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Alexia Esq.
Alexia Esq., Managing Attorney
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Attn.: Alexia Esq. Id like to continue discussing the question

Customer Question

Attn.: Alexia Esq.

I'd like to continue discussing the question we touched upon on the previous thread.
Submitted: 1 year ago.
Category: Legal
Expert:  Alexia Esq. replied 1 year ago.
Hi, thanks for your inquiry again.

Here is new issue we left off with, I believe:

Hi, Alexia,


I seem to have rated you, as I pledged, and I’d like to go on discussing the very same problem.


I’d like very much to discuss with you kind of general ways, so to say, of my appeal, but before that I badly need to get a comment and probably advice from you on a very fresh development of, or around, the case.


If you remember, I wrote you about a bad error the opposition committed in the fake invoice, which error was noticed by me upsettingly late. Yesterday, the story had an unexpected extension.


You probably remember also that I set myself on finding out where the scum had obtained the sample board he brought to my home, with the aim of creating a basis for a motion for retrial on a fraud reasons. Judging that the shortest way to the success would be addressing a professional for guidance, I met with the contractor who redid the mess created by the scum, Alex by name. During the conversation he suddenly mentioned the fact that the scum had called him some time after the incident in question. He barely started telling me the details when it dawned on me what the call had been about, and I told the guy that I could bet on what the scum had asked him for. Alex was evidently perplexed and looked at me incredulously. I said that the scum most probably had asked him for something that could have given him an idea of the volume of the work my vis-a-vis had done. The guy slowly nodded and said that he actually had been asked for a copy of the invoice he had given me upon finishing the job. And that’s crucial, Alexia.


As a matter of fact, the error in the “invoice” was about the figure of the space covered with the hardwood. The actual space was (and still is!) 580 sq ft, whereas in the
“invoice” it was indicated as 617 sq ft. No less no more than 37 sq ft mistake! It is the space of a good closet or even a small den - an incidental error unforgivable for a professional.


I’m sure you understand now that, having set to fabricate an invoice after he received the Notice on the Hearing and, naturally, not remembering the space he had worked on, he badly needed to find it out somehow. There were only two ways to get the figure: either to break in my home somehow when we would be not there, or to look for somebody who could have been informed on the matter. As the first option was obviously out of the question, he went for the second one...


Thankfully, Alex (that is the name of the contractor) declined the request. And the scum had no other option than putting the erroneous 617 sq ft into the “invoice”. (He most probably tried to figure out the correct number by calculating through the receipt for the material he had bought, but badly failed, as we can see.)


Anticipating your possible question, Alex and the scum had never contacted on any matters before that call and haven’t spoken ever since that conversation.


As Alex agreed to testify in court, my question is what can be gained from the situation regarding a possible motion on the fraud in future - if anything - and whether it may be played somehow in the appeal.

I believe you are saying that AFTER your trial / loss, you spoke investigated further, spoke with Alex, learned of more evidence tending to show the defendent lied in court and sought to submit false invoice, etc., right? Alex agreed to testify in any future trial?




Customer: replied 1 year ago.

Hi Alexia,


NIce to see you here again. And sorry for the delay as I had to rush to Boston in early afternoon on some family emergency...


Yes, I studied the "invoice" only after I got denial on the motion for reconsideration, when I started preparing for the appeal. The conversation with Alex took place three days ago. He initially was reluctant about testifying in court (unwillingness to get mixed up... you know), but when I suggested him not accompanying me to the court but being subpoenaed - i.e. sort of being forced by the law - he agreed.


 

Expert:  Alexia Esq. replied 1 year ago.


You may want to do a motion to vacate the judgement / relief from order based on the fraud. A motion typically doesn't include testimony, as it is on paper, and then sometimes argument in person, but not testimony. But, you could provide a signed affidavit by Alex (i.e. notarized) where he explains what he knows/observed and what he'd testify to if subpoenaed for court. You then have your motion and your own supporting affidavit to that motion - explaining why the judgment should be vacated based on fraud, etc., explaining what Alex confirmed (and adding, "see Affidavit of Alex Jones, at Attachment A, at page 3 line 12)... The court could decide that a hearing IS necessary (a plenary hearing) because he can't decide based on those papers - but you will have given him enough to see that the truth should be determined, because it will change things.

I don't think it can really be played in the appeal, because an appeal generally only addresses errors made by the court at trial (or motion), not what could have been had you had additonal investigation material - had a mistake at trial by the court not been made, and had it resulted in you not getting this information about fraud at the time of the trial, I could see mentioning it because it will show that the error at trial was not harmless error, but otherwise, I am not seeing that.

I hope this helps! Let me know if you need follow up before or after RATING me. And PLEASE know that my job depends on a POSITIVE rating now and at least an 8-10 feedback rating later. Thanks! I won't forget your support.

Sincerely,

Alexia Esq.



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I think this is what you wanted to know. If not, please let me know and we can interact further. Otherwise, I wish you the best and ask that you Rate me now. HINT: I aim to provide only EXCELLENT SERVICE and ask that you click a rating on the RIGHT side of the choices OR, follow up with me if you need more follow up or clarification. AND, WHEN YOU DO RATE ME POSITIVELY, PLEASE SEND ME A REPLY LETTING ME KNOW YOU ARE DOING SO, SO WE CAN ENSURE IT GETS RECORDED. THANKS!



