marquez

Motion to Compel DENIED. Any ideas for what to do next???

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I filed a MTC requesting arbitration in a case with PRA. I am in Jefferson County. I filed my answer and MTC on time, and included the cc agreement (Wal-Mart/Synchrony).

Today I got a notice that it was denied on Feb 24 and entered into court on 3-2, and the reason was "per JDR 318" which reads:

"The Jefferson District Court Civil Division has jurisdiction over the following matters:
A. Small Claims Complaints;
B. Civil Complaints up to and including $4,000.00;
C. Evictions (Forcible Entry & Detainer);
D. Petitions for Emancipation by Minors;
E. Petitions Authorizing or Prohibiting Cremation;
F. Appellate Jurisdiction from Administrative Agencies, including:
1. Denial or Suspension of the Carry Concealed Deadly Weapon License;
2. Parking Tickets; and,
G. All matters reserved pursuant to KRS 23A.100(3)."
 
It seems to me that the court is saying that they have jurisdiction and that I do not have the right to arbitration unless a judge approves, but here is the cc agreement wording on arbitration:

(a)   "If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or Wal-Mart Stores, Inc. if it relates to your account, except as noted below."

 

(b)  “We will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court; or (2) a case we file to collect money you owe us. However, if you respond to the collection lawsuit by claiming any wrongdoing, we may require you to arbitrate.”

 

(c)   “Notwithstanding any other language in this section, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or scope of this section or any part thereof (including, without limitation, the next paragraph of this section and/or this sentence). However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide.”

I think it's a sneaky way for them to keep people from requesting arbitration and automatically getting it granted. I had no trouble when Discover sued me. I filed the same motion and it was dismissed with prejudice. 
I don't know what to do next.
Does anyone have any suggestions??? The amount they're suing for is 1700 bucks.
Ugh. I'm considering just filing bankruptcy. Maybe that's a better option? I got served with 2 more last week. One from Barclay's and another from Capital One. I'm really not sure if I'm up to this, but I was going to just take it one at a time and try to do my best to not give up. 
Any help would be VERY much appreciated.

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Look into your civil procedure rules to have the judge reconsider or appeal this. Make sure to reference FAA (Federal Arbitration Act) and Kentucky's own arb code-

http://www.lrc.ky.gov/statutes/chapter.aspx?id=39272

http://www.lrc.ky.gov/statutes/statute.aspx?id=17991

 

The court can't say it has jurisdiction except to enforce the arb agreement when there is arbitration in the cardmember agreement-

On application of a party showing an agreement described in KRS 417.050, and the opposing party's refusal to arbitrate, the court shall order the parties to proceed with arbitration. If the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised. The court shall order arbitration if found for the moving party; otherwise, the application shall be denied.

417.200 Court--Jurisdiction.

The term "court" means any court of competent jurisdiction of this state. The making of an agreement described in KRS 417.050 providing for arbitration in this state confers jurisdiction on the court to enforce the agreement under this chapter and to enter judgment on an award thereunder.

 

Some ideas on motion to reconsider here-

http://www.stites.com/uploads/learning-center/BennettMcTigheReconsideringMotionConsiderBarBriefsJune2012.pdf

 

 

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Don't file for BK.   Demand your state and federal right to arbitrate.  

Here is a KY recent case where the judge, as in your case, denied a MTC  without actually stating a reason.  The appeals court remanded the case back to him.

http://kentuckylaw.com/pdfs/PMF%20v%20Garrison%202015-CA-000038.pdf

I can't access debtorboards from my work computer, but this KY OP has his MTC denied in KY as w

 

MTC Denied (Kentucky) - Debtorboards

www.debtorboards.com/index.php?topic=28497.5;wap2
  •  
Aug 24, 2015 - ... why the judge denied your motion so you can focus on that reason.... the Kentucky court did not have the jurisdiction to compel arbitration  ...

 

 ...

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27 minutes ago, debtzapper said:

Don't file for BK.   Demand your state and federal right to arbitrate.  

Here is a KY recent case where the judge, as in your case, denied a MTC  without actually stating a reason.  The appeals court remanded the case back to him.

http://kentuckylaw.com/pdfs/PMF%20v%20Garrison%202015-CA-000038.pdf

I can't access debtorboards from my work computer, but this KY OP has his MTC denied in KY as w

 

MTC Denied (Kentucky) - Debtorboards

www.debtorboards.com/index.php?topic=28497.5;wap2
  •  
Aug 24, 2015 - ... why the judge denied your motion so you can focus on that reason.... the Kentucky court did not have the jurisdiction to compel arbitration  ...

