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Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 87171
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Im in the middle of litigation over a breach of contract as

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I'm in the middle of litigation over a breach of contract as the defendent. In some of the memos submitted by the OP, their attorney makes certain statements in their discussion of the case that is simply inaccurate or not backed up by any evidence on the affidavits by their client, and there's no citation. For example, the attorney states I'm a "sophisticated" party, where if anything, the OP's affidavits paint me as a bumbling idiot.

1) is this a tactic perhaps used by more experienced attorneys who know the court might not cross reference every single statement, yet, the attorney knows it paints a picture in the judge's mind?

2) should I motion to strike these comments that are fabrications or not backed up by any facts or not cited?
Submitted: 1 year ago.
Category: Legal
Expert:  Ely replied 1 year ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am sorry for your situation. When you state "OP," what do you mean by this? Just to make sure that we are on the same page.
Customer: replied 1 year ago.

Opposing party.

Expert:  Ely replied 1 year ago.
Thank you. And when you state "submitted," do you mean that they were submitted as part of evidence? In what context do these statements fall?
Customer: replied 1 year ago.

attorney made statements in a memo in opposition of motion to dismiss case.

Expert:  Ely replied 1 year ago.
Thank you for your clarification. I am guessing that you mean that the statements are made in the Memorandum in Support of Motion to Dismiss.

1) is this a tactic perhaps used by more experienced attorneys who know the court might not cross reference every single statement, yet, the attorney knows it paints a picture in the judge's mind?

One could say yes. This was not a "trick" per se, but is an argument that is attempting to influence the Court.

2) should I motion to strike these comments that are fabrications or not backed up by any facts or not cited?

"strike" is not the correct word, perhaps. To "strike" a motion is to ask the motion itself to be dismissed due to a technicality such as improper format, etc.

At this point, someone in your situation may file a RESPONSE to the motion wherein the false statements may be impeached as misleading, simply false, etc. So in this way, yes, they may be challenged. But this would be the proper way - to challenge the motion's content in a response; not to motion to "strike" specific verbiage of the motion.

The Judge should then take both the motion AND your response in consideration in making the decision.

I hope this clarifies.

Please note: I aim to give you genuine information and not necessarily to tell you only what you wish to hear. Please, rate me on the quality of my information and do not punish me for my honesty. I understand that hearing things less than optimal is not easy, and I empathize.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then submit, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating.)
Customer: replied 1 year ago.

But an response implies I have the ability to file one. Without going into details of the case, at this point no more responses are permitted, at least as part of the normal process. Would there be alternative options to highlight the falseties to the court? or this would be left to be brought up at the oral hearing? but, given the time constraints then, it's unlikely the judge would allow for a fine tooth comb nitpicking on the details the opposing party was incorrect in (which again, it isn't anything necessarily gravely incorrectly, but as it's written by the attorney to support his argument, unless the judge verifies it against the affidavit, he might presume to be 'true' (since it was stated as such)).

Expert:  Ely replied 1 year ago.
R,

Thank you for your reply.

Would there be alternative options to highlight the falseties to the court?

Yes. The motion should not be granted automatically. If one requests an oral hearing (either party), the Court should hear oral arguments at which the falsities can be brought up. Simply not filing a response does not mean that one "defaults" the motion.

but, given the time constraints then, it's unlikely the judge would allow for a fine tooth comb nitpicking on the details the opposing party was incorrect in (which again, it isn't anything necessarily gravely incorrectly, but as it's written by the attorney to support his argument, unless the judge verifies it against the affidavit, he might presume to be 'true' (since it was stated as such)).

If you can squeeze the matter in at the hearing - or anywhere else if it is pertinent - the Judge may. But if you are telling me that this suit is not operating under "normal" procedures, then of course it is at the discretion of the Court, in the end.

Gentle Reminder: Again, surely you prefer that I be honest in my answer – please remember that rating negatively due to receiving bad news still hurts the expert – it is simply the way that the system is set up. Please use REPLY button to keep chatting, or RATE my answer when we are finished. (You may always ask follow ups free after rating.)
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 87171
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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