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January 04, 2012

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Exceptions, particularly subjective exceptions, to valid rules of law might initially achieve equity in a specific case or two. In the long run, the exceptions tend to swallow the rules and injustice follows. It's hard to complain when the truly rotten are put a way. That said, I wonder how many of the citizens who came forward had first hand, personal knowledge of the defendants' acts or were they just reporting what everyone knew? Guilt by consensus is no way to run a criminal justice system. Or, a civil one, for that matter.

Guilt by consensus is no way to run a criminal justice system. Or, a civil one, for that matter.

Neither is, I would posit, an adversarial system.

I wanted to put this in the post, but couldn't figure out how to do it in a way that I felt happy with, but the thing I take away is that those initial mistakes, and the mistakes of the investigators needed to be corrected through the kind of action that occurred (I won't argue that this was the only way it could have been done, but it is hard to imagine any alternative route that would be less problematic)

As for your wondering, McT, the McPherson report is online here and the chapter that partially details the treatment of the primary witness, Duwayne Brooks, who was with Lawrence when he was attacked, is here. While guilt by consensus is not something I'm advocating, when the primary witness is ignored and worse, it sets up a situation that requires a remedy that might not be so welcome as a general case. Dr. Science quotes Hilzoy in her first link in the previous post, who says (which was a spur for posting this) "Philosophers love hard cases. But in real life, it’s always better when our choices turn out to be easy: " This seems like a situation where the choice would have been much easier had it been handled correctly at first. Because it wasn't, we have a much harder row to hoe.

Neither is, I would posit, an adversarial system.

Perhaps, in theory. However, should you or anyone you care about ever find you or them on the dock, having someone in your corner to cross examine witness and call into question flawed evidence can be pretty damned important.

when the primary witness is ignored and worse, it sets up a situation that requires a remedy that might not be so welcome as a general case.

Maybe. It's an imperfect system (as an aside, were the lazy coppers sacked or did their union/civil service regime keep that from happening?) and the police drop the ball all the time: bad searches, missed witnesses, etc. The state can always come in and do the opposite of a "inadequacy of counsel" pitch and make a case that if Officer X hadn't been asleep at the switch, the bad guy would have been successfully prosecuted the first time. Bad facts make bad law, to repeat one of hoarier cliches. Exceptions to fundamental rules and principles are much worse.

DId you read the report? If you didn't, I really recommend that you do, if you did, and still want to claim that it was just the police dropping the ball, I don't think anything I say would have you reconsider your views. Bad facts do make bad law, but unawareness of any of the actual facts makes blog discussions, I guess.

At any rate, you seem to be thinking that it's one system. I believe that there are enough differences in the British system as to make it a different animal. How those differences interact with somethings that one and others might find really problematic is one of the things I'm interested in.

To answer your aside, the inquiry dragged out to such a length that only one senior officer received a reprimand and he retired the week after, so it effectively meant nothing. I don't know if a union or civil service regime had anything to do with that, but I don't see how that has anything to do with anything.

Perhaps, in theory. However, should you or anyone you care about ever find you or them on the dock, having someone in your corner to cross examine witness and call into question flawed evidence can be pretty damned important.

Having an advocate to question witnesses and evidence does not presuppose an adversarial system. I believe what Ugh is referring to is a system in which, by and large, the side representing "the people" is concerned with convictions more than they are with justice, which has led to hundreds and hundreds of innocent people being convicted, has probably resulted in at least one execution of an innocent person, and things like this.

A court and trial system that was more concerned with finding facts and dispensing justice than with allowing DAs to achieve high conviction rates for their re-election campaigns is to be preferred, I would think.

Perhaps, in theory. However, should you or anyone you care about ever find you or them on the dock, having someone in your corner to cross examine witness and call into question flawed evidence can be pretty damned important.

Well sure, but it just seems to me that the way the adversarial system is set up in the United States, especially in criminal cases, is so far from the theory of why an adversarial system is great, that it bears reexamining.

