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Post by Sir Alexandreu Davinescu on Jan 8, 2020 10:34:07 GMT -6
2. The Cort Pü Inalt has had a set of policies and procedures on multiple topics since 2006, dedicated to guiding the manner in which proceedings are conducted, evidence is handled, and so on. They are supplemented by a text written by a Talossan lawyer, Adm. T.M. Asmourescu, O. Ben.. Your most recent response to Senator da Schir seems to indicate that you are not aware of these documents or that you didn't think them worth mentioning. Could you clarify on this point?
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Post by Sir Alexandreu Davinescu on Jan 8, 2020 10:37:59 GMT -6
3. I pay reasonably close attention to Talossan law and legal proceedings, and I have noticed a disturbing trend: few Talossan legislators, lawyers, or judges have read or remember the important legal cases in our past. This is disturbing because many of them could yield useful precedents to assist our legal community with addressing current and upcoming issues. You have argued in numerous cases in front of Talossan corts -- I wonder, could you show us a good example of a time you have cited Talossan judicial precedent, rather than American or European precedent? I'm sure I've seen you do so, but I couldn't find it and I don't know your briefs a fraction as well as you do.
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Post by Sir Alexandreu Davinescu on Jan 8, 2020 10:42:40 GMT -6
4. You have explicitly said that you don't care about or care for our national language. Yet it is the end goal of many in our country to reach a point where el glheþ is not limited to casual conversation, but becomes the language of law and lawyers. Is this something you will work to encourage on the bench, if confirmed, and -- if so -- how will you do that?
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Post by Sir Alexandreu Davinescu on Jan 8, 2020 10:48:38 GMT -6
5. The American legal system and English legal system are quite different, yet the OrgLaw directs our lawyers to turn -- after our own laws, with a special emphasis on the Covenant -- to "generally accepted principles of Anglo-American law." The current bench is split between American-Talossan and British-Talossan jurists, so you would provide an American majority. While the discrepancies between the two do not approach their joint differences with something like Indian law, there is still the potential for serious conflict when considering an issue such as libel. How will you reconcile these differences in general between the stated sources of extra-Talossan legal principles, and with something like libel in particular?
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Post by Sir Alexandreu Davinescu on Jan 8, 2020 10:57:45 GMT -6
6. You have, on several occasions, vowed a serious grudge against multiple prominent Talossans. I am one, of course, but more importantly -- so is the king! Indeed, until the start of this hearing, the signature on every one of your posts contained a reference naming the king and memorializing the vendetta. I can quote the posts, of course, but I don't think your opinion is really in doubt: you believe both that the monarchy should be abolished and specifically that the serving king is an immoral and unethical person who you have accused of multiple serious crimes against individuals and against the state. As far as I can tell, nothing has happened to change that opinion except that you have been nominated to this position, so we can only assume that your views are unmodulated.
Yet this presents a serious issue: the monarchy is one of the three pillars of the Talossan nation. It has been a party to many -- perhaps most of the biggest cases that came before the High Court, both in the past and recently. I know you have vowed to give everyone a fair hearing, but certainly no one in your position would say otherwise, as I think you can agree.
So in what way could you assure us of your impartiality when confronting a case, as you most certainly will be asked to do, concerning an institution you have sworn to abolish and a person you have sworn you despise?
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Post by Sir Alexandreu Davinescu on Jan 8, 2020 10:59:41 GMT -6
7. As a Talossan lawyer, I have pretty much always agreed to represent anyone who came asking. When I am very busy, I have asked a nominal fee (for the fun of it, really), but I have represented people and causes that I didn't personally feel motivated to assist. It is my opinion, and I am sure you agree, that everyone deserves fair representation.
Could you point us to a time in your Talossan legal career when you have represented a person or cause that you didn't personally desire to champion?
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Post by Sir Alexandreu Davinescu on Jan 8, 2020 11:00:46 GMT -6
I have some more questions, but I don't want to overburden the nominee for right now, so I will wait until he's had a chance to respond a bit before I continue. My time is very limited, but this is already a lot! Senator?
