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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 88399
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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Is a declaratory judgment to decide the legal rights or status

Resolved Question:

Is a declaratory judgment to decide the legal rights or status of someone, and is the burden of proof on the plaintiff?
Submitted: 1 year ago.
Category: Legal
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question and for asking for me again.

In a declaratory judgment, as in any claim, the party bringing the action bears the burden of proving their claim and then it is up to the opposing party to try to refute the evidence of the plaintiff. This is the same sliding burden of proof in most all civil cases.



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Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 88399
Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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Customer: replied 1 year ago.
Is abatement another term for the same litigation in two pending cases?
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

No, abatement is the term for extinguishing or reducing something. This is simply called simultaneous litigation.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 88399
Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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Customer: replied 1 year ago.
Is there a way to object that content inside an exceptions to inventory is not about the inventory but instead about acts that allegedly occurred?
Expert:  Law Educator, Esq. replied 1 year ago.
You just state that as one of your grounds in your motion to strike (again, shotgun means object on every ground you have). The court does not want you to file 100 different motions and if you filed a motion for every claim you have as to why this should not be heard, that would be how many motions you would be filing. You file one motion to strike and in the motion to strike list every single reason you have why this petition is not proper and should not be heard at this time.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 88399
Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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Customer: replied 1 year ago.
Can a party use information gained in one case and interject it into a second case, if it is not public?
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your follow up.

Yes, any information gained in any other civil case can be used in another (second or third) civil suit. It does not matter the information was not public, if it was gained in another court action then it can be used in any other court action.
Law Educator, Esq., Attorney
Category: Legal
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Customer: replied 1 year ago.
Without service, should I let the hearing go, and object after the fact if it is heard without me, or do a motion up front?
Expert:  Law Educator, Esq. replied 1 year ago.
No, you need to object up front and file to strike the notice because if you do not show up and they rule against you for not showing up it is going to be double the fight to vacate any decision. DO NOT wait to after the hearing to object, do it NOW.
Law Educator, Esq., Attorney
Category: Legal
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Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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Customer: replied 1 year ago.
Thank you again.
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you.
Law Educator, Esq., Attorney
Category: Legal
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Customer: replied 1 year ago.
If there's are claims against me in the exceptions but I am not actually named as defendant (nor is there a plaintiff, only excepted), what do I call myself? Am also person interested in estate.
Customer: replied 1 year ago.
If a plaintiff wanted to add claims, demands, or claims that additional laws were broken, would they have to amend the complaint, and what would then happen to the timing of the case? Would the defendant get to answer again, do more discovery etc.?
Expert:  Law Educator, Esq. replied 1 year ago.
You call yourself the intervenor in the action, since you are named in the action.

If the plaintiff wants to add any claims, they have to do it in the civil suit and if you already answered the civil suit then the plaintiff needs to file a motion for leave to amend with the court and get the court's permission to amend their complaint.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 88399
Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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Customer: replied 1 year ago.
If another defendant in a civil case submits an answer months after the deadline to respond, can I object?
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your new question.

