Recommended Posts

@Harry Seaward

 

They are not limiting the "independent legal significance" to the bill of sale.  They claim all of their records fall into this category.  The way they are presenting it is as though they simply want to show the judge a document to prove the document exists and contains certain words - not to prove the truth of those words.  It's the most bazaar thing I've seen in regards to business records.

 

 

All of the documents?  That's a bunch of bull.  They're saying that the docs aren't business records.  Yet they used the language of 803(6) in the affidavits.
 

 

How should I approach this, then?  Should I ask them to produce the contract between them and the OC or just ask to have the bill of sale stricken or wait until trial or attack it in an objection or something else?

 

 

If it's true that a denial of your MIL precludes you from raising further objection to their evidence, you may not be able to file a motion to strike.  That doesn't mean that you can't argue the insufficiency of their evidence and the failure of that evidence to prove their standing to sue.

 

You already asked them for all documentation upon which they rely to substantiate their claims.  They've made a claim about contract restrictions but haven't provided the document upon they which rely to substantiate that claim. 

 

It would be a toss up as to whether I'd push the issue.  The reason is because it may contain what they claim.  Can you still make any discovery requests at this point? 

Link to post
Share on other sites

@BV80
 

@Harry Seaward
 
 
All of the documents?  That's a bunch of bull.  They're saying that the docs aren't business records.  Yet they used the language of 803(6) in the affidavits.

I know. It makes me crazy!
 
 

If it's true that a denial of your MIL precludes you from raising further objection to their evidence, you may not be able to file a motion to strike.  That doesn't mean that you can't argue the insufficiency of their evidence and the failure of that evidence to prove their standing to sue.
 
You already asked them for all documentation upon which they rely to substantiate their claims.  They've made a claim about contract restrictions but haven't provided the document upon they which rely to substantiate that claim. 
 
It would be a toss up as to whether I'd push the issue.  The reason is because it may contain what they claim.  Can you still make any discovery requests at this point?

The rule says discovery must be completed 30 days before trial. Trial is in 2 months. If I make a RFP on them now, they have 45 days to respond putting us at 20 days before trial. I'm sure they will say my request is untimely, however, they JUST disclosed the existence of this contract. They will say the language existed in the Bill of Sale all along (it says "without recourse and without representations or warranties of any type, kind, character or nature, express or implied, subject to Buyer's repurchase rights as set forth in Sections 8.1 and 8.2, all of Assignor's right, title and interest in...") and I didn't question it I received a copy of the bill of sale.

Link to post
Share on other sites

"Pursuant to Plaintiffs Response to Defendant's Motion in Limine, and Plaintiffs Cross-Motion in Limine, IT IS HEREBY ORDERED that Defendant's hearsay objections are overruled and that Plaintiff have leave to submit its trial exhibits, identified the in the parties' motions in limine, for admission into evidence."

 

This just means they get a chance to authinticate them and they won't be precluded until they get the chance to do so.  It does not mean all those records are now evidence against you, and you have no recourse.  They still need a witness or affidavidt that has the proper language in it to lay the foundation.  If it is an affidavidt, you subpoena that witness, the affidavidt then is no good, you will have the witness--(who may or may not show)

If there is no affidavidt, then you cant subpoena the affiant.  Also, if there is, request the name and addy of the affiant so you can subpoena.  If they won't give it to you, another reason to strike the affidavidt.  You will make your objections verbally iat trial.

 

There is no affidavit from the OC.  Their entire argument is that they have records provided to them by the OC, and the records speak for themselves.

 

uh ya no.  They don't.  how do they know they are true and correct? no one to lay foundation for them, they are heresay.  also goes back to if they don't give you a complete accounting, you have no way to authinticate them yourself.

 

How do I force this issue?  They will say "OC says you owed $xxxx, interest is calculated thusly totaling $xxxx.  The total of the two amounts together equals $xxxx."  I don't know of any law or ruling that says an assignee has to go back and account for every charge and credit to an account.

