Sevanski

Strategic differences in dealing with OC rather than JDB?

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In my state, a notice to appear is sent to a party to the action whereas a subpoena is sent to a non-party. One of the reasons for the notice to appear is to ensure a party's attendance in the event the other party wants to question him.

I think thats the same here in Cali. If Am Ex want to question OPs uncle a notice to appear has to be served. Otherwise if not timely served and his uncle doesnt show up though luck.

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@sadinca

 

It might be the same everywhere.  It would be nice if a defendant never had to attend a trial because he's represented by an attorney but, of course, the other party can't question his attorney in his place.

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@sadinca

  represented by an attorney but, of course, the other party can't question his attorney in his place.

 

LOL, I always thought that was one of the main reasons to retain the attorney in the first place, so you wouldn't have to take the stand. Never would have guessed that. Now I would be even more pro pro per (no offense to the great attorneys we have here). I have always represented myself, and so never would have researched anything about this.

 

It must work this way in criminal cases however; the DA can't force you to take the stand  if you have an attorney represent you, and can only cross examine you if the defense calls you to the stand first. That must be where I got this idea from.

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@Anon Amos

 

It must work this way in criminal cases however; the DA can't force you to take the stand  if you have an attorney represent you, and can only cross examine you if the defense calls you to the stand first. That must be where I got this idea from.

 

 

Oh, ok.  I know what you mean.  A defendant in criminal court can't be forced to incriminate himself. 

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From my perspective as a non trial attorney, it seems as if the CCP 98 declaration is properly objected to, they are left with absolutely nothing. Who will lay the foundation for ANY documents they want to introduce?? Seems like the entire case boils down to this, but if I am wrong, I suggest any and all input from the group. 

 

In my state I don't know of a CCP 98 equivalent, but plaintiff's use an affidavit for obtaining an MSJ. Supposing that doesn't work and the matter goes to trial...would the defendant still have to subpoena plaintiff's witness? My thought is if they showed up at trial without their witness then the attorney wouldn't be able to admit evidence into the record as they are not allowed to testify

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In my state I don't know of a CCP 98 equivalent, but plaintiff's use an affidavit for obtaining an MSJ. Supposing that doesn't work and the matter goes to trial...would the defendant still have to subpoena plaintiff's witness? My thought is if they showed up at trial without their witness then the attorney wouldn't be able to admit evidence into the record as they are not allowed to testify

You need to know your rules of evidence to object to the evidence. Hearsay, business records exception to hearsay, as well as foundation and authentication.

Also find out how to request a witness and evidence list (or when they have to provide one) so you know what they will use against you.

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You need to know your rules of evidence to object to the evidence. Hearsay, business records exception to hearsay, as well as foundation and authentication.

Also find out how to request a witness and evidence list (or when they have to provide one) so you know what they will use against you.

 

Good looking out...sure will

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Oh wow... I was under the impression this thread couldn't possibly get any better, so I didn't log on for a few days. The @calawyer showed up and saved the day... 

 

Uncle wasn't served with a notice to appear. Trial is on the 15th, so it may be too late at this point. Especially if they want him to produce any documents. 

 

You guys think I should preemptively prepare written objections to both the new witness and request for continuance? I think it may show that we have put a certain level of preparation into the matter and are deserving of our day in court. 

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You have a right to your day in court without the need for a continuance.

You should object to any witness being called that is not on the ccp96 witness list or anyone other than the ccp98 declarant.

You probably won't know who the witness is until last minute and so will object to them at trial because they weren't listed as per ccp 96 and it also violates due process.

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I would not get a continuance.  It gives them a preview of what they will need when you come back to the court, and they can prepare for it.  Don't let them ask for one either.  They cannot have one unless it is in writing  with a declaration showing good cause. 

 

© Grounds for continuance

Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include:

(1)1pixel.gifThe unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances;

(2)1pixel.gifThe unavailability of a party because of death, illness, or other excusable circumstances;

(3)1pixel.gifThe unavailability of trial counsel because of death, illness, or other excusable circumstances;

(4)1pixel.gifThe substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice;

(5)1pixel.gifThe addition of a new party if:

(A)1pixel.gifThe new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or

( B)1pixel.gifThe other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case;

(6)1pixel.gifA party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or

(7)1pixel.gifA significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.

 

Edited to add--I mis read that, I thought you were going to request one, lol.  My mistake.

