Related Reading
Standing in the Shadow of the Law
Knowledge is Power
-
Further Reading: May want to take a look at these to see the thinking of Child Protective Services: The DO’s and DON’T’s WHEN Falsely Accused : The Little Known “DIRTY TRICKS” of DCFS/CPS/DSS
-
Protect Yourself~Legal Insurance Before being ACCUSED: Foster Parents Legal Solutions
-
Useful Charts-
Basic Lawsuit Flow Chart (PDF File)
Third Party Visitation Rights by State
Informative eReference
Parental Rights & the Juvenile Justice System
~~~~~~~~~
Basic Knowledge for Understanding the Courts
Note from GranPa Chuck: Articles here are just an introduction to our legal system. There is no substitute for seeking Legal advice and learning the laws in your state. I have taken Most of the following information from emails, received from http://www.jurisdictionary.com/. Even though, this is an advertisement to purchase their legal program, there are a lot of terms that may be helpful in learning the basics of the legal system. As currently recommended, you should obtain a lawyer for legal advice. However, if you decide to represent yourself, Pro Se, this information should be helpful. (See note on Unauthorized Practice of Law) Either way, gaining knowledge, is one of the best defenses you may have. NFPCAR is not affiliated with this organization. (As with most of these pages, they can easily be printed for future reference)
Additional Note from Tips & Topics Newsletter Author: Although NFPCAR is not affiliated with the Tips & Tactics e-mails, one may want to consider this course. According to the Author of Jurisdcitionary and Tips & Topics, "...there are no substitute for our 24-hour step-by-step self-help course. There's much more to winning lawsuits than you can possibly learn by just reading Tips & Tactics newsletters. We send these to you who have ordered our course already and need a weekly reminder, and to those of you who need to order our course today!"
To Tips Index One of the biggest problems
pro se litigants run into is mis-reading the law. If you
don't know what the law says, you'll have a hard time getting the
courts to agree with you. Understanding statutory interpretation is
essential. (Related information:
Statutes State by State) (Pro se litigants are
people just like you, who either can't afford or don't trust
lawyers.) Statutory language can be
confusing. The words should be interpreted according to the rules of
statutory interpretation. The rules of statutory interpretation are
vitally important for you to learn ... if you want to win
your lawsuit! You need to know how courts
interpret what Congress or your state legislature really meant when
they wrote the law! Too many of you assume you know what the law
says, when the only opinion that counts is what the courts say the
law says. The best courts follow the rules of statutory
interpretation, and you need to learn these rules! The paramount rule for
interpreting statutes is that the words used by the legislature
should be given their "plain meaning". Courts should not play games
with the legislature's words. If a reasonable person would read the
word "bicycle" to mean a two-wheeled engine-less vehicle powered
only by legs and feet, then courts should not interpret that word to
include motorcycles. The law should say what it means and mean
nothing more. Words should be given a plain meaning, according to
the plain meaning rule. But, what if the
meaning is not plain? By the rule of ejusdem
generis (Latin: "of the same type"), courts should interpret
general terms at the end of specific lists as including only things
of the same type as those specifically mentioned in the list. For
example, if a statute lists "oranges, grapefruit, lemons, and
other fruit", the doctrine of ejusdem generis limits
the phrase "other fruit" to mean other citrus fruit. Apples
and pears are not included. The courts are allowed to assume the
legislature intended by "other fruit" to include all the many types
of citrus, kumquats, tangelos, limes, etc. When the legislature
lists items of similar kind and adds "and other", the doctrine of
ejusdem generis limits the word "other" to include only
items of the same type. Simple enough? Another rule of statutory
interpretation is inclusio unius, exclusio alterius (Latin:
include one, exclude others). If a statute specifically refers to
lemons (and does not mention limes or grapefruit or "other fruit"),
courts should obey this rule and not expand the legislative intent
to include limes and grapefruit. It is not the domain of our courts
to expand what the legislature says beyond what the legislature
specifically says! Know how judges are
supposed to read and interpret the law. Know the rules and how
to force everyone to play by the rules. Know how to draft
proper pleadings, know how to get admissible evidence into the
court's record, know how to move the court to enter orders favorable
to your cause, and use your legal knowledge to win in court!
~~~~~~~~~~~~~~~~~~~~~~
Interpreting Legal Statutes ...
How to Know What the Law Actually
Says!
To Tips Index
~~~~~~~~~~~~~~~~~~~~~~
Disorder in the American Courts
These are from a book called Disorder in the American Courts, and are things people actually said in court, Word for word, taken down and now published by court Reporters who had the torment of staying calm while. These exchanges were actually taking place. (Webmaster note: Please help me out. I need to find the actual book that these quotes came from I've seen these posted and some say they came from "Disorder in the American Courts" and others say they come from "Disorder in the Court". Very confusing. Would like to know to give proper credit or direction. But actually info should be basic Public Information since it was from the court room.)
ATTORNEY: What gear were you in at the moment of the
Impact?
WITNESS: Gucci sweats and Reeboks.
______________________________
ATTORNEY: This myasthenia gravis, does it affect
your
Memory
at all?
WITNESS: Yes.
ATTORNEY: And in what ways does it affect your
memory?
WITNESS: I forget.
ATTORNEY: You forget? Can you give us an example of
Something
you forgot?
______________________________
ATTORNEY: What was the first thing your husband said
To
you that morning?
WITNESS: He said, 'Where am I, Cathy?'
ATTORNEY: And why did that upset you?
WITNESS: My name is Susan!
______________________________
ATTORNEY: Now doctor, isn't it true that when a
person
Dies
in his sleep, he doesn't know about it until the
Next
morning?
WITNESS: Did you actually pass the bar exam?
______________________________
ATTORNEY: The youngest son, the twenty-one-year-old,
How
old is he?
WITNESS: Uh, he's twenty-one.
______________________________
ATTORNEY: Were you present when your picture was
Taken?
WITNESS: Is this a trick question?
______________________________
ATTORNEY: So the date of conception (of the baby)
was
August 8th?
WITNESS: Yes.
ATTORNEY: And what were you doing at that time?
WITNESS: Uh.... I was getting laid!
______________________________
ATTORNEY: She had three children, right?
WITNESS: Yes.
ATTORNEY: How many were boys?
WITNESS: None.
ATTORNEY: Were there any girls?
WITNESS: Are you kidding me? Your Honor, I think I
Need
a different attorney. Can I get a new attorney?
______________________________
ATTORNEY: How was your first marriage terminated?
WITNESS: By death.
ATTORNEY: And by whose death was it terminated?
WITNESS: Now whose death do you suppose terminated
it?
______________________________
ATTORNEY: Can you describe the individual?
WITNESS: He was about medium height and had a beard.
ATTORNEY: Was this a male or a female?
WITNESS: Guess.
______________________________
ATTORNEY: Is your appearance here this morning
Pursuant
to a deposition notice which I sent to your
Attorney?
WITNESS: No, this is how I dress when I go to work.
______________________________
ATTORNEY: Doctor, how many of your autopsies have
you
Performed
on dead people?
WITNESS: All my autopsies are performed on dead
People.
Would you like to rephrase that?
______________________________
ATTORNEY: ALL your responses MUST be oral, OK? What
School
did you go to?
WITNESS: Oral.
______________________________
ATTORNEY: Do you recall the time that you examined
the
Body?
WITNESS: The autopsy started around 8:30 p.m.
ATTORNEY: And Mr. Denton was dead at the time?
WITNESS: No, he was sitting on the table wondering
why
I was doing an autopsy on him!
______________________________
ATTORNEY: Doctor, before you performed the autopsy,
Did
you check for a pulse?
WITNESS: No.
ATTORNEY: Did you check for blood pressure?
WITNESS: No.
ATTORNEY: Did you check for breathing?
WITNESS: No.
ATTORNEY: So, then it is possible that the patient
was
Alive
when you began the autopsy?
WITNESS: No.
ATTORNEY: How can you be so sure, Doctor?
WITNESS: Because his brain was sitting on my desk in
a
Jar.
ATTORNEY: I see, but could the patient have still
been
Alive,
nevertheless?
WITNESS: Yes, it is possible that he could have been
Alive
and practicing law
http://www.jokesclean.com/Legal/
~~~~~~~~~~~~~~~~~~~~~~~~~~~
How to Use Depositions
Hire a lawyer and the first thing he'll do is start scheduling depositions -- even before he knows what the case is about.
We explain how to get evidence from the opposing party and from non-parties so you know what questions to ask BEFORE you take depositions. That way you can use the evidence when questioning witnesses at depositions.
It just make good sense to do so.
For example, consider how much more powerful it is to force the other side to admit what a contract means, when you have a copy of the contract to wave in his face at the deposition. Or, consider how much more you can learn from a witness at deposition if you already have answers to questions you posed with written interrogatories, responses to requests for admission, and papers and other things obtained with subpoenas and requests for production.
We show you how to get evidence before you take depositions, so you can ask intelligent questions of deposition witnesses, instead of going on a "fishing expedition" the way most lawyers do!
Jurisdictionary
~~~~~~~~~~~~~~~
What Good are Courts? ...
Too many judges seem biased. Too many lawyers seem willing to bend every rule and even cheat to win. And, too many web-based amateurs offer "silver-bullet" methods that simply do not work!
What can YOU do?
