Litigation (what is it)

Reposted from June 2011 article by Laura Leigh

Litigation against a Government Agency toward evolving a National consciousness is not a simple process. Yet within the system there are ways to simplify theories toward explanation of that process.

1. A Complaint is crafted based on the Plaintiff’s standing toward a grievance. This first step is vital. You can have a grievance that your Plaintiff does not speak to and the case will be thrown out on “standing.” The grievance can be valid, the Plaintiff can make valid statements, yet the case itself will not be valid.

2. Next you must be able to find existing case law that demonstrates the validity of bringing the grievance to Court. There are levels of “authorities” within these citations. A ruling for example at a District level does not carry the same weight as a ruling in the Supreme Court. (Like in a card game you may need cards in the suit of clubs. You have a jack, but your opponent has an ace, you loose).

3. Your Plaintiff’s create your chain of evidence to support the legal argument. (If you are arguing that the Defendant put the oranges in the apple basket, you must be able to demonstrate clearly that the apple basket had oranges in it on the specific dates and times you claim, and that the apple basket was where that basket should have been and not labeled “oranges today”). If your Plaintiff can not demonstrate the issues in argument, the legal argument, even if valid, will not succeed.

4. Along with a Complaint you can file two motions: a Temporary Restraining Order (TRO and Preliminary Injunction. A TRO is an emergency motion created to quickly maintain the “status quo” or to put a fast halt to conduct that can harm your Plaintiff. A TRO is usually a rapid process that can be granted based on documents presented, and if the court finds the documents compelling enough to the issue, can grant the motion without a hearing. Next you have a hearing on the “TRO.” If granted (in full or in part) restrains an action for a few weeks. Sometimes a court will also hear the motion for preliminary injunction at the same time, sometimes not. A granted Preliminary Injunction holds (or restrains an action) until the underlying issues (case) can be resolved. After a case is heard a preliminary injunction can become permanent.

5. . Most of the process of “hearing” a case occurs outside of the Courtroom. The process includes filings of Briefs and Reply Briefs, Affidavits and Exhibits. Unless you go and read these documents you will not understand the evolution of a decision. To truly understand you must read what both sides present. Hearings on most wild horse cases begin with the “TRO.”

5. If you are denied at the District level you need to think carefully before going to Appeal. If your legal argument is cited in case law correctly, your argument speaks to your Plaintiff and your Plaintiff demonstrates that argument accurately, proceeding to Appeal is a wise course. If you are missing one of the above components, or what you have is not strong enough to proceed, the Appeal is a bad choice. It creates those “authorities” at a higher level that make any case more difficult to bring to a positive ruling. It is called bad “precedent.”

6. An Appeal is where you need to demonstrate, based on the Court record, that the Judge did not rule correctly according to law. You need to demonstrate that the Judge did not follow a rule or cite correct law in his ruling. It is not an opportunity to create a new argument nor present new evidence. You are Appealing the specifics of a specific ruling.

7. The Appeal process also occurs primarily out of the sphere of direct public observation. The Briefs and Excerpts of the Court record are available to the public, yet the public often does not read them and has a “wrong” impression over the issues in argument and how they were presented.

8. In Appeal a higher Court will determine the actions of the lower Court as being appropriate to the standards of law or not. If you win an Appeal it often means that the case must again be retried in the lower Court using the parameters outlined by the higher Court.

NOTE:  In wild horse and burro cases after the “TRO” (Temporary Restraining Order) it is often assumed that a case is “over.” That is incorrect. A Complaint is filed first. A “TRO” is filed in conjunction with the Complaint and often a motion for Preliminary Injunction. A “TRO” is an emergency measure to hold the “status quo” for a brief period of time. A Preliminary Injunction holds the status quo until the case can be heard. Often in wild horse cases if a TRO is lost the underlying issues are no longer valid and the Plaintiff drops the case (or a TRO allows the Plaintiff to see how strong the case is under law). Many times a TRO and Preliminary Injunction can be ruled on at the same time, but not always. After a Preliminary Injunction the case itself is heard. Often a Judge can rule on an underlying case after an evidentiary hearing on Injunctive relief (in other words the parties don’t present the same info again if enough info has been given to the court).

Rulings in Federal court can result in amending Acts of Congress. In 1978 the WH&B Act was amended after a court ruling, but not in favor of horses and burros. Yet that does demonstrate that a court ruling can not only enforce what is left of the Act, but may be able to strengthen or correct current use of language in the Act.

Sounds impossible? Not really. Our laws have evolved within the Court system. If you look at the progression, for example in the Civil Rights movement, you can see the possibilities. Things that seem like a “no brainer” today had to go through the appropriate channels to evolve. At one point a child in the US, simply because of the color of their skin, was denied an equal education.

The courts are a valid place to bring issues that can not be resolved through other channels. Many channels have been explored, and continue to be explored, to bring issues involving various aspects of the governments wild horse and burro program. If those avenues fail, or time to address those issues is not available, the courts are an appropriate place to address the issues.