pretrial

[VickyC]

Tomorrow morning I have a pretrial for a case where I am being sued. I've already filed an answer and am counter suing. The plantiff filed a defense with the court that I hate to say, reads like gibberish to me. I know, probably not too good considering I'm defending myself, but I guess I'm just going to have to go and see what happens.

I'm more interested to know what happens at a pretrial. Please give me some idea asap as it is tomorrow. I probably should have posted sooner but life kept getting in the way.

Thanks much!

[Recovering Attorney]

The pretrial is a way for the judge to get a feel for the case and the parties. He will try to do a number of things:

1. One is housekeeping: The court will want to know how much each of you knows about the other's case, gauge how much discovery you will need, how much time it should take, and set the matter for a trial. For both your defense and your counterclaim, be able to say what you think you need from the other side in the way of documents and depositions. If it is likely that hte plainitff is holding documents you could use for both, remind the court that.

2. Second is settlement: All judges think they are Solomon, And all judges want to free up their calendars. so, be prepared to be stared down by the judge. If you have a resolution in mind, be prepared to offer it.

Be polite, maintain eye contact, don't interrupt and appear reasonable. Don't just say " The plaintiff hasn't proven his case" Say if teh plaintiff was 100% right you wouldn't be here and you are unconvinced by what you have seen that your defenses and counterclaim shuld not prevail.

[CarolinaBlueEyes]

All judges think they are Solomon,

OMG that cracks me up!

[mikey]

First of all, dont be surprised to see several people there in the same situation. You might have to check in at a table outside the court, but if not, go inside and wait till it starts. They will call case by case till they get to your name. You will see from the people before you how it goes. The judge will ask each side who they are and what the planitiff is asking in suit. then he will ask you how you where you want to go from there. Either settlement or trial. You can state your absolute defense then if you deny it, and request a hearing if he doesnt dismiss it right there...usually doesnt since all the evidence isnt at hand. No witnesses are required at this time and the other side may not be prepared (they might not be prepared 10 years later for that fact). They will set a date or send you something and will ask for your current address and phone number. I watched the other attorney writing everything down as people gave address and numbers. Probably so they can pass it on and hassle you later. Give it however. You can send them a C&D letter or tell them on the phone. If you have no attorney, you can ask in the pretrial for any info you need to save you the headache of asking for it in a letter. They have to give it or attach it in the summons if they want to present it in court such as if they claim its a written contract, they must submitt it. Then its a waiting game till then giving you the chance to get your line of defense ready such as looking up case laws and looking in here on how to best defend yourself. Good luck. I am in th etrial stage and am getting ready for a motion i filed for dismissal on a few things. The trial is 2 days after that if not dismissed which wont be a big surprise..i am ready either way thanks to alot of people here. I have my figers crossed.

[mikey]

well, how did it go vicky?

[VickyC]

well, how did it go vicky?

Thanks for asking!

It was interesting. We have another pre-trial in 90 days. Why? Because Lawyer dude didn't have any proof I owed them that money. I said simply that I wanted proof that the account was mine and the amount was correct. I didn't know how agressive of a stance I should take at the pre-trial, so I agreed to what the commissoner suggested. (I don't know how this differs from the Judge).

This concerns me. The commissioner didn't seem at all concerned with my countersuit. I had to bring it up. The basis of my counter suit is that I only received one letter from the law firm about this debt in March, none from the plantiff, and it didn't include the standard notice that you have 30 days to request validation, blah blah blah.

The Plantiff's Lawyer claimed that they sent an initial contact back in January, but that they do not keep copies of the letters they send out. He said he could "recreate" one for me, and they have it recorded in they're system, supposedly, that it was sent in January.

So I guess I'm not sure how to proceed. Recreating a document seems like complete bull**** for proof, but the comissioner in the pre-trial seemed very uninterested in the whole countersuit part of my answer. So I guess I have to plan how proceed based on that.

[mikey]

like i said before, the trial doesnt have any evidence or witnesses, it is just a way for the judge to get a feel for things before the trial. he is seeking whether they can be a settlement or simply any default in the case to go either way to save the court time. if both can not agree then he sets it for trial where it really matters for either side. so dont be discouraged as i was that the judge didnt dismiss mine at the pretrial..he will hear it out during the trial. the opposing lawyer in mine was unprepared too (i think he just shows up and sees who fights and who doesnt). 6 months later they still dont have anything to present. i am surprised they scheduled another pretrial...strange...unless it just to give them time which i would request this go to trial cause you are entitled to a speedy trial....read the rules of the small claim courts in your state. i have....that is why i have filed and am waiting for a hearing for a motion to dismiss hearing 2 days before my trial. alot of BS in my opinion. i am riding on the hope the judge sees mine as an oral contract because i fall in the group of people that have an expired sol with oral and not with written. but if they see it as written, the written states that we have to abide by nh laws and again, if its written contract, then i guess we have to follow what the written contract says...btw, the contract says nh which has a 3 yr sol on either written or oral....lol oh well, keep us updated...thx

[VickyC]

I thought an additional pretrial was strange too. But never having been through the court system, I figured what the hey, it was the Court Commissioner, not the Lawyer that suggested it, so I don't think its any attempt to be unfair.

I think you're right though, if they don't have anything after 90 days; I should demand a trial. But for now I'm curious to see how this plays out. I mean, I don't see why it would take 60 days, let alone *90* days to get the paperwork in line, which leads me to believe they're stalling.

I am nervous though, its Arrow Financial that is suing me, and I've heard they'll make up "evidence" and have people swear to things that aren't true. But I'll have to face that when the time comes.

How should I handle the issue of the supposed document that the law firm is going to recreate. I assume I should insist thats bull crap since I kept all my corrispondences, but I'm worried the defense will be that "well, we send out a document like this to all accounts". How does something like that hold up?

[mikey]

i am curious...the RCP says that all supporting documents must be filed for consideration if they want it to be viewed as a written contract. i would send a letter to the attorney asking for (discovery basically) all documents in case and validation/verification. If there wasnt anything attached to the claim, they might not have anything to begin with. Making up stuff and getting people to perj themselves? wow...thats is a criminal offense. would they risk it? plus, imagine you could sue them for fraud as well and damages....? I would just get my side ready and make sure I have everything set to defend it either way. if its past sol, dont worry. my case stalled for 6 months and i still dont think they have anything..i will find out shortly.

[VickyC]

RCP? Forgive my ignorance, I don't know what that is. As for the summons, if that's what you mean, they listed the amount due, and said they would provide supporting documents at the courts request. I guess this is the courts request.

[mikey]

RCP? Forgive my ignorance, I don't know what that is. As for the summons, if that's what you mean, they listed the amount due, and said they would provide supporting documents at the courts request. I guess this is the courts request.

RCP...Rules of Civil Procedures

But I made a mistake, see below for what I meant....

Florida Small Claims Rule 7.050 Commencement of Action

Statement of Claim

(a) Commencement

…if the claim is based on a written document, a copy or the material part thereof shall be attached to the statement of claim

“A Complaint based on a written instrument does not state a cause of action until the instrument or an adequate portion thereof, is attached to or incorporated into the complaint.”

Samuels v King Motor Co. Of Fort Lauderdale, 782 So.2d 489 (Fla App 4 Dist 1992) See also Contractors Unlimited, Inc, v Nortax Equipment C. Southeast, 833 So.2d 286 ( Fla App. 5th dist. 2002)

all this is for Florida....you need to see if your state has the same