Isn't it a no-no for an attorney to testify for his client?

[rte]

Since my case is going to court-ordered judicial arbitration, plaintiff's counsel has sent me his arbitration brief to which is appended the so-called "terms" and 134 pages of alleged billing statements. Such attachments are usually exhibits to an affidavit by plaintiff's witness, but in this case it looks like the lawyer is backing up his brief with unauthenticated paper.

It's a strange hybrid. Maybe the other side is cutting corners because non-binding arbitration leads to trial de novo. But this weird combination takes the cake, IMO.

I plan on submitting my own brief debunking their causes of action (account stated and unjust enrichment) while pointing out that the attachments are hearsay without a proper witness. Then I will submit a motion to strike exhibits to trial brief, and go into a substantial treatment of the inadequacy of these exhibits. Am I on the right track here?

If plaintiff had submitted a witness statement, I could send a demand for the plaintiff to produce that witness, to be served 10 days before arbitration per the California Rules of Court. It sounds like a parallel to the CCP 98 subpoena. However, there is no witness offered, and it looks like it's the attorney who is offering the testimony. This isn't right, is it?

I know that judicial arbitration is such a secret proceeding, that not much is known about it. Maybe that's why it's non-binding and a subsequent trial de novo is readily granted. But if anybody has some insights, I'd appreciate it. I feel like a pioneer going into uncharted territory.

Thanks for reading. Insights are appreciated.

[ASTMedic]

California courts agree and have generally held that an entity cannot be a "custodian or other qualified witness" and provide an affidavit concerning matters of another entity. For example, in Cooley v. The Superior Court of Los Angeles County, et al., (140 Cal. App. 4th 1039 (Cal. App. 2d Dist. 2006)) the court considered whether a district attorney’s ("DA") section 1561 affidavit accompanying documents responsive to a subpoena duces tecum met the requirements of section 1561 when the documents were generated by entities other than the DA. The Court held that the DA was not the custodian of the business records because the DA could not execute the affidavit required by Evidence Code § 1561, as the DA did "not prepare or generate any of the documents contested," could not attest that the records were prepared in the ordinary course of business at or near the time of the event, and could not attest to the various attributes of the records relevant to their authenticity and trustworthiness." (Id. at 1044-45)

Isn't this basically what the opposing counsel is trying to do?

I don't fully grasp what he is doing and I have ZERO experience with arb but it sounds similar.

[1stStep]

I don't believe he can... I think it's in the Bar rules...

[BrunoTheJDBkiller]

It does not appear that the lawyer is testifying, he is submitting evidence on behalf of his client to support his position. That's his job. Fortunately, he isn't very good at it. He could have had somebody steal your garbage for all you know. The statements have to be authenticated somehow. The lawyer should know this, but we aren't dealing with Learned Hand here.

[rte]

Isn't this basically what the opposing counsel is trying to do?

I don't fully grasp what he is doing and I have ZERO experience with arb but it sounds similar.

I agree he's trying to be all things to his client. But he's only his client's attorney. I'm going to do a motion to strike based on his not being a qualified witness. I also plan to mention a thing or two that's wrong with the statements, but not too much cuz I don't want to tip my hand for a future trial.

It's also strange that the haven't sent me a witness statement. They could under the CRC but so far, nothing.

Thanks for the feedback!

[rte]

Or maybe plaintiff is too cheap to spend on a witness, and is trying to cut corners. Do they imagine I wouldn't notice?

[rte]

I'm looking up case law about it. Where can I find the Bar rules?

Thanks!

[ASTMedic]

It's also strange that the haven't sent me a witness statement.

Blessings in disguise......

[BrunoTheJDBkiller]

But he's only his client's attorney. I'm going to do a motion to strike based on his not being a qualified witness.

Don't do this, he is not a witness. Forget the Bar rules, this does not apply.

[rte]

What could I do to point out that the exhibits are inadmissible evidence? Is it enough to say so in my arbitration brief (that replies to their arb brief)?

[Credator]

...

I plan on submitting my own brief debunking their causes of action (account stated and unjust enrichment) while pointing out that the attachments are hearsay without a proper witness.

...

