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Roger
Roger, Attorney
Category: Personal Injury Law
Satisfied Customers: 26694
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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when starting an complaint or counter complaint to gather information

Resolved Question:

when starting an complaint or counter complaint to gather information through discovery tools to aid in litigating can you request phone records or they have to be subpoenaed
Submitted: 1 year ago.
Category: Personal Injury Law
Expert:  Roger replied 1 year ago.
Hi -

If the phone records are sought from a party to the lawsuit, then you can seek those through discovery. But, if phone records are sought from a non-party - like AT&T - then you would issue a subpoena duces tecum for the records.
Customer: replied 1 year ago.

to bonifie according to rules of evidence you would need them from public record the subpoena is something the court is motioned to do

Expert:  Roger replied 1 year ago.
You would draft the subpoena duces tecum and the court clerk would issue/sign it. Then, you would have to serve the subpoena on the party that has the documents.
Customer: replied 1 year ago.

if its a company like att i would serve it to them then motion the court for time to obtain the record

Expert:  Roger replied 1 year ago.
The subpoena would actually state the amount of time att had to respond to the subpoena. Usually, subpoenas state that documents should be produced within 10 days of delivery of the subpoena.
Customer: replied 1 year ago.

ok if your answering a complaint were your entering a counter claim at that time would you file the subpoena?

Expert:  Roger replied 1 year ago.
You can file the subpoena any time - - with or without the counterclaim. But, if your counterclaim is in regard to the documents you're issuing a subpoena for, it's certainly fine to issue it the same time the counterclaim is filed.
Customer: replied 1 year ago.

when citing authorities is it bad to cite those who have dissenting opinions

Expert:  Roger replied 1 year ago.
No - - that's normal.
Customer: replied 1 year ago.

but can the judge claim that its distinguished because of the dissent

Expert:  Roger replied 1 year ago.
The dissent is the minority opinion - not the majority. Since the court generally always follows the majority opinion, the dissent should not be a blow on the trial court level.

If the case were appealed by the losing party, the dissent becomes useful because the appellant could argue the dissent in holes to persuade the other judges on the appeals court to side with the minority.

Customer: replied 1 year ago.

what if the proposition of law that the court brings out is on point for your case but the court found that being applied to the case at it was not applicable if you cite that will that effect you in your case

Expert:  Roger replied 1 year ago.
If this is a concern, the best thing to do is address the dissent and just reinforce why the majority opinion is correct and that the court should follow the majority.
Customer: replied 1 year ago.

im sorry i meant to say the court brought the law or proposition of law but found it didn't apply to the facts of the case of that party, if the proposition of law that the court brought forward is on point in your case, would it be bad to cite that case law if the court felt that the law was not applicable to the other party, or it doesn't matter due to it being a case by case review

Expert:  Roger replied 1 year ago.

Understood.

You want a case that supports your position based on the facts and how the law is applied to those facts.

But if the majority opinion states a point of law based on facts that are similar to yours, then you should be on solid grounds to cite it.

Customer: replied 1 year ago.

like example the court states to protect the due process rights of the party's the guardian ad litem must be cross-examined or made available to be cross-examined however the court found that according to the record the gal was cross-examined so there was no abuse of discretion or violation of due process, could i still cite the proposition of the gal being cross-examined is substantive right of due process and not to make him available would be a violation of due process

Expert:  Roger replied 1 year ago.
Yes, you could still use this because the legal principle is stil that the GAL must be cross-examined or made available for cross-examination. Even though there was no abuse in the particular case, the case still stands for the legal principle you want to address.
Customer: replied 1 year ago.

if a point in my contention is that a duty of a court is to protect the constitutional rights of the people could i used a citation like this. "when it appears that one is deprived of his liberty without due process of law in violation of the Constitution of the United States. Upon the state courts, equally with the courts of the Union, rests the obligation to guard and enforce every right secured by that Constitution". Mooney v. Holohan, 294 US 103 - Supreme Court 1935

Expert:  Roger replied 1 year ago.
Sure, it's fine to use citations like that, but the main thing is to have specific case law that pertains to your situation instead of broader ideals.
Customer: replied 1 year ago.

ok i want to get specific this case was speaking about habeous corpus, however; mentioned it as a constitutional right and spoke in the plural, stating that every constitutional right must be guarded,


 


"rests the obligation to guard and enforce every right secured by that Constitution".Mooney v. Holohan, 294 US 103 - Supreme Court 1935


 


can it be inferred that this means all constitutional rights , and that this can be used to show that it is a courts duty to uphold every constitutional right?