The first thing you must do is understand that (aside from the corruption we all see far too often) our courts can be a good thing ... for those who know how to use the courts' power.
Think about it!
With a signed court order in your hands, you can command people to do things they do not wish to do! You can make them pay you money. You can make them stop doing things you don't like, or you can make them start doing things you want. All against their will. And, it doesn't matter who those people are or how special and important they think they are. A court order is a very powerful thing to have.
If the order comes from a state court, it commands "each and several the Sheriffs of the state" to do whatever the order says. It can command the Sheriffs to take someone into custody and lock them in a jail cell. It can command the Sheriffs to seize the property of people who owe you money. It can even command the Sheriffs to protect you from other government agencies!
If the order comes from a federal court, it directs the United States Marshal Service to carry out its commands anywhere in the nation or the protectorates. In some instances, a federal court order can even control people beyond our borders!
Very powerful stuff.
This Power Belongs to YOU!
Many know how some judges are corrupt, some lawyers crooked, and every opponent anxious to win!
The very worst thing you can do is go to court with a chip on your shoulder! So what if the judge is corrupt? So what if the lawyer on the other side is crooked? So what if your opponent is hell-bent on winning? We urge you to go into every courthouse battle assuming those things from the outset. The judge may be just. The lawyer on the other side may be honest and fair. But your opponent will always be hell-bent on winning. So, it's always a good idea to assume the very worst and enter the battle with the knowledge and tactical skill you need to win no matter what the odds against you might be!
It does absolutely no good at all to complain that the other side isn't "playing fair" or that the judge isn't "following the law". No. No. No!
Our court "system" is a good thing. Some of the people who work in it aren't worth the dynamite it would take to blow their nose ... but the "system" itself, i.e., the Rules of Procedure and the Rules of Evidence are FAIR FOR EVERYONE!
IF, that is, you know how to use them.
To Tips Index
~~~~~~~~~~~~~~~~~~~~~~~~~~~
Keep It Simple~Learn Your Basics
Too many words ruin the argument.
Yet, many of you are using far too many words to carry your case forward, and it's hurting you!
A well-played lawsuit is a simple machine with only a few essential parts. There are:
-
Motions
-
Memoranda (supporting or opposing motions)
-
Discovery Requests
-
Notices
Orders
That's pretty much it.
These are your tools, designed to accomplish specific tasks or objectives ... and, like tools, they must be sharp if you want them to do the job effectively!
Many inexperienced lawyers and most pro se litigants (who go to court on their own without licensed counsel) go on and on and on, when only a few simple sentences would do what's needed.
As a consequence, instead of strengthening their case, they weaken it by introducing issues that have nothing to do with the out come!
~~~~~~~~~~~~~~~~~~~~~~~~~~
Lawsuit's Winning Hand ...
If you hold the winning hand In a game of poker you call your opponents' bets, lay your cards on the table, and collect your winnings. You don't see the other side's cards until the game is over.
In a lawsuit you must make the other side show his cards as quickly as you can. You should never wait until trial to see what he has. Winners force the other side to show his hand before trial.
Winning lawsuits is all about getting the other side to show his cards before trial. Lawyers are trained to use every dirty trick in the book to hide the facts and then use "gotcha" tactics to surprise you with those facts at trial. That's how crooked lawyers win.
Most lawyers respond to discovery with words like, "Objection. Overbroad, vague, ambiguous, seeks to inquire into the attorney client privilege, and exceeds the scope of discovery."
Your request may be none of those things. Doesn't matter. The typical crooked lawyer will respond with such objections anyway, knowing your winning hand is useless unless you can prevent him from hiding the evidence so he can surprise you at trial.
When you receive a response like this, immediately file a motion to compel discovery. Set your motion for hearing and support your motion with a well-cited memorandum of law that you can argue at the hearing to make your record that the information you seek is discoverable information you have a right to know before trial.
Holding the winning hand in a lawsuit means having the facts and law on your side ... but that's not enough. You must make the other side show his cards before the game is over.
Be clever in presenting your case and merciless in forcing the other side to produce evidence without the usual lawyer tricks.
Winning lawsuits is easy, once you force the other side's hand!
Don't get fleeced like innocent sheep. Offering your own evidence and expecting the judge to do "what's right" is foolish. The other side will play every dirty trick in the book to hide his evidence and, if he is represented by a licensed lawyer, the judge will probably allow it. Don't think for a minute you can simply lay your cards on the table and hope for the best. Sheep lose lawsuits.
Be sly like a fox! Anticipate the other side's crooked tactics and never trust the judge to do what's right. Make your record. Use all five of your discovery weapons, then force the court to compel the other side to show his cards at once!
If you hold a winning hand, you shouldn't have to go to trial ... if you play your cards right!
If the other side doesn't have a winning hand they can only win by hiding the evidence. Don't let them!
That's how you win!
To Tips Index
~~~~~~~~~~~~~~~~~~~~~~~~
What Would George Do ?
General George Washington has been called "The Father of our Country".
When our government has us in an unwinnable war, is torturing prisoners, and is ignoring the fundamental right of habeas corpus, while trampling on our sacred right of privacy in the name of its war on terror, let us ask, "What would George do?"
Some might say, "Take up arms!" but we all know that won't work.
Some say, "Tell all your friends," but what good is it for them to know what's wrong if they don't know how to fix it?
It's up to the people to save the Constitution!
So, what's missing? Why are our Constitutional rights threatened in these troubled post-911 times?
Answer? The People don't know how to control the courts!
Not yet.
Not enough of you ... not yet.
You CAN control the courts ... and win ... and save the Constitution in the process.
But, YOU have to make an effort.
YOU have to learn the tools and tactics necessary to keep judges in line and prevent crooked lawyers from stealing the truth!
YOU!
You cannot wait for someone else to do it for you.
It's up to YOU!
If George were alive today, he would tell you what he said in his Farewell Address, published soon after he left office as our first, and perhaps our greatest, president. He said, "Promote, as an object of primary importance, institutions for the general diffusion of knowledge. In proportion as the structure of a government gives force to public opinion, it is essential that public opinion should be enlightened."
Yet, public opinion in America is anything but enlightened. We are lied to by everyone from our children's public schools to the corrupt politicians who promise what they never intend to deliver. George urged us to seek unity, to uphold the Union, and to educate ourselves so we can serve our nation as a People Enlightened.
Instead we have trusted our nation and the future of our children to judges and lawyers who alone are allowed to mold the morality of our nation through their deceptive abuse of due process and The Rule of Law in our courts.
George said, "Observe good faith and justice towards all Nations; cultivate peace and harmony with all." How much farther from his good advice will we dare to allow our leaders to drag us?
The task before us is simple. Will YOU do YOUR part?
Stop political corruption by learning how to control our courts!
To Tips Index
~~~~~~~~~~~~~~~~~~~~~~~~~
Courtroom Apples & Oranges ...
Want to win?
You must stop your opponent's lawyer from playing the apples and oranges game.
After more than 22 years as a licensed attorney practicing in state and federal courts, I believe most winnable lawsuits are lost because the loser didn't know how to demand that apples are NOT oranges.
Crooked lawyers twist the truth. They play games with words. In my 22 years of practice, they did everything they could to confuse the court ... whether it was the truth or not.
Apples are round. So are oranges.
Apples are fruit. So are oranges.
Apples are good for you. So are oranges.
Apples are oranges.
No!
Pay careful attention to the lawyer on the other side!
Be prepared with this ancient maxim of law so you can jump to your feet, "Objection, your honor! A thing similar is never exactly the same!"
Don't let the other side trick you!
To Tips Index
~~~~~~~~~~~~~~~~~~~~~~~~~~~
Due Process
An essential maxim of law states simply, "A judge who rules without first hearing both sides, though his judgment may be just, is not himself just."
Justice implies this essential right to be heard.
One might rather say, true justice requires the right to be heard. The court should give both parties an equal opportunity to present the facts and law on which the court is required to rule with regard to those facts. Each side has a different point of view, but both are given an equal chance to argue their case free from the court's prejudice or penalty.
Anything less is ... well ... un-American!
But!
Simply arguing to a judge that your "constitutional rights have been violated", and expecting such a simplified argument to move the court to do something in your favor is a waste of time.
Courts don't operate that way - nor should they.
Courts act on pleadings and motions (usually after a hearing where both sides argue their motions in person or after the court has read and considered written motions supported by memoranda and responses in opposition.
The average courtroom is witness to dozens of complex and sometimes heated legal arguments in the space of an average day. The typical judge reads hundreds of pages of pleadings, motions, notices, and memoranda - not to mention official documents and court records - between the time the judge arrives at the courthouse in the morning and the hour when the judge finally heads home to be with family at the end of the day. Multiply this judicial workload by the number of judges in a typical courthouse, then multiply by the number of days in a year, and you quickly realize why there must be order in the court.
Courts have strict rules that govern everyone
At least, that's the way it's supposed to work!
If you don't understand how to draft powerful pleadings and move the court with persuasive proof, you don't stand a chance against an experienced lawyer.
To Tips Index
~~~~~~~~~~~~~~~~~~~~~~~~~~~
Proper Pleadings
Many people who draft their own
pleadings and insist on telling the court
what they had for breakfast that day, how many children they
have, and other non-essentials ... getting their cases off
on the wrong foot and promoting the probability they will
lose.
