How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Zachary Your Own Question

Zachary
Zachary, Attorney
Category: Legal
Satisfied Customers: 3831
Experience:  Lead trial/International commercial attorney licensed 11 yrs
Type Your Legal Question Here...
Zachary is online now
A new question is answered every 9 seconds

I am a 100% disabled Marine living soley on 491.00/month of

Resolved Question:

I am a 100% disabled Marine living soley on 491.00/month of SSI. I have a knee injury and both shoulders have severe tendon damage and arthritis. These physical problems cause chronic pain. I am also suffering from PTSD, sever depression, generalized anxiety disorder and insomnia. I am currently prescribed 40Mg of oxycodone/day (schedule II controlled substance) for pain and 1Mg of Lorazepam as needed for anxiety (schedule IV cntrolled substance).

Due to a lack of financial means I have been forced to represent myself pro se in a civil suit filed against me by the NYS Attorney General. I basically own nothing and have no future earning potential. I have been advised by a former attorney that I am "judgement proof". Both the plaintiff and the court have been advised of my physical and mental disabilities and of my prescribed medications. Despite this I was required to proceed to trial. I am now completing my conclusions of fact and law to submit to the court.

It is my understanding that in NY an individual with any amount of oxycodone or a benzodiazapine in their systems is considered legally impaired.

Would forcing me to represent myself in court while legally impaired be a solid basis for a motion to request a new trial and or a violation of my civil or constitutional rights?
Submitted: 1 year ago.
Category: Legal
Expert:  Zachary replied 1 year ago.
Hi,

Thank you for your questions and I'm sorry to hear about your situation. In order to answer your question, I'm going to have to read through some New York Law and New York cases. This may take some time, but I wanted you to know that we are addressing your question and will get back to you shortly with an answer.

Thank you for your patience.

-ZDN
Expert:  Zachary replied 1 year ago.
Have you requested a counsel be appointed to you by the court based on your indigent status?
Customer: replied 1 year ago.

In NY state only criminal cases are entitled to court appointed counsel. Some larger cities i.e. NYC have programs that are independently funded to provide counsel for indigents involved in civil cases. In our rural area no such programs exist.

Expert:  Zachary replied 1 year ago.
I agree, however, A person under a disability in New York has the right to be represented by an attorney who is appointed that person's guardian ad litem is the person is truly incompetent to testify.

Have you made any requests at all to the court to appoint an attorney because you feel you are incompetent to represent yourself because of your medical conditions? Or have you told the court you are able to go forward?

Customer: replied 1 year ago.

Yes, I requested counsel at numerous points in the proceedings, I was advised that I was entitled to counsel but would have to pay for counsel myself.


 


I repeatedly informed the court verbally, in writing and with lewtters from my medical doctor and treating physcologist (during discovery, during depositions etc.) that I was not physically or mentally prepared to represent myself.


 


In each case my requests were overuled or denied.

Expert:  Zachary replied 1 year ago.
Thank you for your response.

In Lassiter v. Department of Social Services, the US Supreme Court held that a person does not have a right to appointed counsel where there is no threat that the person may be sent to jail as a result of the lawsuit.

However, a court is not supposed to allow you to testify if you are not in fact competent to testify. New York case law states the following:
“With respect to witnesses, the term [competency] refers to the eligibility of a witness to testify" (Barker and Alexander, 5 N.Y.Prac., Evidence in New York State and Federal Courts § 6:7 [2005]). Whenever the issue of competency arises, it is the trial judge alone who determines the question based on their inherent authority to examine the witness (People v Parks, 41 N.Y.2d 36, 46, 390 N.Y.S.2d 848, 856, 359 N.E.2d 358,366 [1976]). "It is the trial judge who has the opportunity to view the witness, to observe manner, demeanor and presence of mind, and to undertake such inquiries as are effective to disclose the witness' capacity and intelligence" (Id. at 46, 390 N.Y.S.2d 848, 359 N.E.2d 358]). This includes taking testimony from the witness' doctor to [***8] ascertain whether the witness is capable of testifying (Id.). A witness must be free of characteristics which would prevent him from giving testimony before a Court of law (Barker and Alexander, 5 N.Y.Prac., Evidence in New York State and Federal Courts § 6:2 [2005]).”

