Antitrust fallout: retailers sue conspirators

[Barcey]

Originally Posted by JSWolf

The problem as I see it is too many people want links. They just cannot see what's in front of them as the truth and need to have it spelled out by some website.

So you believe that the truth is in front of us that Judge Cote was biased and had admitted to writing 60% of the final decision before the trial phase began? It was proof of that "fact" that was requested.

[Graham]

Originally Posted by Sil_liS

I've searched for the judge's name and "wrote most of her decision", "wrote the majority of her decision", "wrote most of her final decision", "wrote the majority of her final decision", "wrote most of the decision", "wrote the majority of the decision", "wrote most of the final decision", "wrote the majority of the final decision" and according to google none of these variations exist outside of mobileread.

You're right. I've had a dig too, and although there are comments (presumably relating back to the Robing Room posts) accusing her of a tendency to pre-judge cases, I can't see anything that does support the idea that she wrote the bulk of her judgement before the trial.

What we do see is articles like this:

http://fortune.com/2013/07/10/the-ap...e-2nd-circuit/

The first 122 pages of the 160-page ruling against Apple that U.S. District Judge Denise Cote handed down on Wednesday could have been written before the trial began.

In fact, most of them probably were.

This, as you say, isn't evidence that the judgement was mostly pre-written.

It seems to have been an impression built up by repeated assertion last year here on MobileRead.

My apologies.

Graham

[Barcey]

Originally Posted by Sil_liS

So what we have here is a judge that at a scheduled preliminary hearing at which she had to give a preliminary statement that can be either 'the plaintiffs have presented enough evidence to justify a trial' or 'the plaintiffs have not presented enough evidence to justify a trial' decided there was enough evidence to justify a trial.

This part of the procedure is done for the benefit of the defense and as such it is the defendant's right to waive it. Apple's defense chose not to waive it.

For whatever reason we don't have a direct quote of the judge's statement about the draft of the final decision just the author of the article paraphrasing it as "she says she's already begun writing a draft of it".

I've searched for the judge's name and "wrote most of her decision", "wrote the majority of her decision", "wrote most of her final decision", "wrote the majority of her final decision", "wrote most of the decision", "wrote the majority of the decision", "wrote most of the final decision", "wrote the majority of the final decision" and according to google none of these variations exist outside of mobileread.

The Fortune article was basically a retweet of a Reuters article with it's own spin. They did have a link to the source Reuters piece though.

www.reuters.com/article/2013/05/23/us-usa-apple-ebooks-idUSBRE94M19A20130523

The Reuters article claims that:

Cote, who is hearing the case without a jury, said at the start of the proceedings that she was working on a draft of a written decision that she would expand and publish after the trial.

It also says:

She emphasized that no final decision would be made until after the trial takes place. And she also said she had not read many of the affidavits submitted in support of the parties' positions.

So she emphasized that no final decision had been made, she admitted to not reading all the evidence and many of the affidavits yet but she had read enough that she believed that the DoJ would be able to prove their case. Hardly a smoking gun that she was biased or proof that she had written most of her decision prior to the trial.

[Sil_liS]

Originally Posted by Barcey

So she emphasized that no final decision had been made, she admitted to not reading all the evidence and many of the affidavits yet but she had read enough that she believed that the DoJ would be able to prove their case. Hardly a smoking gun that she was biased or proof that she had written most of her decision prior to the trial.

Actually the statement doesn't indicate that she believed that the DoJ would be able to prove their case, just that there there is enough evidence to justify the trial.

No case goes to trial if the plaintiffs don't present evidence to the judge before the trial at the preliminary hearings that justifies having a trial to begin with. You would find statements like the ones that this judge made from any judges before every trial unless the defendants' have waived their right to this preliminary hearing.

[Barcey]

Originally Posted by Sil_liS

Actually the statement doesn't indicate that she believed that the DoJ would be able to prove their case, just that there there is enough evidence to justify the trial.

No case goes to trial if the plaintiffs don't present evidence to the judge before the trial at the preliminary hearings that justifies having a trial to begin with. You would find statements like the ones that this judge made from any judges before every trial unless the defendants' have waived their right to this preliminary hearing.

Sorry, I messed up somehow and the link to the full Reuters article wasn't working. I've added it in now.
www.reuters.com/article/2013/05/23/us-usa-apple-ebooks-idUSBRE94M19A20130523

I was talking about other sections in the article which said:

In an unusual move before a trial, a federal judge expressed a tentative view that the U.S. Justice Department will be able to show evidence that Apple Inc engaged in a conspiracy with publishers to increase e-book prices.

