Also, it's interesting to notice that there are NO comments regarding the subpoenas which were incorrectly served by the West lawyers. Looks like a lot of witnesses won't be there. Hmmm...I thought it was Seham and group that made those mistakes....
Long post warning...............
There is something unusual going on even considering that it is happening in an already unusual case. I am going to be specific about what I know vs. what I suspect vs. what I think may be the result.
What I know
There is a problem with a subpoena for Mr. Bradford and according to what I have read the $80.00 witness fee was not included when the subpoena was served. Defendants filed a Motion to Quash, which was initially granted and then the Court rescinded that granting of the Motion to Quash and, last that I knew, was relooking at the circumstances regarding the trial attendance of Mr. Bradford.
I also know from court filings that USAPA is not incorporated entity, but an unincorporated entity.
I know that there has been a tremendous fight going on about the so-called Bradford Letter regarding its admissibility, specifically the portion that deals with an attorney telling Mr. Bradford that the formation of USAPA as an entity to avoid the Nicolau award must never be made public.
From a plaintiffs' filing I know that on April 14, 2009, “counsel for USAPA advised Plaintiffs’ counsel that USAPA would accept trial subpoenas for current officers of USAPA,†and Mr. Bradford was USAPA’s President. From that same document I know that on April 18th Mr. Cleary (the incoming President) replaced Mr. Bradford as President. (I am not clear on when Mr. Cleary was scheduled to take office, either July 1st (according to plaintiffs' motion) or May 1st (from what I had thought I had once read but don't know if it was true or I was mistaken)).
What I suspect
I suspect that at some point plaintiffs served defendant with interrogatories (legal questions to be answered in writing and under oath) regarding the legal status of USAPA as an entity and who were it's officers. It's a standard question to be asked just to formalize what the parties know about one another. Defendant likely did the same to the plaintiffs. If these interrogatories were exchanged then the parties would have had a duty to timely amend those interrogatories and ten days before trial is likely not considered timely when a trial is pending in ten days and plaintiffs have no reason to suspect that an early transfer of office may be occurring.
What I think happened
USAPA, probably on Seham's advice, decided to pull a fast trick before trial in order to keep Mr. Bradford from testifying. I also suspect that the plaintiffs were thrown into a tizz when they found out on 4/18 that Mr. Bradford was no longer President and that they quickly (probably too quickly) arranged for a trial subpoena to be sent to a process server in Pennsylvania so that Mr. Bradford could be personally served since he was no longer under the acceptance of a trial subpoena for officers by USAPA's counsel. Somehow a check for one day's attendance at the trial was not provided to Mr. Bradford at the time of service, either by plaintiff's counsel making a clerical error in not enclosing it to the process server or the process server forgot to also leave the check with the subpoena. Regardless, USAPA's counsel jumped all over this as a way to potentially keep Mr. Bradford from testifying since the court now apparently lacked
in personam jurisdiction over Mr. Bradford.
Mr. Bradford has always been central to this case and the judge is well aware of that. The judge is now aware that ten days before trial the defendant informaed the plaintiffs that Mr. Bradford was, all of a sudden, not subject to acceptance of service by counsel and that he subsequently fought to remain away from the trial as a witness.
In my opinion the counsel for USAPA, seeing the potential damage that the "Bradford letter" could cause, orchestrated this scenario and then also got lucky that the $80.00 check was somehow not provided to Mr. Bradford, giving counsel a chance to fight to exclude Mr. Bradford from trial. Authentication of that letter in the form of lawyers call foundation could also keep that letter from being admitted before the jury if one assumes that Mr. Cleary had no knowledge of that letter, only Mr. Bradford.
As of the time I am writing this I have no idea what, if anything, has happened in court today. But I will hazard a guess of what will happen and why.
Mr. Seham, and to a lesser extent other members of his firm, have aggravated the judge from the beginning of this case. I don't know if they are just an obnoxious law firm or they thought they would come teach the cowboys out west something about how law is practiced. In any event Seham has seemingly aggravated the judge a few times in Seham's professional capacity. That means he, and USAPA's other counsel, have a track record with how they have argued USAPA's position and what positions they have taken (including contrary positions with their other positions) throughout this litigation.
The judge is not going to buy that this turn of events is a coincidence. Nor is he going to let his precious court time be wasted by what surely seems to be a last minute ploy. Accordingly, it is my opinion that the judge is going to order USAPA to produce Mr. Bradford as a witness or else be sanctioned in the form of what evidence they may present in defense and possibly allowing plaintiffs to inform the jury that Mr. Bradford will not be testifying and that they may draw a negative inference from that absence.
If the judge does as I suspect he will be providing Sehan with at least an argument to be made of reversible error. However, also based on the record, the appellate court might well decide that what actions the judge took under the circumstances are justified under the facts and circumstances of the case.
It will be very interesting to see how Judge Wake deals with this situation and counsel. By the way, if I am correct in my read of this mess, I could see the judge taking action via the bar association regarding Seham.