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Repeat reminder: Due to rules of our states, nothing herein is intended as legal advice, only intended as general information in order that you may have a starting point for helping yourself and presenting your issue to your lawyer if need be. I am an Attorney in the U.S. but I am not your attorney.

Customer: replied 1 year ago.

Thanks, Alexia.


Regarding your post, I'd like to be sure of the following: When should I start the motion - now, in parallel with the appeal, or afterwards, in case the Supreme Court denies my appeal?


 

Expert:  Alexia Esq. replied 1 year ago.

Thanks, Alexia.


Regarding your post, I'd like to be sure of the following: When should I start the motion - now, in parallel with the appeal, or afterwards, in case the Supreme Court denies my appeal? I am not seeing a rule that prevents it now, at least not expressly, so I'd file it now (it is with the trial court, of course). Be sure to read all of your court rules pertaining to such motions for vacation of order/ judgment, or new trial, etc. I'd do research for an appellate decisions on new trial motions based on fraud, etc., new evidence, etc. and see if there are any nuances evident in those decisions that can give you an edge. Note that an appeal can take 1+ years, while a Motion will be far quicker, generally (and cheaper).

Customer: replied 1 year ago.

I'd immensely appreciate that, Alexia! Thanks a lot in advance.

Expert:  Alexia Esq. replied 1 year ago.
You are welcome, and good morning - In advance of what?
Alexia Esq., Managing Attorney
Category: Legal
Satisfied Customers: 11716
Experience: 19 Years of Legal Practice Experience in this precise field.
Alexia Esq. and 16 other Legal Specialists are ready to help you
Expert:  Alexia Esq. replied 1 year ago.
Hello again Ches. Please, if you haven't yet had the opportunity to do either of the items below, I ask that you do so now, because my job depends on it. Please:

1) Follow up if clarification is needed on our above interaction/Q&A, OR

2) Rate me highly if we are finished for the time being.

If there's more I can do, please use the reply tab and let me know how I can be of further assistance. It's my goal to provide you with excellent service - to make sure I answered the question you asked about. Please rate me highly and provide me with feedback. And thanks for understanding how we receive credit from the Site for contributing our time here!



Sincerely,

Alexia Esq. - Your Online Legal Professional

Customer: replied 1 year ago.

Sorry, Alexia, but I still have to mind about my business, and it requires travelling sometimes...


You are suggesting me looking for an appellate decisions on new trial motions based on fraud, etc., new evidence, etc. On the other hand, my motion has to be moved to the trial court. That is, it is not exactly clear to me what to look for and where. Could you give me any directions? I cannot but mention ZDN here again who kindly found for me quite a few clues on cross examination for my appeal (you may take a look at that thread).


 


And another thing concerning the appeal. In it, I'm asking three questions - about the judges failure to give me proper opportunities to examine the evince presented by the opposition (the fake invoice and a similarly fake fax), and the lack of any other evidence from that side. Could there be another question - on possible prejudice? What I mean, is as follows.


The judge had presided at the hearing on another my claim a few months before - against a tiler (an alcoholic whom I hadn't got the measure of in time). I won the case. However, when it became clear that I was the same claimant he had dealt with before, he expressed visible irritation. He almost definitely took me for a picky customer who was terrorizing honest contractors. (As a matter of fact, during the three weeks when my wife and granddaughter were in Europe, I had seven contractors doing renovations in our home - five of them did their job properly, the other two, not quite...) That definitely affected his position during the trial - with bad results for me. In particular, one of the key issues was that of the sample board the scum had brought to my home. None of the two witnesses from the supplier of the wrong material - either the manager, or the salesman - corroborated giving any sample board to the scum. Instead of pursuing the issue by interrogating the witnesses (especially the salesman) on the subject who could have given the board to the scum - if anybody at all as there are just 12-15 staffers at the company - the judge kind of soothingly announced that probably somebody else had given the board to the defendant. That is, I was effectively represented as a lier maintaining that the material on the sample board and the one laid down in my home had nothing in common.


That is, from the very beginning, the judge got in favor of the scum. He gave up reading my statement, that required at least nine minutes, after a mere four and a half minutes of reading - just to ask me a little bit later a question the detailed answer to which was in the statement...


What of the above can be used in the appeal - if anything of that?

Expert:  Alexia Esq. replied 1 year ago.
Sorry for the delay - I had fully responded to this but before I could post it to you, I had a freeze up and had to reboot (Ugh!). I lost it all but shall redo as soon as I can. Currently I am obligated on some client cases, but shall try to get to this in the next day or so, if that is OK? Let me know, and my apologies.
Customer: replied 1 year ago.

It's absolutely okay, Alexia.

Expert:  Alexia Esq. replied 1 year ago.
I'm doing this in a Word doc, to ensure the same glitch does not happen as happened earlier. Thanks much for your patience, Ches. And Happy Easter / Passover or whichever you prefer, if any :)
Expert:  Alexia Esq. replied 1 year ago.