Most of these are nothing but a "letter to the judge" ...
not true pleadings at all.
Lawsuit pleadings have particular purposes. Telling a sad
story is not one of them!
---> Establish the Court's jurisdiction.
---> Allege only facts that relate to causes of action.
---> Demand a favorable judgment from the court.
---> For discovery purposes allege such additional facts
as you anticipate the other side will admit so you don't
have to use your valuable discovery tools later to get those
facts in the record.
Pleadings should be a tersely pointed presentation of the
facts and law that support a favorable judgment ... leaving
the non-essential details to be filled-in later with
discovery.
Add NO FACTS that do not relate to the essential elements
of causes of action unless you are doing so for discovery
purposes.
Make certain you allege all essential facts necessary to
your position ... and add no more facts.
Be concise.
Use a stiletto instead of a club to undo your opponents.
And
never make the mistake of thinking you can
win a lawsuit by writing a "letter to the judge".
To Tips Index
~~~~~~~~~~~~~~~~~~~~~~~~~~
Allegations & Proof
To win your case:
-
Allege all the Facts
-
Prove all the Facts
Alleging all the necessary facts is like drawing plans for a workshop project. You make a detailed drawing of all the parts and how they fit together. Expert workmen always begin with a plan, then they follow their plan.
Pleadings are your lawsuit blueprint ... whether you're a plaintiff or defendant. Pleadings are the tool you use to allege all the facts that support your case. They give you and the court a clear vision of the final result you seek. In your blueprint pleadings you set out the facts that support the legal basis that requires the court to rule in your favor.
Failure to start with powerful pleadings always results in a weak case and foreseeable failure in court.
Your pleadings' weakness is the other side's strength.
If you're a plaintiff, the blueprint is a "complaint" in which you allege all ultimate facts necessary to support all essential elements of your cause(s) of action (what federal courts call a "claim on which the court can grant relief"). You make it clear that the court is obligated to rule in your favor if you prove your alleged facts by the greater weight of admissible evidence.
If you're a defendant, your blueprint is an "affirmative defense" in which you allege all ultimate facts necessary to support all essential elements of your defenses. You counter the plaintiff's allegations of fact with allegations of your own. Prove the facts of your affirmative defenses by the greater weight of admissible evidence.
Most pro se people (non-lawyers going to court on their own) draft pleadings as if they were writing a "letter to the judge", weaken their case at the very start by failing to lay out a powerfully complete blueprint for their proofs.
To Tips Index
~~~~~~~~~~~~~~~~~~~~~~~~~
What is Hearsay Evidence?
You must understand what hearsay is if you want to win in court.
It isn't what you think it is.
In court, "hearsay" has a very technical meaning that you must understand completely
Let's start with a simple definition of hearsay.
"An out-of-court statement offered to prove what it says."
Consider the first part of the definition.
What is an out-of-court statement? Well, it's just what it says, a statement made by someone somewhere other than "in court". Such statements may be made in writing, verbally, or painted in the sky with smoke trails from an airplane. If the statement is not made in court, it is an "out-of-court statement".
But, there's more! If a statement is made at a deposition where a certified court reporter is creating a transcript, it is considered as being made "in court". Both sides are invited to participate in depositions and ask questions, so neither side can complain they didn't have an opportunity to examine the deponent witness under oath. Courts treat deposition statements as being "in court".
The key point to latch onto here is that both sides have an equal opportunity to question the person making the statement under oath. A statement made by a witness at a deposition may in fact be hearsay, if the witness is testifying to what someone else said, but it is what the other person said that is hearsay ... the part that was said out-of-court by someone who could not be questioned under oath by both sides.
If the person who actually made the statement - the pilot in a sky writing airplane or the unknown author of some cryptic intra-office memo, for example - is not "in court" under oath and subject to be cross-examined, the statement is inadmissible hearsay (unless it falls into one of the exceptions).
Now for the interesting second part.
Is the statement offered to prove the truth of what it says?
If an out-of-court statement is not offered to prove what it says, it is not hearsay ... even though the statement is made out-of-court, is not under oath, and neither side has an opportunity to cross-examine. In order for a statement to be hearsay, it must be offered to prove the truth of what it says!
"She said she'd bake a cake after church next Easter Sunday." If a witness testifies her neighbor said this, and if the other side objects, you should make clear to the court that the statement is not hearsay. If the witness testifies to what her neighbor said she was going to do, then the out-of-court statement is only offered to prove what the neighbor said, not that what she said was true. If it isn't offered to prove the neighbor actually went to church or baked a cake, then it isn't hearsay ... even though it was an out-of-court statement.
Don't let the other side trick you!
You must fully understand hearsay and the hearsay exceptions if you want to win your case.
To Tips Index
~~~~~~~~~~~~~~~~~~~~~~~~~
Admissibility of Evidence
The most critical thing about evidence rules is how they apply to "admit" certain matters to be considered by the court and limit or exclude other matters.
This first classification of evidence rules, therefore, deals with admissibility.
A witness statement, for example, might tend to prove or disprove some of the issues in controversy (i.e., it might be "relevant" to the outcome of your case) and yet be inadmissible for one or more reasons. Being relevant alone, is not enough. Other factors must be considered before the court can determine if evidence is admissible. Each of these will be covered in detail during this tutorial. Some those factors follow.
-
Relevance - ability to prove or disprove an issue material to outcome of the case
-
Credibility - reliability of witness or tangible evidence
-
Privilege - protection afforded certain kinds of evidence (e.g., attorney-client)
-
Prejudice - tendency to confuse, mislead, or waste time
If a party offers evidence that is not likely to prove or disprove any issue material to the outcome of the case, not worthy of being relied upon as true, protected by a privilege, or likely to cause prejudice that may outweigh its ability to prove or disprove any issue, it should be excluded as inadmissible, and an appropriate objection should be made as soon as possible - preferably before the court hears the evidence.
Unless a matter is admissible, it should never be heard by the court. If it gets in by accident (the too-frequent result of unlawful efforts of parties trying to get away with whatever the judge will allow) the matter should not be considered by the court.
It should have no bearing on the outcome of the case. Of course, once it's in, it's in!
Only admissible evidence should be considered by the court.
The Lawyer's Little Red Toolbox ... #2
A few more warning tips about the little red toolbox of tricks and traps lawyers use to throw you off track and put you at a disadvantage.
Conversational Style: Winning lawsuits requires you to use words precisely to get certain facts (and only those facts) into the court's record. Lawyers will try to get witnesses (including you, if you are called as a witness in court or at a deposition) to forget what's important and, instead of concentrating only on the vital facts, get into a "conversation" with the lawyer. Never do it! The lawyer wants to get things off track, to confuse the court with useless information, or to make the court believe there is more to the case than there truly is. It's hard enough to win a case without being required to argue about facts that can have no bearing on the outcome. Yet, that's just what lawyers often do. When you are being questioned, answer as if you can see the words you say being typed onto a page for the appellate court to read, if you have to appeal. Speak slowly. Thoughtfully. Always count 1-2-3 before answering any question. Think about the answer and its effect on the record. And teach your witnesses to do the same!
Court Reporters: There is nothing - absolutely nothing - more important than "making a record" of everything that takes place in a court proceeding. When you go to court without a court reporter to transcribe the proceedings, you open the door for the judge to do whatever he or she feels like doing - because the judge knows that without a transcript record there can be no appeal. Judges fear the record! Judges cannot be judged without one. We emphasize this in our 24-hour self-help course. NEVER go to a hearing or trial unless you are CERTAIN the proceedings will be transcribed AND that you will be able to get a certified transcript if the judge allows errors that hurt your case! If the lawyer on the other side assures you that a court reporter has been hired, DO NOT TRUST HIM OR HER TO BE TELLING THE TRUTH. Ask to know the name of the court reporter and MAKE CERTAIN they will attend. Otherwise, hire your own court reporter! Remember: You don't always need a transcript, but if you need one and don't have it, you're busted!
Citing Cases: More often than you might believe, lawyers cite cases without reading them! Lazy lawyers typically read only the "headnotes" that are added by editorial staff, without taking time to read the official opinions of the appellate court. Don't make this mistake! A few years ago opposing counsel filed a memorandum citing more than three-dozen cases none of which applied to the facts! If I hadn't taken time to read those cases to see what the appellate justices actually said, the lawyers on the other side would have prevailed with their ruse! Never assume the judge will read the cases cited by your opponent. Read the cases! Visit the following link to see the highlighted headnotes of an important case. The highlighted "headnotes" are not official and do not control the trial judge in any way! Read all your cases and all their cases, so you can argue effectively and win your lawsuit!
To Tips Index
~~~~~~~~~~~~~~~~~~~~~~~~~
The Lawyer's Little Red Toolbox ... #3
You sent so many emails thanking us for our "Little Red Toolbox" series, we decided to send a few more warning tips again this week so you can be prepared for the lawyers' little red toolbox of tricks and traps they use to throw you off track and put you at a disadvantage.
