LITIGATION EXPERIENCE MATTERS (4)

Even when a government claim is involved, the government's strategy is to delay as much as possible. So, what is the contractor's prudent method for moving the case?

1. Always file the Complaint with the Notice of Appeal.
2. Try to get opposing counsel to agree to a discovery schedule and trial date.
3. Ask the judge to help negotiate the discovery schedule and trial date.
4. Try getting opposing counsel to agree to ADR before discovery.
5. Conduct ADR if the government agrees.
6. Truncate discovery as much as possible. Use rifle, not shotgun shots.
7. Discovery is a constant negotiation of scope. Enlist the judge's help if possible.
8. Depositions are essential but move them along quickly. Experts in particular.
9. Keep your eye on the prize. You win on the trial and briefing. 
10. Try to keep the judge engaged in status conferences to keep the case moving.

LITIGATION EXPERIENCE MATTERS (3)

In claims under the Disputes Act of 1978 that covers all contractual disputes, you will not have a jury, and:

1. There will likely be no opening statement or closing oral argument.
2. No expert witness testimony will be allowed on contract interpretation issues.
3. The case will be won on your post-trial brief strength.
4. Expert testimony on the delay claim critical path analysis will be required.
5. The judge presiding at the trial may not write the opinion.
6. It will likely take a year or more after the last brief is filed for a decision to be issued.
7. Stay across the street at the Homewood Suites by Hilton for ASBCA trials and have lunch catered there. (The ASBCA will most likely move soon.)
8. The record consists of the Rule 4 File, the trial transcript, and any exhibits admitted at trial.
9. The case will be decided on that record.
10. Do not file a motion for summary judgment unless you know the relevant facts are undisputed.        

LITIGATION EXPERIENCE MATTERS (2)

 ON HOW TO WRITE BRIEFS:

1. Be brief.
2. Edit to eliminate unnecessary words, phrases, cliches, and unpleasant tones.
3. Writing must be mellifluous. Fun to read, easy to read.
4. Short paragraphs and short sentences.
5. Never argue in the alternative, as it signals they both are wrong. Pick one and stay with it.
6. Avoid footnotes as they interrupt the flow and seldom help win. If it is worthy of saying, say it in the body of the brief.
7. Use plain language and let the strength of your substantial position speak for you. Do not try to use words and phrases designed to move the reader emotionally.
8. Never use boldface type. 
9. Use italics rarely to emphasize a particular word.
10. Leave plenty of white space on the page. Again, short paragraphs and sentences. This is not a vocabulary contest.

LITIGATION EXPERIENCE MATTERS (1)

This is the first in a series of litigation tips and treasures.

CROSS-EXAMINATION

To those of you paying attention to the Trump trial (I am not), you will see a lesson in how not to cross-examine a witness. The time-honored, hard-and-fast rules of the cross are: (1) Do not try to prove your case through the other side's witnesses; (2) Do not ask a question that gives the witness a chance to reiterate the case against you; (3) Only ask a leading question; (4) only ask a question you know how the witness will answer, and it helps you; and (5) be sure you have the backup for any fact you wish the witness to address.

Out of over a hundred criminal and civil trials, we have only won two, primarily based on cross-examination. A handwriting expert was so arrogant he invited a thorough inquisition regarding his opinion that my client was guilty. I walked him through each word and each letter of each sentence. The jurors unanimously decided my client was not guilty as they could tell the witness was full of himself, and their opinion was just as plausible as his.

The other was a government contracts case where the DCAA auditor was also arrogant and was playing lawyer interpreting regulations he had no business addressing. When I pointed out on the cross that the critical language was disjunctive, not conjunctive, the witness collapsed, and the government's claim against my client went with him.

Some lawyers think they are so skilled that they eventually will score big points with the fact finder if they drone on and on trying to make their case through cross-examination. The witness they are trying to "break" is hostile. Why not present evidence from a friendly source? I've received a great benefit from not crossing the other side's witness than from adding to my burden by trying to make their witness mine.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        

RECENT ASBCA DECISIONS NOTED

Two recent ASBCA decisions are worthy of note.