Good morning!

Sorry, Alexia, but I still have to mind about my business, and it requires travelling sometimes... I understand, don’t worry about those little reminders, they are somewhat automatic because of the need to remind people who are busy and may otherwise not come back during the same month. When that happens, we lose all credit for that answer that month, which can be painful J

You are suggesting me looking for an appellate decisions on new trial motions based on fraud, etc., new evidence, etc. Yes, that is because the only decisions that exist are appellate. A case must be ‘appealed’ to be given an answer by a higher court, and also that higher court must not only write a decision but allow it to be published publicly as precedent.

On the other hand, my motion has to be moved to the trial court. That is, it is not exactly clear to me what to look for and where. If you can find an annotated copy of your Court rules (check court library), you can check to see if the court rule that allows for a motion to the trial court to vacate its own decision (or Motion for Relief from Order, same thing) (based on fraud) has some exemplary case law noted, and see if they fit your facts. This is if you think that the facts do not speak for themselves in terms of their application to that Court rule. This is a fairly basic Court rule, so there is little to ‘interpret’, possibly, but it is always nice to have some case law that has not been overturned and remains good law, thrown in.

If you do not have annotations for that court rule, You will want to ideally subscribe to Westlaw or LexisNexis and research cases that involved such a motion. You do a query, not so dissimilar from what you would ask a Google search, actually. For instance, you can search for cases that involved the actual Court Rule # (in quotes) + “fraud”, or “fraud on court” possibly, for instance.

Could you give me any directions? See above.

I cannot but mention ZDN here again who kindly found for me quite a few clues on cross examination for my appeal (you may take a look at that thread). Yes, he is very kind. Unfortunately, NH case law requires a subscription for research it. I do not pay for a full time subscription to that particular State, but use subscriptions on an ad hoc, as needed basis. If you had a subscription and were permitted to provide me access, I could possibly devote the necessary time, but it could not be done in a time frame consistent with the scope of this transaction. This is because proper research requires, typically, hours and hours of cross checking and sheppardizing – you don’t want to use a case that was subsequently overturned and is no longer good law, based on a later case. ZDN may have done that for you if he subscribes, which is very kind, or he may have not, I can not say. I do not know if his case law is still good law or not.

That being said, that is also a different type of document. With his question, you are appealing an act by the Court, so you MUST show how the court did not apply the correct law, or applied it incorrectly, or simply disregarded that court law. It is all about showing law that shows the court used wrong law, or used it wrongfully or right law not at all.

Here, in this kind of motion, you are claiming no such thing – you are saying, “here is a court rule where a court can vacate a judgment if it determines that it was based on fraud (or is otherwise a miscarriage of justice), and here are the facts showing you, Court, that fraud was perpetutated on the court and this party, that had it not been so perpetuated, the court’s decision would likely have been very different. “ That would be the basic tenor of my Motion. AND, when the other party gets served with it, HE will have to argue that either, your facts concerning Alex are not true (and that will be hard for him to do, since you and Alex are arguing otherwise) or that there is caselaw that shows that your facts should NOT result in a vacation of the judgment. HE will have to present those cases. This makes is a bit easier for you, as the moving party, because you can then look up his specific cases, and 1) see if they are actually on point (often not very much, if the other side is desperately grabbing at straws) and 2), if so, are they still “good” law (this is where you will want to sheppardize them) and 3) if not totally on point, ie not really relevant, explain how they are distinguished from your case and therefore do not rule the day on your case.

Note that a motion to vacate/new trial under 526 has been the subject of recent litigation where it has been argued that 526 motions must be made to the superior court over the district court (although others had made it in district court previously, as the trial court) and it has also been litigated that superior court can not entertain a motion on a district court trial, only cases it itself heard. For this reason, any cases you find you will definitely want to sheppardize to see if a final published ruling has come down on way or another. It may still be unsettled, but if the opponents of 526 application to district court small claims win, and if your defendant actually does HIS research and fights you on that (do you think he is that diligent?) then you may be left with your 10 day limit (rather than 3 years) for filing that post judgment motion (long since past, right?) and your appeal. However, you could consider reporting what you know about the fraud to the Attorney General, since you have another party (Alex) confirming, and the contractor could be prosecuted on grounds of perjury.

And another thing concerning the appeal. In it, I'm asking three questions - about the judges failure to give me proper opportunities to examine the evince presented by the opposition (the fake invoice and a similarly fake fax), and the lack of any other evidence from that side. Could there be another question - on possible prejudice? I don’t think so. Not all unfavorable rulings, even WRONG ones, mean prejudice.

What I mean, is as follows.

The judge had presided at the hearing on another my claim a few months before - against a tiler (an alcoholic whom I hadn't got the measure of in time). I won the case. That actually may show that he realizes you have meritorious cases and don’t just sue anyone, right or wrong.

However, when it became clear that I was the same claimant he had dealt with before, he expressed visible irritation. I am sure he’d not admit to that.