 

Compel.  You are not looking for owed, intrest is xx so you owe xx.  You want the break down.  Also they are not allowed to charge interest if it was not in your agreement from the time of the charge off to the time sold.  That is illegal if it is not in the agreement.  The only interest they are allowed to charge is statuatory interest (what ever that is for AZ) from the time THEY BOUGHT IT to now.  another reason to compel complete accounting.  You could ask for complete accounting post charge off. use your agreement in the arguments.

 

This is what they keep saying every time I bring up the 'business records exception':

"Plaintiffs documents are non-testimonial evidence, submitted for its independent legal significance."

If they are non-testimonial, what good are they to Plaintiff's case?  They refuse to admit they will be introducing them as business records.  It should be noted that they do not deny this, either, and the language of their affidavit (their employee) uses the 803(6) language (made at or near the time, kept in the normal course of business, etc...).

 

find your case law.  find it where it says they need to authincated, foundation laid, et all.  That is how you counter that.  There is case law for this, you just need to find it for AZ.  Your rules will help here too, what does it say about business exception to the heresay rule?  They need all those requirments, otherwise they are heresay.

 

Finally I would send off a doc request "Please produce purchase agreement referenced in Plaintiffs motion xxxx that demonstrates the "buy back agreement".  Please Produce entire agreement,"

 

They will object to this, count on it.  Compel it.  If they try to bring something up as they did, you have the right to see where it says that, or they can't use that arguement.  I would compel after objection, because if judge grants the compel, they will dismiss rather than give that up.
 

Link to post
Share on other sites

@shellieh98

Finally I would send off a doc request "Please produce purchase agreement referenced in Plaintiffs motion xxxx that demonstrates the "buy back agreement".  Please Produce entire agreement,"

 

They will object to this, count on it.  Compel it.  If they try to bring something up as they did, you have the right to see where it says that, or they can't use that arguement.  I would compel after objection, because if judge grants the compel, they will dismiss rather than give that up.
 

The problem here is there is not enough time before trial to have discovery completed by the deadline provided in the Rules.  I can, however, request a continuance.  I've never asked for one and they have been granted two.  (One of them was so that the MSJ they filed past the deadline could be within the deadline after the continuance was granted).  I should be entitled to one continuance to pursue discovery of a document they just mentioned.

Link to post
Share on other sites

Here is Plaintiff's response to my MSJ.

 

attachicon.gifPlaintiff's Response to First Amended Motion for Summary Judgment, incl SOF_redacted.pdf

 

Just a quick scan, I come up with these flaws in their response:

...

 

13. Generally, they do not deny their witness has no personal knowledge of the OC's records.  They just keep trying to get around it with the "independent legal significance".  Out of everything, this makes me the craziest!

I would want to figure out exactly what is meant by "independent legal significance" ("ILS") as far as the appeal court would be concerned. Here are a couple of links that may be relative to the concept.

https://en.wikipedia.org/wiki/Acts_of_independent_significance

http://apps.americanbar.org/buslaw/newsletter/0093/materials/pp2d.pdf

and

http://lawschool.westlaw.com/quick/evidence.asp

(3) Legally Operative Facts. [§14.343]

The substantive law imbues some statements with legal significance. That is, the fact that the declarant made such a statement has legal significance, regardless of whether the declarant was lying or mistaken. For example, transactional words, such as words of contract (e.g., offers, rejections, acceptances, terms), statements of donative intent accompanying the delivery of a "gift" (e.g., "I want you to have this car"), and statements indicating open or hostile possession (as proof of adverse possession) are not hearsay. Similarly, statements that are themselves actionable, such as words of libel or slander, publicly uttered obscenities, and copyrighted passages, are not hearsay. These are also referred to as "verbal acts" or words of "independent legal significance."

 

I would search for controlling case law containing the phrase or variations of the phrase on google scholar or where such was convenient. When I fully understood it I would attack it. I would think it is unlikely that the JDB would be able to use ILS to prove up their required elements. I doubt that that the JDB has found a viable, convenient, and complete replacement for the typical admissible evidence required to prove up each required element for an alleged cause of action before a court.

