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Pretrial Conference Tentatively Set in SCO v. Novell
Thursday, November 10 2005 @ 08:28 PM EST

Some mild action in the SCO v. Novell case. Pacer lists a pretrial conference for December 20th, but it could be cancelled if the parties can agree on a schedule for discovery and such details. For example, they can opt to settle the case by arbitration. Ha ha. If they can agree on a schedule, then the judge can just sign the stipulated schedule. Here's the Pacer info:
11/10/2005 - 82 - NOTICE OF INITIAL PRETRIAL CONFERENCE: (Notice generated by clerk)***The Attorneys Planning Meeting Report and Proposed Scheduling Order forms, available on the court web site at http://www.utd.uscourts.gov/documents/formpage.html, should be prepared 30 days before the Initial Pretrial Conference hearing date. The Court may enter a scheduling order and vacate the hearing if counsel (a) file a stipulated Attorneys Planning Meeting Report and (b) e-mail a Proposed Scheduling Order to [redacted] 30 days before the scheduled hearing.*** Initial Pretrial Conference set for 12/20/2005 01:30 PM in Room 477 before Magistrate Judge David Nuffer. (blk, ) (Entered: 11/10/2005)

As you can see from this notice coming from the clerk, pretrial conferences are standard. Fairly early on, the two sides have to have a schedule to live up to, like the schedule you can see on the IBM Timeline page. Lawyers, as you've seen, will happily argue forever, so the court sets deadlines that they are supposedly bound by, barring the unforeseen. Here is the definition of pretrial conference from The 'Lectric Law Library:

PRETRIAL CONFERENCE - A meeting of the judge and lawyers to discuss which matters should be presented to the jury, to review evidence and witnesses, to set a timetable, and to discuss the settlement of the case.

Here's Magistrate Judge David Nuffer's page, where you can find the forms the parties will fill out, if they can get their heads together and agree on everything. The two forms are the Attorney's Planning Meeting Report [PDF] and the Proposed Scheduling Order [PDF], and you can discern from the forms the various details that need to be decided.

Judge Nuffer is the Magistrate Judge who will oversee the pretrial conference in this case, the equivalent of Judge Brooke Wells in SCO v. IBM. His resume shows he sat as a member of the Utah District Court Technology Committee, and its Vice-Chair since 2003. That's encouraging. He has some stated preferences. He likes clear simple legal writing, as recommended by Bryan Garner, editor in chief of Black's Law Dictionary and author of "Elements of Legal Style" and "Legal Writing in Plain English." He says he prefers the following writing style:

Judge Nuffer enthusiastically follows the recommendations of Bryan Garner for improved legal writing style by putting citations in footnotes and eliminating substantive footnotes.

He also has some ideas on how attorneys should conduct themselves in his courtroom. I think SCO is going to find it hard to comply. Nuffer prefers politeness and civility. Maybe they can do it, but only if they transform their style and no longer act like the SCO we've come to know and .... well, you know.

Think of items 2 and 3, for example, of the Utah Standards of Professionalism and Civility that Judge Nuffer expects the attorneys to live up to:

2. Lawyers shall advise their clients that civility, courtesy, and fair dealing are expected. They are tools for effective advocacy and not signs of weakness. Clients have no right to demand that lawyers abuse anyone or engage in any offensive or improper conduct.

3. Lawyers shall not, without an adequate factual basis, attribute to other counsel or the court improper motives, purpose, or conduct. Lawyers should avoid hostile, demeaning, or humiliating words in written and oral communications with adversaries. Neither written submissions nor oral presentations should disparage the integrity, intelligence, morals, ethics, or personal behavior of an adversary unless such matters are directly relevant under controlling substantive law.

This is going to cramp their style, eh? You think *that's* going to be hard, look at number 4:

4. Lawyers shall never knowingly attribute to other counsel a position or claim that counsel has not taken or seek to create such an unjustified inference or otherwise seek to create a "record" that has not occurred.

I really can't imagine how SCO is going to manage. They'll need an extreme makeover, for sure. Maybe they can bring in some new, young associates, who aren't cynical, NewYork-y, and shark-like yet. And to top it off, the standards say that failure to abide by the rules can cost the offending side. We'll see. That would certainly be refreshing, I must say.

Even if the conference happens, it is not something that needs a volunteer to attend, by the way, since it might not even happen, if the parties can agree on a schedule and other items. It could also happen by telephone. My guess is they'll work it out between the parties and so the conference will be cancelled. At least, that is what my normal guess would be. This is SCO, so who knows? Here is the complete list, Utah's standards of professionalism and civility expected of Utah lawyers appearing in Judge Nuffer's court:

************************************

Utah Standards of Professionalism and Civity

To enhance the daily experience of lawyers and the reputation of the Bar as a whole, the Utah Supreme Court, by order dated October 16, 2003, approved the following Standards of Professionalism and Civility as recommended by its Advisory Committee on Professionalism.

Preamble

A lawyer’s conduct should be characterized at all times by personal courtesy and professional integrity in the fullest sense of those terms. In fulfilling a duty to represent a client vigorously as lawyers, we must be mindful of our obligations to the administration of justice, which is a truth-seeking process designed to resolve human and societal problems in a rational, peaceful, and efficient manner. We must remain committed to the rule of law as the foundation for a just and peaceful society.

Conduct that may be characterized as uncivil, abrasive, abusive, hostile, or obstructive impedes the fundamental goal of resolving disputes rationally, peacefully, and efficiently. Such conduct tends to delay and often to deny justice.