He almost definitely took me for a picky customer who was terrorizing honest contractors. (As a matter of fact, during the three weeks when my wife and granddaughter were in Europe, I had seven contractors doing renovations in our home - five of them did their job properly, the other two, not quite...) That definitely affected his position during the trial - with bad results for me. The question is, can you prove that from the record? It must be evident from the record, for your appeal. And really, that would then be covered by the part about him simply making an improper ruling, such as keeping your evidence. When we feel a judge has a conflict of interest, we can file a motion for recusal, but if you didn’t do it then, I don’t see you can do it now unless the bias is clear from the record. For instance, did he say on the record: “I have seen you before, I think you are sue happy and there is no way I am going to support you in suing yet another person.” Of course not.

In particular, one of the key issues was that of the sample board the scum had brought to my home. None of the two witnesses from the supplier of the wrong material - either the manager, or the salesman - corroborated giving any sample board to the scum. Instead of pursuing the issue by interrogating the witnesses (especially the salesman) on the subject who could have given the board to the scum - if anybody at all as there are just 12-15 staffers at the company - the judge kind of soothingly announced that probably somebody else had given the board to the defendant. He is not supposed to do YOUR cross examination or direct examination for you – that would be a bit of a conflict. You do your own, your opponent does his own. So that is not a error, typically. You should have pursued it.

That is, I was effectively represented as a lier maintaining that the material on the sample board and the one laid down in my home had nothing in common. If that was his determination, that is his job to make credibility findings – the nature of the beast. We may not agree with his finding, but that is the role of the fact finder, be it a jury or a judge.

That is, from the very beginning, the judge got in favor of the scum. His job is to determine what he believes, based on the evidence, or lack thereof, what he believes to be true or not true. Or not substantiated enough for him to find it as such.

He gave up reading my statement, that required at least nine minutes, That as probably a mistake on your part – you testify to what you want on the record, you don’t give the judge a letter that he reads, at least I would not.

…after a mere four and a half minutes of reading - just to ask me a little bit later a question the detailed answer to which was in the statement... And so he gave you the opportunity to testify to the answer – did you take it?

What of the above can be used in the appeal - if anything of that? I think that the 3 things you mentioned: If the record makes clear that he considered the invoice over your objections… and if there really wasn’t a scintilla of evidence upon which he could have made a particular finding, but he did anyway, that may be a basis of appeal – insufficient evidence such that no reasonable factfinder could have found XX to be so beyond a preponderance of the evidence, presuming that is the level of proof needed… Although if you were the plaintiff, you had the burden of that proof. The appellate court will not substitute in what IT would have found… it is not permitted to. It will look to see if there was enough evidence such that SOMEONE could have reasonably found it as such, even if IT would not have. And, certainly, if he considered last minute submitted invoice and denied you the right to examine so you could object or not object, that may be a strong point.


I hope this helps! Let me know if you need follow up before or after RATING me. And PLEASE know that my job depends on a POSITIVE rating now and at least an 8-10 feedback rating later. Thanks! I won't forget your support.

Sincerely,

Alexia Esq.



-------



I think this is what you wanted to know. If not, please let me know and we can interact further. Otherwise, I wish you the best and ask that you Rate me now. HINT: I aim to provide only EXCELLENT SERVICE and ask that you click a rating on the RIGHT side of the choices OR, follow up with me if you need more follow up or clarification. AND, WHEN YOU DO RATE ME POSITIVELY, PLEASE SEND ME A REPLY LETTING ME KNOW YOU ARE DOING SO, SO WE CAN ENSURE IT GETS RECORDED. THANKS!



You can ask for me directly in the future by starting your post with "To Alexia Esq." Or bookmark this page, and go to: http://www.justanswer.com/law/expert-AlexiaEsq/



Repeat reminder: Due to rules of our states, nothing herein is intended as legal advice, only intended as general information in order that you may have a starting point for helping yourself and presenting your issue to your lawyer if need be. I am an Attorney in the U.S. but I am not your attorney.

Customer: replied 1 year ago.

Thanks, XXXXX XXXXX conclusive and exhaustive I have only two simple (they at least look so for me...) questions, after what this thread can be considered finished.


First. You mentioned two reasons on which my motion can be based - fraud or new evidence. Basing on everything you know now - which of them might be more plausible?


Second. When the opposition mentioned the fax he had allegedly sent to me upon finishing the job, was it the judge's procedural duty, so to say, to require the evidence to be handed to him for examination, and to be produced to me as well, or was that purely the matter of his good will? In other words, the denied motion for a forensic examination of the "invoice" being supposedly a breach of the procedure (denying me the right of cross examination of an evidence), does it also refer to the "fax"? It looks like ZDN thought so (if I'm not mistaken). Do you?

Expert:  Alexia Esq. replied 1 year ago.

Good morning:

Thanks, XXXXX XXXXX conclusive and exhaustive I have only two simple (they at least look so for me...) questions, after what this thread can be considered finished.


First. You mentioned two reasons on which my motion can be based - fraud or new evidence. Basing on everything you know now - which of them might be more plausible? If I had TWO valid grounds, I'd use both. Really, however, your fraud claim can likely not stand UNLESS you had new evidence demonstrating such... ergo... the new material evidence showing xxxx fraud... I am not a proponent of tossing away a great position simply because I had two... And new evidence is not a basis unless it is material to something pertinent in the trial/verdict..... Here, they are tied together and maybe you have new material evidence of something else, not sure.