You can object by filing a Motion to Strike Answer and in your motion to strike you state the answer was filed months beyond the deadline to answer and they did not receive leave of the court to do so or your consent and therefore the answer should be stricken from the record.
Law Educator, Esq., Attorney
Category: Legal
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Customer: replied 1 year ago.
We are both defendants. Whose permission would they need to answer? And would this have had an impact re any of my potential actions if they had filed timely?
Expert:  Law Educator, Esq. replied 1 year ago.
They would have needed the permission of the court and/or the consent of the plaintiff. It should not have any impact on your potential actions, no.
Law Educator, Esq., Attorney
Category: Legal
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Customer: replied 1 year ago.
If the plaintiff approves now, would I have any ability to object?
Expert:  Law Educator, Esq. replied 1 year ago.
Yes, if the plaintiff approves you could object, but you would only object if the other defendant's position is contrary to your position on the case (in other words if the other defendant is blaming you.
Law Educator, Esq., Attorney
Category: Legal
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Customer: replied 1 year ago.
If the other defendant is agreeing with every pleading of the plaintiff (law and fact) against me and they don't know and I don't agree, what weight can their admitting pleading level allegations have?
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response. If the other defendant is agreeing with everything against you, then you would want to move to strike the pleading as out of time without leave of court so you can get it thrown out.
Law Educator, Esq., Attorney
Category: Legal
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Customer: replied 1 year ago.
I am person interested in estate and a beneficiary of a trust but not named in the estate case. If I make a motion to strike, do I need to file to intervene somehow in addition to just making the motion and stating that I am named in the action contained inside of the objections and a person with beneficial interest in the estate?
Expert:  Law Educator, Esq. replied 1 year ago.
Which case was the answer filed in that you want to strike, the civil suit where you are named or in the estate case? If it is in the estate case where you are not specifically named and they are naming only the estate, then you have to move to intervene as you would be answering separate from the estate representing yourself as a party in interest. If it is in the civil suit where you are named, you just file your motion to strike and ask the court to disallow the other defendant's answer.
Law Educator, Esq., Attorney
Category: Legal
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Customer: replied 1 year ago.
The answer is in civil and I am defendant so can motion. In estate case, where pleadings against me are buried in an objections to inventory, that I also trying to address, I am not a named party but am named in the pleadings and am a person "interested in the estate" I believe because of the pleadings in the objections against me and that I am a beneficiary in a trust. So what do I need to do to file motion on estate side relative to objections to inventory? And should I also file objections to objections to inventory? Thank you.
Expert:  Law Educator, Esq. replied 1 year ago.
Yes, you can file the motion in the civil case.

In the estate case you file as a motion to intervene as an interested party to object to the exceptions. You just file a motion to intervene in the estate and then with it you file your objection to the exceptions. If you object to the exceptions and the executor will not object, you have to object.
Law Educator, Esq., Attorney
Category: Legal
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Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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Customer: replied 1 year ago.
But don't I file a motion to strike the pleadings in the objections that haven't been served, etc.? Also, the law says any person interested in the estate or any property in estate can file objections to inventory? So do I need to intervene for just objections? Or to do the motion to strike the pleadings naming me that are inside objections and never served? Thank you.
Customer: replied 1 year ago.
But don't I file a motion to strike the pleadings/ allegations in the exceptions that are against me and never served in the estate case? And do I intervene for that? The objections to inventory law says any person interested in the estate or property in estate can file objections to inventory, so do I also file objections to their objections to inventory just as person interests in estate/property as I am named in their allegations in the exceptions? Please answer soon. Thanks very much.
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

Yes, in the estate case you would file the motion to strike as we discussed. You need to file the objections to the exemptions, but we have not discussed your specific state statutes to know which procedure you must use to do this (some states say you can do so as a heir by right, other states say you have to intervene and some other states say you have no right and would have to first move to remove the executor for not properly defending the estate and get appointed as executor or get another executor appointed in order to properly answer the exceptions). One of the three ways you would file the objection or the executor can give you permission to write up the objections for the executor to file.

This is why though that people end up with an attorney in these cases because there are so many small differences in ways to accomplish what you need to do in this case.

Because you are specifically named in the exemptions you have a good case to at least move to intervene to defend the allegations in those pleadings if the executor will not file the proper objection/motion to strike.

The proper move is filing an objection to the exceptions that were filed, but which method used to file depends on the specific state law in your state as to how you get it filed.
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Category: Legal
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Customer: replied 1 year ago.
Believe any interested person can file objections to inventory. Would objections to objections to inventory fall under that same umbrella?
Expert:  Law Educator, Esq. replied 1 year ago.
No, the objection to the inventory is filed by someone who has a claim against the estate. The true party who should reply to that is the estate, through the executor. However, you are seeking the right to reply because this is more than an objection to inventory and it makes direct accusations against you and that process makes it a little more complicated as to how you exercise the right to respond with your motion to strike/objections based on them raising issues against you directly and raising issues already subject to a civil suit.
Law Educator, Esq., Attorney
Category: Legal
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Customer: replied 1 year ago.
Thanks for the clarification. In general, if a person were accused in a court filing and never served as a party, is there a due procee provision that you have to be able to respond to have it sticken for lack of service?
Expert:  Law Educator, Esq. replied 1 year ago.
Due process would be one of the arguments you would use to be able to answer, yes, as you have the right to face your accuser. Also, from what you are saying this is more than an objection to inventory, which makes it even more complex and gives even more good cause for you to be able to respond if the executor will not do so.

