Rivertime

Had Trial This Morning, You Won’t Believe This, Now What?

Recommended Posts

No not really,,,but your line of questioning should follow what she states in the declaration, Your job is to prove she does not know what is talking about,,,,, questions to ask her,,

 

1. How many of these declarations do you sign on a daily basis?

2. How much time do you spend reviewing the information that you state in these declarations?

3. Do you read them and sign them, or do you investigate to make sure what you state is accurate?

if she answers yes

What is the process you use in determining the accuracy of your statements in these declarations.

 

If she says she just signs them after she reads them yous immediately object and motion to have the declaration deemed inadmissible hearsay.

 

I have more questions but its 1 am ....i'll try tomorrow to post more

Share this post


Link to post
Share on other sites

Nope, no court reporter.  I had asked before and was told due to budget cuts, court reporters are no longer available for limited civil cases.  I'm going to see if I can pay for to be there next week though.

 

Not saying this was on purpose, but, my case was #2 on the docket and the judge waited to call my case last, about six cases or so.  No one else in the court room but Plaintiff attorney, bailiff, judge, his clerk and me.

 

The good new is I get to live to fight another day.

 

do you have a laptop?  Record the hearing yourself.

Share this post


Link to post
Share on other sites

do you have a laptop?  Record the hearing yourself.

 

Is that legal???

 

Can I record without letting the court know?

 

That would be great if I could.

 

Thanks,

 

rt

Share this post


Link to post
Share on other sites

As others have pointed out, your next step should be to prepare to question whatever witness they decide to bring in. Don't rely on them being lazy and dismissing: some law firms do fly in a witness once and again.  I would also consider preparing a Written Objections to Evidence; this way you've got all your objections neatly organized and prepared, so nerves won't be as big of an issue. Finally, just in case the judge decides to let in the declaration even without a witness (and this is unlikely), I'd prepare a pocket brief regarding how appointing someone for service of a subpoena on a non-party witness is improper, and how a custodian of records is not a party witness.

  • Like 1

Share this post


Link to post
Share on other sites

I would Check before recording a court action, just don't take someone's word for it. (laws are different in every state, what maybe legal in one may not be in another).

Share this post


Link to post
Share on other sites

If it was me, I would find all the case law I can on the proper application of CCP 98 just in case. The judge says he knows the statute, which obviously he does not, but if you have some case law as well to back up your position then you will get more mileage out of that. I would also look for case law about personal knowledge, so the judge can not just say, affiant sounds good to me even if they did not work for OC.

Share this post


Link to post
Share on other sites

California Code - Section 98

 

A party may, in lieu of presenting direct testimony, offer the prepared testimony of revelant witnesses in the form of affidavits or declarations under penalty of perjury. The prepared testimony may include, but need not be limited to, the opinions of expert witnesses, and testimony which authenticates documentary evidence. To the extent the contents of the prepared testimony would have been admissible were the witness to testify orally thereto, the prepared testimony shall be received as evidence in the case, provided that either of the following applies:

(a)A copy has been served on the party against whom it is offered at least 30 days prior to the trial, together with a current address of the affiant that is within 150 miles of the place of trial, and the affiant is available for service of process at that place for a reasonable period of time, during the 20 days immediately prior to trial.

(b)The statement is in the form of all or part of a deposition in the case, and the party against whom it is offered had an opportunity to participate in the deposition.

The court shall determine whether the affidavit or declaration shall be read into the record in lieu of oral testimony or admitted as a documentary exhibit.

 

A post from calawyer

 One thing to remember is that it is impossible for a Judge to know every corner of a state's law off the top of her head. Whether you are a lawyer or are appearing pro se, it is your job to educate the judge. Whoever does the best job wins.         

Share this post


Link to post
Share on other sites

No not really,,,but your line of questioning should follow what she states in the declaration, Your job is to prove she does not know what is talking about,,,,, questions to ask her,,

 

1. How many of these declarations do you sign on a daily basis?

2. How much time do you spend reviewing the information that you state in these declarations?

3. Do you read them and sign them, or do you investigate to make sure what you state is accurate?

if she answers yes

What is the process you use in determining the accuracy of your statements in these declarations.

 

If she says she just signs them after she reads them yous immediately object and motion to have the declaration deemed inadmissible hearsay.

