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Ok here's my first draft MIL.

I stated there would be a Memo of Points and Auth. but is this necessary when I cited the case law in each of the items I'm asking to exclude?

 

Thanks in advance.

 

[deleted: See post #203 for final draft]

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@UCL @Seadragon @Beergoggles @nascar

I emailed opposing counsel to see of they were still planning to move forward with their 'evidence' and they responded that they won't be using the affidavit because they will have a live witness, but they plan to try to introduce everything else.

So first, I'd like a few more opinions on my MIL from a couple posts back and second, what do I need to prepare for with a live witness?

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You can print out Beergoggles questions for a live witness. There are about 20 fun questions for the witness. Also make sure you ask for their DL to prove who they are. Also don't be surprised that they will ask for a continuance because the witness could not show up that day.  Also do not be surprised then if they ask the judge to let the witness appear telephonically.  I have Jedi's MOTW if you don't. You must check every day to make sure they have not filed this stuff.

 

If you can';t find Beer's questions for witness, I can mail them to you or type them out here. Still can't get the hang of posting. Also in thier disclosure did they say they were calling a witness????

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You can print out Beergoggles questions for a live witness. There are about 20 fun questions for the witness. Also make sure you ask for their DL to prove who they are. Also don't be surprised that they will ask for a continuance because the witness could not show up that day. Also do not be surprised then if they ask the judge to let the witness appear telephonically. I have Jedi's MOTW if you don't. You must check every day to make sure they have not filed this stuff. If you can';t find Beer's questions for witness, I can mail them to you or type them out here. Still can't get the hang of posting. Also in thier disclosure did they say they were calling a witness????

Yes I'm expecting all of this and, despite my objections, I'm expecting them to get their way on all of it.

I'm going at this this as a mere formality to set the stage for my appeal.

Edit: I've never heard of a witness showing proof of ID. They are testifying under oath. If they are lying about who they are, the debt they are suing for is going to be the least of their concerns. Besides, who cares if their ID matches who they say they are for the purpose of the subject debt? If they can't authenticate it, their ID could say Big Bird for all I care.

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Ok here's my first draft MIL.

I stated there would be a Memo of Points and Auth. but is this necessary when I cited the case law in each of the items I'm asking to exclude?

 

Thanks in advance.

 

attachicon.gifFirst Draft Motion in Limine_Redacted.pdf

6, 9 and 10 would annoy me if I were a judge. They're unnecessary and superfluous, which therefore detracts from your credibility as a reasonable person otherwise making properly stated, pertinent, focused objections.

I'd get rid of the reference to the memorandum of points and authorities.

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You can print out Beergoggles questions for a live witness. There are about 20 fun questions for the witness. Also make sure you ask for their DL to prove who they are. Also don't be surprised that they will ask for a continuance because the witness could not show up that day.  Also do not be surprised then if they ask the judge to let the witness appear telephonically.  I have Jedi's MOTW if you don't. You must check every day to make sure they have not filed this stuff.

 

If you can';t find Beer's questions for witness, I can mail them to you or type them out here. Still can't get the hang of posting. Also in thier disclosure did they say they were calling a witness????

I agree with Harry that asking for a DL is overkill. It will cause the judge to internally do an eyeroll.

Has their live witness been disclosed? When and in what document? Was the disclosure made in time or did it violate any scheduling orders for the disclosure of new witnesses? Did you have an opportunity to depose him or her?

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p.s. #10 of the MIL is flatly wrong and frivolous. Why the hell can't a lawyer or litigant use a pointer while conducting trial for Pete's sake? Ridiculous!

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6, 9 and 10 would annoy me if I were a judge. They're unnecessary and superfluous, which therefore detracts from your credibility as a reasonable person otherwise making properly stated, pertinent, focused objections.I'd get rid of the reference to the memorandum of points and authorities.

@UCL

I sort of get going on these tangents from samples and need someone to sort of reset the objective. I'll clean it up. Is it customary to cite the case law in the list of objections the way I did?

Also, any thoughts about the live witness?

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I agree with Harry that asking for a DL is overkill. It will cause the judge to internally do an eyeroll.Has their live witness been disclosed? When and in what document? Was the disclosure made in time or did it violate any scheduling orders for the disclosure of new witnesses? Did you have an opportunity to depose him or her?

@UCL

In their initial disclosure statement from 6 months ago or whatever they named 2 possible witnesses. One of which was the affiant. I had an opportunity to depose them but didn't do it.

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Question: "what do I need to prepare for with a live witness?"

