Back on the topic of the Armstrong lawsuit:
It occurred to me in reading through the Complaint (the one dismissed yesterday by Judge Sparks) and the Motion for TRO, along with the Declaration of Mr. Herman submitted in support of that TRO application, there are some really huge, gaping holes in the plaintiff's presentation, but one that is just too large to overlook. Forget about questions of technical rules of pleading, never mind the inflammatory rhetoric, or all of the other potential deficiencies and distractions contained in the documents. There is one very important piece of evidence that is missing in all of the plaintiff's submissions and that is this: There is no declaration from Lance Armstrong. Zip. Nada. Nil. None.
A complaint in federal court is not signed by the plaintiff under penalty of perjury (as it can be in some state courts, and thus serve the same function on a TRO application as a declaration or affidavit). In federal court, one must submit sworn declarations, signed under penalty of perjury, otherwise, the application is without any evidentiary basis.
The only declaration submitted is that of Mr. Herman. He's really not a percipient witness to anything. He's Armstrong's lawyer, nothing more and nothing less. He's not the one who should be declaring to the facts in support of the TRO, or the potential harm that Armstrong will suffer if the TRO isn't granted. Nope, that ought to be (and in any ordinary civil case would be) the plaintiff himself. In any other case, you'd see a declaration from the plaintiff setting forth the facts of the dispute, the facts entitling the plaintiff to the extraordinary equitable remedy that is a TRO, and the immediate and irreparable harm that the plaintiff will suffer if the TRO isn't granted.
But that's not here, and that's what's missing, at least in my view, from these papers.
I don't know who all of these guys are that have their names on these pleadings, but didn't anyone consider the most basic premise of all? The premise being that in order to grant the relief sought on a temporary, pendente lite, emergency basis, the judge needs evidence upon which to base a finding that a plaintitf is entitled to the extraordinary relief of a temporary restraining order. Without evidence, all the judge has in front of him is a bunch of pieces of paper without any real foundation. .
Most of the exhibits attached to Herman's declaration are not self-effectuating documents. They really aren't a proper subject for a request for judicial notice, and without a proper foundation (i.e., a witness with personal knowledge attesting to what the documents are and how they were prepared, etc.,) they are inadmissible hearsay. Most of the documents attached consist of the same sorts of "history" of Lance's disputes with the USADA, **** Pound, etc.. By and large, these documents really don't have any proper foundation laid for their use in this case. No doubt USADA's lawyers will object to them being considered by the Court if, as and when there is a hearing.
Really, I just can't believe that on an issue this important, Lance's attorneys wouldn't have said, "Hey, Lance, we know you don't want to say anything under oath unless you have to, but this is that time. You know that rainy day you've been saving up for? Well, it's pouring."
If Judge Sparks is who we all think he is, based on all of the reports that I've read of him, he doesn't suffer foolish lawyers lightly. He also won't subscribe to the "Here it 'tis" rule of evidence --- which is a trick that sloppy lawyers use quite often, pulling a document out of their briefcases, laying it in front of a witness and just telling the court what the document says. Often, opposing lawyers are distracted and forget that there's no foundation laid for the document, and often, trial judges forget as well. Some judges say that "everything is admissible unless the other side makes a timely objection" and thus the "Here it 'tis" rule of evidence sometimes finds traction.
But I don't think that's going to be the case here. I think Judge Sparks is a guy who asks really simple, fundamental questions. "Do I have jurisdiction to hear this case?" "What evidence has been submitted that supports the plaintitff's claims and the request for extraordinary temporary injunctive relief?"
Assuming Lance's lawyers get over the hurdle that Judge Sparks set up for them yesterday, the next thing they ought to re-consider is the decision to go without any declaration from the one person who is supposed to be at the center of all of this, i.e., Lance Armstrong.
If they just re-file the Complaint without also re-filing the TRO Motion and supporting documents, I think they're probably just wasting Armstrong's money, and everyone's time.
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