 

I have more questions but its 1 am ....i'll try tomorrow to post more

 

Great info, also loop around and ask the same questions twice (space it out) to see if they mix up their answers. I had this happen with an OC during my Arb hearing. Pretty funny to call him out on it too.

Share this post


Link to post
Share on other sites

No not really,,,but your line of questioning should follow what she states in the declaration, Your job is to prove she does not know what is talking about,,,,, questions to ask her,,

 

1. How many of these declarations do you sign on a daily basis?

2. How much time do you spend reviewing the information that you state in these declarations?

3. Do you read them and sign them, or do you investigate to make sure what you state is accurate?

if she answers yes

What is the process you use in determining the accuracy of your statements in these declarations.

 

If she says she just signs them after she reads them yous immediately object and motion to have the declaration deemed inadmissible hearsay.

 

I have more questions but its 1 am ....i'll try tomorrow to post more

I need to copy and paste these questions for myself when I end up at this point! This is good stuff

Share this post


Link to post
Share on other sites

California Code - Section 98

 

A party may, in lieu of presenting direct testimony, offer the prepared testimony of revelant witnesses in the form of affidavits or declarations under penalty of perjury. The prepared testimony may include, but need not be limited to, the opinions of expert witnesses, and testimony which authenticates documentary evidence. To the extent the contents of the prepared testimony would have been admissible were the witness to testify orally thereto, the prepared testimony shall be received as evidence in the case, provided that either of the following applies:

(a)A copy has been served on the party against whom it is offered at least 30 days prior to the trial, together with a current address of the affiant that is within 150 miles of the place of trial, and the affiant is available for service of process at that place for a reasonable period of time, during the 20 days immediately prior to trial.

(b)The statement is in the form of all or part of a deposition in the case, and the party against whom it is offered had an opportunity to participate in the deposition.

The court shall determine whether the affidavit or declaration shall be read into the record in lieu of oral testimony or admitted as a documentary exhibit.

 

A post from calawyer

 One thing to remember is that it is impossible for a Judge to know every corner of a state's law off the top of her head. Whether you are a lawyer or are appearing pro se, it is your job to educate the judge. Whoever does the best job wins.         

 

Thanks Racecar, that's really good advice.

 

That is what I attempted to do and the judge seemed to get miffed at me because he wanted to continue questioning me using the plaintiff's COR's incompliant declaration.  He really didn't appreciate the fact that I had subpoenaed the witness.  Remember, plaintiff hadn't said a word, other that their name, and the judge started questioning me.  It was clear, on that issue, he did not want to be educated by a Pro Se. 

 

Had he started the trial with asking the plaintiff to present their case, I would have objected to the COR's declaration and explained in detail, citing the relevent parts of the statute, why it was faulty and should not be used.  He didn't give that chance so I was forced to Hail Mary my way out of it. 

Share this post


Link to post
Share on other sites

Is that legal???

 

Can I record without letting the court know?

 

That would be great if I could.

 

Thanks,

 

rt

It is a contempt of court to do so. DON'T do that. I think that a court reporter would be best maybe one near the courthouse. also the judge may have been blustering to see if you would back off your position so now the court has called for the witness. He thinks he is gonna embarrass you. Now you are gonna bring all the dirty laundry out.  Me i would take a court reporter to make it all legal like. I bet he acts all impartial after that. On further reflection, the plaintiff was all we will bring the witness. You know they are not. try to serve her again at the address. and make sure that you Bring up the in limine matters.

Share this post


Link to post
Share on other sites

Can I record without letting the court know?

 

R. Rule 1.150[d] Personal Recording Devices. Need to obtain advance permission from judge. The judge may permit inconspicous personal recording devices.

 

So sounds like a simple motion requesting the judge to record. Copy to other party. I ask verbally at the start of a hearing if its okay. Not denied yet, but I'm in another state. You can use your recording to transcribe a verbatim transcript if needed, pursuant to whatever Cal. rule that allows you to do that. Use a real court reporters transcipt as a guide. I'm sure there are many transcripts on line to look at for reference as a template.

Share this post


Link to post
Share on other sites

Can I record if I let the court know?

 

R.  Rule 1.150[d] Personal recording. Yes on motion.

 

Admin this is a double post, don't know what happened, tried deleting, but didn't work? You can delete if you want.

Share this post


Link to post
Share on other sites

. Rule 1.150[d] Personal Recording Devices. Need to obtain advance permission from judge. The judge may permit inconspicous personal recording devices.