 

 ...

The court denied his motion because the agreement didn't specifically state that arbitration would take place in Kentucky is what I read.

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I'm not seeing that "not in Kentucky" reasoning in the denial but if that's what the judge is saying and JAMS is in the cardmember agreement, it puts arb in Kentucky-

The consumer must have a right to an in-person hearing in his or her hometown area. (from JAMS Consumer Rules)

 

AAA does the same in their Consumer Due Process Protocol-

https://adr.org/aaa/ShowPDF?doc=ADRSTG_005014

Principle 7. Reasonably Convenient Location

In the case of face-to-face proceedings, the proceedings should be conducted at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination should be made by the Independent ADR Institution or by the Neutral.

 

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If you file a motion to reconsider, you will lose your window for an appeal.  I would file an interlocuary appeal.  The current case stays until a higher court rules on your compel motion.

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1 hour ago, shellieh98 said:

If you file a motion to reconsider, you will lose your window for an appeal.  I would file an interlocuary appeal.  The current case stays until a higher court rules on your compel motion.

If the Judge denies the motion to reconsider, couldn't the defendant then do the appeal based on that motion to reconsider hearing? I see there's always 417.220 addressing appeals of arb compel denials but when you do an appeal of an interlocutory order what is the cost of that? Appeals are usually mentioned around here as having additional filing fees and other roadblocks.

http://www.lrc.ky.gov/statutes/statute.aspx?id=18007

 

 

Not sure if there's any fee for a district appeal which are held in circuit court-

http://courts.ky.gov/courts/Jefferson/civilcircuit/Pages/appeals.aspx

A party who takes exception to (disagrees with) a ruling or jury verdict in Circuit Civil may appeal the case to a higher court. Appeals for Circuit Civil are heard in either the Kentucky Court of Appeals or the Supreme Court of Kentucky. Appeals from District Civil and District Criminal cases are heard in Circuit Court. When filing an appeal from a Circuit Civil case, a $160 filing fee must be paid through the Office of the Circuit Court Clerk. Once the filing fee has been paid, the notice of appeal will be filed. The case will be certified only after the pre-hearing conference order from the Court of Appeals is recorded. Once the record has been certified, it will be transmitted to the appellate court upon request. When an appeal is filed in Circuit Court from a District Court case, the case will be delivered to the judge only after a statement of appeal and counterstatement is filed. The case is then delivered to the court to which the case is assigned.

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Thanks so much for your help! I'm going to file a motion to reconsider. I think I have 10 days? It was filed w the clerk on March 2. 

If anyone has any other advice or helpful tips, please let me know. I had no trouble at all with the first MTC, so I'm hoping this will work out. I have a few more of these on the immediate horizon, so I'm trying to pace myself :/

Thanks again. I would have no clue how to do this without your experience and patience.

XtypeX

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@marquez

You only have a certain amount of time to file an interlocutory appeal for the denial of your MTC arbitration.  You need to find out if a motion to reconsider tolls that time (stops the appeal clock). 

If the motion to reconsider stops the clock from running, fine.  But if it doesn't, then you could lose your chance to file the interlocutory appeal.

Call some attorneys just to ask that question.

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So, this is from the Basic Appellate Practice Handbook for Ky. I *think* it means I have 10 days to file a MTR and when the decision on that motion is entered into the clerk's file, I have 31 days from that date to file an appeal. Someone with more knowledge of this--could you confirm if this is the case?

Also, I'm trying to figure out how to file the MTR, and I'm looking for templates and samples for my state and district. If anyone has anything on that front that might help me, I'd really appreciate it. Do I just send all the same information as I did with the MTC? I submitted the arbitration agreement, which is what seems to be the reason I'm asking for reconsideration. So, should I send that again and state that the agreement is binding, regardless of the judge's order? Also, should I go ahead and initiate arbitration, or wait to see what happens?