Quite frankly, the executor not properly responding is a breach of fiduciary duty to the estate and grounds to have the executor removed from their position for failure to properly defend the estate.
Law Educator, Esq., Attorney
Category: Legal
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Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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Customer: replied 1 year ago.
Is there a section of civil law that covers what someone who isn't served can do to respond? Don't see it the process service rules.
Expert:  Law Educator, Esq. replied 1 year ago.
It would have to be in the intervenor rules that provides for intervention in a case.
Law Educator, Esq., Attorney
Category: Legal
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Customer: replied 1 year ago.
If I want to withdraw some objections but not all in a filed objections to inventory, do I file a notice of withdrawal and list just those that I want to withdraw?
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your new question.

Yes, if you want to withdraw some of your objections and the other party has not answered your objections yet, you can file an amended objection and remove the ones you want to withdraw. If they have answered your objections, then you have to submit a motion to amend objections and attach your amended objections and remove the ones you do not want in there.
Law Educator, Esq., Attorney
Category: Legal
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Customer: replied 1 year ago.
Is there a term for not being able to be penalized for exercising authority you are actually given?
Expert:  Law Educator, Esq. replied 1 year ago.
It is really called qualified immunity, which means as long as you acted properly you cannot be held liable for taking actions within the scope of your duties.
Law Educator, Esq., Attorney
Category: Legal
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Customer: replied 1 year ago.
If I can't attend a hearing that I wasn't noticed on (out of state) and can't call in because of conflict, what should I do? I have filed objections in inventory hearing.
Expert:  Law Educator, Esq. replied 1 year ago.
If you do not attend the hearing and they issue a ruling, then you are going to be forced to move the court to vacate based on lack of notice to you of the hearing. You run the risk that the court will say that only the executor needed to be noticed and if they show the executor received notice the court will uphold any order they issued. Thus, it is in your best interests no matter what you have to do if you want your chance to speak in court you need to show up.
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Customer: replied 1 year ago.
If I really can't get there, but wouldn't I give up my lack of service defense if I voluntarily participate?
Expert:  Law Educator, Esq. replied 1 year ago.
Sure, your lack of service would work if you did not serve any objections, but if you already filed the objections then you must file a motion for continuance and state that the lack of notice of the hearing and you finding out late about the hearing is good cause for continuance based on the prior out of state commitments.
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Customer: replied 1 year ago.
I am writing to ask how I can ask for a magistrate's order to be modified in the content it includes (as opposed to objecting to the order to have it reviewed by a judge). The order has been submitted and does not say who was present at the hearing, which they normally do, and incompletely represents a filing that I had had before the court at the hearing. How do I ask to have these items corrected in the order? Thanks.
Expert:  Law Educator, Esq. replied 12 months ago.
Thank you for your response. I apologize for the delay, but I was out of town with a client matter and could not get online.

If the magistrate's order is incomplete or unclear, you can file a motion for clarification to the court and ask what you want to be clarified.
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Customer: replied 12 months ago.
With pretrial statements, will I get a chance to respond to the Plaintiff's pretrial statement? They have provided little to no details to date on why they are right or what specific laws the say have been broken. How do I handle doing my pretrial statement in this circumstance please?
Expert:  Law Educator, Esq. replied 12 months ago.
Thank you for your new question.

Each party files their own pretrial statement. Your pretrial statement would be the same format as the other party's pretrial statement and you would explain in your pretrial statement what laws you have that support you, even though they did not supply any that support them, and argue that because the laws support you is why the other party did not cite any laws.
Law Educator, Esq., Attorney
Category: Legal
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Customer: replied 12 months ago.
For facts and law, there seem to be 3 categories - statements and outstanding issues to be decided at trial, and stipulations. How do I tell what to put under stipulations vs. under the general heading for fact with the outstanding issues? Or do I put everything I think is true that supports my case under stipulations? Thanks very much.
Expert:  Law Educator, Esq. replied 12 months ago.
Stipulations are anything that you have agreed upon with the other party, if there are no agreements then you do not list anything in there.