 

So sounds like a simple motion requesting the judge to record. Copy to other party. I ask verbally at the start of a hearing if its okay. Not denied yet, but I'm in another state. You can use your recording to transcribe a verbatim transcript if needed, pursuant to whatever Cal. rule that allows you to do that. Use a real court reporters transcipt as a guide. I'm sure there are many transcripts on line to look at for reference as a template.

I see this judge denying the request it is totally up to him. However he can motion for recording for note taking as he is all by himself. The reporter makes it all skippy for the appellate just in case. and definetly request a statement of decision where he has to go "on the record" here is a good resource http://www.gmsr.com/article/Strategic%20Opportunities%20in%20the%20Statement%20of%20Decision%20Process.pdf You really need to do these things. And written objections would be good to prevent them from saying oops the witness is testifying in another case.

Share this post


Link to post
Share on other sites

WOW, thanks to everyone for all the great input!  I’m working on my questions now and Calawyer’s list is super great.  I was wondering if anyone know of any more listed in the site?  I can remembering reading other lists of questions as well but I can’t remember where they were.

 

Racecar, boy, that Stern transcription is pretty good.  I’m going to pull a few questions from that as well.  To be a seasoned, experienced attorney and not get nervous, that would be great.

 

Also, I am looking into getting a court reporter for my next hearing.  I think that’s good advice to keep everyone on their best behavior.  Actually, I think I’m going to have a different judge because the first one I had is going to be on vacation.

 

We’ll see, I’ll keep all of you posted and thanks again for all the input, it is a big help.

 

rt

Share this post


Link to post
Share on other sites

Rivertime,

Do you have a copy of you Motion in Limine? I am in the same boat and as soon as you can send it would be fabulous! I am really under the gun .

I think the plaintiffs are going to dismiss. You are going to make sure you get all your objections on the record. and make sure to ask for a statement of decision. I think the court has bullied you and you held up magnificently. The witness is not going to be in court they will dismiss with prejudice. If not prepare to grill the witness. You didn't cave and you didn't just let them have it. The court knows this is improper make sure you bring a witness with you next time. and was there a court reporter? make sure you prepare a brief. and If the judge does that again then you may have a chance to appeal for good cause. I can see already some good reasons. The judge didn't have the sack to conduct a proper railroad job. I think also maybe he was checking to see if you were for real.

 

This bit about the non service that will bite him on the but after he thinks about it he will see that you are about to hand them their azzez.

 

You stayed the course, and then you brought up the issues so he had to continue it. How was the look on her face when he said that? I bet you stuck your tongue out at her.

Share this post


Link to post
Share on other sites

If they try to make the argument about the subpeona service then bring up CCP 1987(a):

 

(a)Except as provided in Sections 68097.1 to 68097.8, inclusive, of the Government Code, the service of a subpoena is made by delivering a copy, or a ticket containing its substance, to the witness personally, giving or offering to the witness at the same time, if demanded by him or her, the fees to which he or she is entitled for travel to and from the place designated, and one day's attendance there. The service shall be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance. The service may be made by any person. If service is to be made on a minor, service shall be made on the minor's parent, guardian, conservator, or similar fiduciary, or if one of those persons cannot be located with reasonable diligence, service shall be made on any person having the care or control of the minor or with whom the minor resides or by whom the minor is employed, and on the minor if the minor is 12 years of age or older. If the minor is alleged to come within the description of Section 300, 601, or 602 of the Welfare and Institutions Code and the minor is not in the custody of a parent or guardian, regardless of the age of the minor, service also shall be made upon the designated agent for service of process at the county child welfare department or the probation department under whose jurisdiction the minor has been placed.

 

I had to use this to counter the plaintiff's argument that I should have served the subpeona on the lawyers office since the witness can't be here from across the country. Funny since CCP 98 clearly states that the witness must be avaiable and that 1987(a) states that they have to be served in person.

 

Also something that I didn't see anyone focus on in their posts. You can really hammer the witness on the chain of custody. They have to be able to attest first hand to the record keeping pratices of 2 different entities. Vinhnee and electronic doc storage questions should make sphincter tone one a witness jump quick.  Should be fun to watch if they even bring the witness (something about a snowball and some hot place comes to mind).

Share this post


Link to post
Share on other sites

You have some awesome information here! (As usual...) Brings to mind a couple of questions ...