Thanks for your help. Here is the info from the handbook:

Motions to Reconsider:

When a ruling of the Court of Appeals is announced by order, a party adversely affected may file a motion to reconsider under CR 76.38. A decision announced in a document headed as an opinion and order is treated as an order for purposes of reconsideration. CR 76.38(1); CR 76.32(1). The procedure of CR 76.38 applies to both procedural and substantive orders of the Court of Appeals except for certain rulings specifically listed in CR 76.38(3). The rulings that are not subject to reconsideration by the Court of Appeals include: 39 (1) orders granting or denying interlocutory relief under CR 65.07 or CR 65.08, (2) orders granting or denying transfer under CR 74.02, (3) orders granting or denying discretionary review under CR 76.20, and (4) orders granting or denying petitions for rehearing under CR 76.32. A motion to reconsider must be filed within 10 days of the date of entry of the order subject to reconsideration. The normal motion format should be used and no colored covers are required. If the order to be reconsidered was a final order in an appeal or was an “opinion and order,” the $150 filing fee required by CR 76.42(2)(x), must be paid. In general, a motion to reconsider is assigned to the panel that made the initial decision.

 

Effective Date of Orders:

If an order disposes of an appeal, the Clerk of the Court of Appeals closes out the appellate record (including the return of any original circuit court record) on the 31st day after the entry of the order unless a motion to reconsider or a motion for discretionary review has been filed. If a motion to reconsider is denied, closure will occur on the 31st day after the entry of the order denying the motion to reconsider. If a motion for discretionary review is filed in the Supreme Court, the record is not closed until the Supreme Court disposes of the motion.

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@marquez

17 minutes ago, marquez said:

When a ruling of the Court of Appeals is announced by order, a party adversely affected may file a motion to reconsider under CR 76.38.

You're not in the Court of Appeals right now, so the Court of Appeals did not deny your motion.

Under what rule would you file a motion to reconsider the district court's order?

 

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It does seem looking at some Kentucky cases that you should keep an eye on the clock and do that interlocutory appeal making sure you have that filed in time from the current order. The clock doesn't toll based on a motion to reconsider. You could try the motion to reconsider but if that isn't heard in time, make sure you're covered with the interlocutory appeal. http://www.leagle.com/decision/In%20KYCO%2020140509233/DIVERSICARE%20HEALTHCARE%20SERVICES%20v.%20PRINCE

One other thing reading the cases is Kentucky will look to see if FAA governs and most cardmember agreements usually have FAA mentioned. Probably make sure to mention this would be covered under Kentucky's act as well since the arbitration company terms hold the hearings near you.

 

https://scholar.google.com/scholar_case?case=14139182176103920472&hl=en&as_sdt=6&as_vis=1&oi=scholarr

To fall under the Kentucky Uniform Arbitration Act, the arbitration agreement must specify that the arbitration is to occur in Kentucky; otherwise, the Kentucky courts have no jurisdiction to enforce the agreement under that Act, see Ally Cat, LLC v. Chauvin, 274 S.W.3d 451, 455 (Ky.2009), though they may have jurisdiction to enforce the agreement under the Federal Arbitration Act. The purported agreement in this case states that it falls under the Federal Arbitration Act but it also states that the arbitration was to occur "at a location within the federal judicial district that includes your mailing address at the time the claim is filed." That appears to be sufficient to bring the agreement under the Kentucky act. Nevertheless, as discussed below, there is some question in this case as to which of the two acts applies to this case.

[3] This question arises because the notice of appeal in this case claims the appeal, which was admittedly interlocutory, was allowed under KRS 417.220, but the alleged arbitration agreement states it falls under the Federal Arbitration Act. KRS 417.200 is part of the Kentucky Uniform Arbitration Act, and interlocutory appeals from certain decisions under the act are allowed by that statute. See Kindred Hospitals Ltd. Partnership v. Lutrell, 190 S.W.3d 916, 919 (Ky.2006). Chase, however, notes that when an arbitration agreement states it is subject to the federal act, that act governs the agreement. See Hathaway v. Eckerle, 336 S.W.3d 83, 87 (Ky.2011).

But if the agreement is governed by the federal act, then Chase should have sought interlocutory relief for decisions denying arbitration under agreements subject to the Federal Arbitration Act under CR 65.07 and 65.09, the rules governing interlocutory appeals of decisions granting or denying injunctive relief, not an appeal under KRS 417.220. See North Fork Collieries, LLC v. Hall, 322 S.W.3d 98, 102 (Ky.2010) ("In the arbitration context, we have recognized CR 65.07 and CR 65.09 as appropriate avenues for the review of trial court orders denying motions to compel arbitration, particularly when, as here, the KRS 417.220 right to an interlocutory appeal does not apply."). However, though not properly framed, the review is essentially the same.