Second. When the opposition mentioned the fax he had allegedly sent to me upon finishing the job, was it the judge's procedural duty, so to say, to require the evidence to be handed to him for examination, No, although he can if he wants - I have seen it done, just as jurors at times can ask questions. But it is dangerous, for a judge, in my opinion, because it could make him appear to be supporting one side (in this case, yours), if he did. But if you wanted it presented, that is a activity for cross... "Mr. Scum, you mentione this mysterious fax you alleged sent me. Can you hand it to me please." "I didn't bring it." "Really? You dind't bring it?" "No." "Are you telling me that you had a fax that you believe it a pertinent part of proving your case, yet you didn't feel it important to actually bring it to the trial where you are proving your case?" His answer, which I'd limit to Yes or No, is immaterial really. The obvious question/answer is out there, and the judge (or jury) can draw the logical conclusion. The fax doesn't exist... obviously the nimwit would have brought it had it existed....

 

and to be produced to me as well, or was that purely the matter of his good will? It is a matter of you, as your own attorney, if you feel it is important, to handle your own cross.... That is the attorneys job, not the judge's. And, remember, only you actually know if it is a lie... not the judge. So it was really only your knowing that could have illicited that next question... "where is the fax." In fact, a rule of thumb when asking questions on cross or direct is to NEVER ask a question where do not know the answer. Judge doesn't' know the answer.... you don't want him asking for a fax that MAY exist, and hurt your case, right?

In other words, the denied motion for a forensic examination of the "invoice" being supposedly a breach of the procedure (denying me the right of cross examination of an evidence) - if all documents were requested in a discovery (if discovery was allowed) and he failed to provide this invoice, yet popped it up last minute in trial - you can object, certainly. If you never asked for it, possibly not. And not all rights to cross involve necessarily the right to pay a forensic document expert to provide some sort of opinion. particularly if the Judge would have found XYZ with or without that document.

, does it also refer to the "fax"? It looks like ZDN thought so (if I'm not mistaken). Do you? Can you cut and paste which part of his thought you want me to look at? But in general, being able examine anything that is being entered into evidence would apply across the board, certainly - how else could one know whether to object to it and on what basis?

Customer: replied 1 year ago.

Hi Alexia,


I hope you received my yesterday's rating...


First, about the appeal. As for your post, I cannot say that it is most encouraging. I checked what ZDN might have said on the "fax" matter, and it looks like he did not elaborate on it, accenting more on denied motion on forensic computing from the point of view of possible denial to me the right of cross examination of an evidence. Anyway, here is what he suggested:


"Hi,

First you must start with the standard:

“The trial court has broad discretion in managing and supervising pretrial discovery and in ruling on the conduct of a trial. Murray v. Developmental Servs. of Sullivan County, 149 N.H. 264, 268, 818 A.2d 302 (2003). We review a trial court's rulings on the management of discovery and the scope of cross-examination under an unsustainable exercise of discretion standard. See State v. Barnes, 150 N.H. 715, 719, 849 A.2d 152 (2004) (discovery); State v. Wellington, 150 N.H. 782, 788, 846 A.2d 1171 (2004) (cross-examination). To establish that the trial court erred under this standard, the plaintiff must demonstrate that the trial court's ruling was clearly untenable or unreasonable to the prejudice of its case. See id.”

Blagbrough Family Realty Trust v. A & T Forest Prods., 155 N.H. 29, 40 (N.H. 2007)

Your argument is that the Court 1) abused its discretion and 2) violated your due process rights when it denied your motion for discovery and your request to examine the document during the trial and ask the Defendant questions regarding the document which was presented by the Defendant into evidence. You must explain how the discovery you requested and the document which you wanted to examine at trial would have a given you a more effective cross-examination had you been allowed to complete the requested actions.

I’m going to give you an excerpt of the case law which I believe you should use in your appeal. The following are quotes from cases which I believe are helpful to you:

“We begin with McGann's argument that due process required the SAU to provide access to Sullivan's file prior to the termination hearing. HN6To determine whether particular procedures satisfy the requirements of due process, we typically employ a two-prong analysis. Appeal of Town of Bethlehem, 154 N.H. 314, 328, 911 A.2d 1 (2006). Initially, we ascertain whether a [*84] legally protected interest has been implicated. Id.; see also Mathews v. Eldridge, 424 U.S. 319, 332, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). We then determine whether the procedures provided afford adequate safeguards against a wrongful deprivation of the protected interest. Appeal of Town of Bethlehem, 154 N.H. at 328.”


Appeal of Sch. Admin. Unit #44, 162 N.H. 79, 83-84 (N.H. 2011)

“Our due process analysis requires a balancing of three factors:First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.State v. Veale, 158 N.H. 632, 639, 972 A.2d 1009 (quotation omitted), cert. denied, 130 S. Ct. 748, 175 L. Ed. 2d 524 (2009).”