 

The AZ required elements to prove up the existence of a contact (by admissible evidence) are:

Arizona

http://www.floridalitigationguide.com/survey-50-states-contract-formation/

  • US West Communications, Inc. v. Arizona Corp. Comm’n, 3 P.3d 936, 942 (Ariz. Ct. App. 1999) (“An enforceable contract is formed through an offer, an acceptance, consideration, and sufficient specification of terms.”)
  • Tabler v. Industrial Com’n of Arizona, 47 P.3d 1156, 1158 (Ariz. Ct. App. 2002) (“For an enforceable contract to exist, there must be an offer, acceptance, and consideration”)
  • Rogus v. Lords, 804 P.2d 133, 135 (Ariz. Ct. App. 1991) (“For enforceable contract to exist, there must be offer, acceptance, consideration, and sufficient specification of terms so that obligations involved can be ascertained[;] … The requirement of certainty is relevant to ultimate element of contract formation, i.e., whether parties manifested assent or intent to be bound”)

     

If a miracle occurs and a JDB actually successfully enters the admissible evidence, required to prove up all of the elements required "for an enforceable contract to exist", (over the timely objections and arguments placed in the court record by an engaged defendant) then they get to move on to the next step of having to prove up all the elements for a beach of contract.

 

In AZ the required elements for a breach of contract (by admissible evidence) are:

http://www.floridalitigationguide.com/survey-50-states-breach-contract-claim/

Arizona

  • Chartone, Inc. v. Bernini, 83 P.3d 1103, 1111 (Ariz. Ct. App. 2004) (“It is well established that, in an action based on breach of contract, the plaintiff has the burden of proving the existence of a contract, breach of the contract, and resulting damages.”)

 

While continuing to attack based on lack of standing (also SOL if still on the table) I would want to use the failure of the plaintiff to provide admissible evidence for any and all of the required elements for an enforceable contract as well as the required elements for a breach of contract as the reason the court should deny their cross-MSJ and of course deny any judgment at trial.

 

Perhaps someone with an understanding of how ILS might be used in a collection case against a defendant will provide some useful insights.

 

Assuming that ILS has any traction in proving up a collection claim before a court we should look to exploit any and all such capabilities in our counter-claims IMO.

  • Like 2
Link to post
Share on other sites

@Credator

(3) Legally Operative Facts. [§14.343]

The substantive law imbues some statements with legal significance. That is, the fact that the declarant made such a statement has legal significance, regardless of whether the declarant was lying or mistaken. For example, transactional words, such as words of contract (e.g., offers, rejections, acceptances, terms), statements of donative intent accompanying the delivery of a "gift" (e.g., "I want you to have this car"), and statements indicating open or hostile possession (as proof of adverse possession) are not hearsay. Similarly, statements that are themselves actionable, such as words of libel or slander, publicly uttered obscenities, and copyrighted passages, are not hearsay. These are also referred to as "verbal acts" or words of "independent legal significance."

This has been their basic argument from the first time I challenged the admissibility of their business records.  But they always fall back on the 806(3) language in what seems to be a just-in-case measure.

 

There is no AZ case law that I can find supporting ILS theory in breach of contract cases, and Plaintiff has cited none.

Link to post
Share on other sites

I have not followed the thread but have skimmed through it and some of the uploaded court filings.

 

The plaintiff seems to rely heavily on electronic records. I am not that familiar with what is required to get those into an action as admissible evidence but I would want to make sure I permitted them no shortcuts on my way to a likely appeal.

 

I was unable to identify a specific AZ statute relative to e-evidence but that doesn't mean it doesn't exist.

 

This appears to be a good starting read on the subject matter: http://apps.americanbar.org/litigation/committees/trialevidence/articles/012511-electronic-evidence.html

 

@Credator


This has been their basic argument from the first time I challenged the admissibility of their business records.  But they always fall back on the 806(3) language in what seems to be a just-in-case measure.

 

There is no AZ case law that I can find supporting ILS theory in breach of contract cases, and Plaintiff has cited none.

It would almost seem the "declarant", in a ILS situation, routinely has some relationship to the party that their statement is being used to support proving the existence of a contract or promise. Otherwise their acceptable lying not being hearsay by way of the "statement has legal significance" would seem to be self-serving at best. Additionally, I cannot find anywhere that ILS is permitted to be used to prove the truth of the matter.