The first dealt with contract interpretation. The contractor was to clear and grub the land within six inches of the surface. The contractor interpreted the word "within" to require measurement from the surface to six inches beneath the surface. The ASBCA interpreted the contract's plain language within the context of the agreement and determined that the word "within" meant not beyond six inches but did not require measurement of the whole 6 inches.

The second is a reminder that the case theory must be presented to the contracting officer in the claim. Suppose the contractor changes the theory of recovery changes on appeal. In that case, the board lacks jurisdiction since the claim had not been submitted to the contracting officer for a decision. (Do not forget you must also ask the contracting officer for a decision.)The contractor's theory was a vague price escalation claim that the contractor refined into a discrete constructive change claim on appeal. The ASBCA had to dismiss the appeal as it did not have jurisdiction over a claim that had not been submitted to the contracting officer.

DID I MISS SOMETHING?

Government contracts involve more complex statutes, regulations, and case law opinions than any other body of laws in American jurisprudence. 

When it comes to disputes, alternative dispute resolution, and litigation, the entire panoply of these laws is in play, in addition to considerations of the practicalities of what works successfully and what does not. 

You have many resources at your disposal to guide you through this labyrinth. Some are free, and many are expensive. In the end, you wonder, "Did I miss something." 

We have over 50 years of experience building a database and analysis methods to ensure every possible problem and outcome is considered and covered.

Our "Did I Miss Something?" service is free. What is it? We will review your issue and provide an expert opinion on whether there is more to do or whether you have not missed anything. 

You have nothing to lose. We will establish a proforma gratis attorney-client privilege to protect your information. 

Call or write us. (434) 993-2802. bill@spriggslawgroup.com.

"DON'T TREAD ON ME"

The Irony of "Don't Tread on Me": When Symbolism Fades in the Face of Reality

In the vast tapestry of American symbolism, few emblems carry the weight and historical resonance of the defiant coiled snake with the inscription "Don't Tread on Me." Initially a rallying cry for colonial independence, this phrase encapsulated the spirit of liberty, resistance against oppression, and the fervent belief in individual rights. Yet, its significance seems diluted, even hollow, in the contemporary political landscape. Irony abounds as those most vocal about this emblem often allow the very forces they oppose to trample over them.

Once, "Don't Tread on Me" resonated with a potent blend of defiance and determination, epitomizing the American ethos of self-reliance and freedom from undue authority. It symbolized a populace unwilling to bend to the will of tyrants, a spirit embodied in the American Revolution and enshrined in the Declaration of Independence. It stood as a reminder that the individual's rights should never be sacrificed on the altar of power.

However, in the modern era, the meaning of this phrase has become obscured by the complexities of contemporary politics and the influence of divisive rhetoric. While many still proudly display the Gadsden flag and proclaim their allegiance to its message, their actions often betray their professed ideals. The irony lies in the fact that those who champion "Don't Tread on Me" are often the first to acquiesce to authoritarian tendencies and surrender their own agency.

In today's political landscape, where polarization runs rampant, and echo chambers amplify extreme viewpoints, individuals are increasingly susceptible to manipulation by those who seek to exploit their fears and frustrations. Rather than voting for policies that align with their genuine needs and aspirations, many are swayed by the loudest voices in the room, regardless of whether those voices genuinely represent their best interests.

The phenomenon of voting against one's own interests is not new, but it has become increasingly prevalent in an era characterized by misinformation, tribalism, and ideological polarization. The allure of simplistic solutions and the demonization of perceived enemies often take precedence over critical thinking and reasoned discourse. As a result, the ideals symbolized by "Don't Tread on Me" are often sacrificed at the altar of short-term political expediency.

Moreover, the erosion of trust in institutions and the proliferation of disinformation have further fueled this disconnect between rhetoric and reality. Many Americans feel disenfranchised and marginalized, believing that their voices no longer matter in a system that prioritizes the interests of the powerful over the needs of the people. In such a climate, symbols like the Gadsden flag can become little more than empty gestures, devoid of the meaning they once held.

