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Zachary
Zachary, Attorney
Category: Legal
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Experience:  Lead trial/International commercial attorney licensed 11 yrs
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civil case: pro se communication with opposing councel The

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civil case: pro se communication with opposing councel

The judge informed me that it is not her job to handle discovery matters, that I have to work with plaintiff's lawyer to get it done. He is objecting to99% of discovery and the judge won't hear arguments to his objections because I haven't "worked it out"with him. There is nothing to work out, he is objecting to relavance of everything asked.

So I intend to talk to the guy to try and "work it out" even though I know he will give me nothing.

Since I am pro se, is there anythying I should be aware of when talking to him? Can he use anything I say when we talk at trial? Can I talk to him bluntly about his client and witnesses, or will he hit me with some l,awyer tampering charge, or some other silliness?

Is it on the record or off?
Submitted: 11 months ago.
Category: Legal
Expert:  Zachary replied 11 months ago.
Hi,

My name is XXXXX XXXXX I will be assisting you with your legal question.

First of all, the civil procedure rules do require you to attempt to work out any discovery dispute before filing a motion to compel and requesting the court to rule on your opponents objections. There is a method to doing this in order to satisfy the court. The best practice is to send a letter explaining why each of his objections is wrong and asking for him to withdraw the objections. For you, this is much safer than a telephone conversation, as it is true that anything you say can be used against you in court. Of course, the same goes for anything you put in writing. If you make an admission that hurts your case, either verbally or in writing during discovery, it can be used against you. So, I think it is a better idea to keep your communications with opposing counsel limited to writing so that you can at least have better control over what your are saying to him.

In regard to being blunt about his client and his witnesses, you need to walk a fine line. You want to be forceful in what you are saying and with your view of the facts, and you don't want to ever admit that he is right and you are wrong. However, you still need to keep a measure of calm and decorum in your communications. Avoid words like "liar", etc., at this point.

In regard to it being on the record or off the record, the only thing during litigation which is not on the record are settlement discussions. You should consider everything else as on the record.

Please let me know if you have any further questions. Please also kindly consider rating my answer positively so that I am credited by the website for my work on your question. Rating positively does not cause an additional charge and does not prevent us from further discussing your questions.

Kind regards,
Zachary
Zachary, Attorney
Category: Legal
Satisfied Customers: 4006
Experience: Lead trial/International commercial attorney licensed 11 yrs
Zachary and 7 other Legal Specialists are ready to help you
Customer: replied 11 months ago.

Great answer. That really helps me. I haven't wanted to talk the guy because I'm affraid he will turn anything I say into something.


 


In the process of telling him why his objection is wrong I'll have to make him aware of at least a portion of my defense strategy. I don't want to do that. But most of his objections are relavance.


 


This case is defamation per se. I informed my daughter that plaintiff hadviewed child porn so she could take steps to protect my granddaughters. One of his objections said that it was not relavant that plaintiff possessed images of nude minors. Obviously since he is sayinghe never viewed images of nude minors (child porn) it is relavant. So he's sandbagging and isn't going to do anything other than object; and the judge sustained his objection to that before telling us to work it out. So what can be done?

Expert:  Zachary replied 11 months ago.
It is true that when discussing a relevance objection you indeed do have to reveal your theory on the case and some strategy.

In regard to the particulars of the case, often times it comes down to the actual phrasing of the request in determining how to respond to an objection. So without looking at the actual request that you sent, I can only give you my general impression.

If the plaintiff has sued you for defamation, and you are seeking documents or answers to prove the truth of your assertions, then it seems relevant to me. In this case, you are being sued for defamation based on your statement to your daughter that the plaintiff had viewed child porn. Thus, it seems that a request seeking the disclosure of child porn,or minors posing nude, would be relevant to the case.

Your next steps are: 1) after trying to work it out with the Plaintiff's counsel, file a motion to compel and motion for reconsideration, asking the judge to overule the objections and reconsider his previous rulings based on your arguments on relevance; AND EITHER 2) live with the judges rulings and proceed with the case, then file an appeal on the issue if the case does not come out in your favor; OR 3) file an Application for Mandamus and ask for an appellate review of the discovery ruling (this is not recommended and is reserved for very extreme situations...in other words, most mandamus applications are denied).

Customer: replied 11 months ago.

another expert said I should motion for the judge to recuse herself over this and a couple of statements she made that imply she's already decided in favor of the plaintiff and just wants to get to the trial.


 


What would be your take on that motion? I assume mandamus is something similar.

Expert:  Zachary replied 11 months ago.
A motion to recuse based on the allegation that the judge has already made up her mind is a bad idea. If you were an attorney and you were representing a client, this would be something to potentially do. But in your case, where you are pro se, the judge is simply going to get angry at you and deny your motion. The reality of your situation is that because you are representing yourself, the judge will not look favorably on your case. Judge's do not like pro se litigants.

It may not be fair, but it is simply a fact that you have to deal with, as there really is nothing you can do about it (i.e., trying to sue the court for violation of your civil rights, and trying to do this without a lawyer, will simply take you down a path you cannot win on). I'm being perfectly blunt with you because I don't want you to be misled about your situation.

The mandamus is the same issue, except that the judge does not get to decide on the issue, the appellate court does. Here, you would say that the judge is grossly abusing her discretion and is acting without any reasonable basis in law or in fact in failing to overrule the objection and allowing you the requested discovery.