We mailed it, your Honor: Occasionally, a lawyer will claim he mailed a motion, notice, or other important paper to you, when in fact the paper never got mailed ... and the court will be inclined to believe the lawyer! Believe me. It happens. What can you do? If the paper required you to respond within a certain time frame, and you didn't get the paper, there may be harsh penalties. What you must not do is try to take advantage of the situation and claim you should not be required to respond because you didn't get the paper. If you do this, the court will surely shoot you down. Instead, calmly assure the judge that you will be pleased to respond to the paper, but you didn't get it. Perhaps the postal service lost it. They do, you know! Do not accuse the lawyer of lying, even though he may be lying. It could also be his secretary forgot to mail the paper or lost it. She will try to save her job by insisting that she mailed it. Any attempt on your part to discredit the lawyer or his staff will only work against you. Instead, assure the judge that you will happily respond to the paper you did not receive, and move the court for an order giving you a certain amount of time to do so. Of course, it's always a good idea to cite controlling appellate cases that favor court leniency in such matters. Then, if the judge refuses to give you more time to respond, you are prepared for appeal.
We never received it, your Honor: Yes, this happens, too. At the very worst time possible, the lawyer on the other side may claim he never received an important paper you sent to his office. How do you deal with this? Simple. Never rely on mail alone. Even certified mail gets lost now and then. Mail your papers, by all means, but follow-up with fax and, if the document is particularly important, have it hand-delivered by a disinterested person who can give oath that the paper was delivered on time and handed to a particular person in the lawyer's office. Print a fax log after all faxes to opposing counsel, and staple the fax log to your copy of the document. Pay the few extra pennies for delivery confirmation at the post office. Certainly, not all lawyers are crooked, but enough are that you simply must anticipate that sooner or later they will show up in court with the excuse that they never received what you sent. Mail with delivery confirmation. Fax with fax log. Hand-deliver by someone reliable who can swear delivery was made. By doing this you put a stop to the "We never received it" game that some lawyers think is sport.
To Tips Index
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When to Take Depositions
I love to take depositions!
Especially when the deponent (i.e., the witness being deposed) is the opposing party, whose crooked lawyer is trying to hide evidence I need to win my case!
You can make them fidget and squirm. You can make them sweat bullets.
You can depose any witness who has or may have admissible evidence relative to your case. You can subpoena them for a deposition before trial, so you'll know what they are going to say before trial.
Here are 4 critical things to remember about depositions:
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Get as many facts as you can before the deposition.
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Stick to the essential fact elements.
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Obey the rules of evidence.
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Object when the other side breaks those rules.
#1 -- Get as many facts as you can before the deposition.
Even experienced lawyers mistakenly take depositions too early in the case. I've never understood why, unless they really don't care if they win or lose so long as they can charge their clients money for the time they spend uselessly spinning litigation wheels and throwing mud against the walls to see how much will stick! After all, law school professors aren't lawyers. A law school education doesn't really tell you much about winning lawsuits the easy way. I think many lawyers just don't know any better. They all know that the longer they can drag out a lawsuit the more money they can take from their clients, so what difference does it make if they take a few depositions too early?
You usually get just one chance to question each witness under oath before trial. That's what depositions are for. You get only one chance to put a witness under oath and ask what the witness knows about the essential facts of the case. If you aren't prepared for the deposition and later decide you want to call the witness in for additional questioning before trial, you'll be very disappointed. The court will not allow it, unless you can show the witness lied at the first deposition or some equally extreme circumstance justifies your getting another bite at the apple. You had your chance.
You get just one chance to depose each witness.
It doesn't make sense to go to trial without first knowing what all the witnesses are going to say, yet lawyers do it all the time.
It amazes me how the supposedly clever lawyers on Law & Order and other TV shows are surprised when their own witnesses tell a tale different from what they said when they were interrogated by the detectives or even the lawyers themselves, who apparently assume their witnesses would never lie! If they'd put these people under oath and ask their questions before trial, they would know what the witnesses are going to say. And, if the witnesses choose to change their tune at trial, the lawyers would have the ability to prosecute them for perjury.
Never assume a witness is going to stick to the story he tells when you question him informally before trial. You can never know what a witness will say when trial time rolls around, unless you depose the witness under oath to create a sworn written transcript you can use at trial to keep the witness straight!
Use your subpoena power and requests for production to get the documents and other things you need to prove the essential fact elements you need to win your case. Use interrogatories and requests for admissions so you have even more of the essential facts at hand. Then, and only then, are you ready to schedule your depositions.
That way, when the court reporter swears the witness in at the deposition, you can ask the deponent questions about things you wouldn't have known about if you'd scheduled the deposition earlier in the case ... like stupid lawyers do.
The one exception is when you have a witness who is on death's door or otherwise about to leave the court's jurisdiction. For those witnesses, of course, you'll want to take their depositions early. But, again, if a few days' delay will give you more facts to question them about, put off taking the deposition as long as possible.
Since most opponents hedge their responses to discovery tools, trying to "hide the ball" with "smoke and mirrors" tactics, it just makes sense to delay taking depositions until you have as much as possible of your discovery completed. That way you'll have the factual ammunition you need to blow the liars out of the water and win your lawsuit, instead of being victimized by the typical lawyer-orchestrated tricks of the trade that too often pervert justice in our courts!
To Tips Index
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Evidence Admissibility and Discovery ...
Don't let the lawyer on the other side throw you a curve ball by objecting to your pre-trial evidence discovery requests on the grounds that the information you seek will not be admissible at trial.
It doesn't have to be admissible!
Mark my words and don't let the lawyer trick you into giving up!
If you spend much time fighting lawyers over the facts you need to win your case, sooner or later they'll object to your discovery requests on the grounds that the information you're trying to get is not "admissible" ... and you'll win the court's favorable decision.
You have five (5) tools to discover evidence before trial.
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Requests for Admissions
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Requests for Production
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Interrogatories
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Depositions
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Subpoenas and other Court Orders
Pre-trial evidence discovery is not bound by trial rules!
Once you get to trial every piece of evidence you try to present to the court must be admissible evidence ... or the court will keep it out.
During the pre-trial discovery phase of your case, however, the facts you seek do not have to be admissible ... so long as they are reasonably calculated to lead to the discovery of evidence that will be admissible at trial.
Check your local court rules and you will find this is true. You may have to teach the judge what's-what, but the rules are clear. Facts you seek during pre-trial discovery do not have to be admissible if they are reasonably calculated to lead to the discovery of facts that will be admissible evidence when presented at trial.
Trap crooked lawyers in their own web of deceit.
To Tips Index
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More on Admissibility of Evidence
The most critical thing about evidence rules is how they apply to "admit" certain matters to be considered by the court and limit or exclude other matters.
This first classification of evidence rules, therefore, deals with admissibility.
A witness statement, for example, might tend to prove or disprove some of the issues in controversy (i.e., it might be "relevant" to the outcome of your case) and yet be inadmissible for one or more reasons. Being relevant alone, is not enough. Other factors must be considered before the court can determine if evidence is admissible. Each of these will be covered in detail during this tutorial. Some those factors follow.
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Relevance - ability to prove or disprove an issue material to outcome of the case
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Credibility - reliability of witness or tangible evidence
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Privilege - protection afforded certain kinds of evidence (e.g., attorney-client)
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Prejudice - tendency to confuse, mislead, or waste time
If a party offers evidence that is not likely to prove or disprove any issue material to the outcome of the case, not worthy of being relied upon as true, protected by a privilege, or likely to cause prejudice that may outweigh its ability to prove or disprove any issue, it should be excluded as inadmissible, and an appropriate objection should be made as soon as possible - preferably before the court hears the evidence.
Unless a matter is admissible, it should never be heard by the court. If it gets in by accident (the too-frequent result of unlawful efforts of parties trying to get away with whatever the judge will allow) the matter should not be considered by the court.
It should have no bearing on the outcome of the case. Of course, once it's in, it's in!
Only admissible evidence should be considered by the court.
To Tips Index
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Getting Evidence ...
To win your lawsuit, you need evidence.
This may surprise you, but the evidence you already have may not be the evidence you need.
The best evidence is evidence you force the other side to produce or admit ... evidence they cannot deny or challenge.
Suppose you took a photograph of some damages you want the court to see. You could march into court with your photo and insist the picture you took accurately portrays the damages, but you've opened yourself to all kinds of objections. Anyone with a computer can doctor photographs. Your claim of authenticity will fall on deaf ears when the other side objects. You know the photo is an honest depiction of the damages, but the court does not. Even if you get it admitted into evidence, the court will look on it with suspicion.
Suppose, instead, you use one of your pre-trial discovery tools, attaching a copy of the picture to a request for admissions. In this way you require your opponent to admit the photo is accurate, that it shows the damages with reasonably accuracy. If he denies it, you can use your other discovery tools to show he is a liar. If he admits it, your evidence has been authenticated before trial ... with no risk.
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Now the opposition cannot object.
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The evidence comes in.
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And, the court will treat it as reliable.
You should do the same with documents and other things. Your copy of a contract, for example, may be authentic but, if you wait till trial to offer it as evidence, the other side will surely object on the grounds it is not the original. Attach it to a request for admissions and demand that the other side admit its accuracy before trial. That way there can be no objections when the chips are down.
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Winning lawsuits is easy, once you get the evidence you need.
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Don't wait until trial to present your evidence for the first time.
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Get all the evidence in before trial!
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Why risk losing?
To Tips Index
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Arguing Motions
So, you've drafted your motion, filed it with the clerk, sent a copy to the judge, and served the other side. You've supported your motion with a carefully-researched and well-written memorandum, setting out relevant facts and legal arguments why the court should grant your motion.
