As The Phrase Turns...

It's time for a brand new episode of this season's most riveting new drama, As The Phrase Turns...

At the end of our last episode, our protagonist had filed a Motion to Strike Inadmissible Legal Conclusions and Hearsay from the Testimony of Invenergy witnesses at the Illinois Commerce Commission.  This was because a non-lawyer Invenergy witness made legal conclusions in her testimony, purporting that Invenergy could legally promise the ICC that it would not seek cost recovery for the project from Illinois electric ratepayers without first seeking permission from the ICC.  The Motion also asked to strike a portion of Invenergy testimony that was hearsay (and also an inapt non-lawyer legal conclusion).  The Motion said Invenergy's promise was about as useful as zilch, give or take bupkus.

Unfortunately, Invenergy's uninspired legal counsel has seen fit to file a reply.  It was really hard to stay awake through all six pages (which seemed more like 60).  Unless you're looking for a sleep aid, don't bother.  The reply basically says that the ICC's rules of evidence are so relaxed that pretty much anything can be submitted as evidence as long as "...it is of a type commonly relied on by reasonable prudent persons in the conduct of their affairs."  So, according to Invenergy, there are no rules... it's just a free-for-all. 

The defense to hearsay did tickle my funny bone though.  It said,

Zotos claims that an excerpt from Sane’s testimony should be excluded as hearsay without even addressing the questions to which Sane is responding (or even providing the Commission with citation thereto).

Questions?  Oh, c'mon!  That whole question & answer thing is a charade!  It's not like some impartial fact finder is asking objective questions and expecting a truthful answer.  The attorney who writes the whole thing stacks the questions and answers to carefully support the party's desired conclusion. 

I'm not sure why they even bother with that format anymore.  It's not like it actually fools anyone.  I had a lot of fun once cross-examining a witness about the reality of testimony that he finally admitted he didn't write, and didn't even understand.  It was done by the company lawyer and another employee of the company with more expertise.  So, why didn't the company put up the testimony of the more knowledgeable employee?  Because he didn't have clean hands and was afraid of cross.  At any rate, sorry about that.  The coffee is high test this morning.

Zotos attornney Paul Neilan filed a reply to Invernergy's banal dreck and, once again, managed to make this drama pop.  It starts out with the premise

No Reasonable, Prudent Person Would Rely on Legal Conclusions Offered by Non-Lawyers in the Conduct of Their Own Affairs.

That's the rule, right?  Anything goes as long as it is something a reasonable, prudent person would rely on to make a decision.  We'll assume the ICC judge is a reasonable, prudent person who makes reasonable, prudent decisions for a living.  So, would our judge do this?

Under GBX's logic, a person faced with a legal problem could walk down to their corner bar, loudly announce their legal question, and then see who among the regulars looks up from their beer to offer legal advice. And that’s because the legal conclusions of GBX witnesses Sane and Shine, and those of the corner bar regulars, are all of a piece: equally unredeemed by any professional qualification to make them.

Probably not.  Neilan is king of the apposite analogy.  He writes circles around those stodgy, big firm automatons.  Neilan also gets into Invenergy's game of contradicting itself in different venues.  When your company will say anything to get ahead or win an argument, and has its corporate finger in so many legal pies, sometimes it's hard to keep it all straight.  As Judge Judy likes to tell us: "If you tell the truth, then you don't have to have a good memory."  Much better legal advice than Invenergy seems to be getting from its stable of expensive but ineffective legal servants.  Neilan demonstrates how Invenergy's Illinois testimony contradicts statements in its recent Complaint against MISO at FERC.  Different lawyers, different goal, different facts.

No matter what happens here, Neilan wins.  Even if the testimony in question is not struck, the judge knows  Invenergy's promises and legal conclusions are complete and utter hogwash, about as useful as a drunk truck driver's legal theory.

One of the issues in Save Our Illinois Land was whether the the interstate petroleum pipeline
carrier’s leak detection system, which could detect leaks of 1% of flow past a point in one hour, was safe. 2022 IL App (4th) 21008 at ¶¶7, 81-86. The Illinois Appellate Court upheld the Commission’s conclusion that it would not rule on whether a certain percentage leak detection rate was safe because doing so would substitute the Commission’s standard of safety when “...the safety regulation of petroleum pipelines is, as a matter of federal law, within the jurisdiction of the [[federal] Pipeline and Hazardous Materials Safety Administration].” 2022 IL App (4th) 21008 at 5 ¶87.
The same rationale applies to GBX Witness Shine’s implicit legal conclusion that this
Commission can make an enforceable agreement with GBX, a provider of FERC-jurisdictional interstate transmisison service, that GBX will not attempt to allocate the costs of its FERC-jurisdictional interstate transmission facilities without first obtaining this Commission’s approval and consent. As in Save Our Illinois Land, GBX’s offer leads this Commission to grossly transgress its jurisdiction. The legal conclusion on which that offer depends must be stricken from GBX
Witness Shine’s testimony.

Invenergy cannot change federal law to give the ICC jurisdiction over the allocation of costs of interstate transmission.  (And, besides, Invenergy is plenty busy trying to shove some of its costs off onto captive ratepayers in any way it can.)

And so ends this episode of As The Phrase Turns...  In our next episode:  Will Invenergy's lawyer be able to write his way out of a paper bag?