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Post by Viteu Marcianüs on Jan 8, 2020 16:03:11 GMT -6
S:reu Davinescu,
I appreciate you taking the time to participate in this proceeding.
I hope you excuse the massive amount of typos in my responses. It's a lot, and I am responding while doing other work.
(1)
My experience in the legal profession in the U.S. system has informed me that many miss that the law is, in many regards, based on common sense. This may seem nonsensical to those outside of the profession, but many of the standards developed stem from a common sense approach to ensure a certain degree of fundamental fairness. That fundamental fairness does not always translate easily to those who do not have formal legal training, and the approach will vary by jurisdiction. Also, the courts do not always get it right, and lawyers have a tendency to over-complicate things. But sometimes taking a step back and thinking, “Would a reasonable person receiving this know how to respond?” is incredibly useful.
What is also missed is that the law did not just appear one day. And the common law did not just appear one day. It was developed by members of the community that took an interests that were enthusiasts. I admit that I missed the last part.
I will concede that, in the past, I did not appreciate the unique needs of Talossa and did not appreciate the level of experience of others involved. In many instances, my frustration was not particularly directed at the lack of experience or formal training, but the lack of clear procedure. If I were admitted to practice in another jurisdiction, I cannot expect those courts or those attorneys to adhere to what I have grown accustomed. I have to learn their rules. And when there are no rules but something needs to happen, we offer one with a source from a jurisdiction that has that rule. Naturally, many would rely on their home area. And this is something that, in my estimation, is true beyond the law—when we are confronted with a circumstance that is unfamiliar and how to proceed is unclear, we look for something known to use to inform how to respond.
By any stretch of the imagination, Talossa lacks a fully developed procedure. I have experienced backlash for relying on my home jurisdiction’s procedure, and received backlash for relying on the procedural rules relied upon by an adversary after I read the rules and saw an argument. So that leaves me pondering, what is the issue?
On one side of the coin, the issue is that Talossa needs procedure. It need not be anywhere near as complex and thorough as you might find in New York or England or India, but it needs to be enough that any person can look at the rules and say, “okay I have to do this” or, “okay X has happened, so the Court should do Y now.” It should not require any formal legal training to understand.
On the other side of the coin, and it’s a hard pill to swallow, the answer is that I am being too rigid and formal. So I need to take a step out of my head and remember where I am.
To your first question—thinking off of the cuff regrading making room for enthusiasts, I do not envision a bar exam like what we take in the U.S. I see a more “do it at your own pace” set of worksheets that would explain (1) a basic concept of thinking like an attorney; (2) unique aspects of Talossan law; (3) procedure; and (4) legal research. Self-certification is fine. A bar exam would have a handful (maybe 20?) multiple choice questions focused on Talossan law and procedure, and one closed universe essay that would give you all of the relevant law, a fact pattern, with direction to write a brief that would be filed with the court (of course an example will be provided). If an applicant failed one part, they may pass with the other. Maybe they just need another look at the worksheets. But the idea is to provide them with a preliminary understanding by making each step of the process similar to something they might actually do. Now, maybe that is too much for Talossa’s needs and should be scaled back. Ultimately, I would support any system in which the enthusiast is given a basic understanding of what to expect and what is expected of them.
To your second question—this may not seem obvious, but I think enthusiasts may find my approach more welcoming. If a trial judge, I’d immediately have the parties stipulate to deadlines for when things get filed. If motion practice is there, set the procedure for how that will happen. I’d also adhere to the fairly common US-standard of construing the rules liberally. But there would be rules. Perhaps I am truly unique, but I find it easier to approach something when I know what I can and cannot do. Ultimately, parties in my courtroom would know full well what is expected of them and what to expect next.