Appeal of Sch. Admin. Unit #44, 162 N.H. 79, 84 (N.H. 2011)


“Appeal of Sutton, 141 N.H. 348, 351, 684 A.2d 1346 (1996) ("In any proceeding, cross-examination, almost by definition, is a review of direct examination [***24] in order to determine the veracity, accuracy and depth of knowledge of the witness." (quotation omitted)). To hold otherwise would result in one litigant being able to embark on a wide-ranging evidentiary inquiry, while the other (who opposed consolidation presumably to avoid precisely the type of predicament at issue here) is forced to stand by silently.”

Blagbrough Family Realty Trust v. A & T Forest Prods., 155 N.H. 29, 40 (N.H. 2007)

“In Stapleford v. Perrin, 122 N.H. 1083, 453 A.2d 1304 (1982), we enumerated the due process requirements for proceedings that may result in a significant deprivation of liberty, including hearings for the imposition of a suspended sentence. Moody v. Cunningham, 127 N.H. 550, 554, 503 A.2d 819 (1986). We further discussed these requirements in Moody where we stated that "[t]he due process protections accorded a defendant who stands to lose his conditional liberty represent a compromise between the need for accurate determinations of fact and the state's [*2] interest in being able to imprison a defendant without an adversarial trial when that defendant has violated a condition of his liberty. Id. at 555. "[W]here critical decisions turn on questions of fact, the importance of the right of confrontation should not be underestimated or ignored." Id. "As a general rule, then, there must be a strong preference for cross-examination which may be abrogated only upon a specific finding of good cause for denying confrontation." Id.”

State v. Parks, 2006 N.H. LEXIS 249, 1-2 (N.H. Apr. 6, 2006)

“We note that cross-examination of a witness is a matter of right. Alford v. United States, 282 U.S. 687 (1931). Plaintiff's cross-examination in this case touched upon matters brought out on direct examination. Absent abuse, which we do not find here, the scope of cross-examination is within the discretion of the trial court. Saurman v. Liberty, 116 N.H. 73, 354 A.2d 132 (1976); Dodge v. Clair, 105 N.H. 276, 198 A.2d 12 (1964).”

Kennedy v. Ricker, 119 N.H. 827, 832 (N.H. 1979)"


 


Now, here are the three questions I put onto the Notice of Appeal (actually, they were formulated by a local lawyer...). Basing on what you know now, which of them do you think have positive prospects, if any?


And about the fraud motion. Can the "invoice" be regarded as a new evidence once it was present in court? It seems that my argument can be basing on the evidence I derived from it (the wrong space and baseboard length) after the trial because I hah had no opportunities to examine the "document" earlier. As for the testimony of Alex, that definitely is a new evidence, right? In short, how can all that be linked together, Alexia? This motion appears be more prospective than the appeal. Or not?

Expert:  Alexia Esq. replied 1 year ago.

I hope you received my yesterday's rating... Yes, thank you Ches.


First, about the appeal. As for your post, I cannot say that it is most encouraging. Why? I checked what ZDN might have said on the "fax" matter, and it looks like he did not elaborate on it, accenting more on denied motion on forensic computing from the point of view of possible denial to me the right of cross examination of an evidence. Anyway, here is what he suggested:


"Hi,

First you must start with the standard:

“The trial court has broad discretion in managing and supervising pretrial discovery and in ruling on the conduct of a trial. Murray v. Developmental Servs. of Sullivan County, 149 N.H. 264, 268, 818 A.2d 302 (2003). Broad discretion means (unfortunately), in a sense, that if two reasonable minds can differ, the appellate court will not overturn the lower court... However, you still have rights to due process, which is somewhat of a different rule...


....We review a trial court's rulings on the management of discovery and the scope of cross-examination under an unsustainable exercise of discretion standard. See State v. Barnes, 150 N.H. 715, 719, 849 A.2d 152 (2004) (discovery); State v. Wellington, 150 N.H. 782, 788, 846 A.2d 1171 (2004) (cross-examination). Yes, very high standard to overturn.

 

To establish that the trial court erred under this standard, the plaintiff must demonstrate that the trial court's ruling was clearly untenable or unreasonable to the prejudice of its case. See id.” You do seem to have the "prejudice" to your case part, so much argue that the court was unreasonable in denying you the right you asserted to see that evidence...

Blagbrough Family Realty Trust v. A & T Forest Prods., 155 N.H. 29, 40 (N.H. 2007)

Your argument is that the Court 1) abused its discretion and 2) violated your due process rights when it denied your motion for discovery and your request to examine the document during the trial and ask the Defendant questions regarding the document which was presented by the Defendant into evidence. I agree.

 

You must explain how the discovery you requested and the document which you wanted to examine at trial would have a given you a more effective cross-examination had you been allowed to complete the requested actions. I wonder also, if you explain how sufficent examination of that document would have revealed not only its fakeness but the defendant's purposeful deception to the court, perjury, fabrication - something even far more 'untenable' than mere 'weakening of his credibility' - this lack of disclosure goes to the very matter at hand... the very sustance of what was to be proved, for justice to prevail.

