Motion to be supported by seperate brief?

[HoppinMad]

In reviewing my state and local court procedures, I ran across this and am wondering if anyone can clarify the part about a seperate brief? Does this mean I would need to submit a brief for my response to a summons or just motion, ie motion to strike affidavit?

RULE 5

MOTIONS

A. Briefs.

All motions filed pursuant to Trial Rules 12 (Defenses and objections) and 56 (Summary Judgements) shall be accompanied by a separate supporting Brief. Whenever Briefs are required or requested in a case, an adverse party shall have thirty (30) days after service the initial Brief or Motion in which to serve and file an answer Brief, and the moving party shall have ten (10) days after service of the answer Brief in which to serve and file a reply brief, unless a longer or shorter time is ordered by the Court. Each motion shall be separate, while alternative motions filed together shall each be identified on the caption. Failure to file an answer Brief or reply Brief within the time prescribed may be deemed a waiver of the right thereto and may subject the motion to summary ruling.

[KentWA]

What it means is if you submit a motion and the other side does not respond, then you win your motion. If they do respond to your motion, you get one more chance to shot down the arguements they put forth.

[HoppinMad]

But what is the "seperate supporting brief"?

[KentWA]

It means your motion should be short and sweet, then argue your points in a seperate breif in support.

[HoppinMad]

Would that also apply to answering the summons as for the affirmative defenses?

The court only grants oral arguements at their sole discretion. So is this brief the only time I may have to layout my explinations and defenses?

B. Oral Arguments.

The granting of a motion for oral argument, unless required by the Indiana Rules of Procedure, shall be wholly discretionary with the Court.

[antiquedave]

Writing the motion seems easy enouh to me, its the brief I struggle with and the 2 supporting case law examples to support it. I managed to get through my motion for discovery but I have several others I would like to write up and have ready to go.

The format that I found in a paralegal book was suggested to look like this, and you need to anticipate objections that the plaintiff has against your motion and be ready to defend it if need be.

Brief in Support of:

Introduction:

Identify type of motion

type of relief sought

why motion should be granted

summarize basic argument of motion

Statement of Facts

Summarize relevant facts

Argument

Central legal and factual basis to support motion

1 sentence summary for each heading followed by 1 or 2 sentences to summarize

Cite cases regulations statutes and supporting precedent

Conclusion

Request for specific relief sought

(Anticipate opposing arguments)

(Plaintiffs single point does not warrant granting overall motion)

Summation:

Respectfully submitted this day, February XX 20XX

[HoppinMad]

Thanks Antiquedave! That really clarifies. Now to start searching for case laws to support, not much in the way of Indiana leading the way with these cases. Have not found one in my county yet that wasn't won by default or plaintiff winning MSJ. None seemed to be represented by attorney. May have to go to a larger jurisdiction to search. Thanks again!

[antiquedave]

I have on my list of things to do to call a couple of courthouses where there were important decisions such as the lesher v kay decision on attorney letterhead, I'd like to scan the docs into a pdf and put them online if I can

and do the same for some good actual examples of defenses and motions used in these types of lawsuits, templates are ok but I like to look at the real deal

[HoppinMad]

I spent the weekend researching attorneys who defend consumer credit cases and searched their cases on the online docket. I have a list of case numbers I am going to pull and see how their motions and briefs are constructed.

I am also going to pull the affidavit of debts filed in the cases by the same JDB I am dealing with and hope to find some discrepancies in their signatures, names, etc that I can use in my favor!

[Leadhead]

Perhaps if you tell us what you're trying to file, i.e. Motion for Summary Judgment, Motion to Dismiss, whatever, someone may have a template or an actual Motion & Brief for your situation.

[HoppinMad]

As i stated above it's a motion to strike affidavit of debt (hearsay) and requires a supporing brief to accompany it when filed. Standard JDB affidavit of debt. I have the Motion to Strike all buttoned up, it was the supporting brief I was struggling with. It appears this may be my only chance to enter my argument as oral arguments are at the discretion of the court. So I am assuming I need to be very thourough and detailed in my brief? Just didn't know if it would be overkill. Thxs

[BV80]

Thanks Antiquedave! That really clarifies. Now to start searching for case laws to support, not much in the way of Indiana leading the way with these cases. Have not found one in my county yet that wasn't won by default or plaintiff winning MSJ. None seemed to be represented by attorney. May have to go to a larger jurisdiction to search. Thanks again!

You can also use case law from your Circuit Court of Appeals. If I'm not mistaken, for Indiana that would be the Seventh Circuit Court of Appeals.

[HoppinMad]

Can I use other state's Supreme Court decisions if their Rules of evidence cited are verbatim to Indiana's?

[lheart]

Can I use other state's Supreme Court decisions if their Rules of evidence cited are verbatim to Indiana's?

Not normally. You really want opinions from your own jurisdiction, they are the ones that you local court are bound by. That being said, if your state is silent on the issue, it has not been decided definitively, you can use another jurisdiction as a reference, but the court is not restricted by it.

[HoppinMad]

Wow, found this from a case here in IN. Am I reading correctly that the court ruled records from one business cannot be entered into evidence by another, that it's hearsay???

In Speybroeck v. State, 875 NE 2d 813 - Ind: Court of Appeals 2007 the court also held, under Rule 803(6), that the Affidavit cannot cure the unreliability inherent in HSBC's submission of the Kawasaki documents and the letters. In order for business records to be found reliable under Rule 803(6), the person recording the information must do so in the regular course of business and must have personal knowledge of the information recorded. This court reached the same result in Wilson v. Jenga Corp., 490 N.E.2d 375, 377 (Ind.Ct.App.1986), in which we held that a business could not lay the proper foundation to admit the records of another business because the requesting business lacked the personal knowledge required to ensure reliability. William has met his burden in showing that no one at HSBC had the personal knowledge required for the business records exception to apply. Hence, those documents cannot satisfy Rule 803(6)'s requirements of reliability.

If so, doesn't his limit all JDB's from usinf OC records in Indiana?