Now, as it relates to substance—I am not a big fan of going outside of the record. The parties get to tell me what their arguments are. They get to present the facts and evidence to me. They get to make their motions. If confronted with a situation where there needs to be a legal standard applied, I would look into a few different approaches and propose it to the parties, providing them with the sources (e.g. I would ensure they had PDFs of what I am looking at). If they find a better one, great! This is a particularly old-school British style of when barristers literally picked up law books and read them along with the court. Simply put, everyone knows what is going on. My prior filings in the past has adopted a similar method of looking at the breadth of common-law countries when approaching a topic and not just what happens in the United States. My idea is that Talossans should develop Talossa’s judiciary, and those who step up to assist in that will be encouraged to do so.
None of this means I expect 20 page briefs with proper citations and every propositions cited. All it means is that if there is a Talossan law, cite it. If you can find something from outside of Talossa that is persuasive, include it. It does not mean spending five hours on a filing, but spending at least 30 minutes on it.
At the end of the day, I do think having established procedure and clean rules will solve a lot more issues than people think. You cannot win a game of chess if you do not know the rules. But, through my experience in Talossa, I know I need to tone it down a bit and take a realistic and encouraging approach to those who do not practice law professionally.
(2)
I am familiar with the 2006 Rules of Evidence, 2006 Rules of the Courtroom, and 2006 Hearing Rules and Procedures available in the Courthouse forum. First, I do not know these rules to have been adopted by the Uppermost Cort. And I do not know of the Ziu to have adopted legislation implementing the rules, and if it did, I’m unsure if it could impose rules on the Uppermost Cort. The latter point I have discussed before on Witt given the separation of powers. Second, the Rules of Evidence are decently robust, but they do refer to the Wisconsin Rules of Evidence to supplement. I am not opposed to keeping that but I think Talossa does not need such a strict set of rules. The Hearing Rules and Procedures is minimal and focuses more on criminal proceedings than civil proceedings. It does not do much for motion practice, or how to answer, or when to answer, etc. I have previously posted about this very issue before and about Talossa’s lack of established procedure. The Rules of the Courthouse is more of a general Wittenberg set of rules and not actually rules of civil procedure.
Regarding the supplements by Adm. T.M. Asmourescu, O. Ben., I will confess ignorance to those. I cannot find them on Witt or on the Wiki. Perhaps I am missing them.
(3)
I would not say I have argued “numerous” cases in front of the Uppermost Cort. I have been involved in about four. Where I could find Talossan law, I relied upon it in the reply memorandum of law in response to the first discussion in the ESB matter. In the recent amicus curiae brief cited to the ESB matters. In most of my filings, I try to focus on using Talossan law, and look outside of Talossa where there lacks judicial authority. In that regard, I try to incorporate several common-law countries into my arguments.
I agree that Justices need to do a better job at citing prior decisions. I will say that finding cases is cumbersome. The wiki entry also names certain cases by year. I do not see anything that indicates the areas of law the matter speaks to (except the occasional case name), and searching through Witt for cases can be cumbersome. I am loath to accuse others of failing to properly rely on Talossan jurisprudence when it is not readily available. But this circles back to my answer to your first question—how would the enthusiasts know to use prior case law without some training? In any event, I would hope that the topic I outlined for a possible bar course on Talossan law would include the seminal cases.
Furthermore, and this would take work, if someone could cull through Witt and pull orders from old cases to index in a volume, it would be helpful for legal research.
(4)
If there are English translations available, and we had a clerk that could translate everything into Talossan, I do not see an issue. Although perhaps a goal, I do not foresee a circumstance where the judiciary would be made up exclusively of Talossan speakers with the fluency to sustain the entirety of the law and legal proceedings in Talossan. I have no issue with encouraging dual postings to the best of a party’s ability.
(5)
The suo moto matter, I discussed advisory opinions under Indian law, British law, Canadian law, US law, and Australian law. In another advisory opinion issue, I raised the several different approaches. My goal there was to identify what actually is an “accepted principle of Anglo-American law.” I do not see Anglo-American law as strictly English-American, but common law in general. So I think we examine as much foreign common law as possible to identify common threads. That would be the generally accepted principle. As it relates to advisory opinions, I opined that there is no outright rule against them, but they are generally limited only to government officials even under the most liberal approaches. That was the crystalized Anglo-American principle I could identify. Of course, there was the spectrum – India with the most liberal approach and the US with the most restrictive. The majority of other common law countries were somewhere in the middle.
