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Elizabeth Prentice
Elizabeth Prentice, Attorney
Category: Bankruptcy Law
Satisfied Customers: 170
Experience:  Managing Attorney for one of the largest consumer bankruptcy firms in America.
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Hello Again, We spoke a few weeks ago, and now I am representing

Customer Question

Hello Again, We spoke a few weeks ago, and now I am representing pro se in an adversary that is scheduled for trial on Sep23. I would like to know what documents I need to ask the plaintiffs? I understand they need to provide me with their witnesses, their discoveries etc. What is the entire set that I can ask for? Pls advise.
Submitted: 11 months ago.
Category: Bankruptcy Law
Expert:  Elizabeth Prentice replied 11 months ago.
Prior to the trial, you should have a pre-trial conference. Before the final pre-trial conference you are required to meet or at least call opposing counsel and enter into a pretrial order (an agreement), which includes a list of the parties’ stipulations (facts you both agree on), contentions (facts you both disagree on that the judge needs to decide), exhibits, pleadings and discovery materials to be submitted to the court (anything previously filed in the bankruptcy or adversary proceeding), and witnesses (for both sides). This Pre-Trial Order will state the witness list, the documents/exhibits you both plan to use and any other materials you think are relevant.

If the actual trial is coming on September 23, this Order should have already been filed with the Court and you are "locked in" as to what exhibits and witnesses you can both have. If the September 23rd date is the final pre-trial conference date, then you should call opposing counsel and discuss with them all of the above issues and decide who will be preparing the pre-trial order, so that you can bring it with you to the final pre-trial conference. Depending on your Judge's court rules, you may also need to submit a copy to his chambers before the final pre-trial conference. If the September 23rd date is in fact the final pre-trial conference, then you should call the Judge's law clerk and see if you need to send the Judge a copy before the hearing, since the law clerk will be reviewing it prior to the hearing for the Judge. If the clerk says to just file it, then go ahead. It will need to be signed by both opposing counsel and yourself. If you can not agree on 1 version, then create your own and bring it with you.

I hope my answer has assisted you and that you will leave me a positive rating!
Elizabeth Prentice, Attorney
Category: Bankruptcy Law
Satisfied Customers: 170
Experience: Managing Attorney for one of the largest consumer bankruptcy firms in America.
Elizabeth Prentice and other Bankruptcy Law Specialists are ready to help you
Customer: replied 11 months ago.

Thank you for the detailed answers, they are always helpful.


Here are additional questions in follow up of above:


1.Is it the burden of plaintiff or defendant to ask for that PTC? Being the defendant, Is it better held later or earlier? Is there a certain timeframe under which this has to be held? I say this as he (plaintiff) hasnt asked for it yet, and it was just this past monday when I told him I cannot accept his offer for settlement.


2.Since I dont have a knowledge of PTC I will assume its not filed in, so that will give me time to prepare my witnesses and exhibits?


3.What happens if he disagrees to prepare the PTC?


4.So my understanding is that after PTC records are submitted, we narrow down what disagreements we have and only focus on them in the court? Can the plaintiff trick me of this assumption and play around with that?


5.What happens if a certain witness he had earlier doesnt wanna come to the hearing?


6. How do I subpeopna witnesses for my case?


7. Will their clients be neeeded to be in the trial? He (atttorney) said, that is not needed, as they live outside of US, but I researched elsewhere and it said the plaintiff has to be there. How can I ask for dismissal if the plaintiff dont make it to the trial?


Sorry a lot of questions on my mind, appreciate your patience and help!

Expert:  Elizabeth Prentice replied 11 months ago.
Before I answer the rest of your questions, it is important to note that the local rules of federal procedure vary from Court to Court. They are local nuances and customs which only a local attorney can advise you on. First, I would contact your old attorney and find out what upcoming hearings are set. You can also find this online at pacer.gov on your case docket. It is important to know whether the Sept. 23 hearing is a pre-trial conference or the trial. If it is the PTC, then I would recommend still calling opposing counsel to see if you need to create a stipulated PTC Order. If not, then make your own. If he doesn't get back to you, make your own. If you have any concerns, just make your own.

Now onto your questions:

1.Is it the burden of plaintiff or defendant to ask for that PTC? Being the defendant, Is it better held later or earlier? Is there a certain time frame under which this has to be held? I say this as he (plaintiff) hasnt asked for it yet, and it was just this past monday when I told him I cannot accept his offer for settlement.
Answer: Plaintiff technically always has the burden to initiate, but you should always give it your best shot to initiate, as well. If push comes to shove, the Judge will never hesitate to sanction you both for not working together. Always be the better party in the judge's eyes, by trying to work with the other side. The Pre-Trial Conference is scheduled by the Court in the prior orders in the case. It is typically 10-14 days before trial. Call your attorney or check the link that says deadlines on your case docket. If your court requires you to do a joint pre-trial conference order, then you guys can just do it anytime before the pre-trial conference. If you court doesn't, then just bring your with you.

2.Since I dont have a knowledge of PTC I will assume its not filed in, so that will give me time to prepare my witnesses and exhibits?
Answer: If your Pre-Trial conference is on September 23, then your Pre-Trial Conference Order needs to be done by you before you walk in Court on September 23.

3.What happens if he disagrees to prepare the PTC?
Answer: Prepare your own.