Naso v. 1994 BA Leasing Corp., 13 Misc. 3d 1230(A), 1230A (N.Y. Sup. Ct. 2006)

N.Y. C.P.L.R. 1201, 1202, 1203 mandates that certain individuals shall not appear on their own before the court.

N.Y. C.P.L.R. 1201 provides three categories of persons who shall appear by a guardian ad litem: (1) certain infants, (2) certain adjudicated incompetents or conservatees (now, certain persons who have had guardians of their person and/or property appointed), (3) or an individual who is an adult incapable of adequately prosecuting or defending his or her rights.

Where the affairs of an incompetent veteran are brought within the purview of the Supreme Court, that court has a duty placed directly on it to protect and preserve his property, and where necessary or proper a guardian ad litem may be designated to appear for and take such proceedings as are necessary to protect the interests of the incompetent. In re Becan (1966, 1st Dept) 26 App Div 2d 44, 270 NYS2d 923.

You have indicated that you raised this point multiple times with the court. The standard is the judge’s discretion on whether or not he thought you were unable to testify. Just because you are on high levels of pain medication does not automatically mean you are not able to testify.

Your point regarding the law finding a legal impairment if there is over a certain amount of medication in your system is a strong argument in your favor that the judge abused his discretion by not appointing you with an attorney ad litem and forcing you to continue to testify and to represent yourself.

This is thus the essential issue. Did the judge abuse his discretion under NY CPLR 1201.
Is it a solid basis for a motion for new trial? Yes.

It is also a solid basis on which to launch an appeal.

That being said, to overturn a ruling based on the judge's discretion is incredibly difficult. I say that not to discourage you, but so that you know that the standard will be very high to overturn the judge's ruling that you were in fact competent to stand trial and testify.

Please let me know if you have further questions. Please also consider rating my answer positively so that I am compensated for my work by the website.

Thanks,
ZDN
Zachary, Attorney
Category: Legal
Satisfied Customers: 3831
Experience: Lead trial/International commercial attorney licensed 11 yrs
Zachary and 2 other Legal Specialists are ready to help you

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Last | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Not only did he answer my Michigan divorce question but was also able to help me out with it, too. I have since won my legal case on this matter and thank you so much for it. Lee Michigan
 
 
 

Meet The Experts:

 
 
 
  • Tina

    Lawyer

    Satisfied Customers:

    8436
    JD, BBA Over 25 years legal and business experience.
< Last | Next >
  • http://ww2.justanswer.com/uploads/MU/multistatelaw/2011-11-27_173951_Tinaglamourshotworkglow102011.64x64.jpg Tina's Avatar

    Tina

    Lawyer

    Satisfied Customers:

    8436
    JD, BBA Over 25 years legal and business experience.
  • http://ww2.justanswer.com/uploads/RA/ratioscripta/2012-6-13_2955_foto3.64x64.jpg Ely's Avatar

    Ely

    Counselor at Law

    Satisfied Customers:

    19941
    Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
  • http://ww2.justanswer.com/uploads/FL/FLAandNYLawyer/2012-1-27_14349_3Fotolia25855429M.64x64.jpg FiveStarLaw's Avatar

    FiveStarLaw

    Attorney

    Satisfied Customers:

    8189
    25 years of experience helping people like you.
  • http://ww2.justanswer.com/uploads/jespoag/2008-12-17_222355_jessepic.jpg JPEsq's Avatar

    JPEsq

    Attorney

    Satisfied Customers:

    2132
    Experience as general attorney, in house counsel, SSDI, Family Law attorney, and law professor
  • http://ww2.justanswer.com/uploads/gsenmartin/2008-04-22_214950_me1.jpg Guillermo J. Senmartin, Esq.'s Avatar

    Guillermo J. Senmartin, Esq.

    Attorney

    Satisfied Customers:

    110
    7+ years of experience handling various legal matters.
  • http://ww2.justanswer.com/uploads/PA/PaulmoJD/2013-10-10_195858_JAImage.64x64.jpg Law Educator, Esq.'s Avatar

    Law Educator, Esq.

    Attorney

    Satisfied Customers:

    31621
    JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
  • http://ww2.justanswer.com/uploads/dkaplun/2009-05-17_173121_headshot_1_2.jpg Dimitry K., Esq.'s Avatar

    Dimitry K., Esq.

    Attorney

    Satisfied Customers:

    15975
    Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.