You've scheduled hearing time with the judge's Judicial Assistant agreeable to the other side. You've filed your Notice of Hearing with the clerk and sent a copy to the other side (by fax and mail).
Now the day is here. Hearing time!
You've taken your seat. The courtroom doors have closed behind you. The bailiff announces, "All rise!"
Enter the judge. Everyone stands. The judge looks around the room before saying, "Please be seated."
Don't sit down!
The judge will announce the hearing, telling everyone including the court reporter you brought to write things down (You did bring a court reporter, didn't you?), "We're here on case number 05-123, Peter Plaintiff versus Danny Defendant. This is the plaintiff's motion for summary judgment. Mr. Graves, please proceed."
The movant goes first. It's your motion. You're the movant.
Don't let the other side interrupt. This is one of the most egregious things crooked lawyers do. They will jump to their feet and interrupt as often as the judge lets them get away with it.
After the second or third interruption, stop your presentation long enough to request of the court, "Your honor, I have only a limited time to present my argument. May I proceed without interruption?"
Even if the court allows your opponent to continue interrupting, at least there will be less tendency for the judge to overlook obvious rudeness designed to disrupt your concentration. If the other side doesn't have a valid objection, you should insist on being able to speak without interruption. Often a good thing to say is, "Your honor, I need to make my record here, and counsel is interrupting with no legitimate purpose other than to prevent me from doing my job."
You have a right to be heard. It's been bought for you by the blood of men and women who died for your right to be heard.
Remember this, and demand to be heard.
To Tips Index
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Why Use Courtroom Objections
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Objection: Facts Not In Evidence!
Not infrequently you'll catch a lawyer "reminding" the court of facts that have never been properly introduced into evidence ... no documents, no witness testimony, nothing but the lawyer's sneaky wordwork!
When a lawyer needs missing facts to win his case, he may try to sneak them in ... without witnesses, without documents, without anything at all ... against the rules!
This will happen at hearings, at depositions, at trial, and in written memoranda, motions, and other papers submitted to the court.
He may "remind" the court of facts never introduced into evidence, or he may make mention of the missing facts while questioning a witness, as if the facts were already in.
You must stop it immediately with a timely objection! "Objection, your Honor! Facts not in evidence!"
Such facts will be sneaked in. You can count on it, if the other side is represented by a lawyer. It usually happens because the lawyer doesn't have any witnesses, documents, or other things he can bring to court that might tend to establish the facts fairly by the use of admissible evidence ... so the lawyer cheats!
His case is weak, and he knows it.
He also knows it's against the rules for him to mention facts that are not in evidence ... but expect him to do it anyway.
If he can't call a witness to get the evidence in, and he can't find some tangible item or document of some kind to get the evidence in, he'll just go ahead and talk about it as if it were already an established fact ... if you allow it by failing to object!
Usually, the lawyer will simply go ahead and state the fact himself while examining a witness or during his closing statement ... when there is nothing in evidence to support it ... and hope you don't notice that he has offered inadmissible evidence unlawfully.
You will stand to your feet at once!
"Objection, your Honor. Facts not in evidence."
If the judge is a good one, he will instruct the lawyer to confine his recitation of facts to those that have already been admitted and, if it's a jury case, he will instruct the jury to disregard the lawyer's statement.
Here's an example. Consider yourself the defendant in a breach of contract suit. You've been accused of taking 300 gallons of red paint from plaintiff's warehouse without paying for it.
The lawyer on the other side is working hard to prove you owe his client money, and he is trying to paint his client in the best possible light, trying to show his client is an honest fellow who would never sue someone without cause ... even if he has to break the rules to do so!
He off-handedly says, "My client was busy working as a volunteer at his church soup kitchen while the defendant was stealing paint from my client's store."
There are no facts in evidence to support this statement.
The lawyer hasn't called any witnesses to corroborate either fact.
No documents nor anything else has been presented to the court to substantiate this biased claim.
The lawyer is testifying (in itself objectionable, as you'll learn in our complete self-help course) but the facts he offers have not been presented to the court by any witnesses, documents, or other things that might make those facts admissible.
You stand to your feet at once and say, "Objection. Facts not in evidence."
It is clearly permissible for a lawyer to remind the court what a particular witness may have testified when previously questioned. If a witness offered evidence that you did load paint into your truck on such-and-such date at such-and-such time, then it's perfectly permissible for the lawyer to remind the court by saying something like, "The court will recall the testimony of the plaintiff's secretary, Miss Scarlet, who told how she was enjoying a cigarette on the loading dock that day when she saw the defendant back his truck up to the warehouse door and carry the plaintiff's paint away."
That's not only permissible - it is good lawyering and perfectly proper.
It is equally permissible for the lawyer to offer evidence that his client was at his church serving soup to the homeless on that date and at that time, provided he does so by offering competent witness testimony, original documents, or other things that tend to prove what he says. If he previously called the priest or pastor of the church to the stand and obtained competent testimony reporting that the plaintiff was doling out soup at the time of the alleged taking, then he can remind the court of evidence already admitted. It may be objectionable on the grounds it isn't relevant where the pastor was when the paint was allegedly taken, but is otherwise good lawyering, if the facts are in evidence when the lawyer mentions them.
It is never permissible for a lawyer (or pro se litigant) to simply offer facts without corroboration.
Never.
Object on both grounds!
"Counsel is testifying."
"Facts not in evidence."
Lawyers are not supposed to "prove" cases by clever legal argument supported by their own version of the facts ... yet you can count on them to do so IF YOU DON'T OBJECT!
A lawyer's version of the facts is, by itself, inadmissible and will be excluded by a good judge if you object!
It is your job to require the opponent's lawyer to prove his clients' right-to-win by presenting admissible evidence ... and admissible evidence only!
If the lawyer does otherwise, object!
If you do not control the lawyer on the other side, the lawyer will do whatever he can to win his case ... and most judges will allow it, if you don't object!
Don't trust the lawyer on the other side, no matter how clean-cut and well-dressed he may appear. There's a good reason why there are more jokes about lawyers than any other profession. Too many lawyers are outright crooks, eagerly willing to twist the law at every opportunity.
And, don't expect the judge to control the opposing party's lawyer for you! He won't in most cases. It isn't his job. He is responsible to rule on objections. He cannot rule if you don't object!
It's up to you to object!
So, object ... and, if necessary, renew your objections.
And, if the court refuses to rule, move the court to do so!
And, if that doesn't work, object once again - and make certain the court reporter is getting every word!
If you have a lawyer, don't trust him to object when needed. Many lawyers will not object, simply because they don't want to upset the judge! Go the extra mile. Make certain. Command your own lawyer, if you have one ... and don't pay for services you aren't getting! If the lawyer won't object, stand to your feet and say, "Your honor! I just fired my lawyer, and I object! Facts not in evidence!"
When an objection is due, make it, and get the judge to rule on it.
You cannot hope to win if you don't know more about objections, together with evidence, pleadings, motions.
So, object ... and make the court see the holes in his case!
Why You Must Object in Court !
Lawsuits are nothing like a hockey game where a player's objections have no effect on the referee. In hockey, if a player has a beef, he can complain to the referee until he's benched, and that'll be the end of it.
In court you must object ... or lose!
"Objection!" stops the proceedings until the judge rules.
"Objection!" calls foul on the other side ... and sometimes calls foul on the judge! Failure to object lets fouls go unnoticed - then you can expect two (2) bad things to happen:
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You will not be allowed to complain later to an appellate court about the errors that caused you to lose, and
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The judge will know you cannot win on appeal, so he will do as he wishes, knowing his ruling cannot be reversed.
When you fight in court, the other side will play every dirty trick in the book to win. Lawyers are trained to push the limits. Many will intentionally break the rules to get what they want. You must be on your toes at all times. Anticipate the other side will break the rules. Many times the judge will break the rules. Damaging evidence will come in to hurt your case. Rules of procedure will be violated. Bias and perjury will be allowed.
If you don't know how to object, you will surely lose!
Don't count on the judge to interfere! If you don't object, the errors will be allowed ... and they will work against you all the way!
Either object when the error is made, or you lose your right to complain later. It's your job to toss a red flag when your opponent commits a foul. You must know when, why, and how to object.
If you don't know when, why, and how to object, you will lose!
To Tips Index
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Making Courtroom Objections ... #2
If you want to win in court, you must learn how to make objections, and the time to learn is before you go to court. If you don't, the other side will take advantage of you, and the judge will be powerless to stop it ... if you don't object.
Watch "Law & Order" and other courtroom dramas to hone your objections skills. Watch with a friend. Compete to see who can make proper objections first - you, your friend, or the actor on screen.
Here are a few of the common objections. Do you know the legal definition for each?
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Asked and Answered
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Badgering the Witness
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Best Evidence Rule
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Competence
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Counsel is Testifying
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Facts Not in Evidence
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Hearsay
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Outside the Pleadings
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Prejudice
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Qualifications
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Relevance
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Calls for Speculation
You'll be surprised how much damaging testimony is admitted on TV shows - damaging evidence that would never be admitted if proper objections were made in time. When it's your case, you can't afford to let the other side offer damaging testimony. Practicing your objections with courtroom dramas on TV will prepare you for situations where your opponent will play every dirty trick in the book to get facts into evidence that could destroy your case - facts you must keep out with prompt and proper objections.
Watching courtroom dramas will help. Practice makes perfect.