 

If a 3rd party with no relationship to me can prove the existence of an enforceable contract (not to mention standing) by merely making an "ILS" declaration it would seem my "declaration" in a pre-lawsuit DV letter stating it was not my debt would be ILS refuting their ILS. I am getting a bit of a headache.

 

 

The lack of case law supporting ILS would be my "fall back" position.

Link to post
Share on other sites

@Credator

 

Although the judge allowed the records to be admitted into evidence, I'm thinking it was based upon his belief that their affidavit complied with 803(6).  It didn't have anything to do with ILS.  Harry addressed that issue in his opposition.  He also refuted their case law. 

 

If he were to find out that the records were admitted under that doctrine, I think he'd have his issue for appeal.  There's no way that business records could be admissible simply as ILS. 

Link to post
Share on other sites

I don't think they admitted their things into evidence, I think they were just saying plaintiff will get the chance to do so at trial.  In my MIL, it was also denied in part but said plaintiff will submit evidence at trial, and it would be ruled on then.  It doesn't mean they have taken the evidence and admitted it, it will be ruled on at the time, he will need to bring up those objections at that time.

The order said they had leave to get everything objected to together for admission- that is how I read it anyway.

Link to post
Share on other sites

@BV80

@Credator

 

Although the judge allowed the records to be admitted into evidence, I'm thinking it was based upon his belief that their affidavit complied with 803(6).  It didn't have anything to do with ILS.  Harry addressed that issue in his opposition.  He also refuted their case law. 

 

If he were to find out that the records were admitted under that doctrine, I think he'd have his issue for appeal.  There's no way that business records could be admissible simply as ILS. 

I missed the part where the judge allowed the records to be admitted into evidence. I understood that a MIL was denied the defendant.

 

The JDB, in this case, seems to have made a better effort in attempting to enter admissible evidence (not speaking to the quality or their success in doing so) than the OCs I have dealt with. They obviously have concerns about the admissibility of their evidence or they would not cloud the case with an ILS argument that lacks supporting case law. I know I would not. I KISS for judges. I need enough in the record to win on appeal. Nothing more and nothing less is my goal.

 

With the ILS theory they appear to be attempting to "evidence" in the alternative. That is probably acceptable (as is pleading in the alternative) but it "feels" to me that arguing ILS in a breach of contract is leaning perilously close to claiming an oral contract between the parties.

 

I am skeptical that their e-evidence is/should be admissible under 803(6) or any other evidence rule/theory based on what they have likely done to date in the court record.

Link to post
Share on other sites

@Credator

 

They obviously have concerns about the admissibility of their evidence or they would not cloud the case with an ILS argument that lacks supporting case law. I know I would not. I KISS for judges. I need enough in the record to win on appeal. Nothing more and nothing less is my goal.

 

 

That's what I told Harry in another thread.  Why would they bring up ILS if they were not worried about the admissibility of their records or the sufficiency of their affidavits to lay the foundation for the admission of those records?

 

Due to his MIL and other times he's addressed those issues, I would think that his objection is on the record.

Link to post
Share on other sites

@BV80, @shellieh98

@shellieh98

 

If I'm not mistaken, when the judge denied Harry's MIL, the order said that the evidence could be admitted.

Can I file a motion to set aside or reconsider on this?  I seriously think the judge did exactly what I did when I read it, which is assumed they were asking to have the evidence considered at trial.

 

These guys are SLICK....

Link to post
Share on other sites

@Harry Seaward

 

I really wish you'd speak to an attorney about that.  We can't assume what the judge was thinking or what the order means.  If you're wrong, filing a motion that may not be appropriate might  tick him off.

 

An attorney could tell you exactly what the judge's ruling meant and what action, if any, that you could take.

Link to post
Share on other sites

*I* would not worry about ticking off a trial judge while working on making my proper record for appeal. I also would not file useless and time wasting motions that do not need to be filed. If something is not clearly in the record for appeal I will motion to get that in the record in whatever way the rules permit. I gotta make my record!

