Stipulation-Of-Facts Agreement

The use of confessional provisions after a “fragmented” providential investigation is permitted with the agreement of the accused. Otherwise, the military judge will not be free to consider the questions that were presented during the unsuccessful attempt to plead guilty. United States, Matlock, 35 M.J. 895 (A.C.M.R. 1992). Prosecutions cannot obtain the benefit of the provision without the restrictions that accompany the pre-judicial agreement. See United States, Cunningham, 36 M.J. 1011 (A.C.M.R. 1993). Finally, Itron argued that Consert had failed to meet and consult in good faith with respect to certain other facts that were not previously admitted, but, if admitted, would streamline the procedure. The court agreed.

In that finding, the Tribunal rejected Consert`s allegations that the proposed admitted facts were written from an advocacy point of view, were taken out of context or concerned inadmissible, irrelevant or immaterial facts. Instead, the court found that Consert`s approach indicated a “entrenched adversary, hostile to the prospect of a deal.” According to the court, Consert`s refusal to participate in discussions about the significantly reduced volume of admitted facts was particularly revealing, according to the court. The court ruled that it was “inconceivable that after two years of discovery, there would be only sixteen facts that were not legally contested.” In the end, the court sanctioned Consert for failing to meet and confess in good faith and ordered him to pay Itron`s attorney`s fees for the preparation of the proposed pre-judicial provision, including time spent on meeting and transmission, as well as informing and subscribing the immediate request. The Tribunal also asked the most senior non-lawyers from each party in Delaware and Delaware to meet and consult personally on the limited scope of the proposed authorized facts. Before the meeting, Consert should give a written response to any proposed openness, including the identification of all evidence refuting a controversial fact. Finally: “During the personal meeting, the chief lawyers successively check each of the points and try to find an agreement. A journalist transcribes the hearing. The plaintiff, Itron Inc., and the defendant, Consert Inc., were parties to a development agreement whereby Consert claimed to have owed $60 million $US. Itron brought the action for a finding that it owes nothing to Consert under the parties` agreement. Over the course of two years, the parties made discoveries including the exchange of 55,000 documents, responses to more than 300 interrogations and requests for admission, and testimony from more than 28 factual witnesses and four experts. The trial was scheduled for five days.

The Itron decision clearly sets out the expectations of the Court of Justice with regard to the negotiation of facts admitted in a preliminary provision. Instead of rejecting everyone except the most harmless facts, the lawyer must make legitimate and good faith efforts to reach an agreement on facts that may limit the scope of the trial. Otherwise, the Tribunal may declare certain facts admitted and impose sanctions. Lawyers are advised to avoid this outcome by acting reasonably and accepting previously admitted facts or facts that are not the subject of legitimate disputes.. . . .