I mean, if we can posit two opposing sides with equal amounts of resources, legal talent, courtroom presence, connections, moxy, charisma, time, etc. etc. etc. and a jury who is truly unbiased, then an adversarial system may be best. In the real world, this seems to rarely be the case (with perhaps the only exception being a civil case between two large corporations).

To be sure, in criminal cases we try to correct the imbalance between the state and individual with, e.g., (i) the beyond a reasonable doubt standard, (ii) the requirement that prosecutors "do justice," (iii) a prohibition on double jeopardy, etc. But it seems that jurors don't understand (i), prosecutors ignore (ii) in favor of "winning convictions," and while (iii) is still around, it seems there are numerous exceptions.

So, I guess we do the best we can with the system we've been given, but it seems to me there's a better way.


Did you read the report?

I just did. My views remain unchanged with one possibly important caveat: it is unclear to me when "jeopardy attaches" under UK law. Recalling, possibly defectively, my law school training on this subject, jeopardy does not attach under US law unless a trial actually commences, i.e. a jury is impaneled (or maybe after an indictment is returned, I am not clear on this, but I think it's the jury thing).

You cannot be TRIED by the same jurisdiction twice for the same offense. If a defendant is charged, and if no indictment is returned, there is no double jeopardy impediment to re-charging, bringing in a new grand jury and proceeding to trial. Also, the feds and the states often have the same laws that attach to the same criminal act. It is not double jeopardy to, for example, try police officers who beat a suspect illegally in state court and they retry them in federal court for a civil rights violation, regardless of the state court verdict.

So, if UK jeopardy attaches merely with the charging of an offense, then I would be fine with re-charging if new evidence is found or if old evidence if finally looked at in a useful way.

But, once someone has been brought to trial, I don't care how stupid the state was, and if the state does not proceed to conviction, they are free, period.

Having an advocate to question witnesses and evidence does not presuppose an adversarial system.

Actually, it does. It is the definition of the adversarial system. In terms of deck stacking, there probably isn't much daylight between us.

I mean, if we can posit two opposing sides with equal amounts of resources, legal talent, courtroom presence, connections, moxy, charisma, time, etc. etc. etc. and a jury who is truly unbiased, then an adversarial system may be best.

We almost never see this, for a variety of reasons. I'm on the civil side and, if I may be immodest, I am usually at least as good as my opposition. I am also a big fan of the jury system, having taken roughly a hundred verdicts in cases where, most typically, the plaintiff is competently represented and is either dead or seriously injured. My clients almost invariably have the means to put on a competent defense, which is a big plus, as you might imagine.

My concerns lie with our criminal justice system which is not fair to those without means, is stacked with appellate judges who can't find error warranting a new trial or acquittal no matter what and, as Phil points out, prosecutors for whom guilt or innocence is beside the point, it's all about the numbers.

Well, that's one of the interesting things McT. My understanding of double jeopardy is that it is to prevent the same officials from finding someone guilty by re-running trials. Given that it is the Crown Prosecution service, there is no federal to bat it up to in case the state screws up.

This also seems to be a situation totally the opposite of a DA trying to get notches on their belt in that what seems like a slam bang case was left to become a contested issue because the police took a number of bizarre decisions initially.

Perhaps I need to be more clear and say that I'm not proposing that any of the remedies and changes that resulted from this case be applied in the States or anywhere else. All that happened was in some way a reflection of a particular state of affairs that existed in the UK in the late 80's/early 90's, which was, at least from my own experience, was pretty bad.

All that happened was in some way a reflection of a particular state of affairs that existed in the UK in the late 80's/early 90's, which was, at least from my own experience, was pretty bad.

I've read all of the links, and it's an interesting case to think about. As one can glean from the articles you've cited, our Constitutional proscription against double jeopardy was adopted from England's common law jurisprudence. The proscription not only prevents a guilty verdict resulting from repeated "tries," as you mentioned, but also forces an end to the harassment and upheaval that would otherwise be imposed on a perpetual suspect/defendant. Finality allows people to go on with their lives.

