Ihatelawsuits

Trial on Monday

66 posts in this topic

10 hours ago, calawyer said:

I would bet my bottom dollar that the lawyer did not have a witness.

The Rules of Evidence specifically provide for affidavit in lieu of a live witness.  JDBs win trials all the time with no witness, provided they have an affidavit that hits all the beats. The affidavit in this particular case happened to not do that, but there's no way the rent-a-lawyer that showed up could have known any of that.

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9 hours ago, calawyer said:

I would bet my bottom dollar that the lawyer did not have a witness.  Without a witness, they would only have you to call to the stand.  And while they might do a searing cross exam on you sufficient to establish the debt and non-payment, there is absolutely nothing you can say about assignment.  That is why plaintiff dismissed without even trying.

What you are missing is that California has different rules than the other 49 states when it comes to debt cases and JDBs. A witness might be required in California but in the other 49 states, affidavits work just fine.

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We encountered a guy who admitted he was just appearing because he wanted to learn about "contract law." He may may have been appearing for free - the only time he wasn't totally lost was when he tried to tell us that Western Civilization is based on the idea that people will pay their debts.

As for this case, it's still mystifying why they didn't go to trial - we have seen many cases come down to judge asking if the presented billing statements contain the defendant's name and address. It's really that simple. This has to be a case of a fixed daily fee and a boost for each signed settlement. May be time for a trip over to my local court house to watch some of this, in action. I'd like to ask one of these guys if that's the new model - "settle or dismiss." Although it's still quite odd that these cases even get to trial when all of the elements exist for Summary Judgement.

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I think it did not go to trial because the attorneys office was in Huntington, Parkersburg, or Charleston WV and the OP resided in either Cleveland or Toledo OH. Had it been a local lawyer who knew the case, it might have gone to trial. Remember that the law office already spent resources on the initial filing and the summary judgement stuff. They were probably close to going through the contracted rate for these cases and there was no way they were going to spend their own money to send an attorney 4 hours away (plus the loss of that attorney not being in the office). They also were not going to spend their own funds on a rental attorney who did not know the case too well. They therefore hired the rental with the agreement to settle or dismiss (or get a judgement if the opposition does not show up). It is the model of having contracted attorneys are might be able to practice law in the state of the debtor, they are not close enough given the contracted rate to give it a real fight.

As for the summary judgement, I think it was said here that some judges (especially ones that got their rear ends handed to them on an appeal) might simply deny any SJ where there is an cognizant opposition so that they can get the testimony from both sides. This would make it harder for one side to appeal the case.

Each case is such that even if it is a slam dunk for one side or the other, you can never tell what will happen.

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On 2/12/2019 at 8:34 AM, Ihatelawsuits said:

I pretended to read my notes and wrote down a few things so he wouldn't try to talk to me again.  I like to think I scared him by looking all prepared. LOL 

This was such a great idea.  Looking occupied likely made you seem much more prepared.

Congratulations on your victory!

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12 hours ago, WhoCares1000 said:

What you are missing is that California has different rules than the other 49 states when it comes to debt cases and JDBs. A witness might be required in California but in the other 49 states, affidavits work just fine.

Right.  But they tried that on Summary Judgment and lost.  To try the case with the paperwork that the Court already rejected is not a good way to endear yourself to the Court.  He needed a witness to say that plaintiff owned the debt.

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5 hours ago, WhoCares1000 said:

Each case is such that even if it is a slam dunk for one side or the other, you can never tell what will happen.

This, this, this and more of this. It cannot be stressed enough that there is no such thing as a slam dunk. Aside from the biggest wild card, which is individual personalities of everyone involved, #2 wild card offs the fact that evidence admission is almost entirely discretionary. Adam Ruins Everything did an episode on crime. They found a study that concluded that defendants that faced a judge before lunch were 5 times more likely to do jail time vs. those sentenced after lunch were 5 times more likely to get only probation. Even if the results are only 1/2 accurate, if that kind of stuff goes on in criminal court where people's freedom is at stake, imagine what is going on in civil courts. 

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6 minutes ago, calawyer said:

He needed a witness to say that plaintiff owned the debt.

... or a better affidavit. Which would have been easy to do if they had any intention of making a case of this.... case. 

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57 minutes ago, Harry Seaward said:

They found a study that concluded that defendants that faced a judge before lunch were 5 times more likely to do jail time vs. those sentenced after lunch were 5 times more likely to get only probation.

Did they look at what type of cases were done?  If the court schedules only felonies in the morning and misdemeanors in the afternoon that would explain the disparity in jail sentences rather than personality or other factors.

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48 minutes ago, Clydesmom said:

Did they look at what type of cases were done?  If the court schedules only felonies in the morning and misdemeanors in the afternoon that would explain the disparity in jail sentences rather than personality or other factors.