You must learn to make effective objections to protect yourself and win your lawsuit.
Overcome courtroom corruption using the rules of the court itself. Force judges to obey their own rules and put a stop to the crooked games lawyers play to get damaging testimony into the record.
To Tips Index When your opponent asks a
witness, "What was the doctor thinking?" or, "Was the victim
frightened?", your response should be immediate and forceful!
Jump to your feet and
before your knees fully unfold exclaim: "Objection! Calls
for speculation!" If it helps, bang the palm
of your hand on the table as you rise to your feet! Don't put up with
it ! ! ! To use this objection
effectively you need to be on-your-toes. Questions like
this come out of nowhere, unexpectedly. Before you know it, the
witness has told the court what someone else was thinking or
feeling ... contrary to the rules ... damaging
your case unnecessarily! The only person who can
tell the court what someone was thinking or feeling is the
person who was doing the thinking or feeling ... not someone
else! "Objection. Calls
for speculation!" This can be the hardest
objection to make, because clever lawyers will weave such
questions into a seemingly routine line of examination in ways
that may fail to arouse your suspicion. It isn't right, but it
happens. Frequently. This is the kind of thing they don't teach
in law school. You must listen
attentively and be prepared to object before the testimony
is uttered. When the opposition asks a
witness, "When did the driver first decide to turn down the
unpaved highway?" stand immediately to your feet and,
even before you reach your full height, blurt out quickly: "Objection! Calls
for speculation!" The only way someone can
say what you or anyone else might have been thinking at a
particular time is to speculate ... i.e., to guess.
Guessing isn't evidence! Opposing lawyers will
sneak the question in on you when you are least likely to catch
it. If you aren't quick with objections, the witness will answer
in ways you must prevent! Witnesses should only be
allowed to testify to what they feel, what they
know, what they themselves have personally
witnessed or experienced. The questions presented by
your opponent will be cleverly phrased to catch you off guard.
Do you know
all the objections to these questions? When the doctor
snapped off his rubber gloves angrily after the operation
and tossed them disgustingly into the trash, what was his
attitude? As you stood there by
the side of the road, watching people gather to gaze in
wonder at that horrible, bloody carnage, what was the
atmosphere? At any time during the
attack on the golf course that day, did you feel your
assailant was trying to prove a point by striking you with
his 9-iron? There are more
than one objection to each of these! Do you know the "grounds"
for each of these objections? If you want to win, you must
know not only how to object in court but also know the
"grounds" for each of your objections, or the court will
overrule your objection and let the improper testimony continue.
Failure to object
effectively will be fatal to your case!
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More
Courtroom Objections ...
"Calls for Speculation!"
To Tips Index
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Keeping Your Opponent Honest !
Whether you win or lose in court hangs on those words? What do you do when someone lies on the court record? Do you let it slide by, or do you attack?
Expect it to happen! People lie. Even under oath.
Whenever it happens - and it will happen - go on the warpath!
For example, responses to your Requests for Admissions (one of your five evidence-discovery tools) are frequently fabrications. If the request is properly drafted, there can only be one-of-two answers. The response is either "True" or "False".
So, what do you do when you know for certain the item you've requested them to admit is "true", but they answer "false"?
Thank your lucky stars! You have them pinned ... if you know how to use your other four discovery tools.
Remember: You have five (5) tools to discover evidence.
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Requests for Admissions
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Requests for Production
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Interrogatories
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Depositions
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Subpoenas and other Court Orders
You can use these tools to trap liars in their own web of deceit.
For example, suppose you serve your opponent with a request to admit he doesn't have any papers signed by you. If he refuses to admit, you simply serve him with a request for production, asking him to produce the papers signed by you.
To Tips Index
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Controlling Judges
The first question to ask the judge at hearings on your motions is, "Have you read my motion, your honor?"
If the judge says he's already read your motion, then you can refer to it in general as an outline while making your argument - taking care to touch all points so the court reporter writes down every word.
If the judge says he's not read your motion, ask, "Would the court care to take a moment now to review the written motion?"
If the court agrees, wait silently while the court reads your motion, keeping on guard for your opponent's attempts to interrupt the judge's train of thought (which happens when you're dealing with crooked lawyers).
If the court gruffly commands, "Get on with it, Mr. Graves. Present your argument," then make certain to touch every point of you written motion completely and in every pertinent regard, with your court reporter writing down every word ou say.
After all, a written motion was prepared at home, where you weren't being interrupted, where you had hours (instead of only a few minutes) to set out your arguments.
While writing the motion, take advantage of doing legal research, reading cases, statutes, rules, and occasionally constitutional provisions in support of my motion ... whereas standing in a courtroom, being stared at by a gun-toting bailiff, being listened to by an impatient judge who'd rather be playing golf, and being interrupted by my opponent at every opportunity imaginable, it is far less likely I can keep my concentration on all those points by simply working from memory.
Use your motion as an outline and cover every point in detail before sitting down.
To Tips Index You cannot win without
controlling the judge, and you cannot control judges unless you
research and cite official legal authority for every point you
seek to make on the court's record! You must make it
crystal clear that the judge will be reversed on appeal if
he rules against you. Otherwise, the judge is
free to ignore everything you say and rule any way he
pleases in spite of what the law and facts may prove to the
contrary, because he knows he will not be reversed on appeal.
The appeal process will not give you another bite at the
proverbial apple. Either you make your points with the trial
judge, or you run the risk of losing your case and being stuck
with the decision! Don't believe us?
Go into court and tell the judge what your personal opinions are
about the law and how you think he should rule in your case ...
and see how far it gets you! The only opinions that
count in court are the written opinions of higher level
appellate courts who stand in judgment of the trial level judge
and have power to reverse him if he disagrees with them in any
way. Your opinions (no matter
how clever or persuasive) count for nothing in court.
You must show the judge, by citing official legal authorities,
exactly what will happen if he rules against you! Clever argument is not
enough. Knowing the law is not
enough. Controlling
the judge is what wins lawsuits! You control judges by
making clear on the record what the higher appellate level
courts have ruled in the past, what opinions those higher courts
have passed down, and why the higher courts will reverse the
trial judge's orders if he enters orders that run contrary to
what the appellate courts require.
Watch video showing on-line research. You must provide citations
to official legal authority in your motions, memoranda,
objections, and verbal arguments at hearings and at trial.
You must tell the judge
why you should win - by citing official legal
authorities the judge is required to obey: court rules,
constitutional provisions, statutes, codes, and most
importantly the opinions of the higher courts that clarify what
those rules, constitutional provisions, statutes, and codes
really mean! What you think they mean doesn't count. How
you choose to read and interpret those things doesn't count. The
only thing that counts is how higher courts read and interpret
them, and what they say those things mean in regard to
the facts of your case. The other side will
cite legal authorities favoring his case. You must do the
same, if you want to win. But, if you've wandered
through a law library in search of legal authority, you were
probably amazed to find crowded shelves stuffed with volumes of
similar-looking books differing only by the mysterious numbers
printed on their spines. Books that give no hint which one might
hide the key to unlock the judge's favor. In a well-stocked law
library there will be thousands of books. You cannot possibly
read them all to find what you seek, and even the indexes,
appendices, and annotations are a complex nightmare that
requires years of experience to master. On the other hand, legal
research with the internet is easy. We show you how in
our course. Beware cheap on-line
resources. They can't be trusted. Their databases are
incomplete, inaccurate, and seldom up-to-date. When shopping for
on-line legal research, insist on sites that keep their database
current and provide access to all official resources necessary
to win your case. Learn more about on-line
legal research and how to cite official legal authorities in our
24-hour step-by-step self-help course! Know how to find
and cite proper legal authorities. These "Tips & Tactics"
newsletters are only the very tip of the iceberg of lawsuit
knowledge you need to win. If you don't already have our 24-hour
step-by-step self-help course, go to our website and
order now! Learn how to
research and cite ... so you can WIN!
Using
On-Line Legal Research - Part I ...
How to Find the Law that Controls the Judge!
The testimony most dangerous to your case is the un-sworn statements made by lawyers who lack competence to state facts about which they have no personal knowledge.
No one should be allowed to testify to matters beyond that person's personal knowledge. Such persons are said to lack "competence" to testify, and an objection should be made immediately whenever such testimony is attempted.
Moreover, unless the person testifying is sworn to tell the truth, the whole truth, and nothing but the truth, then no testimony whatever should be permitted ... and you must object immediately!
Lawyers are no exception.
Yet it happens all the time, and good people lose their lawsuits because lawyers on the other side were allowed to tell the court what happened, what it looked like, who said what, and too many other destructive things to list here in this newsletter.
Silence the lawyers by objecting immediately!
Lawyers should never be permitted to testify. Instead they should be required to present their evidence by presentation of authenticated documents and upon the testimony of witnesses who have first hand knowledge and are sworn to tell the truth!
Instead of asking questions of witnesses (who are competent to testify) to get the facts into evidence properly, most lawyers just open their un-sworn mouths and being to tell the story that favors their client ... even though everything they say is hearsay, since they were not present when the events occurred. They lack competence to testify ... and you must object immediately!
It happens all the time!
Be on guard for it. Be prepared to object!
When a lawyer begins to state facts outside his own personal knowledge ... facts he learned from his clients or third persons ... facts he lacks competence to testify about in court ... object at once! It isn't right or proper!