Lawyers should exhibit courtesy, candor and cooperation in dealing with the public and participating in the legal system. The following standards are designed to encourage lawyers to meet their obligations to each other, to litigants and to the system of justice, and thereby achieve the twin goals of civility and professionalism, both of which are hallmarks of a learned profession dedicated to public service.

We expect judges and lawyers will make mutual and firm commitments to these standards. Adherence is expected as part of a commitment by all participants to improve the administration of justice throughout this State. We further expect lawyers to educate their clients regarding these standards and judges to reinforce this whenever clients are present in the courtroom by making it clear that such tactics may hurt the client’s case.

Although for ease of usage the term "court" is used throughout, these standards should be followed by all judges and lawyers in all interactions with each other and in any proceedings in this State. Copies may be made available to clients to reinforce our obligation to maintain and foster these standards. Nothing in these standards supersedes or detracts from existing disciplinary codes or standards of conduct.

1. Lawyers shall advance the legitimate interests of their clients, without reflecting any ill-will that clients may have for their adversaries, even if called upon to do so by another. Instead, lawyers shall treat all other counsel, parties, judges, witnesses, and other participants in all proceedings in a courteous and dignified manner.

2. Lawyers shall advise their clients that civility, courtesy, and fair dealing are expected. They are tools for effective advocacy and not signs of weakness. Clients have no right to demand that lawyers abuse anyone or engage in any offensive or improper conduct.

3. Lawyers shall not, without an adequate factual basis, attribute to other counsel or the court improper motives, purpose, or conduct. Lawyers should avoid hostile, demeaning, or humiliating words in written and oral communications with adversaries. Neither written submissions nor oral presentations should disparage the integrity, intelligence, morals, ethics, or personal behavior of an adversary unless such matters are directly relevant under controlling substantive law.

4. Lawyers shall never knowingly attribute to other counsel a position or claim that counsel has not taken or seek to create such an unjustified inference or otherwise seek to create a "record" that has not occurred.

5. Lawyers shall not lightly seek sanctions and will never seek sanctions against or disqualification of another lawyer for any improper purpose.

6. Lawyers shall adhere to their express promises and agreements, oral or written, and to all commitments reasonably implied by the circumstances or by local custom.

7. When committing oral understandings to writing, lawyers shall do so accurately and completely. They shall provide other counsel a copy for review, and never include substantive matters upon which there has been no agreement, without explicitly advising other counsel. As drafts are exchanged, lawyers shall bring to the attention of other counsel changes from prior drafts.

8. When permitted or required by court rule or otherwise, lawyers shall draft orders that accurately and completely reflect the court’s ruling. Lawyers shall promptly prepare and submit proposed orders to other counsel and attempt to reconcile any differences before the proposed orders and any objections are presented to the court.

9. Lawyers shall not hold out the potential of settlement for the purpose of foreclosing discovery, delaying trial, or obtaining other unfair advantage, and lawyers shall timely respond to any offer of settlement or inform opposing counsel that a response has not been authorized by the client.

10. Lawyers shall make good faith efforts to resolve by stipulation undisputed relevant matters, particularly when it is obvious such matters can be proven, unless there is a sound advocacy basis for not doing so.

11. Lawyers shall avoid impermissible ex parte communications.

12. Lawyers shall not send the court or its staff correspondence between counsel, unless such correspondence is relevant to an issue currently pending before the court and the proper evidentiary foundations are met or as such correspondence is specifically invited by the court.

13. Lawyers shall not knowingly file or serve motions, pleadings or other papers at a time calculated to unfairly limit other counsel’s opportunity to respond or to take other unfair advantage of an opponent, or in a manner intended to take advantage of another lawyer’s unavailability.

14. Lawyers shall advise their clients that they reserve the right to determine whether to grant accommodations to other counsel in all matters not directly affecting the merits of the cause or prejudicing the client’s rights, such as extensions of time, continuances, adjournments, and admissions of facts. Lawyers shall agree to reasonable requests for extension of time and waiver of procedural formalities when doing so will not adversely affect their clients’ legitimate rights. Lawyers shall never request an extension of time solely for the purpose of delay or to obtain a tactical advantage.

15. Lawyers shall endeavor to consult with other counsel so that depositions, hearings, and conferences are scheduled at mutually convenient times. Lawyers shall never request a scheduling change for tactical or unfair purpose. If a scheduling change becomes necessary, lawyers shall notify other counsel and the court immediately. If other counsel requires a scheduling change, lawyers shall cooperate in making any reasonable adjustments.

16. Lawyers shall not cause the entry of a default without first notifying other counsel whose identity is known, unless their clients’ legitimate rights could be adversely affected.

17. Lawyers shall not use or oppose discovery for the purpose of harassment or to burden an opponent with increased litigation expense. Lawyers shall not object to discovery or inappropriately assert a privilege for the purpose of withholding or delaying the disclosure of relevant and non-protected information.

18. During depositions lawyers shall not attempt to obstruct the interrogator or object to questions unless reasonably intended to preserve an objection or protect a privilege for resolution by the court. "Speaking objections" designed to coach a witness are impermissible. During depositions or conferences, lawyers shall engage only in conduct that would be appropriate in the presence of a judge.

19. In responding to document requests and interrogatories, lawyers shall not interpret them in an artificially restrictive manner so as to avoid disclosure of relevant and non-protected documents or information, nor shall they produce documents in a manner designed to obscure their source, create confusion, or hide the existence of particular documents.

20. Lawyers shall not authorize or encourage their clients or anyone under their direction or supervision to engage in conduct proscribed by these Standards.


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