 

One: Conicidentally, I was worrying about how to serve a witness from out-of-state who said "with ample notice (she) could be available at atty's office "(which. BTW, is more than 150 miles away).

Is there an action I should include in my trial brief (I have it completed but have not yet mailed it- seems to me that I saw something stating you want to get this and documentation to Plaintiff and jusdge 10 days prior to trial- PLEASE, if I am wrong, let me KNOW, ASAP!!)  or/if in the alternative, do I file a motion to address "custodian address is out-of-state and substitute address is outside 150 mile mandate. Thereby,testimony should be precluded and stricken from the record"? I hate NOT to address this fact but do not want to show my hand to Plaintiff.

 

Two, if you serve the subpoena it on the atty's office, do you list the "custodian's name and then the attorney's name (e.g., c/o)?  What is better? I would hate to take a chance they have at atty on payroll there who resides within the 150 mile mandate.

 

Thanks everyone for all of your help!

 

 

 

they try to make the argument about the subpeona service then bring up CCP 1987(a):

 

(a)Except as provided in Sections 68097.1 to 68097.8, inclusive, of the Government Code, the service of a subpoena is made by delivering a copy, or a ticket containing its substance, to the witness personally, giving or offering to the witness at the same time, if demanded by him or her, the fees to which he or she is entitled for travel to and from the place designated, and one day's attendance there. The service shall be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance. The service may be made by any person. If service is to be made on a minor, service shall be made on the minor's parent, guardian, conservator, or similar fiduciary, or if one of those persons cannot be located with reasonable diligence, service shall be made on any person having the care or control of the minor or with whom the minor resides or by whom the minor is employed, and on the minor if the minor is 12 years of age or older. If the minor is alleged to come within the description of Section 300, 601, or 602 of the Welfare and Institutions Code and the minor is not in the custody of a parent or guardian, regardless of the age of the minor, service also shall be made upon the designated agent for service of process at the county child welfare department or the probation department under whose jurisdiction the minor has been placed.

 

I had to use this to counter the plaintiff's argument that I should have served the subpeona on the lawyers office since the witness can't be here from across the country. Funny since CCP 98 clearly states that the witness must be avaiable and that 1987(a) states that they have to be served in person.

 

Also something that I didn't see anyone focus on in their posts. You can really hammer the witness on the chain of custody. They have to be able to attest first hand to the record keeping pratices of 2 different entities. Vinhnee and electronic doc storage questions should make sphincter tone one a witness jump quick.  Should be fun to watch if they even bring the witness (something about a snowball and some hot place comes to mind).

Share this post


Link to post
Share on other sites

You have some awesome information here! (As usual...) Brings to mind a couple of questions ...

 

One: Conicidentally, I was worrying about how to serve a witness from out-of-state who said "with ample notice (she) could be available at atty's office "(which. BTW, is more than 150 miles away).

Is there an action I should include in my trial brief (I have it completed but have not yet mailed it- seems to me that I saw something stating you want to get this and documentation to Plaintiff and jusdge 10 days prior to trial- PLEASE, if I am wrong, let me KNOW, ASAP!!)  or/if in the alternative, do I file a motion to address "custodian address is out-of-state and substitute address is outside 150 mile mandate. Thereby,testimony should be precluded and stricken from the record"? I hate NOT to address this fact but do not want to show my hand to Plaintiff.

 

Two, if you serve the subpoena it on the atty's office, do you list the "custodian's name and then the attorney's name (e.g., c/o)?  What is better? I would hate to take a chance they have at atty on payroll there who resides within the 150 mile mandate.

 

Thanks everyone for all of your help!

 

What kind of witness is it you are talking about? Is this a witness that submited a declaration? If it's for a declaration then that witness has to supply an address with in 150 miles of the court that they can be served at 20 days before trial or that declaration doesn't conform to CCP 98. If not then you can get it tossed out for not conforming to CCP 98.

 

If they listed a witness and didn't include a declaration from that witness then I'd say let them choose if they want to bring that witness. If they don't bring the witness then they don't have anyone to back up the docs. No witness and the docs are hearsay. They are the ones that need that witness not you. If they do bring them then it's your job to shread the witness.

 

AS far as when the brief is due you need to check your local rules for the due date. Usually briefs and motions are due X days before trial.

Share this post


Link to post
Share on other sites
Guest
This topic is now closed to further replies.