4.So my understanding is that after PTC records are submitted, we narrow down what disagreements we have and only focus on them in the court? Can the plaintiff trick me of this assumption and play around with that?
Answer: The Pre-Trial Conference is to voice disagreements to the Judge about issues you will both have at trial. If you prepare a joint pre-trial conference order, opposing counsel has to have you sign off on it before he gives it to the judge, so he can't do anything sneaky. If you don't have a joint order and each do your own, then you will simply exchange them at the hearing, and each give a copy to the Judge.

5.What happens if a certain witness he had earlier doesn't wanna come to the hearing?
Answer: You are required to subpoena all your witnesses for a bankruptcy hearing or trial.

6. How do I subpoena witnesses for my case?
Answer: Detailed instructions on how to subpoena a witness for a bankruptcy hearing anywhere in the US are found here:
http://www.wiwb.uscourts.gov/fillable_forms/SubpoenaBK_B256_instructions.pdf
In the guide, disregard the number of the form they are talking about and use this form:
http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO088.pdf

7. Will their clients be need to be in the trial? He (attorney) said, that is not needed, as they live outside of US, but I researched elsewhere and it said the plaintiff has to be there. How can I ask for dismissal if the plaintiff don't make it to the trial?
Answer: I have never come across a case where the Plaintiff didn't show up. If he received an order allowing this, there isn't much you can do about it. If not, then serve a subpoena to the Plaintiff to appear at the hearing (you serve it on his counsel). If they don't show up, then I would voice your concern and ask that the Plaintiff be held in contempt.

-------------
One last thing -- If your jurisdiction does not do joint pre-trial orders, you should prepare your own. I recommend you prepare your own, whether you do a joint one or not. You need to be prepared.
It should be on pleading paper with the caption. It should contain the following headings with the appropriate things stated under each:
Trial Statement, List of Witnesses, and List of Exhibits. The Trial Statement should be a brief 1 page summation of your story of the case. You should next list any disputed facts and agreed upon facts, with a short conclusion asking for what you want the judge to do for you (Ex) Dismiss the Plaintiff's Adversary Complaint.) The List of Witnesses should be those witnesses which you plan to call at trial. The List of Exhibits should be the list of documents you will introduce at trial. Then you need to label a copy of every exhibit, corresponding with the letter or number you labeled it in the document. Attach these to your document and make 2 copies to give away at the Pre-Trial Conference- 1 for opposing counsel and 1 for the judge. It is best not to write on the exhibits, so you may just want to make a cover sheet for each document that says Exhibit 1, etc.

Please remember that use of this service does not create any attorney client relationship and that information provided is not the practice of law but intended to direct you in finding an attorney in your locale. I hope my answer has assisted you and that you will leave me a positive rating! Please feel free to request me by name, should you have any questions in the future.

Elizabeth Prentice, Attorney
Category: Bankruptcy Law
Satisfied Customers: 170
Experience: Managing Attorney for one of the largest consumer bankruptcy firms in America.
Elizabeth Prentice and other Bankruptcy Law Specialists are ready to help you
Customer: replied 11 months ago.

Hello Again,


The date on Sep23 is the FINAL HEARING (Trial) and I havent heard from the opposing counsel so I am making my own PTC order. Few questions:


1.The only witnesses I planned to cross examine were the Plaintiffs, however the opposing counsel indicated that they will not be able to fly in to US die to flight costs and that he plans to use their video deposition. Now I cannot ask questions to then if they are not coming in? How can I file a motion with the court so that they have to be physically present of dismiss the case for whatever reason I can use under the book of law


2. If they do not come in and we go to trial, Can I list what my defenses are, how will the plaintiff answer to those? and how can I use this to my advantage if the plaintiffs dont even care to show up for their case?

Expert:  Elizabeth Prentice replied 11 months ago.
I'm a bit confused. When was the pretrial conference? Was an order done by your prior attorney? If not, when was the due date for you to submit one?

With regards to the plaintiff's appearance, if the attorney already submitted a request to use the deposition at trial in their pretrial disclosures, then you should've already objected. With out knowing what every due date is and what the docket says, it is difficult to know how to advise you. I would recommend sitting down with your prior counsel and asking them.

Your defenses were already stated in your answer filed in the matter. If you wish to bring them up, you should address them in your opening and closing statements. The judge will decide on their validity.

I would highly recommend you retain or at least consult with a local attorney in person as soon as possible.
Customer: replied 11 months ago.

Hi Elizabeth,


1.I am not sure myself when was the PTC? I see a witness list was provided, But I am waiting on access to Pacer, I am pretty sure the order wasnt filed for a PTC. I will also be calling the judicial assistant in a few.


2,The attorney did not submit a request in the court, he just informed me about this yesterday when I called him to let him know about the subpeona sent for service.


3.There are no due dates anymore, the trial is scheduled for Sep23 @ 9am and my previous counsel has given me all paperwork that he had.


4.I will be talking to a local Legal help attorney at the court tomorrow, But I feel if I know my options I can better address this questions as time is limited and I am prepared to face ProSe this monday.


5.My biggest concern is under these circumstances, do I have to file a motion to make the plaintiff appear? Since there is no earlier order in this regards, how can I ask for their appearance or ask for dismissal? or what other options I can have?

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