Saturday, January 12, 2013

Which comes first...the affidavit or the brief?

When I told you about my Motion for Exclusion last month, I gave my readers a little mini-tutorial in Motions, Affidavits, and Briefs. So when the University filed it's Motion for Summary Judgement last week, I thought I knew what was coming next. They would file their Affidavit and their Brief, and then I would file mine in response. It didn't exactly work out that way.

When we went to court on Wednesday, the University had already filed their Affidavit. (We'll get to that later). I told the Master I wanted him to ask them to file their Brief as soon as possible, so I could prepare my response and get the process moving forward. I also told the judge I thought the motion was just a delaying tactic to interfere with my rights to proceed with discovery, but that argument fell on deaf ears. What really took me by surprise was when the Master told me I had to file my Affidavit before they filed their brief.

This was a surprise to me. When I filed my motion, I had put everything together...motion, affidavit, and brief...well before our court date, so the opposing parties would be able to respond promptly. They asked for two weeks and got it, and in fact filed their brief accordingly. Oddly enough, though I didn't notice it at the time, there was no Affidavit with their filing. I guess that means they don't intend to rely on any documentary evidence in arguing their case. We'll see how that works out.

But back to their motion. I thought I had the right to see their whole argument before I had to produce my counterargument, but apparently I have to file my Affidavit before I get to see their brief. This would be alright if I knew what their case was. They're pretty explicit in their Motion about the legal grounds for dismissal, and that doesn't worry me. What gets me is their ambiguous Paragraph 8, which reads, "In the alternative, the tort of conspiracy does not apply to the Defendants in these circumstances. (Italics mine.) What circumstances do they mean? We can get a clue by looking at their Affidavit, which I've posted online.

Their Affidavit basically walks through all the proceedings against me with regard to Non-Academic Misconduct. In addition to the Affidavit as posted, their are numerous attachments which consist of further details of the proceedings.

What does it mean? It seems to suggest a disturbing prospect that I may end up having to argue the evidence of the case in the form of a little mini-trial to decide the motion. How can this be? Don't I have the right to argue the evidence at the actual trial?

Not necessarily. It comes down to the difference between a Motion to Strike and a Motion for Summary Judgement. It's a distinction I wasn't aware of until I started preparing my response to the present motion, but it's critical to the case. I'll talk more about it when we return.

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