"I believe that the government will be able to show at trial direct evidence that Apple knowingly participated in and facilitated a conspiracy to raise prices of e-books, and that the circumstantial evidence in this case, including the terms of the agreements, will confirm that," Cote said.

[ApK]

I was a on a jury once where a construction worker was suing a department store for negligence because he fell through a properly-marked hole that HIS team had made in the floor, and which he was fully aware of.
He put his ladder too close it.
That was pretty much the summary of the first day's testimony. From the worker.

The second day we arrived to be told that the case was settled and we could go home, but before we were dismissed, the judge asked us to show by raising hands, based only on what we heard the first day, if we tended to side with the worker or the store. A couple of people said they sided with the worker, but everyone else sided with the store. The judge said he agreed with the majority of us, and he could not understand how the case got so far as to waste everyone's time in the court room.

[Sil_liS]

Originally Posted by Barcey

Sorry, I messed up somehow and the link to the full Reuters article wasn't working. I've added it in now.
www.reuters.com/article/2013/05/23/us-usa-apple-ebooks-idUSBRE94M19A20130523

I was talking about other sections in the article which said:

I've read the article before, and I've even posted the quote from the judge in post #91. I know what she said, but her words don't mean that she had made up her mind about the case. Source: http://www.law.cornell.edu/rules/frcrmp/rule_5.1

Rule 5.1 Preliminary Hearing

(a) In General. If a defendant is charged with an offense other than a petty offense, a magistrate judge must conduct a preliminary hearing unless:

(1) the defendant waives the hearing;
(2) the defendant is indicted;
(3) the government files an information under Rule 7(b) charging the defendant with a felony;
(4) the government files an information charging the defendant with a misdemeanor; or
(5) the defendant is charged with a misdemeanor and consents to trial before a magistrate judge.

[...]
(f) Discharging the Defendant. If the magistrate judge finds no probable cause to believe an offense has been committed or the defendant committed it, the magistrate judge must dismiss the complaint and discharge the defendant. A discharge does not preclude the government from later prosecuting the defendant for the same offense.

The "unusual" comment seems to be due to the fact that this is usually done by a magistrate judge, and not a district judge. But considering the high profile of the case letting her assistant judge handle the preliminary hearing wouldn't necessarily be the best idea.

The point of the hearing is to decide if there is probable cause for a trial. The judge found that there was, and produced a statement.

[Barcey]

Originally Posted by Sil_liS

I've read the article before, and I've even posted the quote from the judge in post #91. I know what she said, but her words don't mean that she had made up her mind about the case. Source: http://www.law.cornell.edu/rules/frcrmp/rule_5.1

I agree, she emphasized that no final decision would be made until after the trial takes place.

The "unusual" comment seems to be due to the fact that this is usually done by a magistrate judge, and not a district judge. But considering the high profile of the case letting her assistant judge handle the preliminary hearing wouldn't necessarily be the best idea.

The point of the hearing is to decide if there is probable cause for a trial. The judge found that there was, and produced a statement.

I can't speak to if it's unusual or not but I'll note that Judge Cote spoke to this in the footnotes to her ruling. [bold added by me]

The Court’s procedures for non-jury proceedings were discussed in detail at conferences held on June 22 and October 26, 2012, and May 8, 2013. As the parties were informed, the Court prepared a draft opinion in advance of the bench trial based on the witness affidavits and other documents submitted with the pretrial order and the arguments of counsel in their trial memoranda. At trial, the affiants swore to the truth of the contents of their affidavits and were tendered for cross and redirect examination, and the other trial evidence was formally received. The parties understood that the Court’s final findings of fact and conclusions of law would incorporate all of this evidence. Consistent with these procedures, and with the expectation that the Court had already prepared a draft opinion, the parties jointly asked the Court for its preliminary views on the merits at the final pretrial conference held on May 23, 2013.

The parties jointly asked the Court for its preliminary views and this is being spun by some as evidence that she'd made up her mind before the trial. Maybe it's unusual for the parties to jointly ask for this or it's unusual for the judge to comply (because then they could be accused of bias).

[cfrizz]

Excellent work all of you!!!!

PWalker, do us all a favor & pick up your bat, ball, & delusions of being a lawyer and please GO HOME!!!