You would put everything under statements and outstanding issues if you and the other party have not agreed upon anything.
Law Educator, Esq., Attorney
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Customer: replied 12 months ago.
How do I get content entered into my case for trial if I am the testifier or the person who would have to verify a document is me?
Expert:  Law Educator, Esq. replied 12 months ago.
You would testify in the matter, as the court will swear you in and you would verify the documents.
Law Educator, Esq., Attorney
Category: Legal
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Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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Customer: replied 12 months ago.
Would I need questions or a structure or would I just have an organized statement prepared to give? If I am defending against multiple claims, would I have the option of tetifying more than once, to break it up?
Expert:  Law Educator, Esq. replied 12 months ago.
You would generally testify free form, meaning you would make a statement under oath with all of your points at once, so it would help to write down every point you want to address so you do not forget any.
Law Educator, Esq., Attorney
Category: Legal
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Customer: replied 12 months ago.
Is there a way to include exhibits that are summaries or overviews of other detailed information?
Expert:  Law Educator, Esq. replied 12 months ago.
Summaries of information can be used as presentation material to the court but cannot be entered into evidence. The key to these cases unfortunately is being able to verbalize your argument simply and clearly and if you have some type of visual aid to show the information to make it easier, that would work as well, but you cannot really enter it as evidence.
Law Educator, Esq., Attorney
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Customer: replied 12 months ago.
How much detail should I put in the pretrial statement? Conclusions of facts, representative details of facts, or comprehensive factual statements that tell the story? Any advice is much appreciated.
Expert:  Law Educator, Esq. replied 12 months ago.
In your pretrial statement you want to get in as many facts (and only facts) as you can put in. You need to be as comprehensive, but concise, as possible in your statement to make sure the judge has ALL of the information you want him to have.
Law Educator, Esq., Attorney
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Customer: replied 12 months ago.
Thank you. Glad you'd back. Facts include excerpts from relevant documents right?
Expert:  Law Educator, Esq. replied 12 months ago.
Thank you for your response. I am back for a bit tonight, but will be back on first thing in the morning.

Facts include excerpts from relevant documents, that is correct.
Law Educator, Esq., Attorney
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Customer: replied 12 months ago.
Is it all right to state clearly actions you have taken or that you have been truthful in all your communications for example? Or is that too defensive?

Also, how do I tell if this pretrial conference is with the judge or the magistrate?
Customer: replied 12 months ago.
The outline for the pretrial statement says to list factual and also legal issues to be decided at trial. As the other side and I have not communicated to agree on stipulations, it seems necessary to also state the issues in an appropriate context? Or include the statements of what we think is the basis for then having remaining issues to be decided?
Expert:  Law Educator, Esq. replied 12 months ago.
You can state all of the actions you have taken and you can state that you have truthfully communicated to them when you needed to.

The pretrial is going to be with whoever is hearing the case, it should state on the pretrial notice who it would be with.

You include all issues that are left for the court to decide, all of the factual and legal issues that you and the other party cannot agree upon.
Customer: replied 12 months ago.
What is the burden of proof requirement for proving someone violated the authority given in a trust or power of attorney document? A plain reading of the documents supports authority to do some things. The other side has presented in their complaint, subsetted phrases out of context as the core of what has not been followed in a document, and ignores the rest of a long document. Statutes just say that the provisions of the document are what define the authority given.
Expert:  Law Educator, Esq. replied 12 months ago.
They have to prove by a preponderance of the evidence their allegations. This means that the party making the allegation has to prove by just a small bit more than the other party that they are right in order to prevail. Once the accusing party presents their evidence, the burden shifts to you to present evidence to show that you did substantially comply with the document terms.
Law Educator, Esq., Attorney
Category: Legal
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Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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Customer: replied 12 months ago.
What does" marking exhibits " mean?
Expert:  Law Educator, Esq. replied 12 months ago.
Marking exhibits means that each item you plan on introducing in court in your case must have a unique identifying number or letter. Generally, one party numbers them with numbers and the other party uses letters to identify each piece, such as Exhibit 1 or Exhibit A.
Law Educator, Esq., Attorney
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Customer: replied 12 months ago.
Is testimony from prior hearings automatically available to use or do I need to enter it as exhibit somehow?
Expert:  Law Educator, Esq. replied 12 months ago.
Testimony from prior hearings has to be requested by you in getting a transcript of that testimony as it is not readily available to the court. When you get the transcript it would be introduced as an exhibit to support whatever you are using it for.
Law Educator, Esq., Attorney
Category: Legal
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Customer: replied 12 months ago.
I have transcripts. I've seen where people introduce or use parts only? If I don't list on exhibit and the other side introduces parts only, how do I then counteract if they are taking things out of context?
Expert:  Law Educator, Esq. replied 12 months ago.
You only introduce the part of the transcript you need to prove your point, not the whole transcript. If they are taking things out of context, then you introduce the part of the transcript that puts what they are saying back into context.
Law Educator, Esq., Attorney
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Customer: replied 12 months ago.
Sorry for the follow-up. So do I put the whole transcript in as exhbit and then choose what part to use at trial?