To debunk the causes of action I would want to show that the elements (specific to my jurisdiction) for the causes of action have not been proved. Failing to prove an essential element to a cause of action should prove fatal and multiple elements left unproved (in the trial record) should make for a very nice appeal case should it become necessary.

Not a fan of court-connected arbitration. Another set of rules (is there a rulebook somewhere?) to play by.

There might be fees or bonds required to appeal from arb so I would want to be aware of them.

I would have my objection cheat sheet handy and obviously object to facts not in evidence, counsel is testifying, etc.

If the plaintiff is required to give notice via a list of witnesses and doesn't I would want to make sure no testimony is given in the hearing as there are no witnesses. Also, no last minute telephonic testimony if notice was required.

Of course it is possible that I could be called as a witness but if they did not list/notice me as a witness or supeana me I would look to the governing case law as to whether I could be forced to testify.

If I had a witness and they did not share my last name I would be sure to timely notice parties if required & supeana them as they will never show without and may not with a supeana. At least with a supeana I have the possibility to motion for an order to show cause and push toward contempt.

Good faith participation in court-connected arb may be a prerequisite to filing an appeal on an adverse decision. It would seem that a self-represented obviously cannot avoid testifying by sending an attorney in their place. Therefore the self-represented will likely be on hand to potentially be pushed into testifying.

YMMV by jurisdiction. It sure does feel like heading into uncharted territory.

[rte]

To debunk the causes of action I would want to show that the elements (specific to my jurisdiction) for the causes of action have not been proved. Failing to prove an essential element to a cause of action should prove fatal and multiple elements left unproved (in the trial record) should make for a very nice appeal case should it become necessary.

Not a fan of court-connected arbitration. Another set of rules (is there a rulebook somewhere?) to play by.

There might be fees or bonds required to appeal from arb so I would want to be aware of them.

I would have my objection cheat sheet handy and obviously object to facts not in evidence, counsel is testifying, etc.

If the plaintiff is required to give notice via a list of witnesses and doesn't I would want to make sure no testimony is given in the hearing as there are no witnesses. Also, no last minute telephonic testimony if notice was required.

Of course it is possible that I could be called as a witness but if they did not list/notice me as a witness or supeana me I would look to the governing case law as to whether I could be forced to testify.

If I had a witness and they did not share my last name I would be sure to timely notice parties if required & supeana them as they will never show without and may not with a supeana. At least with a supeana I have the possibility to motion for an order to show cause and push toward contempt.

Good faith participation in court-connected arb may be a prerequisite to filing an appeal on an adverse decision. It would seem that a self-represented obviously cannot avoid testifying by sending an attorney in their place. Therefore the self-represented will likely be on hand to potentially be pushed into testifying.

YMMV by jurisdiction. It sure does feel like heading into uncharted territory.

Debunking the account stated and unjust enrichments causes of action is what my trial brief is about. If I shouldn't move to strike plaintiff's exhibits, I can definitely point out that these constitute unauthenticated and inadmissible evidence etc.

California judicial arbitration is covered by CCP and CRC, and as for an appeal, it's not necessary because either party can request a trial de novo and it's like the arbitration never happened. So why have arbitration at all? What was the legislature thinking?

I do need to prepare an objection cheat sheet (do you have one you could share?). I doubt if the plaintiff wants to produce a witness, but I am preparing takedown questions if someone does show up. And of course, I have to be ready for a cross-examination, and am studying the posts here about that.

I still am wondering about a motion to strike plaintiff's unauthenticated exhibits. Is it enough to point out, in a 5-page brief, that this alleged documentation constitutes hearsay? And to object like mad if they bring a witness?

Oh well, my witness questions have been collected over the past several months and will be at the ready. Somehow, I doubt they will produce one. They have never produced a witness for their cases in my local court. I'm in California and the witness is supposed to be working for plaintiff in South Dakota, or somewhere there.

Thanks for your comments.

[1stStep]

California judicial arbitration is covered by CCP and CRC, and as for an appeal, it's not necessary because either party can request a trial de novo and it's like the arbitration never happened. So why have arbitration at all? What was the legislature thinking?

The intent was to clear the court calendars - most times, if a pro per makes it this far, they will often be railroaded.

This is where you need to stand your ground. Prep a cheat sheet - object to their "evidence" and be sure to demand a trial.