So, how do we reclaim the spirit of "Don't Tread on Me" and restore its relevance in a world fraught with division and distrust? The answer lies in a renewed commitment to the principles it represents: individual liberty, resistance against oppression, and the unwavering belief in the power of the people to shape their own destiny. We must strive to transcend the partisan divides that threaten to tear us apart and work together to build a more just and equitable society.

Ultimately, the true power of "Don't Tread on Me" lies not in its symbolism but in the actions of those who uphold its ideals. It is not enough to simply pay lip service to the principles of liberty and self-determination; we must actively defend them against all who seek to undermine them, whether from within or without. Only then can we ensure that the legacy of this iconic phrase endures for generations to come.

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OUR MEDIATION SERVICES

 Are you entangled in a complex government contract dispute? Seeking a swift, effective resolution without the hassle of lengthy courtroom battles? Look no further. With over five decades of legal expertise, I offer specialized mediation services tailored to navigate the intricacies of government contracts, ensuring fair and favorable outcomes for all parties involved.

As a seasoned lawyer licensed since 1972 in the District of Columbia, I bring a wealth of experience, boasting a remarkable track record of settling contract disputes with an impressive 95% success rate. My approach blends legal acumen with strategic negotiation tactics, fostering an environment conducive to consensus-building and resolution.

What sets my services apart is the comprehensive support provided throughout the mediation process. For a nominal fee of $5,000, you gain access to a suite of services including:

1. Consultation: A personalized assessment of your case, identifying key issues and potential avenues for resolution.
2. Review of Position Papers: Thorough analysis of position papers submitted by both parties, offering insights and recommendations to streamline discussions.
3. Individual Conferences: Private sessions to address concerns, clarify objectives, and strategize negotiation tactics tailored to your unique circumstances.
4. One-Day Zoom Mediation Session: A focused, intensive mediation session conducted virtually, leveraging modern technology for seamless communication and collaboration.
5. Should additional time be required for in-depth discussions and negotiations, a second day of mediation is available for an extra $5,000, ensuring ample opportunity for thorough deliberation and resolution.

Contact me at bill@spriggsconsultingservices.com or call (434) 993-2802.

PERNICIOUS PROJECT 2025

Unveiling the Enigmatic Project 2025: Political Implications and the Fragility of Governance

The plan proposes slashing U.S. Department of Justice (DOJ) funding, dismantling the Federal Bureau of Investigation (FBI) and the Department of Homeland Security, gutting environmental and climate change regulations to favor fossil fuel production, and eliminating the cabinet Departments of Education and Commerce.

In the annals of political discourse, the emergence of clandestine projects often serves as a harbinger of uncertainty, triggering a cascade of speculation and apprehension. Among these enigmatic endeavors, the elusive "Project 2025" looms large, its implications reverberating across the political landscape with ominous portent. While details remain scarce, the ramifications of this project extend beyond mere conjecture, offering a glimpse into the precarious nature of governance in an era defined by secrecy and subterfuge.

Despite the absence of a direct reference to "Pernicious," the essence of the project remains intact, its shadowy objectives casting a pall over the halls of power. Yet, to truly grasp the political implications of Project 2025, one must navigate the treacherous terrain of speculation and conjecture, tracing its potential impact on the delicate balance of power.

In the hypothetical scenario of Trump's reelection, the revelation of Project 2025 could serve as a catalyst for political upheaval, shaking the foundations of governance to their core. The specter of clandestine projects, particularly those involving advanced technologies, has the potential to erode trust in institutions and sow seeds of discord within the body politic. The revelation of such a project under the Trump administration could further exacerbate existing divisions, fueling accusations of authoritarianism and fostering a climate of distrust and paranoia.

Moreover, the implications of Project 2025 extend beyond domestic politics, casting a shadow over the United States' standing on the global stage. The revelation of a clandestine project with potentially destabilizing capabilities could strain diplomatic relations and erode America's credibility as a champion of democracy and transparency. In an increasingly interconnected world, where perceptions carry as much weight as actions, the fallout from Project 2025 could have far-reaching implications for U.S. foreign policy and international alliances.