Volumes of books have been written on this subject, by lawyers 10 times smarter and with 1000 times more experience than me. But here's a condensed version of what I've gleaned from my experience and what these other lawyers have taught me, applied to your status as a pro se without years to read up on this:

- Never ask open-ended questions. Leading questions ONLY. Trust that rule. It's tempting not to but trust it.

- The cliche is true: don't ask a question to which you don't know the answer

- Perry Mason "OMG you caught me!" moments never happen in real life. Ever. Ever. Keep your expectations and goals of the cross-examination modest.

- Make bullet points in any random disorganized order of what specific points you want to try and accomplish from the witness, and then:

- organize these points into a strategic sequential order that makes sense to you

- try and enlist a friend to role play as obnoxious a witness as he can be

- don't memorize anything because the testimony will never go according to script and you have to be flexible

- write down the 5-10 points that you absolutely MUST make to prove your defense somewhere. Before you end your cross, look at that list to make sure you covered them.

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In their initial disclosure statement from 6 months ago or whatever they named 2 possible witnesses. One of which was the affiant. I had an opportunity to depose them but didn't do it.

Doesn't matter and that's not the point. Depositions in this case would be a waste of your money.

The point is that the live witness must be one of those 2 people, and his disclosure must have been timely (so that you could have deposed him if you had wanted to).

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Harry, I will play the obnoxious witness?/ Lol  Seadragon gave me the link to Beergoggles 25 questions to ask the ??witness if they show , and also said to ask for their ID. Just because they are under oath does not mean they are the affiant.

 

Who cares if the judge rolls their eyes. Not you!  And they named 4 names either or on my disclosure from them and 0 showed up. They are trying to bully you. Do you have time to subpeona ??

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"Who cares if the judge rolls their eyes."

You should only care about this if you care about winning, since the judge is the decider. Eye-roll moments are not good. An eye roll means, "Oh God, give me a frickin' break. I'm missing my afternoon nap because of this guy?"

Don't ever be that guy.

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Harry, I will play the obnoxious witness?/ Lol  Seadragon gave me the link to Beergoggles 25 questions to ask the ??witness if they show , and also said to ask for their ID. Just because they are under oath does not mean they are the affiant.

 

Who cares if the judge rolls their eyes. Not you!  And they named 4 names either or on my disclosure from them and 0 showed up. They are trying to bully you. Do you have time to subpeona ??

My point about the ID was it doesn't matter who they say they are.  Either they will claim personal knowledge or not.  If it's the kind of person that is going to lie about their name, they are also going to lie about personal knowledge or anything else related to the debt, so why does their name matter?  And being under oath, I can ask him to state his name if the plaintiff doesn't do it, and if it doesn't match one of the two they listed in their initial disclosure statement, I object.  That's really the what it all comes down to.

 

I think I have time to subpoena (30 days, right?), but why would I want to do that?  If their witness doesn't show up, that only helps my case.  They have already been granted a continuance against my objection.  If they ask for another one because their witness doesn't show up, I can make an argument that everyone received notice of the trial date and they shouldn't have brought THEIR lawsuit if the single witness their entire case hinges on is unreliable.  Of course my argument will probably be rejected and I'll have to do the entire thing again, but it's another opportunity for me to underscore for the court the shortcomings in the plaintiff's case.

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"Who cares if the judge rolls their eyes."

You should only care about this if you care about winning, since the judge is the decider. Eye-roll moments are not good. An eye roll means, "Oh God, give me a frickin' break. I'm missing my afternoon nap because of this guy?"

Don't ever be that guy.

"The judge is the decider" - until a judge from above fixes their errors. If I had to win at the trial court level because it was the final word I would be in a world of hurt. I assume the judge is going to act, for the most part, as paid staff for opposing and have not been disappointed YMMV. Such thinking tunes up my game for making an appealable trial court record, should it be necessary to follow through.

 

I pay attention to eye rolls, but since I am not bringing bogus arguments I am not intimidated by them. I would consider "eye rolling" by an appellant panel a bit disconcerting. Trial court judges have training in eye-rolling and it is likely for purposes of intimidation unless you are bringing crap into their court room. The well read here should not be doing that crap thing IMHO.

 

Of course it is always fun, if rare, to see that eye-rolling focused on opposing counsel.

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p.s. #10 of the MIL is flatly wrong and frivolous. Why the hell can't a lawyer or litigant use a pointer while conducting trial for Pete's sake? Ridiculous!

That one was put in for a survivor of domestic abuse and who wanted it. It is reasonable for that reason and a pointer to merely exaggerate hand movements will usually make the bailiffs nervous also.

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That one was put in for a survivor of domestic abuse and who wanted it. It is reasonable for that reason and a pointer to merely exaggerate hand movements will usually make the bailiffs nervous also.