What you say though, lj, that I've quoted above, is typical of law generally, not just what existed then and there. Every case arises from a very peculiar set of facts - no two cases are ever alike. The beauty of the Constitution, and the federal common law that interprets the Constitution (and the common law generally) - the law reflects the wisdom of accumulated knowledge, synthesizing various factual circumstances to refine legal principles which are widely applicable. People can rely on the "gist" of these decisions to know what to expect - to know that if they do certain things, certain results will obtain. It's how our society becomes a settled system. Obviously, it's not perfect, and it assumes the good faith of the participants. But at its best, it is a remarkable and wonderful system. It is a huge challenge (as the quoted part of your comment shows) to apply our Constitutional principles to situations which are "pretty bad." Some situations may warrant a change in thinking about principles, but obviously such changes should be approached very carefully. (Another example perhaps: Some people - not I - seem to believe that our principles regarding native born U.S. citizenship should change as a result of what they perceive to be a "pretty bad" situation with illegal immigration.)

Thanks for this post - I had no previous knowledge about this case and the resulting changes in British law.

While, quite rightly, there were (and still are) serious objections to the introduction of 'double jeopardy', the hurdles set by the CJA 2003 are substantial, and in practice, such repeat prosecutions are rare indeed.

http://en.wikipedia.org/wiki/Criminal_Justice_Act_2003#Retrial_for_serious_offences
The prosecutor must have the permission of the Director of Public Prosecutions prior to making the application for a second trial. Authority to give permission may not be exercised generally by Crown Prosecutors (typically employed lawyers of the Crown Prosecution Service), but can be delegated. There is a requirement for "new and compelling evidence", not adduced during the original trial, to be found. A "public interest" test must also be satisfied, which includes an assessment of the prospect of a fair trial. The application is made to the Court of Appeal, which is the sole authority for quashing an acquittal and ordering a re-trial. The offence to be re-tried must be one of a list in Schedule 5 of the Act,[20] all of which involve maximum sentences of life imprisonment.

My understanding of double jeopardy is that it is to prevent the same officials from finding someone guilty by re-running trials. Given that it is the Crown Prosecution service, there is no federal to bat it up to in case the state screws up.

Well, this is the current understanding of DJ, i,e. allowing the trial of a person for the same act by two different jurisdictions. To me, that has always been problematical. Your statement assumes the state level acquittal was the result of the state bungling the case. That is fairly rare. The more salient problem, and why I grudgingly come down in favor of 'single jeopardy twice' (allowing dual prosecution by different jurisdictions) is the efforts to get convictions of Klan-types in the 60's. A state jury might acquit an obviously guilty defendant out of improper motives. Giving the feds a second shot makes sense.

Now being informed by Nigel's added info, while the safeguards built into the system are appreciated, core principles that limit the state's ability to oppress should be presumptively, if not conclusively, inviolate. Double jeopardy is one such core principle.

If I read the article correctly, the crime was committed before the law was passed allowing a limited exception to double jeopardy. Thus, there is also an ex post facto element here that is troubling. More than troubling, really, notwithstanding the fact that bad guys were put away.

Any system that involves punishing someone for wrongdoing is inherently adversarial. The ony question is how far we are willing to go to allow the accuseds to defend themselves.

I agree with McTx on double jeopardy as it never works the other way, i.e., if the accused is found guilty in the first trial he/she can't just up and demand a "do-over."

Going back to my original comment on the inadequacy of the adversarial system, one problem is the way the rules are set up. For example, "affirmative defenses" must be raised or otherwise they are waived, thus if an attorney for a defendant doesn't realize there is a statute of limitations issue and therefore doesn't bring it up, it's "waived" and the defendant is SOL and has to find solace in a malpractice suit, often from jail in criminal cases.

Another example is the attorney-client privilege, which can supposedly only be waived by the client. And yet, IIRC, there are many many examples of courts deciding the privilege has been waived because of actions of the attorney, apparently under the theory that the client has implicitly authorized the lawyer to do so.