 

If I don't know what I am doing I can either guess and take my best shot (while accepting responsibility for my results) OR I can consult with a competent winning consumer attorney and follow their advice or enlist their services to represent me.

 

Whether allegedly admissible evidence was ordered "could be admitted", was decreed by a trial judge to be admitted evidence or some other scary judge-speak, when the evidence was not properly admitted and I objected to the specifics of why it was not admissible evidence in and for the record - that is what I would view as the trial judge's reversible error aka appeal fodder.YMMV Does the trial judge have some discretion regarding evidence? I would assume so. Can they rewrite rule 803(6) or the applicable state's evidence rules to their heart's content? Highly unlikely if an appeal record is made and followed through with a proper appeal.

 

Right or wrong, when I am able and willing to appeal *I* have to behave as if my appealable trial court record trumps an erroneous ruling from a trial judge. I am not basing this on my utterances but on the appeal court that is very likely to agree with the law/rules/etc (and may have even penned one of the opinions I cited) that I have already pointed out to the trial judge via the court record.YMMV

 

I am always arguing my case for the court above. I am comfortable doing that. I would be very nervous if I was only focused on winning my case before a trial court.

Link to post
Share on other sites

@BV80

@Harry Seaward

 

I really wish you'd speak to an attorney about that.  We can't assume what the judge was thinking or what the order means.  If you're wrong, filing a motion that may not be appropriate might  tick him off.

 

An attorney could tell you exactly what the judge's ruling meant and what action, if any, that you could take.

Do you have any ideas on going about this? I am not friendly with any attorneys and my experience has been that consumer attorneys want to get paid for their expertise. I believe they should be, but I don't want to hire them to defend me and don't know what approach to use to ask them to give an opinion on a judge's single ruling without having them review the entire case. Admittedly, I'm bashful in these sorts of interactions. :-/

Link to post
Share on other sites

@Credator

*I* would not worry about ticking off a trial judge while working on making my proper record for appeal. I also would not file useless and time wasting motions that do not need to be filed. If something is not clearly in the record for appeal I will motion to get that in the record in whatever way the rules permit. I gotta make my record!

 

If I don't know what I am doing I can either guess and take my best shot (while accepting responsibility for my results) OR I can consult with a competent winning consumer attorney and follow their advice or enlist their services to represent me.

 

Whether allegedly admissible evidence was ordered "could be admitted", was decreed by a trial judge to be admitted evidence or some other scary judge-speak, when the evidence was not properly admitted and I objected to the specifics of why it was not admissible evidence in and for the record - that is what I would view as the trial judge's reversible error aka appeal fodder.YMMV Does the trial judge have some discretion regarding evidence? I would assume so. Can they rewrite rule 803(6) or the applicable state's evidence rules to their heart's content? Highly unlikely if an appeal record is made and followed through with a proper appeal.

 

Right or wrong, when I am able and willing to appeal *I* have to behave as if my appealable trial court record trumps an erroneous ruling from a trial judge. I am not basing this on my utterances but on the appeal court that is very likely to agree with the law/rules/etc (and may have even penned one of the opinions I cited) that I have already pointed out to the trial judge via the court record.YMMV

 

I am always arguing my case for the court above. I am comfortable doing that. I would be very nervous if I was only focused on winning my case before a trial court.

I fully understand your approach, and can appreciate it for what it is. I know you've said you haven't dealt in justice court and I think this is an important difference.

Superior Court has dozens of judges/commissioners/magistrates and assignment is more or less a random event. Some jurisdictions have more, but my justice court has exactly one presiding judge. This means if I ever find myself as a plaintiff against a JDB, ever need to evict a tenant or end up with a speeding ticket for example, I have to ask this one guy to see things my way. Suing a JDB with a judge that doesn't like me is not a huge problem since there are avenues of appeal available, but as a landlord needing a speedy disposition on an order of eviction or fighting a speeding ticket, having an unbiased judge would absolutely be of the utmost importance.

So, yes, annoying a judge can much more easily be viewed as secondary importance when fighting a case in Superior Court. It's my opinion that it's not so in justice courts, especially the smaller jurisdictions with only one presiding judge.

