didn't. But perhaps this fairly subtle point would have benefitted from further elaboration. I'll keep that thought in mind in the future.

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