is it a common practice for lawyers to provide false documentation in the hopes that the judge will misinterpret because of time constraints and caseload with defendant that has no legal counsel?
A: In state court -- you bet it is. See below.
In my experience in criminal court testifying as a police officer, many times, judge would prompt young prosecutors as to the next possible avenue. In this case, do you think that since I did not request a motion, that judge was not required nor moved to help me in this matter? Just asking in your opinion. I know it has nothing to do with case but just for shits and giggles in case I ever comes across anything legal, I may have a better understanding.
A: State court judges are elected officials. If they want to keep their jobs, then they have to be more responsive to political needs of the community. Can you imagine a state court criminal law judge that held the prosecutors' feet to the fire. Most defendants would be released for lack of probable cause -- and the community would be outraged. Local police, county sheriffs and district attorneys offices don't have the budget to properly investigate and prosecute criminals, so judges heavily lean towards the prosecution wherever they can. And, in traffic court, let's face it, since the bail/fines go to the local judicial district, and there is no court reporter required for hearings or trial (unless the defendant pays for one in advance -- which is as expensive as the traffic bail/fine), the judge pretty much operates on a "guilty until proved innocent" standard (ed. op.).
You have been extremely helpful and thank you very much.
A: You're very kind. If it seems sometimes that I have no "bedside manner," it's because I have no bedside manner. I believe that persons in difficult legal circumstances should get the unvarnished truth concerning their options so that they know what they can and cannot do, which permits them to take action. Many/Most attorneys are afraid of losing a client, so instead of telling the client the truth, the attorney will remain vague about options, and frequently not bother doing any research -- because (1) once the attorney knows what the options are, he/she has a duty to explain the options to the client; (2) research takes time and costs money, which the client won't want to pay for, whereas time writing pleadings and in court is obviously compensable by the client, so the attorney gets less grief for filing pleadings which, were the attorney to have researched to options in the first place, the attorney would have not offered to file, because the attorney would have known it was a waste of time; and (3) sometimes filing and arguing a pleading which has little or no legal support, works, because opposing counsel is equally uninformed, as is the judge -- and the result is that something which would otherwise be laughed out of court, were everyone involved acting competently, ends up being a winning tactic.
This is (ed. op.) an artifact of the state court system -- judges don't have the budget to hire a law clerk (lawyer) to read party pleadings and research the law, before the judge considers them. In federal district court, every judge has a law clerk, and these types of tactics inevitably fail. Lawyers who don't know what their doing, routinely lose motions and trials, because they cannot get away with "wingning it."
I will be using the link to acquire counsel for upcoming appeal. Are you sure that appeal is within 30 days and not five? Appears like a long time. Just making sure. Thank you very much.
A: Yes, I'm sure. The means to prevent eviction is to file for a stay of execution.
On petition of the defendant in an unlawful detainer (or forcible entry or detainer) action, the trial court may order the judgment stayed pending appeal when it finds that the absence of a stay would cause “extreme hardship” to the defendant and that the issuance of a stay would not cause “irreparable injury” to the plaintiff. Code Civ. Proc. § 1176; If the stay is denied, the defendant may “forthwith” file a petition for an “extraordinary writ” (usually mandate) with the “appropriate appeals court.” Code Civ. Proc. § 1176 (No absolute filing deadlines are imposed by the statute.)
In plain English, the appeals process uses the ordinary time lines. However, the defendant/judgment debtor is entitled to request a stay of execution without bond, and if the trial court denies the motion, then the defendant can immediately petition the court of appeals to order the stay by petition for writ of mandate to reverse the trial court denial, and the court of appeals must consider the writ petition (which is ordinarily not required in any other civil action).
The system works better than any available alternative, but it doesn't work as designed, and it probably never will, because only the wealthy can afford "due process of law."
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