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Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 100048
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Im in the middle of litigation over a breach of contract as

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I'm in the middle of litigation over a breach of contract as the defendent. In some of the memos submitted by the OP, their attorney makes certain statements in their discussion of the case that is simply inaccurate or not backed up by any evidence on the affidavits by their client, and there's no citation. For example, the attorney states I'm a "sophisticated" party, where if anything, the OP's affidavits paint me as a bumbling idiot.

1) is this a tactic perhaps used by more experienced attorneys who know the court might not cross reference every single statement, yet, the attorney knows it paints a picture in the judge's mind?

2) should I motion to strike these comments that are fabrications or not backed up by any facts or not cited?
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am sorry for your situation. When you state "OP," what do you mean by this? Just to make sure that we are on the same page.
Customer: replied 3 years ago.

Opposing party.

Thank you. And when you state "submitted," do you mean that they were submitted as part of evidence? In what context do these statements fall?
Customer: replied 3 years ago.

attorney made statements in a memo in opposition of motion to dismiss case.

Thank you for your clarification. I am guessing that you mean that the statements are made in the Memorandum in Support of Motion to Dismiss.

1) is this a tactic perhaps used by more experienced attorneys who know the court might not cross reference every single statement, yet, the attorney knows it paints a picture in the judge's mind?

One could say yes. This was not a "trick" per se, but is an argument that is attempting to influence the Court.

2) should I motion to strike these comments that are fabrications or not backed up by any facts or not cited?

"strike" is not the correct word, perhaps. To "strike" a motion is to ask the motion itself to be dismissed due to a technicality such as improper format, etc.

At this point, someone in your situation may file a RESPONSE to the motion wherein the false statements may be impeached as misleading, simply false, etc. So in this way, yes, they may be challenged. But this would be the proper way - to challenge the motion's content in a response; not to motion to "strike" specific verbiage of the motion.

The Judge should then take both the motion AND your response in consideration in making the decision.

I hope this clarifies.

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Customer: replied 3 years ago.

But an response implies I have the ability to file one. Without going into details of the case, at this point no more responses are permitted, at least as part of the normal process. Would there be alternative options to highlight the falseties to the court? or this would be left to be brought up at the oral hearing? but, given the time constraints then, it's unlikely the judge would allow for a fine tooth comb nitpicking on the details the opposing party was incorrect in (which again, it isn't anything necessarily gravely incorrectly, but as it's written by the attorney to support his argument, unless the judge verifies it against the affidavit, he might presume to be 'true' (since it was stated as such)).

R,

Thank you for your reply.

Would there be alternative options to highlight the falseties to the court?

Yes. The motion should not be granted automatically. If one requests an oral hearing (either party), the Court should hear oral arguments at which the falsities can be brought up. Simply not filing a response does not mean that one "defaults" the motion.

but, given the time constraints then, it's unlikely the judge would allow for a fine tooth comb nitpicking on the details the opposing party was incorrect in (which again, it isn't anything necessarily gravely incorrectly, but as it's written by the attorney to support his argument, unless the judge verifies it against the affidavit, he might presume to be 'true' (since it was stated as such)).

If you can squeeze the matter in at the hearing - or anywhere else if it is pertinent - the Judge may. But if you are telling me that this suit is not operating under "normal" procedures, then of course it is at the discretion of the Court, in the end.

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