In the face of such uncertainty, the fragility of governance becomes all too apparent. The revelation of a clandestine project with the potential to undermine democratic principles and destabilize global security underscores the need for greater transparency and accountability in government. Efforts to dismantle such projects must be accompanied by a commitment to uphold the rule of law and safeguard democratic norms, lest governance foundations crumble beneath the weight of secrecy and subterfuge.

Ultimately, the emergence of Project 2025 serves as a sobering reminder of the challenges facing modern democracies in an era of technological advancements and geopolitical uncertainty. The delicate balance of power hangs in limbo, poised between the forces of transparency and secrecy, accountability and impunity. How governments navigate these treacherous waters will shape history, determining whether democracy can withstand the shadows cast by clandestine projects or succumb to the darkness of authoritarianism and oppression.

 

 

20% BURN IT DOWN; 20% JUST DON'T CARE; 30% EVANGELICALS; AND 30% CULT FOLLOWERS

 

https://www.cnn.com/videos/tv/2024/04/30/amanpour-kagan-rebillion-anti-liberalism.cnn

 

William J. Spriggs

PRESIDENTIAL IMMUNITY: RELEVANT SUPREME COURT PRECEDENT

 Exploring Winstar v. United States: Clarifying Sovereign Immunity and the Public/Private Benefit Distinction

The Supreme Court's landmark decision in Winstar v. United States addressed the intricacies of sovereign immunity. It provided crucial insights into distinguishing between governmental actions undertaken for the public good and those pursued for private benefit. By delving into the nuances of the Winstar opinion, we can better understand how the Court will navigate the complexities of sovereign immunity and its implications for presidential accountability.

Background of Winstar v. United States:

Winstar v. United States arose from the fallout of the savings and loan crisis of the late 1980s, which led to the collapse of numerous thrift institutions. In response, Congress enacted legislation to facilitate the acquisition of troubled thrifts by healthy institutions through financial assistance and regulatory incentives. However, the government reneged on its promises, leading to substantial losses for the acquiring institutions.

Sovereign Immunity and the Public/Private Benefit Distinction:

In its opinion, the Supreme Court grappled with the interplay between sovereign immunity and the government's obligations under contractual agreements. Key elements of the Court's reasoning include:

1. Contractual Obligations and Sovereign Immunity: The Court acknowledged that sovereign immunity generally shields the government from liability arising from contractual breaches. However, it emphasized that this immunity is not absolute and may be waived in certain circumstances, particularly when the government enters into contracts that reflect its commercial or business activities.
2. Public Benefit versus Private Benefit: Central to the Court's analysis was the distinction between governmental actions pursued for the public good and those undertaken for private benefit. The Court recognized that sovereign immunity shields it from contractual liability when the government engages in activities that primarily serve public purposes, such as promoting financial stability or economic growth. Conversely, when the government's actions mainly confer private benefits on specific individuals or entities, sovereign immunity will not apply.
3. Equitable Considerations: In evaluating the equities of the case, the Court considered factors such as the parties' reliance on the government's promises, the extent of the government's breach of contract, and the broader public policy implications. It emphasized the importance of honoring contractual commitments and ensuring fairness between government and private parties.

Implications for Presidential Immunity:

The principles elucidated in the Winstar decision are relevant to the ongoing debate over presidential immunity and accountability. By distinguishing between governmental actions undertaken for the public good and those pursued for private benefit, the Court articulated a framework that can inform discussions surrounding the limits of presidential immunity.

1. Public Interest Considerations: Similar to the distinction drawn in Winstar, the Court may consider whether the President's actions primarily serve public interests, such as national security or the enforcement of constitutional principles. When presidential actions align with these public purposes, immunity may be more likely to apply.
2. Private Benefit and Accountability: Conversely, if the President's actions are found to primarily confer private benefits on specific individuals or entities, the case for immunity may be weakened. In such instances, accountability considerations may weigh more heavily as the public interest in holding the President accountable for potential wrongdoing becomes paramount.