Yet, you'll find this sort of unfair manipulation of facts in nearly every case you come across. If a lawyer cannot find tangible items or witnesses to offer as evidence in support of his case, he will frequently attempt to get the evidence in anyway by stating facts about which he has no first-hand knowledge ... detailing the content of documents that aren't available, telling the court what was said by someone who isn't present for cross-examination, or describing a scene or the actions and behavior of people he never met.
To multiply this unlawful exploitation of due process, most lawyers are adept at using the English language forcefully, illustrating their points with word-power most lay persons lack. It doesn't matter that they are members of The Bar. It doesn't matter that they finished law school, passed the bar, and enjoy a certain degree of prestige as they strut about the courtroom in expensive clothing and highly-polished shoes. If they do not have first-hand knowledge of facts they offer to the court, they lack competence, and a timely objection is essential.
Otherwise (if you allow them to do so) they will present damaging evidence in a light that dishonestly influences the court against you. They will present facts about which they have only the knowledge they've learned from others (i.e., no first-hand knowledge of their own), and you will unnecessarily run the risk of losing as a direct result if you don't object and put a stop to it immediately!
You must silence the lawyers ... or run the risk of allowing the court to consider the lawyer's testimony as admissible evidence. It isn't admissible! No. Not by a long shot! The rules forbid it.
Lawyers lack competence to testify! It is a corrupt practice. You must stop it before it begins.
A particular aspect of this abusive practice needs mentioning to help you control the inevitable. The rules of professional conduct that govern lawyers (every state has them) limit the ability of a lawyer to be both witness and counsel for his client. One may serve as lawyer for a client or a witness for the client ... not both. If a lawyer insists on offering testimony and the court allows it over your objection, you should move the court for an order finding that the lawyer is a witness for the opposition. Either the lawyer is a lawyer and plays the strictly limited part of a lawyer, or the lawyer is a witness and can no longer play the part of lawyer! If the court rules that a lawyer is a witness, then move the court to disqualify him to testify pursuant to the state bar's rules of professional conduct (which, of course, you will have already read and be prepared to cite by scripture and verse). If a lawyer insists on offering testimony and the court allows it over your objection and will not disqualify the lawyer, move the court to order the lawyer to take the oath and submit to your cross-examination. Anyone offered as a witness must submit to be cross-examined by the other side under oath! It is no different if the person testifying is the other side's lawyer!
Object! And if the judge overrules your objection or refuses to rule on it, be sure to renew your objection before the court takes any action that would cement the damage. Make your record.
Take no prisoners!
Otherwise, unwanted evidence will come in without a competent witness and you will be further injured in your cause by inability to cross-examine the "lawyer-witness". If the judge allows it, object. If the judge will not order the lawyer to submit to cross-examination, object. And, every time the lawyer offers facts as a "witness", object! And, when appropriate, renew your objection before the court enters any rulings that rely on the incompetent testimony.
Remember: Your right to rely on the rules was bought with the innocent lives of heroes who died to protect and preserve your ability to require every officer and agent of our government to obey the rules of the law like everyone else. Lawyers and judges are no exception!
What's good for the goose is good for the gander, as my Granddaddy used to say. He also said, "There's more than one way to skin a cat!" If you don't get your way in court, prepare for appeal by making timely objections and renewing them at the proper time.
Most humans are not formally trained in the art of twisting the truth, bending the rules, or distorting the testimony of honest people to make more money winning lawsuits with trickery and deceit.
To the typical lawyer, however, such practices are commonplace.
It's part of the legal profession's skill set. Lawyers are trained to find and use every possible means for hiding the truth, so long as they can do so without getting caught with their pants down!
You need to protect yourself from crooked lawyers by revealing their deceitful games using discovery tools effectively ... bringing their corrupt practices out in the open on the public court record for everyone to see!
They prey on public legal ignorance, knowing the average person has little or no knowledge of what it takes to get at the truth they hide - or how to put that truth on the record.
Without evidence you cannot prove your case. Period!
If you allow the other side to "hide the ball" without knowing how to force the other side to produce what you request and answer your questions or go to jail, you voluntarily hand them certain victory.
There are only two kinds of lawyers: (1) those who try to find the truth and put it in the record and (2) those who try to hide it by any means available ... no matter how shameful that means may be.
Fortunately, the rules of our American due process system give you five (5) powerful tools to get at the truth and and three (3) tools to require the other side to comply ... whether they like it or not!
Your 5 discovery tools are:
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Requests for Admissions
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Requests for Production
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Interrogatories
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Depositions
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Subpoenas and Other Court Orders
Your 3 discovery enforcement tools are:
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Motion to Compel Discovery
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Motion for an Order to Show Cause
-
Motion for Contempt
When properly used, you can force even the most beligerent legal trickster to give you the evidence you need to win your case.
Why allow the lawyers to win with crooked tactics and learn how to turn the tables on them and force the court to give you the victory you deserve?
Catch your opponent's lawyer with his pants down!
This is how you exercise your rights in this country.
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How to Use Interrogatories ...
Interrogatories are written demands for information that force the other side to provide facts you need to win your lawsuit, written demands the other side must answer in writing ... under oath!
The Always Question: Here's an interrogatory I use every time. "Identify all persons having first-hand knowledge of any fact relevant to the outcome of this case and, with respect to each such person, state the facts known and whether you intend to call such person at trial."
You're sure to get, "Objection, overly broad, unduly burdensome, seeks to inquire into the attorney-client privilege," etceteras ad nauseum. That's ok. You'll then file a motion to compel answers, and when you get to the hearing on your motion you'll explain to the judge why the other side should be compelled to tell you the name, address, phone number, facts known, and so forth. The judge will grant your motion, because you will support it with a memorandum citing several controlling appellate court cases making clear that to deny this information is an automatic reversal on appeal.
The Stupid Question: It never fails to amaze me how some lawyers tack on an interrogatory asking the person answering to identify himself or herself. That person's signature will be appended to the end of their response, and the notary will attest that the same person swore to the answers. Every state and federal court limits the number of interrogatories you're allowed to use. It makes no sense to ask for information you don't need. Use interrogatories only to get information.
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Trial Rules v. Pre-Trial Discovery Rules ...
One of the dirty tricks dirty lawyers play on unwary litigants is objecting to your pre-trial discovery requests on the grounds that the information you're trying to dig up will be inadmissible at trial.
Doesn't matter!
During the pre-trial evidence discovery phase of litigation you are entitled to any and all information that is "reasonably calculated to lead to the discovery of admissible evidence". What you seek doesn't have to be admissible at trial ... as long as it is "reasonably calculated to lead to the discovery of admissible evidence".
Memorize those words.
Get the official rule book for your jurisdiction. Read the general rule for pre-trial discovery.
In the federal rules it's Rule 26(b)(1).
The same (or nearly identical) language is included as part of the discovery rules that control every state and federal court.
When you're taking depositions, sending out subpoenas, serving interrogatories, requesting admissions, or requesting production, you are entitled to "discover" any information (not privileged) that is "reasonably calculated to lead to the discovery of admissible evidence".
The facts you seek do not have to be admissible at trial, so long as they will help you discover facts that will be admissible.
When the lawyer on the other side tries to play this dirty trick, in a dishonest effort to keep you from getting to the truth, quote the official rule and demand your discovery rights!
It doesn't matter if the facts you seek during discovery will be admissible at trial!
Facts don't have to be admissible during discovery!
So long as what you seek is "reasonably calculated to lead to the discovery of admissible evidence", then you have a right to get it, and the rules of court guarantee that right.
But, you must know how to compel discovery using motions to compel, motions to show cause, and motions for contempt so you can have people jailed for not complying with the rules. Once your opponent faces a jail term for contempt, he won't be so slow to respond to your discovery requests! All explained in our course.
Once you master this process, you'll start getting results!
Until you know how to force the court put a stop to lawyers' tricks so you can discover the evidence you need to win, however, you don't have a chance if you're up against a tricky lawyer!
Don't be a victim of courtroom corruption.
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Argument v. Authority
Many of you are losing your cases because
you are arguing the law instead of citing written appellate
court opinions that agree with you, authorities that control
your trial judge!
While your opinions are important to you, they don't count
for much in court.
The opinions that count in court (i.e., the ones that
control your trial judge) are the written opinions of
appellate courts that can reverse the decisions of your
trial judge if the trial judge goes against them.
Control your trial judge by researching and drafting written
memoranda that cite appellate opinions the judge cannot
ignore!
The Lawyer's Little Red Toolbox ...
Every lawyer has a little red toolbox of tricks and traps intended to throw you off track and put you at a disadvantage.
Issues. Lawyers typically try to "muddy the waters" by trying to get you to argue issues that have absolutely nothing to do with the outcome of the case. If you aren't careful, they will drag you off into a never-never land of expensive and time-consuming efforts to prove or disprove facts that are "outside the pleadings", facts that were not raised by the pleadings and, therefore, do nothing but drain your energy and gobble up your time so the other side can make it look like you are struggling to prove your case. Don't put up with it. Make your record. "Objection, your Honor. Counsel is raising issues beyond the scope of the pleadings!"