Zero applicability here, especially since the opponent is a lawyer, not a domestic violence suspect.

(Insert numerous lawyer jokes here)

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Ok, here's a dilemma.  They are allegedly bringing in a live witness.  If there are any discrepancies between the witness' testimony and the affidavit, I will want to introduce the affidavit to discredit the witness.  It seems my only options are to preclude the affidavit entirely or exempt the affidavit from the MiL making it available to both sides, in which case they can use it if their witness doesn't show and the judge shoots them down if they ask for a continuance.

 

Any ideas on which way to go here?  Or possibly a 3rd option I'm not seeing?

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Ok, here's a dilemma.  They are allegedly bringing in a live witness.  If there are any discrepancies between the witness' testimony and the affidavit, I will want to introduce the affidavit to discredit the witness.  It seems my only options are to preclude the affidavit entirely or exempt the affidavit from the MiL making it available to both sides, in which case they can use it if their witness doesn't show and the judge shoots them down if they ask for a continuance.

 

Any ideas on which way to go here?  Or possibly a 3rd option I'm not seeing?

Having just read the last couple of pages of your thread, I believe you stay on point and cover your bases.

1. File the MIL, no reason to really believe there will be a live witness, until they take the stand. If they do show and it is the affiant, then you can play up the "no personal knowledge" from the affidavit, but today in court you now have personal knowledge????

2. If the other name on the list shows, your arguments will be the same, just a different witness in the box. Remember, if they do show with a live witness, these folks will be telling the same story.

I think UCL was dead on in deciding what are the 5 things you need to win, and really concentrating on these during cross. These would be the usual items, "Standing", "Authenticated Evidence","Witness Credibilty", etc.

Only you know your case and what they have provided and in the way of documents.

Best of Luck

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Ok, here's a dilemma.  They are allegedly bringing in a live witness.  If there are any discrepancies between the witness' testimony and the affidavit, I will want to introduce the affidavit to discredit the witness.  It seems my only options are to preclude the affidavit entirely or exempt the affidavit from the MiL making it available to both sides, in which case they can use it if their witness doesn't show and the judge shoots them down if they ask for a continuance.

 

Any ideas on which way to go here?  Or possibly a 3rd option I'm not seeing?

The affidavit is inadmissible hearsay for the truth of the matter asserted. (Check the rule, that's actually what it says.)

The affidavit is not inadmissible for some purpose other than the truth of the matter asserted. You want to use it in your question for impeachment, not for the truth of the matter asserted.

Worry about this only if the named witness actually shows up. Also, you have more important points to make than some minor discrepancies between his live testimony and the affidavit. Still use any discrepancies on cross (especially to a jury), but stay focused on the big picture.

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@skippy1960 @UCL @Seadragon @BV80 @Credator

 

Here is my second draft MiL.  I restructured it considerably because I like this layout better.

Please take a gander and let me know what changes I should make.

 

Thanks!

 

attachicon.gifSecond Draft Motion in Limine_Redacted.pdf

I would eliminate the defendants position of the whole case in the beginning because it characterizes this motion as a sudo summary judgment motion. The Facts section reads like the facts section of the summary judgment or the trial brief. I would make the facts more general ie: the Plaintiff sued for the following causes of action, defendant answered denying same with affirmative defenses in the alternative. During discovery several critical admissions were divulged by plaintiff in regards to foundation, authentication, and affiants personal knowledge.

 

also go into more detail about how it would prejudice you to have these inadmissible items allowed into the record at all.

 

just my thoughts but the rest is spot on. good job. also make formal written objections to each so it is part of the record just in case. maybe titled Written objections to disclosed documents and things. I think having the specifics entered in the record at trial will help preserve the record and tie the courts hands as far as discretion goes.

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@Seadragon

 

I would eliminate the defendants position of the whole case in the beginning because it characterizes this motion as a sudo summary judgment motion. The Facts section reads like the facts section of the summary judgment or the trial brief. I would make the facts more general ie: the Plaintiff sued for the following causes of action, defendant answered denying same with affirmative defenses in the alternative. During discovery several critical admissions were divulged by plaintiff in regards to foundation, authentication, and affiants personal knowledge.

 

also go into more detail about how it would prejudice you to have these inadmissible items allowed into the record at all.

 

just my thoughts but the rest is spot on. good job. also make formal written objections to each so it is part of the record just in case. maybe titled Written objections to disclosed documents and things. I think having the specifics entered in the record at trial will help preserve the record and tie the courts hands as far as discretion goes.

So would I do a separate "written objection" for each item or one pleading with line item objections for each thing?

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