Link to post
Share on other sites

@Harry Seaward

@Credator


I fully understand your approach, and can appreciate it for what it is. I know you've said you haven't dealt in justice court and I think this is an important difference.

Superior Court has dozens of judges/commissioners/magistrates and assignment is more or less a random event. Some jurisdictions have more, but my justice court has exactly one presiding judge. This means if I ever find myself as a plaintiff against a JDB, ever need to evict a tenant or end up with a speeding ticket for example, I have to ask this one guy to see things my way. Suing a JDB with a judge that doesn't like me is not a huge problem since there are avenues of appeal available, but as a landlord needing a speedy disposition on an order of eviction or fighting a speeding ticket, having an unbiased judge would absolutely be of the utmost importance.

So, yes, annoying a judge can much more easily be viewed as secondary importance when fighting a case in Superior Court. It's my opinion that it's not so in justice courts, especially the smaller jurisdictions with only one presiding judge.

Sorry for any confusion. I have filed pleadings, participated in motion practice as well as argued before an AZ justice court judge. A court with one judge.

 

I have not appealed from a justice court case and do not know that process from personal experience.

 

One of my "assignment is more or less a random event" experiences in superior court ended up with me getting assigned the same judge that had just heard my previous case. YMMV  My impression is that this judge is not particularly happy with me.

 

If I were reluctant to make my proper appeal record because it was the sole judge in my court and I feared ticking them off, assuming I am able to reverse them on appeal (despite my less than proper trial court record) do I somehow believe the judge will be less ticked off at me? Litigation with 1 available judge or 50 in the hopper seems like a winner take all game to me. I believe I need to commit to win. I would ask myself if I am going to do whatever it takes to win inclusive of a proper appeal record made in the trial court or am I going to attempt to avoid ruffling the judge's feathers in hope that my potential future litigation before this judge fares better.

 

When I make the judge follow the law (while making an appeal record right in front of them) and I am ready and able to appeal, the last thing I can allow myself to be concerned with is ticking off the judge. As a serious litigant I find I feel I significantly benefit from an all-in-&-not-one-hand-tied-behind-my-back approach. If I hesitate I fear I will be roadkill.

 

Litigation is not negotiation. It can turn in to that with enough leverage and sane participants. Barring negotiation it can often be a battle to the legal death for the loser.

 

I don't claim to know the right path for others (and no one should listen if I did), but I don't think it is possible for me to seriously focus on "not ticking off" judges all while prevailing in a collection case.

 

I don't do stupid and wasteful stuff in court. I am not perfect and make mistakes. My focus in litigation is to win at the appeal level. I do that with my record in the trial court and allowing the trial court to agree or get reversed. I do not go out of my way to befriend the judge or irritate the judge. I am way too busy doing whatever it takes to win. I find that what it takes to win keeps me really busy and those that have time to seriously contemplate and adjust their plan based on whether the process of making a winning trial court record for appeal is annoying a judge have a lot more resources/capacity than I have (assuming they also end up winning).

 

Whether there is 1 judge or 50 in a particular court, I much prefer a judge respect me than like me. My focus is on doing everything it takes to win and not fretting over whether a judge is ticked off or not. Others can and should pursue their own path as far as their "relationship" with their judge.

 

In the context of a sole-judge court, if I decided to hire a top-gun consumer attorney to defend my collection case and then just as they take their gloves off getting ready to pursue a win for me I put on the brakes and tell them they must not "tick off" the judge because I might have to come before them on a future action, the attorney might likely fire their "loony" client.

 

If I truly believed that I must preserve my "relationship" with a solo judge for possible future non-collection cases I would seriously consider: settling at a discount (when possible), moving all my cases to superior court and/or private arbitration (when available) and leaving the solo judge to handle my non-collection issues. Perhaps others have additional ideas from how they have handled such a situation.

 

As for "having an unbiased judge would absolutely be of the utmost importance". Bad news. They don't exist. They are all human AFAIK. I'd be very pleased to have one that actually follows the law and the rules when they are properly placed before them. :-)

Link to post
Share on other sites

@Credator

Sorry for the misunderstanding.  I thought you had said in another thread that you hadn't had first hand experience with Maricopa Justice Courts.