I’m going to give you an excerpt of the case law which I believe you should use in your appeal. The following are quotes from cases which I believe are helpful to you:

“We begin with McGann's argument that due process required the SAU to provide access to Sullivan's file prior to the termination hearing. HN6To determine whether particular procedures satisfy the requirements of due process, we typically employ a two-prong analysis. Appeal of Town of Bethlehem, 154 N.H. 314, 328, 911 A.2d 1 (2006). Initially, we ascertain whether a [*84] legally protected interest has been implicated. Id.; see also Mathews v. Eldridge, 424 U.S. 319, 332, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). We then determine whether the procedures provided afford adequate safeguards against a wrongful deprivation of the protected interest. Appeal of Town of Bethlehem, 154 N.H. at 328.”


Appeal of Sch. Admin. Unit #44, 162 N.H. 79, 83-84 (N.H. 2011)

“Our due process analysis requires a balancing of three factors:First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.State v. Veale, 158 N.H. 632, 639, 972 A.2d 1009 (quotation omitted), cert. denied, 130 S. Ct. 748, 175 L. Ed. 2d 524 (2009).”

Appeal of Sch. Admin. Unit #44, 162 N.H. 79, 84 (N.H. 2011)


“Appeal of Sutton, 141 N.H. 348, 351, 684 A.2d 1346 (1996) ("In any proceeding, cross-examination, almost by definition, is a review of direct examination [***24] in order to determine the veracity, accuracy and depth of knowledge of the witness." (quotation omitted)). To hold otherwise would result in one litigant being able to embark on a wide-ranging evidentiary inquiry, while the other (who opposed consolidation presumably to avoid precisely the type of predicament at issue here) is forced to stand by silently.”

Blagbrough Family Realty Trust v. A & T Forest Prods., 155 N.H. 29, 40 (N.H. 2007)

“In Stapleford v. Perrin, 122 N.H. 1083, 453 A.2d 1304 (1982), we enumerated the due process requirements for proceedings that may result in a significant deprivation of liberty, including hearings for the imposition of a suspended sentence. Moody v. Cunningham, 127 N.H. 550, 554, 503 A.2d 819 (1986). We further discussed these requirements in Moody where we stated that "[t]he due process protections accorded a defendant who stands to lose his conditional liberty represent a compromise between the need for accurate determinations of fact and the state's [*2] interest in being able to imprison a defendant without an adversarial trial when that defendant has violated a condition of his liberty. Id. at 555. " [Note, Ches, that this appears to be a criminal matter - depriving of liberty, so if possibly, I'd consider trying to find the same/similar case analysis but with a non-criminal context.]


([W]here critical decisions turn on questions of fact, the importance of the right of confrontation should not be underestimated or ignored." Id. This is a good phrase. And it is important to point out that allowing your to review the evidence/doc for more than a mere glance, but not necessarily to take up a day of court time - or at least it could have been recessed rather than excessive time using direct court time - you needed time, not the courts intervening time, I think. Do you agree?

 

"As a general rule, then, there must be a strong preference for cross-examination which may be abrogated only upon a specific finding of good cause for denying confrontation." Id.” Good point that. Like the court must have expressly stated why the denial - so if it didn't, point out what is MISSING from that transcript - how the court refused you more time... or flat out just denied a request for time... without expressing its finding of "good cause" for denying you that right.

State v. Parks, 2006 N.H. LEXIS 249, 1-2 (N.H. Apr. 6, 2006)

“We note that cross-examination of a witness is a matter of right. Alford v. United States, 282 U.S. 687 (1931). Plaintiff's cross-examination in this case touched upon matters brought out on direct examination. This may be same for you, IF that fax/invoice was discussed on the record BY the defendent in his own direct of himself.... i.e. in his part of the case. I think that is what happened, yes?

 

Absent abuse, which we do not find here, the scope of cross-examination is within the discretion of the trial court. Saurman v. Liberty, 116 N.H. 73, 354 A.2d 132 (1976); Dodge v. Clair, 105 N.H. 276, 198 A.2d 12 (1964).” You need to read these cases (I'm sure you realize that) and see under what circumstances this Appeals court found that the lower court was not abusing its discretion when it it denied the right to cross examine. Then, show why your case is NOT like that case (i.e. "distinguish" your facts from those in Saurman (or Kennedy).

Kennedy v. Ricker, 119 N.H. 827, 832 (N.H. 1979)"



Now, here are the three questions I put onto the Notice of Appeal (actually, they were formulated by a local lawyer...). Basing on what you know now, Which is far from what one would know if they were retained, with access to all...which of them do you think have positive prospects, if any?


And about the fraud motion. Can the "invoice" be regarded as a new evidence once it was present in court? I think ALEX is new evidence. And the invoice, if it wasn't admitted as evidence, arguably it is new evidence, since the defendent never got it in as evidence. However, because it was not unavailable, it may not fly on that basis..... i.e. you had access to it if you wanted it in, the alternate argument would likely be that it should have been in then, at that time. But in this case, you do NOT want it in as evidence of an agreement to pay X for something - since it was false - what you want it would seem (if I am following your argument) is to show that the defendent produced it for the judge (even if not entered into evidence, to help convince the judge of something he was claiming), the Judge may not have admitted it, but he apparently believed it (show in the transcript where he states something that shows he took it to heart) and that a proper review would have revealed that it was faked, and that fakeness is now evidenced by some new and material evidence found after it was learned (after proper review of the invoice) to be fake (the new being Alex's testimony/affidavit)... So the lack of right to have time to review the invoice which was presented last minute (explain how last minute), resulted in an inability to determine the fraud perpetuated by the party that tried to get it into court... and that inability could only be rectified later when you could review it... and you used the results of that review to find the guy Scum says gave him the sample... and that witness told you, and then included in an Affidavit, that XYZ. That testimony of Alex was not available at the time of trial... due to Plaintiff's deception and perjury to the court...... which denial of right to cross examine and examine the physical invoice, prevented you from due process.