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Rule 65.07 says you have 20 days after the of the Order to file an interlocutory appeal. 

In the arbitration context, we have recognized CR 65.07 and CR 65.09 as appropriate avenues for the review of trial court orders denying motions to compel arbitration, particularly when, as here, the KRS 417.220 right to an interlocutory appeal does not apply. Kindred Hospitals v. Lutrell, 190 S.W.3d 916 (Ky. 2006).

We hold that a party may appeal the decision of a trial court, which implicates any of the enumerated items in KRS 417.220(1), utilizing either a motion for interlocutory relief pursuant to CR 65.07, or a notice of appeal pursuant to CR 73, as long as that party fulfills the requirements and meets the burdens in so making the appeal. But in the future, a party may only choose one route. Kindred at 922.

 

You need to show that the FAA governs the agreement.

 Under the FAA, state courts as well as federal courts are obliged to honor and enforce agreements to arbitrate. Vaden v. Discover Bank, 556 U.S. 49, 129 S.Ct. [1262] at 1278, 173 L.Ed.2d 206 [ (2009) ].


When the agreement "includes a `choice of law' provision selecting the Federal Arbitration Act as the law governing any dispute between the parties ... the Federal Arbitration Act governs the arbitration clause." Hathaway v. Eckerle, 336 S.W.3d 83, 87 (Ky.2011).

9 U.S. Code § 16 - Appeals

(a) An appeal may be taken from—

(1) an order—

(A) refusing a stay of any action under section 3 of this title,


9 U.S. Code § 3 - Stay of proceedings where issue therein referable to arbitration

If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.

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20 days is not very long.  The only time I would do a motion to reconsider is if I missed my appeal window.  The judge knows the rules, why he ruled against it is anyone's guess.  I think you would fair better if a higher court ruled.  Tie the courts hands and get it out of the courts juristriction.

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On 3/7/2016 at 4:13 PM, shellieh98 said:

The judge knows the rules

I wouldn't be so sure. 

@marquez did your motion ask for a dismissal on the grounds that the court lacks jurisdiction? 

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Thanks, everyone, for your help. @Harry Seaward yes, I included this at the end of the MTC: 

WHEREFORE, Defendant moves this Honorable Court to compel private/contractual arbitration pursuant to the Cardmember Agreement and to dismiss Plaintiff’s complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration.

*HOWEVER, I am starting to think there is a tricky section in the arbitration section of the cc agreement, and I feel kind of dumb if I am right and I included something in the MTC that shows the court does have jurisdiction. Can you tell me if I shot myself in the foot with this? Section C is what concerns me. I was a bit confused about it, and now I think I should have asked someone on here what it means, exactly:

4. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things:

 

(a)   "If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or Wal-Mart Stores, Inc. if it relates to your account, except as noted below."

 

(b)  “We will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court; or (2) a case we file to collect money you owe us. However, if you respond to the collection lawsuit by claiming any wrongdoing, we may require you to arbitrate.”

 

(c)   Notwithstanding any other language in this section, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or scope of this section or any part thereof (including, without limitation, the next paragraph of this section and/or this sentence). However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide."

    Does this mean the judge's denial is valid because "the court decides disputes about the validity, enforceability, coverage, or scope of the section?" If so, can I do anything else to fight this thing?

 

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 I think that paragraph is standard in that the court (all courts) can  and do decide if the arbitration agreement is valid under state contract law and, for example, is not an adhesion contract, doesn't violate public policy, etc.   Once the court determines that a valid arbitration agreement exists,  then the court should let the matter be arbitrated.

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@marquez (b)  “We will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court; or (2) a case we file to collect money you owe us. However, if you respond to the collection lawsuit by claiming any wrongdoing, we may require you to arbitrate.”

Which does not affect your right to arbitrate any individual case brought in small claims court.  It doesn't even look like the Judge looked at it that far and just looked at the dollar amount and decided it's small claims. Appeal.

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Thank you! If anyone has any information on finding a template for filing an appeal, I would really appreciate it. I'm trying to get everything together; these appeals are complicated.  I have searched high and low to find some example I can use to format mine, but I seem to be an utter dunce when it comes to this kind of research. Maybe after I deal with all of these different outcomes and compile a huge stack of all of my different cases, I'll be able to just thumb through my own templates! I just hope I don't run into too many other snags. I am struggling to maintain my confidence in all this.