 

At any rate, as I said, I understand your approach and respect that it works for you.  Removing my case to Superior Court is not an option at this point.  Neither is settling at a reduced amount.  I feel I can make a proper record for appeal AND not annoy the judge.  Maybe I'm a dreamer.

 

I know there is no such thing as a completely unbiased judge.  Poor choice of words.  I guess I should have said "it's important to me that I don't take any unnecessary actions to further bias the judge against me."

Link to post
Share on other sites

@Harry Seaward

 

@BV80


Do you have any ideas on going about this? I am not friendly with any attorneys and my experience has been that consumer attorneys want to get paid for their expertise. I believe they should be, but I don't want to hire them to defend me and don't know what approach to use to ask them to give an opinion on a judge's single ruling without having them review the entire case. Admittedly, I'm bashful in these sorts of interactions. :-/

 

I'd contact NACA and ask for the name of a consumer attorney in my area.   Set up a consultation and ask some questions.  You don't have to hire him.  To get some definitive answers to important questions would be well worth a consultation fee. 

Link to post
Share on other sites

...

I thought you had said in another thread that you hadn't had first hand experience with Maricopa Justice Courts.

...

At any rate, as I said, I understand your approach and respect that it works for you.  Removing my case to Superior Court is not an option at this point.  Neither is settling at a reduced amount.  I feel I can make a proper record for appeal AND not annoy the judge.  Maybe I'm a dreamer.

...

That would be accurate. I believe that Arizona has14 counties with justice courts outside of Maricopa.

 

I would not presume it possible to move the current case to superior or arbitration. The suggestions I made were along the lines of the things I could think of that could be of use if I felt the need to prioritize not ticking off a solo judge. Deep into a case I would think settlement would be the only viable option from my list.The other options may or may not be viable for future use.

 

A proper record made without annoying the judge might be possible to pull off IDK. Reversing and remanding a judge without annoying them might be significantly more challenging. :)

Link to post
Share on other sites

@Credator

 

*I* would not worry about ticking off a trial judge while working on making my proper record for appeal.

 

 

 

Considering the fact that @Harry Seaward filed a MIL to exclude the records  and also opposed the admission of the records in his opposition to their MSJ and in his MSJ, hasn't an objection been reserved for appeal?

Link to post
Share on other sites

@BV80

@Credator

 

Considering the fact that @Harry Seaward filed a MIL to exclude the records  and also opposed the admission of the records in his opposition to their MSJ and in his MSJ, hasn't an objection been reserved for appeal?

Having not read them nor the judge's order my answer is, maybe.

 

Even if I was in between litigation and could take the time to read everything related to the case here, I do not claim to be qualified to confidently state the issues are properly preserved for the appeal record. Additionally, I have not read the processes for filing and briefing an appeal to the superior court and am not familiar with them. And finally, I am not a member of that Bar.

 

At a minimum I would think it prudent to continue to make specific objections on and for the record at any trial, hearing or ongoing motion practice. *I* would probably end up erroring on the side of overkill rather than keeping the peace at all costs. As that is not an option in this case, I would continue to slide my  specific objections in wherever and whenever I was comfortable that I was not annoying the judge.

 

I am definitely not qualified in participating in a court battle in a self-limited manner.

 

Regardless of my "relationship" goal with the judge, my approach to determining whether a proper trial court record for appeal currently existed would likely involve:

  • Determining the likely possible adverse outcomes that could include the judge's reversible errors and/or abuse of discretion;
  • Reviewing the appeal process and fully understand what the appeal court needs me to provide to prevail on an appeal - know the rules of the game (I am familiar with the AZ Court of Appeal and base my comments on my understanding of their processes);
  • Reviewing what is in the trial court record that I can place before the appeal court (if it isn't in the record the appeal court typically cannot see it);
  • Compare the judge's likely reversible errors and abuses of discretion against the record I have made to date;
  • Add any missing pieces into the record to shore up my chance of a successful reversal by the appeal court; and
  • Other stuff as it comes to mind.

Speaking of motion practice isn't there a reply filing due from the defendant any day now?

Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.