Expert:  Roger replied 1 year ago.
After the quote, you can state that this is a constitutional right - don't leave something to chance; go ahead and state it.
Customer: replied 1 year ago.

like if im talking about the right to cross-examine the guardian ad litem this would be a 6th amendment substantive right of due process, and it is enforced upon the states by the 14 amendment, and by this being a derivative of a constitution right it is the duty of the courts to uphold it? would that be correct to state it like that

Expert:  Roger replied 1 year ago.
Yes, you can say that; also, you can quote case law that we' ve discussed previously that pertains to this issue.
Customer: replied 1 year ago.

but is it far off in a manner that a judiciary would think that this has nothing to do with the subject matter and you don't understand the law.

Expert:  Roger replied 1 year ago.
No, I don't think so. I think it's more of you beginning your argument at about "20,000 feet" and then bringing it down to more specifics.
Customer: replied 1 year ago.

like beginning with tech then to main issues, now how would you define that, would it be starting with issue that may be errors in rules then move to procedural errors and then fundamental errors. also every procedural error is not from the branch of due process

Expert:  Roger replied 1 year ago.
A particular order of addressing the issues ins't required; as long as you address each issue separately. But, it's usually best to start with the most general issues and move on to the more specific ones.
Customer: replied 1 year ago.

but; is that correct, all procedural errors are not errors of due process but some are?

Expert:  Roger replied 1 year ago.
Yes, all procedural issues aren't necessarily issues of due process.
Customer: replied 1 year ago.

can you explain this pertaining to rule 60 b cornell law says section (e) states:(e) Bills and Writs Abolished. The following are abolished: bills of review, bills in the nature of bills of review, and writs of coram nobis, coram vobis, and audita querela. then it says further down,If these various amendments, including principally those to Rule 60(b), accomplish the purpose for which they are intended, the federal rules will deal with the practice in every sort of case in which relief from final judgments is asked, and prescribe the practice. With reference to the question whether, as the rules now exist, relief by coram nobis, bills of review, and so forth, is permissible, the generally accepted view is that the remedies are still available, although the precise relief obtained in a particular case by use of these ancillary remedies is shrouded in ancient lore and mystery. See Wallace v. United States(C.C.A.2d, 1944) 142 F.(2d) 240, cert. den. (1944) 323 U.S. 712; Fraser v. Doing (App.D.C. 1942) 130 F.(2d) 617; Jones v. Watts (C.C.A.5th, 1944) 142 F.(2d) 575; Preveden v. Hahn(S.D.N.Y. 1941) 36 F.Supp. 952; Cavallo v. Agwilines, Inc. (S.D.N.Y. 1942) 6 Fed.Rules Serv.


 


does this mean that coram nobis is still available as a writ.

Expert:  Roger replied 1 year ago.
The writ of coram nobis has been abolished in civil actions by the Federal Rules of Civil Procedure and similar provisions of state codes of civil procedure that, instead, establish different methods for setting aside judgments.

Rule 60 got rid of all of these types of bills and relief.
Customer: replied 1 year ago.

so instead of writ of coram nobis it would be rule 60?


when you say federal rules of civil procedures state codes of civil procedures, which one takes precedence federal rules and state codes are subject to them.

Expert:  Roger replied 1 year ago.
Yes - that's the rule that allows relief from a judgment.

If you're in federal court, federal procedure applies; if you're in state court, that applies.
Customer: replied 1 year ago.

but does federal rules have supremacy like the Federal constitution or is federal rules created by congress and state rules by general assembly

Expert:  Roger replied 1 year ago.
No, federal rules of procedure do not trump state rules of procedure. Each only apply in their respective courts.
Customer: replied 1 year ago.

is that due to jurisdiction of law which court can hear certain controversies and then there respective laws(rules) apply

Customer: replied 1 year ago.

also i want to ask you about complexity of res judicata doctrine representing subject matter, if a court has jurisdiction in personam but lacks subject matter jurisdiction do they still have jurisdiction to pass a judgement

Expert:  Roger replied 1 year ago.
Yes, it's jurisdictional - federal courts use federal procedure rules.