While you claim to have posted links, everyone else has actually done it with PROOF you are wrong and nothing more than an Apple apologist/excuse maker/anti govt anarchist.

[Graham]

Originally Posted by Barcey

I can't speak to if it's unusual or not but I'll note that Judge Cote spoke to this in the footnotes to her ruling. [bold added by me]

Actually, even more worthy of emphasis was the previous clause:

Consistent with these procedures, and with the expectation that the Court had already prepared a draft opinion, the parties jointly asked the Court for its preliminary views

Admittedly this is in Judge Cote's own ruling, so could be argued that it was only a 'normal expectation' in her own mind, but it does seem consistent with what others are saying is normal practice.

Graham

[pwalker8]

Originally Posted by cfrizz

Excellent work all of you!!!!

PWalker, do us all a favor & pick up your bat, ball, & delusions of being a lawyer and please GO HOME!!!

While you claim to have posted links, everyone else has actually done it with PROOF you are wrong and nothing more than an Apple apologist/excuse maker/anti govt anarchist.

Yes, yes, yes, since my conclusions don't match yours, I'm obviously an Apple fanboi. I see. Thank you for your oh so rational contribution to this fascinating discussion.

[pwalker8]

Originally Posted by Barcey

I agree, she emphasized that no final decision would be made until after the trial takes place.



I can't speak to if it's unusual or not but I'll note that Judge Cote spoke to this in the footnotes to her ruling. [bold added by me]



The parties jointly asked the Court for its preliminary views and this is being spun by some as evidence that she'd made up her mind before the trial. Maybe it's unusual for the parties to jointly ask for this or it's unusual for the judge to comply (because then they could be accused of bias).

For the most part, Judge Cote seems to have included her rebuttals to various criticisms to her initial findings in her final ruling. Some seem to think that these rebuttals are the final word in the matter. We shall see.

[Barcey]

Originally Posted by pwalker8

For the most part, Judge Cote seems to have included her rebuttals to various criticisms to her initial findings in her final ruling. Some seem to think that these rebuttals are the final word in the matter. We shall see.

Wow, so she made up her mind before the trial, wrote up her decision, ignored everything that didn't match what she already decided and disregarded testimony just because it didn't match what she decided. She then went and researched what all her critics were saying and cleverly wrote rebuttals in her final decision.

I don't know but that sounds like a lot of work to me. I would have thought it'd been easier to just go through the standard trial proceeding and make the final decision after. She's some devious lady. Did she wear a pointy black hat and cackle too?

[Sil_liS]

Originally Posted by Barcey

Wow, so she made up her mind before the trial, wrote up her decision, ignored everything that didn't match what she already decided and disregarded testimony just because it didn't match what she decided. She then went and researched what all her critics were saying and cleverly wrote rebuttals in her final decision.

I don't know but that sounds like a lot of work to me. I would have thought it'd been easier to just go through the standard trial proceeding and make the final decision after. She's some devious lady. Did she wear a pointy black hat and cackle too?

No, no, you see: although the judge was asked for a preliminary decision, she was not supposed to make a decision (unless the decision was that Apple was innocent) because Apple waived their right to a jury trial. I mean if the defense was really sure that they could convince the judge, they must have been right.

[pwalker8]

Originally Posted by Barcey

Wow, so she made up her mind before the trial, wrote up her decision, ignored everything that didn't match what she already decided and disregarded testimony just because it didn't match what she decided. She then went and researched what all her critics were saying and cleverly wrote rebuttals in her final decision.

I don't know but that sounds like a lot of work to me. I would have thought it'd been easier to just go through the standard trial proceeding and make the final decision after. She's some devious lady. Did she wear a pointy black hat and cackle too?

Gosh, all you have to do is look at this thread to see how much effort some will go to in order to avoid admitting someone else might actually have a point or they might be in error.

I have no idea if she wears a pointy black hat and cackle. Could be, maybe she likes Harry Potter.

I really don't understand some here. Is it really impossible to discuss facts without reverting to their inter Ring Lardner ("Shut up, he explained") or resorting to mocking. Rhetoric 101 says when the facts don't back you up, then use emotion. That might impress an audience, but it doesn't make for a very rational discussion. So far, this thread has had most of the standard rhetoric devices and fallacies used. Mocking, straw man arguments and flocking. You would think that literary people would be a bit above all that.