Also, do I need to put into my exhibits other documents I already filed with the court? Or can you have the judge just admit them as available? Thanks very much.
Expert:  Law Educator, Esq. replied 12 months ago.
You need to put in only the amount of the transcript necessary to dispute the claims of the other party. If you put the entire transcript in the court is not going to read it. Thus, if there are pages in the transcript that dispute what the other party is saying or clarifies what they are saying you enter only those pages as needed.

You only need to refer to them as already entered if they have already been submitted to the court.
Law Educator, Esq., Attorney
Category: Legal
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Customer: replied 12 months ago.
If the other party takes things out of context in a transcriot, how do I correct that after I have already submitted by pretrial and list of exhibits? Thanks for your patience and help.
Expert:  Law Educator, Esq. replied 12 months ago.
As stated above, if they take things out of the transcript out of context, you need to take the pages of the transcript that put them in context and introduce them as rebuttal evidence which does not have to be listed on your pretrial exhibits.
Law Educator, Esq., Attorney
Category: Legal
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Customer: replied 12 months ago.
Thank you. Is it ok to mark on letters or documents to highlight the part you want people to notice or do I need to leave them without any addiional marks?
Expert:  Law Educator, Esq. replied 12 months ago.
You have one copy without markings and you would mark your copy with highlighting, this way the good copy goes into the actual record but you can use the highlighting to show the court.
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Category: Legal
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Customer: replied 12 months ago.
Thank you. Is there some way to use a summary chart to show for example a timeline, or totals of numbers off of detail? And do I enter this as an exhibit now?
Expert:  Law Educator, Esq. replied 11 months ago.
You can make such a chart to show the court and you can enter it as an exhibit to make it easier for the court to follow what is going on in your case. You can enter it as an exhibit now.
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Customer: replied 11 months ago.
Are documents attached to a complaint automatically admitted for use at trial? Or do I need to include them as exhibits?

When I gave discovery responses, I objected that I wasn't approving for use at trial. How do I assert that now? Thank you very much.
Expert:  Law Educator, Esq. replied 11 months ago.
Thank you for your new question.

Documents attached to the complaint still need to be authenticated. So you need to include them as exhibits on your list. If you have objection to any exhibits they are using, you can file a Motion in Limine to bar the use of a particular exhibit as can the other party.

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Customer: replied 11 months ago.
Would a motion in limine be filed after I get their exhibits and list then?

And how do I enter copies of letters that I sent where they have the originals now? Hope you're well and thanks very much.
Expert:  Law Educator, Esq. replied 11 months ago.
Yes, when you receive their exhibits list if you want to exclude any as irrelevant or not admissible, that is when you file the Motion in Limine to exclude them.

If they have the originals you can introduce the copies explaining they have the original letters as they were sent to them.
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Category: Legal
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Customer: replied 11 months ago.
How do I enter a letter to a lawyer without giving up the general confidentiality of the relationship? They are now using the same law firm I maintain acted as my attorney previously.
Expert:  Law Educator, Esq. replied 11 months ago.
Thank you for your response. I am afraid that once you enter the letter, your confidentiality on that issue no longer exists. So you need to pick and choose which letters you really need.
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Category: Legal
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Customer: replied 11 months ago.
How does referencing on a privilege log help with this?


Also, how do I get admitted into trial the other side's admissions from my discovery to them? And are their answers filed with the court already admitted? Thanks very much.
Expert:  Law Educator, Esq. replied 11 months ago.
You cannot have your cake and eat it too. You cannot introduce some document that would destroy attorney client privilege and then claim privilege on that issue at the same time. You have to decide that you need this letter in your defense or whether you do not and want to keep it privileged.