There are many other examples.

Well, my layman's understanding of using Federal charges when the state fell down came about after the Civil War, and then sort of languished (though things like getting Capone for income tax are arguably similar) before being taken up in the 60's for civil rights.

And just to clarify, I don't think that the British police in this case 'bungled' things, if we take 'bungle' as a departure from the norm and my use of 'in case the state screws up' was not meant to be a description of what happened in the Lawrence case, but to contrast the US and the UK. I think that there were systemic problems with British policing that were revealed in the response to the Lawrence case. And because the systemic problems could not be taken up at a higher level, the admittedly deep and ex post facto changes were the price that had to be paid.

The whole question of letting a particular jurisdiction decide, while not part of this case, was one of the things that I had on my mind as I was reading about this, thinking about Ron Paul and his arguments about how the federal dismantling of Jim Crow and civil rights laws are an intolerable assault on private property and ownership. If we accept that a jurisdiction has some absolute right to make its own decisions, the notion of single jeopardy twice would be really problematic.

Speaking of Ron Paul, I thought these two pieces, one by Kevin Drum and the other by Ta-Nehisi Coates, to be quite interesting.

the admittedly deep and ex post facto changes were the price that had to be paid.

If the touchstone for violating two core principles of fundamental, substantive due process is a rear view mirror observation of a systemic problem, we are in trouble. An equitable result, in isolation, creates exactly the kind of limited exception that grows over time, resulting, e.g. emasculation of the 4th amendment. I don't like killers going free, but it isn't just slam dunk guilty killers who get caught up in the wider net 20 years down the road.

If we accept that a jurisdiction has some absolute right to make its own decisions

We accept this everyday. It is part and parcel of nationhood, of government. We happen to have a federal system (which I like), but ultimately, on matters referred to the feds by the Constitution, the feds are the sole and final arbiter. There is no viable, conceptual alternative other than writing our laws on an etch-a-sketch and rewriting the rules every time a systemic problem comes up.

one problem is the way the rules are set up.

The alternative is 'no rules.' Rules exist for a reason. For the most part, they are well known, well understood by competent practitioners and every trial is a series of judgment calls, compromises and calculated risks, often made on short, if any notice. I "waive" stuff all the time, particularly objections to questions, answers and witness qualifications. There is a reason why lawyers are allowed to waive stuff. Not a perfect system by any means, but that's because of the human condition, which can't be fixed.

I used the term competent practitioners for a reason. It is way too easy to become a trial lawyer, particularly a criminal defense attorney. In Texas, we have "board certification." I am not board certified because it is meaningless--the minimum standard is 15 jury trials (it's ok if you lost every one of them) and you take a test. BFD. I don't know what the solution is, but the real problem for the indigent and those of limited means is access to competent counsel.

McTx: The alternative is 'no rules.' Rules exist for a reason.

Wha? Using my statute of limitations example, why can't the rule be the same as the rule for "standing," which is (IIRC), even if a standing issue is discovered in the last 30 seconds of oral argument before SCOTUS after 15 years of litigation, the entire case will be dismissed? The only countervailing argument I see is the seemingly ubiquitous "for reasons of judicial economy."

And in that regard, and related to your access to competent counsel point, the lack of spending on judicial resources in this country should be scandalous. Apparently, the entire judicial branch at the federal level runs on "substantially less than one percent — of the entire federal budget", per here.

every trial is a series of judgment calls, compromises and calculated risks, often made on short, if any notice

Which, I submit, is part of the problem.

The alternative is 'no rules.'

Wait, the ONLY ALTERNATIVE to "they way the rules are set up" is "no rules?" "Change the rules to something else" is a non-starter?

Huh.

the real problem for the indigent and those of limited means is access to competent counsel.

Which is where I once again beat my drum that public defenders' officers should be funded at least equally with district and states' attorneys offices, and probably higher, given the stakes.