Edited October 26, 2012 by 1stStep

[Guest usctrojanalum]

from what you describe, this is not the attorney testifying on behalf of his client. i'm not sure how they can expect to win an arb tho without a witness showing up. maybe the attorney just wants to get into court and does not care about arb and is just going to trial de novo any negative result?

[Credator]

I would search online for California objections to build my own cheat sheet specific to what I know about my case. This looked like it might be a good source: http://rftmlaw.com/wp-content/uploads/California-Trial-Objections.doc

--

Not identifying, researching case law on, and focusing on the elements of a cause of action would probably make it harder for me to overcome the court's presumption that the banking side should prevail.

Breach of Contract ("BoC") elements vary from state to state. Wites & Kapetan, P.A. | The Florida Litigation Guide shows that a BoC in Arizona has 3 elements and a BoC in California has 4 elements that have to be proved.

The elements required to prove there is a contact might consist of 3-5 elements depending on the state.

A cause of action is not a specific enough target. OTOH destroying (or creating a material issue of fact for) an essential element for a contract when that contract is in turn an essential element for a BoC is starting to get a little better focused.

As a plaintiff I prefer a minimal number of elements that I have to prove. As a defendant I prefer a long list to force the plaintiff to have to prove.

I would consider court-connected arb (as described here with trial de novo sans appeal) as a chance to tune up my game. My hope would be to prevail in arbitration and have the plaintiff fold like a cheap suit. If the losing party requested a new trial I should be better prepared to create a solid trial court record in case the plaintiff wins on error and I need to appeal.

[skippy1960]

What could I do to point out that the exhibits are inadmissible evidence? Is it enough to say so in my arbitration brief (that replies to their arb brief)?

As you already know it really doesn't matter what the Judical Arbitrator does or rules as it is non-binding. You have the right to review or appeal at the next level.

Don't get in the weeds over what the attorney says or does. Remember the purpose of this is to gain settlement. The courts are trying to clear the calendar. They will point out all the apparent evidence against you, to attempt to get you to settle taking a stipulated judgement. If that doesn't work then the Arbitrator will say the debt is yours and you owe the money.

If you have no intention of settling the matter, then say so. You might ask or keep your questions to the Arbitrator to how you file the De Novo appeal, how the process works. This way it is clear that you don't intend to participate to the degree, in which, you know both sides will appeal the decision.

After, all do you think the otherside is going to accept judgement for you if the arbitrator decides in your favor. Answer NO.

Don't tip your hand as to how much you do know about rules and procedure. Rope a Dope.......

[rte]

Thanks for the objections document. Exactly what I need for arbitration (and trial de novo).

[rte]

Gee, I'd hate to be railroaded. But that's why there's trial de novo for the party that loses. Sometimes there's settlement instead, from what I can gather.

And yes, I'm getting a cheat sheet ready.

[rte]

I agree that nobody really wants to get into judicial arbitration. I've heard that plaintiffs have been known to dismiss cases rather than do the extra work. Who knows? I think it's a waste of time.

I just re-read plaintiff's brief. It's got inaccuracies, too, just like their opposition brief to my MTC further discovery a few months ago. I don't think they like arbitration, either.

[Guest usctrojanalum]

arb might be a waste of time for you, but i'm sure a ton of cases get settled in arb and it's beneficial to the court to have cases moved off the calendar without any judicial intervention.

[Credator]

Just need to get to the tipping point where enough defendants are appealing or getting a new trial from arb so that the courts decide a second tier of justice for "consumers" is not cost effective and they abandon court-connected arbitration.

The courts, in a desperate attempt to save money, have apparently bought the idea that implementing a mere slice of consensual private contractually binding arbitration is sensible and just. 1 out of 5 is batting 200 and this on the backs of consumers.

To paraphrase Nancy Reagan the state supreme courts need to just say no to non-consensual non-private non-contractual non-binding arbitration.

[rte]

Saving time and court resources is one rationale the legislature had for arbitration. I think they call it judicial economy. However, since a bunch of them go to trial de novo, then it's like litigating twice. I'm told plaintiffs dismiss cases when arbitration comes up, so maybe that's another approach to saving time and resources.

[rte]

Agreed.

But for today, I have to get that arbitration/trial brief ready. I understand it could still be recycled for actual trial.