@debtzapper @Harry Seaward @shellieh98 @CCRP626

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Since this is just going from District to Circuit court for appeal it's pretty simple-

File Notice of Appeal (bring extras) with clerk and pay fee (doesn't appear to be any) within 30 days of judge's order. Clerk sends case file to circuit court.

File Statement of Appeal within 30 days after that or the judge dismisses the appeal.

 

The Circuit Clerk's Manual has the detail http://courts.ky.gov/resources/publicationsresources/Publications/ClerksManual.pdf

What's in a Notice of Appeal- CR 73.03

(1) The notice of appeal shall specify by name all appellants and all appellees (“et al.” and “etc.” are not proper designation of parties) and shall identify the judgment, order or part thereof appealed from. It shall contain a certificate that a copy of the notice has been served upon all opposing counsel, or parties, if unrepresented, at their last known address.
(2) When the notice of appeal is filed, the clerk shall serve notice of its filing by mailing a copy showing the date filed and a copy of the official docket sheet to the clerk of the appellate court and to the attorney of record of each party or to the party, if unrepresented. The clerk shall note in the civil docket the names of the parties mailed the copies, with the date of mailing. Failure of the clerk to comply with this rule does not affect the validity of the appeal.
 
What's in a Statement of Appeal- CR 72.10
(1) A party or parties appealing from the judgment or a final order of the district court shall file with the clerk of the circuit court and serve on the appellee or appellees a statement of appeal signed by counsel for the appellant and setting forth:
(a) The style of the case and the district court docket number;
(b) The name, mailing address, and telephone number of each attorney whose appearance is entered in the case, together with the name of the party represented by the attorney;
(c) The name of the district judge who presided over the matter being appealed;
(d) The date on which the notice of appeal was filed and the date on which any notice of cross-appeal was filed;
(e) A statement as to whether the matter has been before the circuit court on any previous occasion and whether reference to the record of the prior appeal is necessary;
(f) The type of litigation;
(g) A statement as to whether the appellant wants an oral argument;
(h) A fair and accurate summary of the evidence heard by the district court, or a statement that the appeal does not require consideration of the evidence;
(i) A concise statement of the legal questions and propositions on which the appellant relies for a reversal of the judgment, with citations of pertinent authority;
(j) A concise statement of the relief to which the appellant contends he/she is entitled.
(2) In a criminal case appealed from district court to circuit court, a statement of appeal shall be served upon both the county attorney and the Commonwealth's attorney.

 

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@marquez

Is this an appeal of a final judgment?  Or is it an appeal of the denial of the MTC arbitration?

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@BV80 It's an appeal of the judge's denial of the MTC. All the order said was "per JDR 318" beside the section where he circled "denied." So, it seems the judge is citing his jurisdiction, and from what I can tell, the court does not have jurisdiction. So, hopefully the appeal will resolve this. I didn't expect the judge to deny it!

@CCRP626 I meant to mention that I had checked out the legal forms on the Ky court site and had read through the clerk's manual and the appeals procedure manual (as well as one that was published by a Ky law school), but I was unable to figure out how to go about formatting and what to say, etc. I didn't even realize the notice of appeal was not the appeal, though it makes sense. I couldn't figure out what anything was supposed to be called and how to properly make a case, so I am eternally grateful for your willingness to share your knowledge. I would not have known how to wade through all the stuff in that manual. It's soooo frustrating for me. I'm a PhD candidate and writing my dissertation now, so I do research of all kinds every day. I fancied myself smart before I tried researching how to respond to these lawsuits. I cannot believe how hard this has been. It's a little embarrassing. Humbling, for sure! You guys are the best people in the world!

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@marquez

Well, if you're a Ph.D. candidate, you've got not only brains but determination.   You can do this.  There have been many pro se defendants who have successfully appealed their cases both in state and federal court.  It's just a different skill set, that's all.  

You mentioned something about a manual from a Ky law school.  Are you doing  research in a Ky law school library?  The same Univ where you are studying?  Law libraries are great , and law librarians can be very helpful.   Law librarians are both lawyers and librarians.   They can't give legal advice, but they can provide legal information.  If you finesse it right,  (say your're doctoral student and doing a legal project that has to do with an appeal, etc), you may get some really good assistance.   Law students (although they aren't supposed to do it) have also been known to give legal advice.  Sometimes they will do even more.  

You don't need to "struggle to maintain your confidence."   YOU CAN AND WILL DO THIS.
 

 

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