It seems that my argument can be basing on the evidence I derived from it (the wrong space and baseboard length) after the trial because I hah had no opportunities to examine the "document" earlier. Exactly! And that helps prove the part about how the denial was not harmless.... it caused you to lose.....


As for the testimony of Alex, that definitely is a new evidence, right? I believe so, I believe I'd get it in a notarized affidavit... he'd be testifying at a new trial....


In short, how can all that be linked together, Alexia? Similar to how I describe it above. It is hard to be exact, not having all aspect of this case at my finger tips... but I'd be using the transcript to show the denial by the judge... discuss how that prejudiced the case..... and how the falseness of the invoice could not be brought to light at trial because of this denial of due process to review this newly showing up evidence... That later investigation not previously available since this invoice only showed up at trial, not earlier... revealed new evidence of all the deceipt of the defendent... in the formof Alex a new witness who had dealt with Defendent while defendent was seeking to "create" an invoice after the fact.... to fabricate.... this "new evidence is clearly material to the crux of the matter / subject of the trial" was not available to the Plaintiff, due to Defendent's deception, etc....


This motion appears be more prospective than the appeal. Or not? I think you must continue with the appeal. Must, because if that Motoin is denied based on evolving case law that no longer allows you to motion for new trial unless within 10 days (if the 3 year rule no longer applies to district court), you must rely on the Appeal. You can do both, but don't forego the appeal, in case the motion is shot down as "out of time." You see what I am saying?

Customer: replied 1 year ago.

O, yeah, Alexia, I'm afraid I need some time to sort of digest all that :)...


Actually, I am not at all deliberating quitting the appeal process. I'm just wondering about what should come first - the appeal, or the motion. Could you do me a great favor - find out about the time limit for the motion? I'd gladly try to do that myself but I'm in the dark where to look for. The trial took place on the 4th of November, and the decision is dated 21st of the month.

Expert:  Alexia Esq. replied 1 year ago.
Good morning - You are on a definite time constraint on the appeal - so clearly you must roll on and get your brief in by whatever that deadline is (you must know this already, yes?). As for the motion, you need to research the current state of, I think it is 526/526.1. It was the 3 year rule, but as I indicated, it was recently, I believe, the subject of litigation as to whether it applies to small claims/district court. I do not have the subscription to that narrow area of caselaw (big country, as you know), so you will have to subscribe and then look it up. If the opponents (who don't want district court to have 3 years to file a motion for new trial in the interests of justice) won, then you are subject likely to the 10 day rule in the trial court - which I believe you can no longer avail yourself of, if you didn't do that post-judgment motion early on. So, get a subscription (you need it anyway if you want to thoroughly research to see if there is case law that is closely related to your pertinent facts and issue on appeal, and/or to use the closest one possible) - or you can likely retain a lawyer and pay him to get the window of a subscription and a day or two of his time, but this cost may far exceed what your case is financially worth to you - unless you are working on a basis of "principle") - I don't have authority to get you that subscription, unfortunately - we don't get it for free either.

Just go to lexisnexis or westlaw and call them (or see if you can pick the scope of a subscription right onlne) - they always had sales people to help guide one into what limited subscription they could get (so as not to pay for the WHOLE kit and kaboodle, which was extremely expensive). My database access is limited to that which I need for each of my clients' needs at any given time (I don't order and charge them for more than applies to their matter) - and it is a client expense, so as you can imagine, I can't buy this for you.

But above all, concentrate on your appeal, I suggest - this is because IF the motion is still applicable, there was a 3 year time limit. You would well be in time, even if you waited a year. However, your appeal deadlines are far shorter. If you haven't analyzed your appeal deadlines already, you may be out of luck there also - that is always your first question when you lose a case or, ideally, BEFORE you lose, so you can jump to the next mandatory item if you will be appealing a negative outcome. If you haven't answered those questions, and don't have time, you may want to post that specific question - statutory appeal time limits will be a matter of court rule (not caselaw), and typically you have free access to those rules on the internet, so you shouldn't have to pay for a subscription to that, typically.
Customer: replied 1 year ago.

Thanks a lot, Alexia. I got the idea, and I'll do what you suggest.


I am, however, a little bit worried about the appeal deadline. As a matter of fact, after I submitted the Notice of Appeal (in which I requested the transcript), I received a notification from the Court with the instruction for arranging the making of the transcript with a company somewhere ion the West- paying for it in the first place. Naturally, I did everything in accordance with the instruction, even more maybe as I sent the check by registered mail - just to be sure... From the point of view of the formal logic, the 30 days deadline must start on the day I receive the transcript. Or not necessarily?

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