Stipulating to something means you agree that something is factual.
Not in the way you want it to work here. Yes, I agree in principle that if you concede something, it should bear some resemblance to what you believe to be true. But that's not how stipulations, interrogatories, and agreements
in limine work in actual court.
Importantly, a stipulation is merely a limit on what you will attempt to contest for some particular action only. A stipulation doesn't have much effect outside a certain case. It's not a concession of the veridical or believed truth of something for all time and for all purposes.
The problem is not so much that Giuliani wants his concession to have limits. That's inherent to the nature of a stipulation in court. The problem is first that he's trying to foist the stipulation on the court as an alternative to his discovery obligations, and second that the conditions he proposes have no basis in law.
Giuliani hopes to raise a certain defense on appeal from the default judgment while conceding the effective opposite at the trial level. He wants to escape discovery by saying his statements were false, but then wants to assert a First Amendment defense
de novo on appeal. And the judge correctly says no, you can't play that kind of shell game.
This is calculated. An appeal generally can't re-examine the factual findings of a trial court. But it can question its conclusions of law. Giuliani wants to argue a conclusion of law at the appellate level, but in order to do so he has to sneak it into the trial court record in some way prior to judgment, otherwise it's precluded on appeal. There's nowhere to put it, and certainly Giuliani's legal team realized that the judge's patience was wearing thin and a default judgment was imminent. They had to get it properly into a filing.
In contrast, the facts pertaining to the judgment are Giuliani's default in discovery, not what defense he wanted to offer on the merits. Toward
that end, Giuliani will probably argue that the court should have accepted his stipulation in lieu of the withheld discovery that prompted the default judgment.
The result is that hilarious Frankenbrief that the judge roundly rejected.
A couple of courtroom movies show this.
Yes, but not accurately. For example, the stipulation in
A Few Good Men would have occurred in pretrial practice, when witnesses are deposed. The important thing to take away from that drama is that the judge could not force the JAG to accept the stipulation. The judge can enforce agreements made, but can't make them for the parties. Instead, Giuliani wants to compel the court to accept his stipulation in lieu of discovery, but then revisit the matter on appeal. It's not something he's proposing to the other party and asking them to agree to. It's something he's foisting on the court itself.
Your movies get that part right. And that's what's important about what you've correctly noticed in this case: you can't just tell a court what you're going to do instead of obeying its orders.
It simplifies and moves the process along.
Yes, and for that reason they don't establish truth or last beyond the case. The fact that I stipulated in one case that I wouldn't act as an expert doesn't mean I'm not veridically an expert, nor that I can't act as an expert in some other action. We traded that as a strategy. Stipulations properly made, agreed to, and ordered have the effect of fact for the purpose of that particular action. But they don't have the effect of sworn statements of belief or fact.
But I don't see how anyone can stipulate something factual as conditional. "Hey, everybody, this is factual but this fact, isn't factual elsewhere?
Sadly that's pretty much how a stipulation works. You agree not to contest or offer a certain proposition. It's not a sworn statement of belief or information.
I also find the idea of "offering" a stipulation problematic.
In this case you should. Giuliani offered it not to simplify things or help things along, but to try to foist an alternative to discovery he had been ordered to produce. The court saw it for what it was.
Hey, we may or may not agree to this fact? As if anyone's agreement changes what is or isn't factual? Seems to me to trade what is factual in a process where everyone has a duty to the truth is absurd.
Participate in a few trials in the American court system and this ideal will quickly evaporate. Substantive justice is not something you should expect from a formal judiciary. Lionel Hutz said it best. "There's 'the truth' [shakes his head no], and 'the truth' [nods his head yes]." Yes, all attorneys and judges have a duty not to lie or misrepresent what they know to be true. But none of this affects what is agreed to in pretrial practice.