In all likelihood, the appellate court will simply tell you that they will trust the judge's discretion in this case at this point in the trial, and that you can simply wait for the end of the trial to appeal the matter if the point is not moot.
Customer: replied 11 months ago.

I get what you're saying. This other expert said to also file a complaint with the judicial review board/state bar asking them to intercede since the trial is 3 weeks away and we still have discovery issues. She said she will not continue the case.


 


And the question I referred to above is an interrogatory "Have you ever photographed, viewed, or possessed images of other minors in the nude?" His objection was misleading; overbroad; and priv against self incrimination


 


The judge said it was not relavant. Then said she would not even talk about the self incrimination aspect because she is upholding his objection.

Expert:  Zachary replied 11 months ago.
From a legal perspective, there are definite problems with the phrasing of this request. The problem with relevance is that you are asking about images of minors in the nude. An image of a minor in the nude is not the same as child pornography.

Further, the other issue here is that there is a 5th Amendment objection to this question that I doubt you will be ever able to overcome. He will always be able to simply assert a 5th amendment objection to any properly phrased request of "Have you during the preceding 5 years to the filing of this lawsuit, ever photographed, viewed, or possessed images of child pornography." This is because it is a felony to have done what you are asking about, so he has a right to not incriminate himself.

How many continuances have been granted so far in the case?

How long have you been trying to get discovery responses from the Plaintiff?

How many requests have you sent to the Plaintiff in total?
Customer: replied 11 months ago.

In ohio the laws governing child porn refer to nude minors. the def of nude being exposed genitalia without full opaque covering. There is no distintion between a nude minor and child porn.


 


2 continuances and one time she rescheduled.


 


We submitted this round nearly 4 months ago. In aug plaintiff tried to get the judge to disallow the discovery, she said he could object and she would handle all objections at the next hearing (last friday). At the hearing she said she wasn't going to go through 2 pages of objections. I told her she said that is how she wanted to handle it and I didn't expect him to object to everything that wasn't in the first round.


 


This is the second round, the first consited of six questions by my original atty.

Expert:  Zachary replied 11 months ago.
I see your point. However, unless you specifically stated in the discovery requests that you are using the same definition of "nude" as is used in the Ohio child porn law, then you are still susceptible to objection.

I think you should quickly fire out the letter clarifying your requests to focus on production of images of child pornography, as defined in the Ohio statute, and say that you are limiting your requests to that to get around any problems with overbreadth. Ask for a reply by the end of the week, and then state that if they do not reply by withdrawing objections, you will be forced to move to compel. This should satisfy the judge that you are trying to work it out first. If they don't give you something on friday, file the motion to compel and motion for reconsideration on Monday. In your motion, you should state that you have a right to seek discovery on the truth of your alleged defamatory statement, as truth is a defense. You can state that the Plaintiff opened the door to this discovery by filing the suit in the first place, and cannot use the shield of the 5th Amendment as a sword to improperly rob you of your opportunity to prove truth. If the Plaintiff did not want this to be an issue, they should have not filed the suit.

I do not think asking the judicial review board to intervene would be successful, and I think with your continuances being overruled, you really need to focus on preparing for trial.
Customer: replied 11 months ago.

Our original atty did not include truth or privilege in the answer. I discovered that truth has to be declared in the answer when preparing a sjm and tried to suppliment the answer, which failed.


 


So at this point my discovery is for the purposes of impeaching his tesimony that the satatements are false and to show that due to my knowledge of his character and finding the images in his web cache myself, I was not negligent should it come to that.

Expert:  Zachary replied 11 months ago.
Well, you have to proceed on what you are allowed to do. If the court would not allow you to amend your answer, then this seems an abuse of discretion as well.

You need to make sure to file a motion to reconsider granting leave to amend your answer with the defense of truth. You should also go ahead and try to prove up truth during the trial and then motion the court for a "trial amendment" after you have tried to prove up truth, and request that truth be stated as an affirmative defense on the jury charge. You have to do all these things to make sure that the matter is preserved for the appellate court to review.

I would also say that your attorney's failure to state this in the answer could potentially be malpractice.
Customer: replied 11 months ago.

Yeah, I think I talked to you about this truth business and malpractice about six months ago. If we lose we are ready to go after him. The truth business is just the tip of the ice berg of mistakes the guy made.


 


Plaintiff's argument as to the supplement to the answer was that there is case law saying an answer can not be supplemented once the first pleading is replied to or something like that.


 


I forgot to add: the judge gave me until friday to submit my arguments to the remainder of plaintiffs objections to discovery.


 


As I understand it, he still has to prove falsity beyond just testifying that it is false. So it is relavant to ask questions in discovery pertaining to the truth, at least to help with the neglegence element, correct?

Expert:  Zachary replied 11 months ago.
That's absolutely correct.
Zachary, Attorney
Category: Legal
Satisfied Customers: 4006
Experience: Lead trial/International commercial attorney licensed 11 yrs
Zachary and 7 other Legal Specialists are ready to help you
Customer: replied 11 months ago.

Can you give me your advice on my course of action at this point, given the new information and that the judge has given me until friday to submit my arguments?


 


And I got suspended back in early spring for rating more than once in a thread, but this went way off the original topic so I'm going to hit you again, and hopefully they'll understand.

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