This is getting chopped up into several posts because its too long.

Part I

Using my statute of limitations example, why can't the rule be the same as the rule for "standing," which is (IIRC), even if a standing issue is discovered in the last 30 seconds of oral argument before SCOTUS after 15 years of litigation, the entire case will be dismissed? The only countervailing argument I see is the seemingly ubiquitous "for reasons of judicial economy."

Several things here. First, judicial economy has nothing to do with 'fundamental error', 'jurisdiction' (which means a lot of different things, depending on context) and 'preservation of error', all of which are implicated by your statement.
'Standing' is jurisdictional, which means in a nutshell, if a litigant does not have standing, the court has no jurisdiction, i.e. no authority, to hear the case.

'Standing' is the right to assert a claim for relief. To illustrate, if I am injured in a car wreck, but elect not to bring a claim, you cannot bring it for me. Second illustration: if I don't like how the feds spend their money, say giving some of it to Planned Parenthood, I, as a taxpayer, lack standing to complain. Even if I had a compelling argument, and even if a lower court were to rule in my favor, all would be for naught because the court never should have entertained the case because I had no standing to bring it.

Put differently, any court action rendered without jurisdiction is void. Not voidable, but void.

'Fundamental error' is a very limited category of error and, unlike most error, can be raised for the first time on appeal. The most common example is 'no evidence' to support an essential element of a charge, claim or defense. It makes sense to be able to say, for the first time on appeal, that the record is wholly devoid of evidence on a point that must be proved in order for a party to prevail. Either the evidence is there or it isn't and if it isn't, no court should permit a judgment to stand.

Part II

The statute of limitations is a defense that is personal to a defendant, and sometimes it is so clearly established (usually the case) that it is a question of law, sometimes it's a question of fact. Your complaint is that if the defendant's lawyer screws up and doesn't assert it, that can't be fixed either on appeal or in a later proceeding. There are good reasons for this rule.

First, the court's would presume the defendant intended not to assert
limitations. Why would someone do that? If it's a criminal matter, the defendant, having been indicted, might wish his/her day in court to prove his/her innocence. Asserting limitations prevents that from happening. Allowing a defendant to take his/her chances on the merits and then assert limitations is, in part, a judicial economy issue, but it is more properly seen as a due process matter.

Due process means, inter alia, notice. Parties have a right to know, i.e. get notice, of their opponent's claims and defenses. If a defendant has a slam dunk, no fact issue for a jury defense, a defendant should not be allowed to put everyone through great time and expense and then, when all is said and done, raise that defense for the first time. Among other things, it prevents the other party from investigating and meeting the defense.
Also, there is a huge practical consideration. Judges are human. They have hundreds, sometimes thousands of cases on their dockets. They cannot possibly know the detail, nits and nuances of every case that comes before them. It is incumbent on the parties to call matters to the attention of the court on which they seek a ruling in order to have those matters considered on appeal. Applying a waiver rule, i.e. failing to bring the issue forward and state it plainly, gives everyone advance notice that they either raise the point or lose it. This rule also prevents sandbagging: raising something after the opponent's opportunity to address it has passed.

Part II

Which, I submit, is part of the problem.

Granted, it's not ideal. But it works pretty damned well, given reasonably competent counsel on both sides. It's the mis-match on the criminal side that is very, very concerning.

On the civil side, perhaps counter-intuitively, I've been up against a lawyer or two who really had no clue. This was plain to the jury. Even though the other side's case was carp, the jury spent much longer in deliberations than they should have trying to figure out if the plaintiff had a better case than the stupid lawyer was able to put on.

"Change the rules to something else" is a non-starter?

Well, actually the rules change all the time. Ugh's complaints go to issues that are so widely recognized and found to be valid, effective rules as to not be the subject of any meaningful debate, or even any debate at all. The law changes constantly and our procedural rules get tweaked or sometimes re-written wholesale all the time. Plus, they get construed, interpreted, etc by the courts, usually in a way that ensures that parties don't win by default, but rather have their cases heard on the merits.