For admissions, you introduce their answers to the request for admissions as an exhibit and as such then you can have the admission recognized. Admissions are not filed with the court, you have to enter it into evidence yourself.
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Category: Legal
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Customer: replied 11 months ago.
Is there a legal principle or evidence principle that says that if event A happened well before event B, you can't claim vent A was done because of or in response to event B? It's just logic or factually impossible, but is there also any legal term for this? Thanks very mcih.
Expert:  Law Educator, Esq. replied 11 months ago.
Thank you for your new question. Sorry for the delay, I was out with a client matter.

This is just a matter of logic that if event A happened well in advance of Event B, it could not have been in response to Event B. There is no legal term for th is.
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Customer: replied 11 months ago.
How do I introduce witnesses, exhibits or prior testimony in rebuttal?
Expert:  Law Educator, Esq. replied 11 months ago.
This is not exactly easy and there are whole books on trial procedure and introduction of witnesses and evidence in the courts. However, the brief way is you tell the court you are calling someone in rebuttal. Then when you get them on the stand you keep the testimony narrowly directed to the topic or specific issue you are rebutting.

Same with your exhibits, when you need to introduce them after the other party testifies, you would tell the court that you have an exhibit in rebuttal to introduce and if you need a witness to be put on the stand to introduce or authenticate that rebuttal evidence, you call them to the stand and introduce the evidence you need to rebut what you need to rebut.
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Customer: replied 11 months ago.
Thank you, if I think the are some specific evidence items that are either going to be offered (that I don't think should) or that I am entering and expect objection to, should I also have prepared a motion or something to help support that entry or exclusion argument on my part?
Expert:  Law Educator, Esq. replied 11 months ago.
Thank you for the response. If you have evidence you do not think they should offer, you need to file a motion in limine now to ask the court to exclude it from the case ahead of time and explain why. if you do not do that, you can object to the evidence when they try to introduce it in court if you do not agree it should be entered and you can do it by oral motion.
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Category: Legal
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Customer: replied 11 months ago.
Do I need to amend my pleadings in light of things I understand better now or to add 1.) additional affirmative defnses or 2.) additional affirmative defenses or 3,) factual statements that support my original counterclaims, for example? Or wouldn't that mean the plaintiff would need to answer them again?
Expert:  Law Educator, Esq. replied 11 months ago.
Thank you for the new question.

As far as amending anything, you would at this late date need to file a motion for permission (leave) to amend your pleadings to add your affirmative defenses and your facts that support your counterclaims, but yes, you should seek to do so.
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Category: Legal
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Customer: replied 11 months ago.
If it's a long document now, what is the best way to format an amendment to affirmative defenses and count claims - and does this mean the plaintiff would then get to answer again if I do ?

Are factual assertions in counterclaim pleadings discretionary, as there could be lots of facts at differ levels of detail? Or any advice on how to tell how much to put in?
Expert:  Law Educator, Esq. replied 11 months ago.
If you are going to amend your pleadings you have to fix whatever you want to fix in them and submit the entire pleading over again with your additions and corrections and you would attach that to your motion for leave to amend and the plaintiff has another chance to respond to your amended pleadings.

Generally, you put only barely enough detail to show that your allegations are substantiated
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Category: Legal
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Customer: replied 11 months ago.
Can I add affirmative defenses without triggering another response cycle? And so if my counterclaims are still "right" but I just have more evidence to support, is that evidence just left to trial?


After pretrial statement, is there generally anywhere else where you out your story together for the judge in writing as opposed to at trial with Shiite and witnessses ? Thank you very much.
Expert:  Law Educator, Esq. replied 11 months ago.
If you modify any of their pleadings, they are entitled to modify their responses.

You can list your facts and legal position after your general statement you can insert your legal argument and position in the case after the explanation of the facts as part of your pretrial memorandum.
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Customer: replied 11 months ago.
So if I add affirmative defenses (and not new counterclaims) that would still trigger their response (even though they don't respond to them in writing do they)?

Do I need to worry about what level of detail is in m affirmative defenses? General statements of parts of a law or document that I think is a defense vs. explanation of why my acts fit that law or part of an authorizing document (like POA)?
Expert:  Law Educator, Esq. replied 11 months ago.
Yes, any change you make to the pleadings they are allowed to respond to.

You need to have general facts supporting your defenses.It only needs to be general and not lengthy. The lengthy proof comes in court where you have to present your evidence supporting your defenses.
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Customer: replied 11 months ago.
To what extent should I file pretrial motions to try to clear out claims I don't think are valid based on facts I have and what the Plaintiff has alleged or proven so far?