Although the US and UK take opposite approaches to the burden of proof in defamation cases, US law is likely more influential here. The UK does not have the free speech protections under a codified constitution as the US does. The First Amendment to the US Constitution forms the bedrock of how we approach issues of speech. That is not the circumstance in the UK. So it makes sense in the US that the burden of proof in defamation should be on the party asserting that statement is defamatory. I also think that tracks with emper necessitas probandi incumbit ei qui agit (the burden of proof lies with the person laying the charge). But I do not know enough about the approach in other common-law countries. If such a case came up, it would be similar to what I described above, identify the spectrum and see where the consensus falls. In any event, I have not actually read the matter, but if the summary provided for the lega opinion in Glaca v. Stotanneu (UC 1997) is accurate, there is precedent for Talossa to favor the US approach.
(6)
I cannot other than what I have already said. My role as a Justice would be to apply the facts to the law. I may not personally like a law, but I cannot just strike it down or eviscerate it. I cannot render a decision in such a way to render it obscure or obsolete. I have had the privilege of serving a term as an appellate clerk doing legal research. I may not have liked a party, but I had to give the court objective, neutral reports and not cater my research to where I thought the case should go.
I am not trying to abrogate the King’s authority through a judicial position. Frankly, if the Organic Law is clear on the Crown’s authority, then it should be abrogated through the democratic process. My personal feelings have nothing to do with it.
I mentioned this earlier but I do view these positions as necessarily forfeiting some rights. To maintain impartiality, I would need to restrict my public commentary. I cannot take back what is out there, but I can make it a point to act in the manner that is expect of a Justice if I’m appointed.
Now, again, I do not think I will change many people’s minds on this. But I hope that, if appointed, my conduct would change those minds down the line.
(7)
The only proceedings I have been involved in where in my personal capacity or in as Attorney General. I am a law nerd so I generally have fun with what I’m doing, even when I particularly can’t stand the case. I find the research and writing aspect of it all fun. That does not mean I particularly like my client. How that relates to Talossa—whether you believe his or not, although I liked the research and writing part of it, I was not actually thrilled with the ESB matter. I made it clear on several occasions that I did not question his guilt, but the manner in which the proceeding occurred, and the harshness of the sentence. I’ve taken a liking to ESB subsequently, although I disagree with him on a lot of stuff. So this falls in the cause I liked but person I wasn’t fond of category.
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Post by Sevastáin Pinátsch on Jan 9, 2020 8:16:37 GMT -6
Senator Marcianüs, I read your opening remarks with interest. While "recent events" in Talossa may have raised concerns in you about rigour in the appointment of Justices, for others they have raised questions about identity and behaviour, and indeed whether some citizens regard their participation in the nation as that of a character in some role playing exercise. I share those concerns in part, and for that reason I wish your very humble and polite opening statement was something that seemed more typical of you — rather than an outlier from the tone of your usual messaging. I do not sit before you today seeking to justify my past conduct, Good. But saying that doesn't means it doesn't need to be discussed. Reflecting on your overall behaviour in Talossa and the character it suggests, I'm genuinely concerned how a person with a history of erratic, profane, trollish, peevish, and volatile interaction — who appears to genuinely delight in first-hand provocation and second-hand Schadenfreude — can in any way reasonably expect to inhabit a role that demands civility, impartiality, grace, good character, trust, and respect. I understand that you'd like an opportunity to prove it by actually doing the job first, but that demands a huge leap of faith on our part. Personally, I need more than just simple acknowledgement that you're aware of how you are perceived. I need you to go much deeper into yourself as a human being. With only these few questions, I hope for a lot of introspection.