That second Part II should have been Part III, if that wasn't reasonably clear.

McTx - haven't read through all your comments and probably won't until tomorrow, but just wanted to say thanks for the reply.

just wanted to say thanks for the reply

No problem. It's nice to be able to address something I actually know about.

We accept this everyday. It is part and parcel of nationhood, of government. We happen to have a federal system (which I like), but ultimately, on matters referred to the feds by the Constitution, the feds are the sole and final arbiter. There is no viable, conceptual alternative other than writing our laws on an etch-a-sketch and rewriting the rules every time a systemic problem comes up.

I was with you until you threw the word 'systemic'. When a systemic problem comes up, if it is of sufficient gravity, you fix the system. That the US has a system that has a higher system to deal with systemic problems that occur in lower systems has always been something worthwhile, I have thought, but the tendency to use it to create an us against them is perhaps the achilles heel.

The law changes constantly and our procedural rules get tweaked or sometimes re-written wholesale all the time. Plus, they get construed, interpreted, etc by the courts, usually in a way that ensures that parties don't win by default, but rather have their cases heard on the merits.

McKinney, you are at your best with this. The beauty of the common law is that judges listen to the facts of the case, and apply the law (faithfully, through precedent) to achieve justice. The law sometimes evolves because of quirks and idiosyncrasies that are noticed in a particular case - things that don't quite fit with precedent. As anyone can imagine, a judge's view of things can be totally perverse, but the sum total of the common law (judges' opinions) tends towards an evolving rationality (at least when the bench is occupied by judges of good faith).

McTx: 'Standing' is jurisdictional, which means in a nutshell, if a litigant does not have standing, the court has no jurisdiction, i.e. no authority, to hear the case.

'Standing' is the right to assert a claim for relief.

Well the standing doctrine, at least at the federal level, grew out of the Case or Controversy clause, which doesn't seem to compel the conclusion it seems SCOTUS has reached on the modern standing doctrine, and in particular in cases where a party is asking for an injunction (skipping over a couple hundred years of common law, of course). I find it particularly disturbing that people seem comfortable arguing "sure there's a constitutional violation here, but no one has standing to sue!" (the latest example I've seen being Obama's recess appointments).

I can see in your car wreck example that it makes sense to keep me from asserting a claim on your behalf if you've refused to do so, though I can see arguments the other way (e.g., a wrong has been done yet no remedy/punishment applied and society would benefit if one was, regardless of who brought the claim). Similarly, taxpayer standing would be a giant mess, but I'm not sure it's a constitutionally compelled jurisdictional issue.

So, in general, I see the standing doctrine as a judicial economy point,* that we just don't want anyone bringing any particular claim because we don't have the resources necessary to handle everything if that were the case (my anecdotal evidence on this point is that, according to John Yoo, Justice Thomas had a standing offer of $500 to any of his clerks that could find a standing issue in a case so that it could be dismissed, not exactly a recipe for sound constitutional interpretation).

*though I guess you could compare it to the requirement that a person have an "insurable interest" before they can obtain insurance.

Ugh, I don't have much to offer on federal standing for injunctive relief, due to 30 plus years having passed since studying that issue. The requirement that courts only address cases and controversies is intended primarily to avoid advisory opinions or judicial acts in the absence of aggrieved parties and a legal remedy. For example, we don't want random judges issuing injunctions on their own motion, or hauling people into court to explain their actions.

McTx: Applying a waiver rule, i.e. failing to bring the issue forward and state it plainly, gives everyone advance notice that they either raise the point or lose it. This rule also prevents sandbagging: raising something after the opponent's opportunity to address it has passed.

Well, I think here your assuming that we can't change other rules if we change the waiver rule. E.g., why not then allow the opponent the opportunity to address a statute of limitation argument brought up after it currently would be waived?

