LOS ANGELES – Late last week, I wrote about Donald Trump’s former lawyer filing an application for a restraining order against Stormy Daniels’ current attorney.
Or maybe it was about the current lawyer for Trump’s former lawyer filing for a restraining order against Stormy’s former attorney on behalf of Stormy’s current attorney. Who can tell anymore?
In any event, something I would have made a bigger deal out of if I hadn’t been hammered when I wrote the post last week is the application was filed on an emergency ex parte basis. You can find a dull-but-accurate definition of the term here, but basically an ex parte motion is akin to a lawyer shouting “Hey Judge, drop everything you’re doing and deal with this shit now!”
On top of being the sort of thing which makes judges want to choke the briefcase-carrying dickheads who file them, there are rules in place for when and how to file such requests and the standard you’re expected to meet when you do.
As attorney James Moo observed on Twitter, Michael Cohen’s application regarding Stormy’s attorney, Michael Avenatti, may have come up just a little short of what the fella hearing this case, U.S. District Judge S. James Otero (not to mention California law) requires.
https://twitter.com/moo_jam1/status/1007520845512650752
“I suspect Judge Otero (or his fine clerks) will notice all of this and be (unhappy face emoji),” Moo added in a subsequent tweet. “We shall see.”
Sure enough, while Judge Otero didn’t outright reject Cohen’s request, he did issue a minute order in which he rejected the notion of issuing an emergency order. Instead, he set a date for a hearing on the issue – and included a nice little reminder of how little he likes ex parte requests.
“Ex parte applications throw the system out of whack,” Otero wrote, quoting his own standing order issued earlier in the case. “They impose an unnecessary administrative burden on the court and an unnecessary adversarial burden on opposing counsel who are required to make a hurried response under pressure, usually for no good reason.”
Otero continued to note such applications “demand priority consideration, where such consideration is seldom deserved.”
“In effect, they put the applicant ‘ahead of the pack,’ without cause or justification,” Otero continued. “Ex parte applications are not intended to save the day for parties who have failed to present requests when they should have, and should not be used as a way to ‘cut in line’ ahead of those litigants awaiting determination of their properly noticed and timely filed motions.”
None of this means Otero absolutely won’t issue a restraining order against Avenatti, but it does mean he’s not going to do so any time real soon. His minute order gives Avenatti until June 25 to file his opposition to the application, with Cohen’s reply due on July 2.
It’s risky enough to try to read the tea leaves in all of this if you’re a lawyer – which, thank God, I’m not.
I am pretty good at reading between the lines to tell when the person who wrote something isn’t pleased with the person they wrote it to, though, a skill I honed over several decades of being a very disappointing child, student and husband. Based on that extensive experience, I’d say we’re looking at a highly irritated judge right about now – and that’s generally not a good thing for litigants.