1. In your opening remarks, you say: at least Talossa will have established a procedure for ensuring that those who sit on the Uppermost Cort are those deserving and with the legal acumen to render fair and just decisions. I think this recent events underscore this necessity more than ever Your disagreement with Chief Justice Tamorán's approach to a recent court case is clear from both your statements on Witt and in your unsolicited amicus curiae. Are you suggesting that Chief Justice Tamorán is undeserving and/or lacks the legal acumen to render fair and just decisions? If not, how do you explain this statement about "necessity" in light of your history of criticizing judges? 2. Your statement says that Justices should be deserving. Your real-world profession and experience aside, why do you believe you deserve this powerful and prestigious role in our lives?
3. If the person we witness in Talossa is actually you — as opposed to a character in a role playing scenario where you can act in dysfunctional ways that wouldn't be tolerated in the real world — what explanation do you have for your awful and erratic behaviour over the length of your current and former citizenship periods?
4. Lastly, a statement (italicized, below), which you may rebut. I acknowledge your suggestion that you will need to retire from public life in order to do the job effectively. While this demonstrates awareness of your tendency to foment or be drawn into conflict, and recognition that avoiding this tendency will be difficult without a complete abstinence from interaction, I have to say your 'solution' makes me unhappy.
Thanks. In an ideal Talossa, I'd like to see your role as Justice act as a bridle to choke back the kind of terrible things you've said in the past... but you've held important roles before and it didn't work... and I'm saddened by this, mostly because I appreciate the good you bring. I really wish it wasn't so frequently blemished by your other intercedent behaviours.
If you are successful in this process I hope you will weather both harsh criticism and outright cheek (" LOL WUT?") with as much grace as Chief Justice Tamorán.
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Post by Viteu Marcianüs on Jan 9, 2020 8:30:26 GMT -6
Senator Pinátsch,
Thank you for your questions. I do believe that S:reu Davinescu still holds the floor for a short while longer. I will begin preparing my answers but if he posts any before 16:00 UTC, I will respond to this first.
Respectfully,
Viteu Marcianüs
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Post by Sevastáin Pinátsch on Jan 9, 2020 9:01:21 GMT -6
With respect, He's a guest, not a Senator; he's held the floor for nearly 24 hours, no communication has occurred between the two of you for over 16 hours, and according to the schedule it's my day to present. I also have questions and a guest and would like an opportunity for us both to present within our scheduled time. However, indeed, it's possible that some small exchange is possible in the less than 1 hour that remains before 16:00 UTC. But it has been January 9th Talossan Standard Time for over 9 hours now, and I don't see any reference to 16:00 UTC in the rules.
In future, I'd like to ask everyone to present their entire list of questions at once, so no further 16 hour lags occur. You seem well able to respond in a timely manner.
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Post by Sir Alexandreu Davinescu on Jan 9, 2020 9:25:41 GMT -6
I am writing follow-up questions at this moment, since Senator da Schir stated when he ceded the floor to me that I held it until 16:00 UTC. I was not aware there were other rules stating that I had to post them within a certain time after the nominee responded. I apologize if I have caused inconvenience.
I'm unsure what to do -- should I suspend or continue? I can continue at a later time if that's what is desired -- it wouldn't impede me at all. I don't want to "talk over" Senator Pinatsch, so to speak. I think my questioning has been pretty useful.
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Post by Sir Alexandreu Davinescu on Jan 9, 2020 9:32:48 GMT -6
I also don't want this exchange to hold things up with any confusion, actually. So I will conclude, with thanks to the nominee. I would request of the committee that -- if possible -- I receive more time in the future. I hope that my questioning thus far indicates the merits of granting my request.
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Lüc da Schir
Senator for Benito
If Italy wins a Six Nations match I will join the Zouaves
Posts: 4,125
Talossan Since: 3-21-2012
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Post by Lüc da Schir on Jan 9, 2020 9:34:18 GMT -6
Please wait a moment everyone.
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Post by Viteu Marcianüs on Jan 9, 2020 9:36:32 GMT -6
If the Guest would like to post his questions, I will gladly answer his and then the Senator's today. Please accept my apologies for the confusion.
***Sorry, I did not see the Chairperson's request to wait a moment. I await his instruction.
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