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Oh wow... I was under the impression this thread couldn't possibly get any better, so I didn't log on for a few days. The @calawyer showed up and saved the day... 

 

Uncle wasn't served with a notice to appear. Trial is on the 15th, so it may be too late at this point. Especially if they want him to produce any documents. 

 

You guys think I should preemptively prepare written objections to both the new witness and request for continuance? I think it may show that we have put a certain level of preparation into the matter and are deserving of our day in court. 

 

 

CCP 1987 (B):

 

 (B) In the case of the production of a party to the record of any

civil action or proceeding or of a person for whose immediate benefit

an action or proceeding is prosecuted or defended or of anyone who

is an officer, director, or managing agent of any such party or

person, the service of a subpoena upon any such witness is not

required if written notice requesting the witness to attend before a

court, or at a trial of an issue therein, with the time and place

thereof, is served upon the attorney of that party or person. The

notice shall be served at least 10 days before the time required for

attendance unless the court prescribes a shorter time. If entitled

thereto, the witness, upon demand, shall be paid witness fees and

mileage before being required to testify. The giving of the notice

shall have the same effect as service of a subpoena on the witness,

and the parties shall have those rights and the court may make those

orders, including the imposition of sanctions, as in the case of a

subpoena for attendance before the court.

 

Subsection c says you have to give 20 days if you request documents.

 

So if they mail served a notice to appear, it would to have a proof showing mailing on July 31.  They could still personally serve you on Wednesday (but no documents).

 

Not sure if I would prepare a written objection to a request for continuance.  Your best "equitable" argument is that you are prepared and ready to go.  If you have a written objection, it suggests that you were expecting such a request (frankly so does copying the CRC section but I do that anyway).

 

 

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@calawyer

 

 

Stupid smiley things.  1987 b.

 

:-)

 

Italicize the "b" but not the parentheses, and you won't get a smiley face.

 

(b)

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@calawyer

 

 

 

:-)

 

Italicize the "b" but not the parentheses, and you won't get a smiley face.

 

(b)

 

 

Ok.  But they are still stupid  :neutral:

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One last question for you all, and I promise I will stop the badgering... Have any of you heard of a situation where the Plaintiff would actually fly a representative across the country over a limited civil collections matter? Like I mentioned, we really don't care whether we win or lose, but the idea of a company doing that seems so unlikely. 

 

In any event, I really appreciate all of your help. I will keep you all updated on what happens.

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Sometimes they will do it if they have lots of cases going to trial in the same (or nearby) counties in a given week.  There may be other reasons of which I am unaware.  It is very rare, however.

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Hey All, 

 

So my westlawnext is down (get it for free from work  ::punk:: ), and I have a lingering question... I just realized that on their CCP 96 responses, they didn't list the name of their witness. They merely put "Plaintiff's Custodian of Records". I feel like this may necessitate a MIL? How could I possibly prepare for a witness if it could be any number of people out there?

 

Any input is much appreciated. 

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How nice. Looks like they don't plan on bringing any one then because they have to give you a name and addy. find your CCP that speaks to this. You could object to it now or in court. Local courts have different rules on how far in advance you can fil a MIL, check yours.

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unfortunately for them the only witness they can provide, if you object, is the one you subpoena ccp98, and those named on ccp96. sounds like they named the same person on both.

 

Actually you were on to this at about post 30 - 35.

 

@Sevanski

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I think I would object at trial to any witness being called that has not been subpoenaed under ccp 98 or properly listed on the witness list under ccp 96.

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So you guys think I should meet and confer with the attorney or should I just spring the objection on them at trial... Also, and this might just be a small detail, they claim that they intend to call the "custodian of records" in the CCP 96 response, but in the CCP 98 declaration, she claims that she is the ASSISTANT custodian of records. 

 

My concern is that if I were to meet and confer with the attorney, then he could just clear it up and the judge would find that I wasn't prejudiced by it. On the other hand, if I DON'T meet and confer, I feel like the judge may overrule my objection based on it being untimely. 

 

Ahhhhh the struggles of a transactional guy trying to save family! lol

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I think Calawyer explained this on another threat. If i remember correctly he recommended to send a meet and confer letter. They are late to send an ammended 96. Then just submitt your objection and serve them. Hope i remember correctly.

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It's too late for them to amend aything now anyway. I think you could go either way.

If you did send the M&c letter it would just be to let them know you are going to object. It would be to save their time if they just want to dismiss instead.

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