Episode 3: The Good Guys Strike Back. Literally.
In last week's titillating episode of the Larry Mitchell Show, Professor Ku amended his complaint with more salacious allegations, while Mitchell's former research assistant played lawyer and kicked the good dean while he was down. In the meantime, Dean Mitchell has announced that he will take a leave of absence.
But is it done time for our hero? No, kids. The moment that the villains get the upper hand on Batman is the precise moment the caped crusader finds his greatest strength. Batman does pushups and plots an action plan.
The dean - now represented by Steven Kaufman and Jennifer Lesny Fleming of Kaufman & Company - shot back a twelve page emergency motion to strike before even being served anything. If I'm reading the motion correctly, the defense's position is that the issues in the case are legally-narrow on the issue of retaliation and that all that stuff about Dean Mitchell's sexcapades had nothing to do with anything Ku has alleged and are therefore just scandalous and repugnant and should be stricken from the record.
If you'll recall, the complaint alleged that Ku tattled on Dean Mitchell because he is a Boy Scout in a Brooks Brothers suit. Now we learn the sordid, seedy truth: Professor Ku was butthurt because he wanted the deanship that went to Mitchell.
I know. I had a hard time believing it as well.
Not being duly licensed in the Wonderful Land of Ohio (now with nine law schools!), I'm in no position to evaluate the legal merits of such a motion, except for telling you that it's fucking awesome and makes blood flow to special parts of my body. For one thing, the defense lawyers just found a mass of billing time before their client has even been served with a lawsuit. Second, they get to assist in defining the issues of the case and argue factual assertions without even filing an actual, binding pleading or being involved in discovery.
It seems to me that the point of 12(f) (which seems similar to the federal rule) is to reserve to the court the power of taking an eraser to the pleadings to scrub out truly irrelevant crap and that it's not a vehicle for defendants to tell the plaintiff how to establish their case. Moreover, in the motion itself, Mitchell's attorneys have created a factual dispute over Ku's motivations in filing the report (among other things) that lead to Mitchell's alleged retaliation, which I would think would put Ku's good faith at issue and, thus, the motion would actually help establish the relevance of Ku's motivations, which means the truth or falsity of Ku's beliefs - and thus the factual basis for those beliefs - is at issue. I mean, generally, if you want the case to be narrow, it's advisable to limit your factual disputes.
But fuck that noise. Mitchell's attorneys just laid a solid LITIGATOR SLAP on the bitter turncoat LawProf's face. Good luck waking up from that 12(f) motion, buddy. You're going to need some Advil and a cold steak for your eye.
Don't poke a LawDean kids. You may have truth, morality, dignity, and the law on your side, but they've got that je ne sais quoi, probably picked up from multiple yearly trips to France and its various overseas territories and colonial legacies.
They hire attorneys who hit back with double-digit-page motions before a pleading is filed.
And what attorneys are these? Why - yes - they've both apparently served as adjuncts at Case Western.
And Mr. Kaufman, far from going to Harvard or Yale, appears to be a Case graduate himself.
Obviously, Case produces worthy attorneys, given that the law dean himself is hiring them. Res Ipsa, and go fuck yourselves, scambloggers.