Post #441: Sunrise lawsuit, continued …

Posted on October 31, 2019

When we last left our intrepid lawyers, the Town had filed a motion Craving Oyer and Demurrer in response to the Sunrise $30M lawsuit (see Post #353).  Then the initial hearing was postponed (Post #405).

Well, that Craving Oyer thing seems to have boomeranged a bit.  To the lay person (me), it appeared that the Town wanted to burden Sunrise with a significant documentation burden.  Turns out, the court says that’s the Town’s problem, not Sunrise’s problem.

Here’s part of Post #353 describing “Craving Oyer”.

The first part of the Town’s filing is “Craving Oyer”.  They are asking that Sunrise be required to supply (many) supporting documents for their allegations.  ... (including) a copy of the relevant video or audio recording, the minutes from that meeting, any staff materials provided in that meeting, any other previously-undisclosed internal staff memos that were generated on that topic prior to that meeting, and so on.  And so on.  And so on.


So that’s the first Alice-in-Wonderland aspect of this.  The Town is asking the Court to require Sunrise to ask the Town for recordings that only the Town has, and then provide them to the Town (and the Court), in order to verify that what Sunrise says was said, was said.  Before they’ll even consider discussing what was said.

I assume that was mostly about burying Sunrise with burdensome documentation requests.  And it did seem just-plain-nuts that the Town owned the documentation, but was asking Sunrise to provide it.

Either I misread the original request, or the judge saw it more-or-less the same way I did.  On 10/25/2019 the court issued an order requiring the Town of Vienna to provide all that stuff.  And then for both parties to get together and agree that this does, in fact, represent the relevant legislative record.

(Kudos to Shelley Ebert for getting a copy of the order from the Fairfax County courts.)

Provide a legible and intelligible record.

I included a picture of the actual court order above because it makes a point.  It’s legible, but only just so.  In fact, I am struck by how much it reminds me of an old-fashioned physicians’ prescription.  It’s a pre-printed form, with a blank on which some highly-trained professional hand-writes the orders.

I don’t think physicians do that any more.  Prescriptions are now mostly done electronically.  And so, outside of writing a check — itself a dying art — I can’t recall anything in the past decade or so where the legibility of somebody’s handwriting actually mattered.  Or where it was deemed proper to have somebody jot down an important order, hand-written, rather than type it in.

(If you know what a cancelled check is, raise your hand.  You, with your hands raised, you are now officially old people. )

Perhaps its more efficient.  It’s certainly quaint.  And it requires someone with a legible hand, so that everyone involved knows what the order actually says.

Which brings me to my point.  A lot of that “legislative record” consists of video and audio recordings.  Having spent the last year making audio recordings and dealing with the Town’s audio and video, in my opinion, the Town ought to be required to provide certified transcripts of the recordings.

This is for two reasons.  One, members of our Town boards and councils are frequently almost unintelligible.  Some, like the Town Manager, are simply soft-spoken individuals.  Others have poor microphone discipline, particularly in meetings where they must manually activate and de-activate their microphones as they talk. And everybody slacks off for work sessions.  Without an official transcript, it’s going to be hard to get agreement as to what, exactly, was said.  I can’t imagine the lawyers in this case working directly from the audio file.

Two, the recordings themselves are almost useless if you want to find particular items within a meeting, because there’s more-or-less no “index”.  There’s no “word search” function in an audio file.  That’s why I type notes as I record the meetings, along with the time, so that I have some written “index” that I can word-search to find items.

Anyway, without a transcript, not only can you not find items within the recordings, I’ll bet there will be disagreement on exactly what was said.  If they are serious about using this stuff, I think they need a transcript.  They need a pro to work through all the barely-intelligible stuff and write it down.

Killing two birds with one stone.  And, as I noted in an unrelated posting, I think that showing Town Council members the transcript would be a good teaching tool.  My experience is that when you are confronted with a literal transcript of your own public blathering, you quickly learn to be more succinct in your speech.  And that, by itself, would greatly shorten our Town Council and other public board meetings.