Sidebar. Lawyers will try to whisper to the judge on the bench (so the court reporter cannot hear) communicating to the court about matters they would never be allowed to present if the court reporter were taking everything down and you were in a position to object on the record. When the lawyer on the other side of your case calls for a sidebar conference, make sure the court reporter comes with you to the bench and types every word spoken by the judge, the other lawyer, and yourself. Failure to do so has been the downfall of many. Don't let it happen to you!
Testifying. This is the biggest and most common crime and one of the many reasons people hate lawyers. When a lawyer can't find a witness or documents or anything else to support their arguments, they'll just tuck their thumbs under their armpits and strut about the courtroom stating facts about which they have no personal knowledge whatever. And, if you let them get away with it, you are inviting disaster. The only time a lawyer (or pro se litigant, for that matter) should be allowed to talk about facts is when the facts recited are already in the record - either because a witness testified to them or some documents or other things were presented to the court to demonstrate those facts. Unless the lawyer has first-hand knowledge, he is an incompetent witness. "Objection, your Honor. Counsel is testifying." If the lawyer claims to have first-hand knowledge, move the court to make him or her submit to cross-examination under oath!
Empty Objections. Ever watch court programs on TV and hear the lawyers call out that familiar word, "Objection", without saying anything more about why they are objecting? Of course you have. Not many script writers are lawyers, so they assume that single word, without more, is good enough. It's not! If the other side jumps up with an "Objection", you jump up immediately and demand, "Grounds, your honor! What are the grounds?" Unless an objection is based on proper grounds, it is improper for the court to sustain the objection. If you allow this trickery, you only invite the other side to get away with murder
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Defeat Legal Sharks !
Ever wonder why there are so many lawyer jokes?
Here's a lawyer, eating his own client.
Head first, of course!
Don't let it happen to you!
Whether you're paying your own lawyer or fighting alone (pro se) against the other side's lawyer, don't trust the lawyers ... or the judge!
Why? Let's ask that first question again. Ever wonder why there are so many lawyer jokes?
Lawyers are trained to be devious. Lawyers are taught to hide evidence, twist facts, and use every dirty trick in the book to win for their clients. They are taught to believe, "If it's not strictly illegal, then it's fair game!" And, after all, judges are lawyers, too!
If you have your own lawyer, you dare not trust him or her to do the right thing! If you're fighting alone (pro se) you must know how to overcome the smoke-and-mirrors sneaky tricks the other side will try to play on you. Prepare for the obvious ... legal trickery!
Too many people trust their own lawyers too much. They pay huge legal fees, wait sometimes for years, then lose everything because their lawyer either (1) didn't do the easy things they could have done, (2) bailed out at the last minute before the case went to trial, or (3) were afraid to stand up to the judge and demand justice!
You have heard just such stories from others! We all have!
Even those who win often end up losing so much in time and legal fees they would have been better off representing themselves.
If you are paying a lawyer, you have a right to an effective, zealous advocate ... but, as lawyer jokes prove, too often the lawyer you pay will either sell you out at the last minute or refuse to fight for you!
If you can't afford a lawyer, you must never assume the lawyer on the other side will play fair or that the judge can be trusted to "do the right thing". It just doesn't work that way in court.
Got this from a
discussion group. Has this happened to you??? All the more
reason to spread the word to others to NOT let your
children from your home, if there is NO Immanent Danger;
Don't agree to anything, unless it is in Your Favor..ie read
everything very carefully; and Know the statutes for your
state and situation.
Simply Put KNOWLEDGE IS POWER
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The "stipulation scam" works like this:
Firstly they don't give you a "public defender" attorney
commonly referred to as a "public pretender" until
AFTER an actual court action is filed.
(So you have no attorney to protect your
family during interviews and interrogation.)
Secondly, the attorney, whether PAID or "pretender"
will not hold any meaningful conference with
their client about actual strategy, will not subpoena
necessary Police Reports or other basic stuff.
They talk you into a really QUICK consulting
session to talk strategy just 15 minutes before
the scheduled and notified "ADJUDICATION HEARING".
In fact, it very often the court has NOT allocated
time for any serious "ADJUDICATION HEARING"
at all. When you get there you find out that it's
more like a PRE-TRIAL not the actual hearing.
We showed up at one that was a PRE-PRE-TRIAL!
Anyway, when you get there and meet with your
attorney ( Are they running late? ) they will
have a back door consultation with the prosecutor
and come back to STRONGLY urge you to
stipulate, do a service plan etc.
They will SELL you on the idea that doing the
Service Plan is SO EASY, so simple...
We refused, up front, and the "pretender"
allowed the prosecutor and the GAL to
come over and try to SELL us on stipulation as well.
(That was a clue!)
We were promised a very EASY service plan
with only two items! The Public Pretender even
proceeded to SELL this to us by promising that if
the agency sent us a LARGER service plan
he would fight like hell for us.
Many Public Defenders will push THEIR OWN CLIENT,
the parent, so hard to stipulate that they will threaten
to pull out as your attorney if you don't!
They will try to SELL you on stipulation by
telling you that it's NOT a guilty plea!
In truth, while "stipulation" may technically not be
a guilty plea, it is VERY MUCH like one and
actually can have MORE SEVERE consequences
than a criminal guilty plea.
Once you stipulate, the promises made about
an easy service plan are generally found to be a LIE.
In our case our "pretender" who promised to fight
if we got slammed with a big service plan?
He withdrew rather than actually fight as he had promised.
Once the agency and court have a stipulation
they basically OWN you and they can add
any services they can think up.
In our case my SO filed a RETRACTION of the
stipulation, which was IGNORED.
She hadn't even signed any stipulation agreement!
It was a mere nod of the head by the lame ass attorney.
The one thing the attorneys do not want to talk
about is the reality about services plans RIGGED
for negative outcome or what happens if you
don't DO every service to their satisfaction!
The Service Plan is the groundwork for a Termination
of Parental Rights. If they TPR you then your
children are basically taken away forever and you
are not allowed to see them or contact them ever.
( But you get to pay the child support bill anyway! )
My family actually beat them at a TPR hearing, 4 days.
We argued that the Service Plan was loaded with
inappropriate, impossible and RIGGED services.
A tape recording of the caseworker on the phone
totally unwilling to REPAIR problems with the
Service Plan was introduced as evidence as well.
At a later hearing where I was a party, I actually
proved that the Psych Eval was without basis and
was RIGGED deliberately for negative outcome.
I was pro se for the purposes of cross exam and I
used the states' own MSW as an expert witness
to prove that.
Did you know that when they form a service plan
they are supposed to allow "Family Active Participation
in the FORMATION of the service plan" ?
They commonly just write the service plan and
FORCE it upon you.
A high court Judge ruled that the ability to object later
is NOT a substitute for "Family Active Participation
in the FORMATION of the service plan", which is
actually required by some welfare code or DHHS policy.
Just another of the many rules and regulations that
CPS and their courts bypass routinely.
They didn't want to give us the active participation
in the FORMATION of the service plan because
I would have objected to most of the EIGHT
services as being baseless or impossible.
A service plan is supposed to be doable.
Ours contained services that were actually impossible.
(Vocational Rehab Services not available without disability,
for eg.)
If you had a REAL attorney providing you with
a VIGOROUS REPRESENTATION, they would
NEVER encourage you to stipulate in the first place!
Signing a "stipulation" or "performance agreement"
waives your right to a HEARING!
They would fight like hell in a 2 day or 4 day
adjudication hearing to avoid "dependency"
status. The whole process is called "dependency court".
The "Service Plan" might sound like HELP
or ASSISTANCE to some, but in practice it generally
involved expenses the state does NOT pay for.
Some is paid for by Medicaid, some is through
non-profit spin offs, and some is out of pocket.
Another big reason I would never advise anybody
to "stipulate" or agree to a service plan is that
they put all kinds of goofy service plan items
on there that are completely BASELESS.
Since the agency nitwits don't have to show
any reasoning or basis for any of it, they
throw in all kinds of stupid garbage.
If you're going to be stuck with a Service Plan,
make sure it's already made out and
they can't pull the old BAIT AND SWITCH
on you, or they will!
Sometimes they severely OVERCHARGE people,
with CRIMINAL CHARGES that would not stand up in court!
Then they CON people into ""merely"" agreeing to
a stipulation in Juvenile/Dependency court.
It's like the old game where a store marks
everything in the store up to full list price
and then announce a 15% off sale!
Some people are dumb enough to think they got a good deal!
They do this a lot WITHIN the criminal courts as well.
A friend says that 75% of all cases they see are seriously
OVERCHARGED. They try to fool people by overcharging
and then ""settling"" for what they can actually make
stick in court.
That recent story of an Iowa woman where DHS
got the non custodial SEX OFFENDER ex to "sign over"
the child? I looked his charges up and it's tricky
to READ the records because they initially filed
a whole bunch of different criminal COUNTS.
If they figure they can make one charge stick they
will commonly charge all kinds of related crap
and then ""bargain"" their way down to the one
that they had in mind in the first place.
It's yet another con job.
I hope this helps!
I am not an attorney.
I am also not a rutebaga.
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Introduction to On-Line Legal Research
Tracking Appellate Court Opinions
Jurisdictionary at the Florida Supreme Court
See how Jurisdictionary® students win lawsuits.
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Disclaimer: This is for informational purposes only. We are not
lawyers or affilated with any lawyers shown. It the the responsibility of
the user to check the accuracy and validity of this information.
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God Bless, GranPa Chuck
Weekend WebMaster
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