Conclusion:

In conclusion, the Winstar decision provides valuable insights into the nuanced interplay between sovereign immunity, contractual obligations, and the public/private benefit distinction. As the Supreme Court grapples with the complexities of presidential immunity, it can draw upon the principles articulated in Winstar to navigate the delicate balance between executive authority and accountability. By considering the broader implications of governmental actions and the public interests at stake, the Court can ensure that the rule of law prevails while upholding the principles of democratic governance.

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PRESIDENTIAL IMMUNITY PART TWO: SOVEREIGN IMMUNITY DOCTRINE

 Drawing Parallels: Sovereign Immunity Doctrine and Presidential Accountability

As the Supreme Court contemplates the contours of presidential immunity in the face of potentially unlawful actions, legal scholars and practitioners are turning to established legal doctrines for guidance. Among these, the federal doctrine of sovereign immunity stands out as a cornerstone of American jurisprudence, offering a historical and doctrinal framework that can shed light on the current debate surrounding presidential accountability.

Understanding Sovereign Immunity:

Sovereign immunity, rooted in English common law, shields the government from lawsuits unless it consents to be sued. This doctrine reflects the principle that the sovereign, or government, cannot be sued without its consent, thereby safeguarding the public fisc and ensuring governmental functioning. While sovereign immunity is a fundamental aspect of the separation of powers, it is not absolute and has evolved over time through legislative enactments and judicial interpretations.

Evolution of Sovereign Immunity in the United States:

In the United States, the doctrine of sovereign immunity has undergone significant transformation, shaped by constitutional principles and judicial precedent. Key developments include:

1. Eleventh Amendment: The Eleventh Amendment to the United States Constitution, ratified in 1795, embodies the principle of sovereign immunity by prohibiting federal courts from hearing lawsuits against states brought by citizens of other states or foreign countries. This amendment clarified and reinforced the immunity enjoyed by states in certain legal proceedings.
2. Waivers of Sovereign Immunity: Over the years, Congress has enacted legislation to waive sovereign immunity in specific contexts, allowing individuals to sue the federal government under certain conditions. One notable example is the Federal Tort Claims Act (FTCA), which provides a limited waiver of sovereign immunity for tort claims arising from the negligent or wrongful acts of federal employees.
3. Exceptions and Limitations: Despite these waivers, sovereign immunity remains intact in many areas of law, with courts recognizing exceptions and limitations to the government's liability. For instance, sovereign immunity typically shields the government from liability for discretionary acts of its officials and for certain types of claims, such as those arising from intentional torts or military actions during wartime.

Applying Sovereign Immunity Principles to Presidential Accountability:

In light of the ongoing Supreme Court deliberations, the doctrine of sovereign immunity offers valuable insights into the issue of presidential immunity and accountability. Analogous to the protection afforded to the government as a whole, presidential immunity shields the Chief Executive from certain legal actions, ensuring the effective functioning of the executive branch and preserving the separation of powers.

1. Scope of Immunity: Similar to the sovereign immunity enjoyed by the government, presidential immunity is not absolute and may be subject to limitations and exceptions. While the President holds significant authority and discretion in executing the duties of the office, this authority is tempered by constitutional constraints and legal accountability.
2. Balancing Accountability and Executive Authority: Just as sovereign immunity balances the government's need for immunity with the interests of justice, presidential immunity must strike a delicate balance between accountability and executive authority. While accountability is essential for upholding the rule of law and ensuring transparency, excessive legal exposure could impede the President's ability to fulfill constitutional duties effectively.

Conclusion:

In conclusion, the federal doctrine of sovereign immunity provides a compelling analogy for understanding the complexities of presidential immunity and accountability. By drawing parallels between the immunity enjoyed by the government as a whole and that afforded to the President, the Supreme Court can navigate the intricate legal terrain while upholding constitutional principles and ensuring the proper functioning of the executive branch. As the Court weighs the competing interests at stake, it must strive to strike a balance that preserves both accountability and executive prerogative in a democratic society governed by the rule of law.