First, the court's would presume the defendant intended not to assert
limitations. Why would someone do that? If it's a criminal matter, the defendant, having been indicted, might wish his/her day in court to prove his/her innocence.
...
If a defendant has a slam dunk, no fact issue for a jury defense, a defendant should not be allowed to put everyone through great time and expense and then, when all is said and done, raise that defense for the first time. Among other things, it prevents the other party from investigating and meeting the defense.

These are good theoretical arguments, but how often do they/would they actually occur in the real world? Defendants in a criminal matter purposely turning down a chance to dismiss the case and instead go through the "time and expense" of a trial, not to mention risk jail? And the sandbagging thing doesn't make sense to me; presumably the defendant, not having brought the case, would rather not be in court at all, and yet is going to pass up the chance to avoid the time and expense of a trial?

McTx: The requirement that courts only address cases and controversies is intended primarily to avoid advisory opinions or judicial acts in the absence of aggrieved parties and a legal remedy. For example, we don't want random judges issuing injunctions on their own motion, or hauling people into court to explain their actions.

Why not? Well, I guess I know why not (generally), but if we can assume competent counsel for purposes of waiving affirmative defenses, why can't we assume a competent and unbiased judiciary and allow them to issue injunctions on their own motion and haul people into court? After all, if they're competent they'll only do so for good reasons and if they're unbiased they'll rule favorably upon hearing a good explanation?

I guess fundamentally my issue is that the adversarial system is based upon certain assumptions that don't appear to be true as applied, and nevertheless the system plods on as if the assumptions still hold (with exceptions, of course).

Ugh

why not then allow the opponent the opportunity to address a statute of limitation argument brought up after it currently would be waived?

In Texas and at the federal level, there is discretion in the courts to allow late amendments to pleadings if certain criteria are met: no surprise, prejudice to the other side, undue delay, etc. The system has equity built into it. The equity manifests in mostly decent judges not being Chicken Ships and, perhaps surprisingly, in lawyers cutting each other slack.

Every lawyer misses something, a deadline, forgets to get around to something he/she remembers while taking a shower or driving to work. It is commonplace, an everyday occurrence, for me to call an opponent, or vice versa, and say, "I screwed up and need X to make it right." 99% of the time, the answer is 'no problem'. The other one percent, you apply to the court and get what you want from the judge, making the other lawyer look like a dack.

These are good theoretical arguments, but how often do they/would they actually occur in the real world?

Rarely, but the idea is that an affirmative defense is the party's personal right to assert or not as he/she/it sees fit.

And the sandbagging thing doesn't make sense to me; presumably the defendant, not having brought the case, would rather not be in court at all, and yet is going to pass up the chance to avoid the time and expense of a trial?

Well, there are two sides in every fight and the waiver rule, among others, is a two way street. That said, 'trial by ambush', blind-siding, sandbagging, etc. are common events, and not necessarily in a bad way. We have 'discovery' that is supposed to ferret out the facts. And, it does to an extent. However, it IS an adversary system. I am in it to win, as mercenary as that sounds. If you were my client, that's exactly what you would want. So, I have never gone to trial without my own, very closely held, plan for taking the known evidence in the direction that I expect to yield a victory. Once the fight starts, it's a knife fight, only this one has some rules. I use discovery to position the other side, not try my case. The other side sees my case for the first time as it unfolds in the courtroom. And, the other side tries to do the same. We both try to anticipate the other's strategy, tactics, how the court will rule on evidence, etc.

It seems inconsistent with my general comments, but the actual practice is: show and produce what is required, show more if it's to your advantage, and hold everything you can back until you need it.

why can't we assume a competent and unbiased judiciary and allow them to issue injunctions on their own motion and haul people into court?

First, we don't assume competent counsel. More to the point, if a judge hauls you into court because he/she thinks you've done something wrong, your lawyer isn't arguing with the other side, he/she is arguing with the judge, who gets to decide, and who is anything but impartial. This is just one of many reasons why letting a judge embark on his/her own cases, gather the evidence and decide the issue is a really, really bad idea.

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