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Ask Zachary Your Own Question

Zachary
Zachary, Attorney
Category: Legal
Satisfied Customers: 3646
Experience:  Lead trial/International commercial attorney licensed 11 yrs
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Time sensitive! Option to choose state never given! Oregon

Customer Question

The expert it chose doesn't practice here, I need another & quickly! Another leaving it til til the last-minute person


 


- I think I'm ok, but today is the last day to move a mediation for small claims & the defendant hasn't provided the surveillance video I was told I was subpoenaing when I filed suit. The clerks have no clue of anything, & I tried calling legal aid but it was a nightmare, & realized I could just write here! I know it's non-binding, but trying not to go in clueless. I have estimates, including one with a statement about what was encountered when my mechanic saw my car. Subsequent estimates were from Ase certified technicians, though the initial statement is from someone who is not. It's about a gas-station attendant - who was just trying to help, poor guy, but didn't replace my oil cap after offering to top it off for me (upon my statement that it might have been low & could I buy some oil). My mechanic found oil all over the engine exterior & nearby workings, as well as the oil gone & the starved engine bearings making bad sounds, ascertaining that the engine life was severely decreased. I was told I had to file suit to be able to subpoena the surveillance records, but none have been delivered to me. What should I worry about besides bringing the estimates? Do I have a right to file a claim once the state insurance board gives me that info, & are they obligated? Thanks, XXXXX XXXXX! Alexandra Myers

Submitted: 1 year ago.
Category: Legal
Expert:  Zachary replied 1 year ago.

Although I am not an Oregon attorney, I'm familiar with Oregon law on this issue and also have years of experience in litigation similar to this.

If you would like for me to answer, please respond back and let me know.

-ZDN

Customer: replied 1 year ago.

Sounds good thanks!

Expert:  Zachary replied 1 year ago.
At this point, if you believe that the video tape is absolutely necessary, then you need to request that the mediation date be moved.

The next thing you need to do is ascertain whether the subpoena was served on the Defendant. You say you were told that you were subpoenaing the tape. That statement worries me. Can you tell me exactly what you did to get a subpoena and whether you served it on the Defendant?

In regard to the estimates, you should simply bring copies of them with you. Since you are in small claims court, the Rules of Evidence do not apply, meaning that the estimate itself can serve as documentary evidence supporting your claim for damages.
Customer: replied 1 year ago.
I guess I'm uncertain as far as the subpoena, & I had assumed since the mediation was non-binding that it wouldn't matter...I explained to the clerk that I needed the footage & she gave me the paperwork, it didn't seem unclear to her. And I'm not sure what else I could have been purported to be subpoenaing?
So I am a bit nervous now, but am also going to call the state insurance board & see if I can at least show to the mediation w/ a claim already filed - or at least someone told me I could do this - I hope they're right!
I should be done clarifying this answer by Thursday at the latest - just a very busy time right now...
Expert:  Zachary replied 1 year ago.
OK. A subpoena is a document you fill out requesting information you are after and identifying who has the information. You file this with the clerk and then the clerk will issue a subpoena. You have to then take this subpoena to a process server and have the server "serve" the subpoena onto the Defendant. It doesn't sound like you took the second step (and the clerk was completely useless in helping you :-(

The mediation is non-binding. I was under the impression that you felt you had to have this evidence before going to the mediation. I do not believe it is necessary if you found that the cap was missing and caused the damage soon after you left the gas station.

Customer: replied 1 year ago.

Huh, my response didn't go through - I realized that the cutoff is today not yesterday! And the subpoena was indeed served...


Ultimately for the court case it seems I'd need the evidence for sure, & the guy said he'd look at it & get back to me, but hasn't returned repeated phone calls. I'm guessing from looking at the subpoena that it just notified him he was being sued, so yes, it seems the clerk was useless b/c our conversation was always my talking about how I needed the surveillance records. I mostly am confused as to why they haven't been given to me, what kind of useless subpoena doesn't get you any evidence?!

Expert:  Zachary replied 1 year ago.

The subpoena can compel the person to attend the court hearing. What you need is a subpoena duces tecum:

http://courts.oregon.gov/Washington/docs/civil/Civil_Subpoena_Duces_Tecum.pdf

It has a space for Addendum____ (A,B, C, etc) which needs to state: Produce the survellience camara footage from all survellience camara's which give a view of the attendant in question servicing Plaintiff's vehicle on ________(date) and __________(time)."

Then the subpoena duces tecum will list a time by which the person has to respond.

This is what you need to send, and this is likely why they have not given you the evidence.

The subpoe

Customer: replied 12 months ago.

I'm preparing the doc you provided now, looks like it got cut off though at the bottom - something you were saying?

Customer: replied 11 months ago.

This answer was given so many answers after I initially asked the question that it was too late to do me any good. While I was going to get some more clarification to provide an opportunity for full payment, I see one was put through, so now I lose more faith b/c I have to dispute the charge. Frown.

Expert:  Zachary replied 11 months ago.
Hi,

I'm not sure what youre saying. Are you looking for a refund?

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