A court must have subject matte jurisdiction to hear a controversy.
Customer: replied 1 year ago.

ive heard that courts obtain subject matter statutorily in some cases is that correct

Expert:  Roger replied 1 year ago.
Yes, most court jurisdictiin is determined by legislation.
Customer: replied 1 year ago.

but is that a grant to subject matter regardless, or doesn't there have to be a controversy, and the party's agree to allow the court to hear it or there was a previous case and the latter court received the subject matter by way of res judicata from the forma court to hear the case. is that correct

Expert:  Roger replied 1 year ago.
Well, you must have a controversy ripe for adjudication in order to sue, but the court must still have jurisdiction over the controversy.

Res judicata is civil double jeopardy. If a matter has already been tried , then it can't be tried again.
Customer: replied 1 year ago.

ok i think i understand res judicata would be for the loosing party that he cannot reopen the case again because the doctrine deals with finality of a cause, but; what if the winning party used frud to procure the judgment and further litigates against the defendant would the subsequent court have subject matter jurisdiction?

Expert:  Roger replied 1 year ago.
Yes, if a rule 60 motion were filed, the claim of fraud would be the basis for your motion to set aside the judgment; it likely wouldn't be an issue of res judicata.
Customer: replied 1 year ago.

the court would have jurisdiction over the subject matter even if they ere not aware that the prior judgement was procured by fraud im trying to understand that i thought void judgement have no power or authority and can be put aside at any time directly or indirectly

Expert:  Roger replied 1 year ago.
Yes, the court would have jurisdiction over the case even if the prior judgment was obtained by fraud. The judgment would be VOIDABLE, but you'd have to file a Rule 60 motion to get this done.
Customer: replied 1 year ago.

i read Ohio supreme court has ruled that judgment by fraud are void not voidable

Expert:  Roger replied 1 year ago.
It is void, but only by filing a rule 60 motion and getting an order to that affect - that's why said its voidable.

If ou prove it was obtained by fraud, the judgment would be void.
Customer: replied 1 year ago.

oh ok i see what you mean, but if it is brought to a court subsequently making a judgment on the facts of the prior court, would it be wron when you file a using 60 b to state motion to dismiss for lack of jurisdiction pursuant to rule 60 b due to fraud. im worried when i appeal and i use that word they will become technical on use of jurisdiction.

Expert:  Roger replied 1 year ago.
I'm not sure I understand your last post.

You would have to file a motion for relief from the judgment with the same court that entered the judgment. A court cannot void a judgment rendered by another court under Rule 60.
Customer: replied 1 year ago.

what i mean is in my pleading i state motion to dismiss for lack of jurisdiction,which was due to fraud meaning that the second court should dismiss due to the court cannot make a judgment off of a void judgment but should rather dismiss and reschedule for a evedentiary hearing to sort out the facts then proceed from there.

Expert:  Roger replied 1 year ago.
The only way to void a judgment is to file a motion under Rule 60. So, you really couldn't claim that the court lacks jurisdiction because the judgment is void UNLESS you have already had that judgment set aside.
Customer: replied 1 year ago.

but when a person is a victim of fraud the judgment never comes final in the kenner court held that: "We think, however, that it can be reasoned that a decision produced by fraud on the court is not in essence a decision at all, and never becomes final" kenner v. commisioner 387 f2d 689,


if a court is allowed to make itself have jurisdiction to make a judgement on a void judgment wouldnt this be a violation of due process? also the people who would know of the fraud are the ones that were involved or affected by it right, so wouldnt it be illegal a violation of due process for a court to proceed after there has been notice given of such an act couple with facts.


i thought, well according to what i have read that a court does not have jurisdiction to violate the right of due process and if it did it looses jurisdiction ?

Expert:  Roger replied 1 year ago.
Understood, BUT a judgment must be ADJUDICATED as being void because of it being obtained by fraud before you can claim this.

