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Judge Marvel that the Court viewed petitioner’s arguments as
frivolous and that he bore the responsibility to straighten out
his client. Mr. Sulla claims that, following his appearance,
petitioner abandoned his initial arguments and relied exclusively
on the 861 argument. Nevertheless, by letter to respondent’s
counsel dated September 12, 2000 (the September 12 letter), Mr.
Sulla reviewed petitioner’s initial arguments and did not
disclaim them; indeed, he asked respondent’s counsel to rebut
them. In the status report filed by Mr. Sulla on September 18,
2000 (the status report), Mr. Sulla set forth the 861 argument.
He also stated: “Petitioner does not want to waive or withdraw
his two previously set forth arguments.” In “Petitioner’s
Surreply to Respondent’s Memorandum of Points and Authorities”
(petitioner’s final filing in this case (the surreply)), Mr.
Sulla states:
Any reservation of the Petitioner’s prior arguments by
Petitioner’s counsel at that time while signaling to
Respondent’s counsel and to Court that Petitioner’s
counsel was informally conceding these arguments is not
inconsistent. This negotiating posture by Petitioner’s
counsel at the initial contact with the Court and
Respondent would normally be construed, among
professionals in negotiations, as a strong signal of a
parties’ primary position. * * *
A party may retain any number of different
theories of action or defense “in reserve”. The
reservation of positions has no bearing on what the
party ultimately corresponds, argues or pleads. * * *
[Emphasis added.]
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