I couldn't find the exact reference from the episode, but this works just the same. 

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3084045/

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And then here's an alternate take. Different stimuli, same outcome.  

"That is consistent with a second theory, familiar from other studies, that decision making is mentally taxing and that, if forced to keep deciding things, people get tired and start looking for easy answers. In this case, the easy answer is to maintain the status quo by denying the prisoner's request."

https://www.economist.com/science-and-technology/2011/04/14/i-think-its-time-we-broke-for-lunch

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2 hours ago, calawyer said:

Right.  But they tried that on Summary Judgment and lost.  To try the case with the paperwork that the Court already rejected is not a good way to endear yourself to the Court.  He needed a witness to say that plaintiff owned the debt.

The problem is that we don't know why the judge denied the summary judgement in the first place. Trial court judges rarely do eloquent reasoning for their decisions unless they know that their decision will be appealed. This might be a judge that will accept any reasonable opposition that shows the slight inclination that there is a trialable fact as enough to deny the summary judgement. To deny a summary judgement is easier to grant in that case, especially for a judge who might have been too quick in the past only to get the case handed back to them by an appeals court. It does not mean that the plaintiff did not have enough evidence to win. It means that the judge felt it would be better to do a trial just in case there was an issue at hand.

As for this plaintiff, the attorneys never intended to go to trial. Once the SJ was refused, they simply carried on waiting for trial on the off chance that something would happen to the defendant and the defendant would not show up. They hired a rental lawyer with the charging orders of settle or dismiss, enough case paperwork to do only either, and a sum so low it would not be worth the rental lawyers time to do anything other than the charging orders. A attorney local to the OP might have been more willing to go to trial, even with the SJ denied.

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3 hours ago, Harry Seaward said:

This, this, this and more of this. It cannot be stressed enough that there is no such thing as a slam dunk. Aside from the biggest wild card, which is individual personalities of everyone involved, #2 wild card offs the fact that evidence admission is almost entirely discretionary. Adam Ruins Everything did an episode on crime. They found a study that concluded that defendants that faced a judge before lunch were 5 times more likely to do jail time vs. those sentenced after lunch were 5 times more likely to get only probation. Even if the results are only 1/2 accurate, if that kind of stuff goes on in criminal court where people's freedom is at stake, imagine what is going on in civil courts. 

At the end of the day, our legal system is a human institution with human fallibilities. Sometimes we will never know why one person was successful and another was not.

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It also come down to who was standing in. In our case, the kid was probably doing it for experience, alone. He knew less than we did.

It strikes me that the main firm could put together a video to teach any lawyer, no matter how raw, the steps to hand the evidence to the judge, point out the billing statements, and get the judge to ask "is this you?" Whole "trial" would take less that five minutes - there's simply no excuse for not following through with a warm body already in the court room.

EDIT: Unless there is an "understanding" that default judgments will be fast-tracked in exchange for not bringing anything else to trial - the court could be complicit in this. We need more cases with no arb clauses to test the theory that we are back to the days of a "well worded answer" being all it takes to prevail.

 

 

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2 hours ago, Goody_Ouchless said:

It also come down to who was standing in. In our case, the kid was probably doing it for experience, alone. He knew less than we did.

It strikes me that the main firm could put together a video to teach any lawyer, no matter how raw, the steps to hand the evidence to the judge, point out the billing statements, and get the judge to ask "is this you?" Whole "trial" would take less that five minutes - there's simply no excuse for not following through with a warm body already in the court room.

EDIT: Unless there is an "understanding" that default judgments will be fast-tracked in exchange for not bringing anything else to trial - the court could be complicit in this. We need more cases with no arb clauses to test the theory that we are back to the days of a "well worded answer" being all it takes to prevail.

 

 

More likely than not though, the warm body in the court room was a rental attorney rather than a member of the firm. Most likely, the arrangement was an independent contractor type arrangement. No firm is going to bet on an attorney they cannot control. Not only that, this firm was 4 hours away from the courthouse in a different state. They would not send their newest associate 4 hours there and 4 hours back (plus food, mileage, and maybe hotel) to simply get experience that can be obtained in the local courthouse. Besides, most of the stuff you mention is taught (or should be taught in law school). They also do mocked up courtrooms so even the newest attorney should have the basics of present evidence to the judge, regardless of what type of attorney they are.

As for the edit, that could possible happen too. Courts are overloaded right now and the states are being stingy with the funding. Judges may just be looking for ways to quickly remove cases from their docket and might inform an attorney in private that there might be a "penalty" for taking up too much of the judge's time on one case.

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Still sounds like a "field trip" is in order. I have a courthouse nearby with what is sometimes called a "pro creditor" judge. Probably be a long wait, but it would be interesting to see what happens if anyone refused to settle on the spot.

 

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