Is there any downside for trying some of these? Or should I just save it for trial? Is it likely the other side will do this?
Expert:  Law Educator, Esq. replied 11 months ago.
You should file motions to dismiss or motions to strike invalid claims, as we discussed a long time ago. If you have proof they are not proper claims you need to file those and get the court to eliminate them.

You want to narrow it down to the fewest claims possible for the court to deal with.
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Customer: replied 11 months ago.
Thank you. Should they be stated as motion to dismiss, to strike or to exclude claim from consideration? They are like mini summary judgment motions, using some new facts as well as deficiency of pleadings I think, to try to eliminate a claim area. And should I combine them into one document with successive motions numbered, with facts, law and conclusion uner each? or file them separately?

Lastly, should I combine the elimination of claims with evidence related motions into one pretrial document? Thanks very much.
Expert:  Law Educator, Esq. replied 11 months ago.
It would be a motion to dismiss/strike improper claims. You need to do it all in one motion and you should have no "successive motions" and in your memo you describe each one you want stricken and why it should be stricken and again in your conclusions you list why each should be stricken.

The motion to strike/dismiss is the proper motion it is not done in the pretrial document. It is separate.
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Customer: replied 11 months ago.
The complaint is repetitive in places, with over 70 pleadings, mixing up facts and laws, that attempt together to support broader claims like "breach of fiduciary duty" and others that are repeated in an unorganized way throughout the document. Is it Ok to combine my arguments under the headings of the (sometimes) broader groupings (like actions violate a POA document) and show why the group should be dismissed? I can't seem to do it just by following the pledging order. Any guidance? Thanks by much.
Expert:  Law Educator, Esq. replied 11 months ago.
You would indeed combine your arguments and organize your motion regardless of their pleadings being disorganized.
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Customer: replied 11 months ago.
I have a couple of evidence related motions also. Should I combine all of the pretrial motions in one document or split one for eliminating claims and one for the evidence issues?

Also, is there any downside in trying to eliminate the claims?

Thanks again.
Expert:  Law Educator, Esq. replied 11 months ago.
The evidence related motions would be separate motions.

Trying to eliminate claims really has no downside as it can make the case get closed faster if the court finds the allegations as frivolous as you are stating.
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Customer: replied 11 months ago.
If I don't succeed, am I disadvantaging my ability to convince at trial on the same issue?
Expert:  Law Educator, Esq. replied 11 months ago.
No, you are not hurting your case if you do not succeed.
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Customer: replied 11 months ago.
I have a couple of areas of law that do not apply because of timing of when facts occurred for example relative to when statutes were effective. Can I combine these motions to exclude consideration of legal issues (or application of statutes?) with my "Motions to Dismiss or Strike Claims not sufficiently supported by the Facts" ? Or what would you call both of these please?
Expert:  Law Educator, Esq. replied 11 months ago.
You can combine ALL of the motions to dismiss even if they have different reasons.

The motion to dismiss is for "failure to state a claim on which relief ca be granted" and this pertains to both statutes and not sufficiently supported by the facts.
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Customer: replied 11 months ago.
Thanks by much for the help and the patience. I had thought motion to dismiss was only relative to facts in the pleadings, but does that mean I can add my own facts to support the motion to dismiss also (like a mini motion for summary judgment I guess?)
Expert:  Law Educator, Esq. replied 11 months ago.
No, a motion to dismiss can be for the insufficient facts or because there is no law supporting the claims or because you did not commit any violation of the law you are alleged to have violated. There are limited reasons to dismiss, which would be for one of the affirmative defenses, such as your actions did not violate anything or the claims they are making are not a violation of anything.
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Customer: replied 11 months ago.
So I have some that essentially cam be dismissed based on just the pleadings and the law (that could have been done before discovery)? And what do I do with things that I can make the case should be removed based on the facts we have so far, several of which are not contested? Are these included here too and/or do they get another name? Sorry for the confusion.
Expert:  Law Educator, Esq. replied 11 months ago.
That is correct, you have some that can be dismissed and it could have been done before discovery.

No, the issues where the facts not contested show that you still did not commit any violation you can be sued over is still "failure to state a claim upon which relief can be granted."
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