If the judgment is not voided by a court order FIRST, this claim likely will fail.
Customer: replied 1 year ago.

so how can some one attack it collaterally if it has to be proven first as in 60 b 5 the second court wouldn't know if in the previous trial there was fraud unless they held a hearing to investigate

Expert:  Roger replied 1 year ago.
The judgment from a trial court can't be attacked except through rule 60. Thus, you can't claim that a judgment is void until/unless the judgment has been set aside.
Customer: replied 1 year ago.

this were my understanding comes from, court of appeals stated in kansas held in the sremek court that


[*575] Void Judgment


"Paul argues that he was not served notice of the proceeding in contempt pursuant to K.S.A. 20-1204a, and, therefore, the court lacked jurisdiction and the order is void. He argues that, if that judgment was void, the court's revivor order filed in 1991 could not revive a void judgment and, therefore, is also void. We agree." Sramek v. Sramek, 840 P. 2d 553, this court also said


 


[HN8] "a void judgment is an absolute nullity and may be ignored or disregarded, vacated on motion, or attacked on habeas corpus". See In Re Steele, 220 N.C. 685, 689, 18 S.E.2d 132 (1942).


so if a judgment is void a court has no jurisdiction to make a judgment on a void judgment it is nullity, correct?

Expert:  Roger replied 1 year ago.
Yes, that's right, but a court must FIRST find a judgment is void via a Rule 60 motion - - if you don't have a court order finding the judgment void, then it is not void...
Customer: replied 1 year ago.

but in this case his argument was that it was void the court agreed with him due to law and his argument was that they didnt have jurisdiction because of that which they also agreed isn't that what was said, i don't want to read into it

Expert:  Roger replied 1 year ago.
All im saying is that there has to be a finding that the judgment is void in order for it to be void.

Otherwise, the judgment is not void because its validity hasn't been challenged. .
Customer: replied 1 year ago.

no i understand what your saying i agree you cant just be running around in mind saying void no one agrees with you, but im speaking about the lack of jurisdiction due to it being void, is that correct understanding according to this case law

Expert:  Roger replied 1 year ago.
But, the judgment would have to be adjudicated as void before you could claim no jurisdiction because of a void judgment.
Customer: replied 1 year ago.

i understand you can claim it under rule 60 b up until a higher court adjudicates on it, if your correct that it was void then they would lack jurisdiction

Expert:  Roger replied 1 year ago.
If the judgment is found to be void under Rule 60, then it would be void. If that happens, then a court wouldn't have authority to enforce a void judgment (AFTER it has been judicially determined to be void).
Customer: replied 1 year ago.

but in that case a court didn't rule on it he brought the fact that he was not serviced which would be a violation of due process and due to that the second court passed a judgment on a void judgment and they lack jurisdiction to do so, and the higher court agreed!

Expert:  Roger replied 1 year ago.
I haven't read the entire case, but from what you posted, it appears that the issue was a contempt of court filing for violating a judgment, and the case basically says if a judgment is void, then any subsequent court order from the same judgment is void as well.

In that case, the court apparently found the original judgment void, so the court found that the subsequent contempt order was also void.

The case also states that a judgment can be voided by a motion or by a habeas corpus.
Customer: replied 1 year ago.

last question can you ask for a stay of execution to appeal on a jury trial for a misdaminer

Expert:  Roger replied 1 year ago.
Yes, you can ask for this, and if you don't, the judgment can be carried out.

Thus, you would have to file a motion with the trial court to grant a motion for stay of execution of judgment under Appellate Rule 8 for criminal cases.
Customer: replied 1 year ago.

you cannot argue that the defendent was informed that the trial was a pretrial and when he arrived the court turned it into a a trial even though he objected to the jury formulation and that he has been prejudiced by the delay of him returning 7 times 2 days past the 90 day statute of limitations when he informed the judge of it they went on any way after he said he was ill prepared

Expert:  Roger replied 1 year ago.
You can make the ground for appeal that the pretrial turned into the trial, but you'd likely need to have proof from the trial docket that shows things were changed and that he was essentially ambushed into a trial.
Customer: replied 1 year ago.

it to late to argue facts you have to argue if the courts actions were bias and doing so the court abused discretion because a jury at that point was responsible for the facts

Expert:  Roger replied 1 year ago.
The abuse of discretion would be if the docket had a pretrial conference set and the court required the parties to try the case without notice.
Customer: replied 1 year ago.

so could he prove it from the transcripts, i want thank for replying quick like you did today by brother was in court

Expert:  Roger replied 1 year ago.
The court docket and transcripts should capture the facts of what happened.
Customer: replied 1 year ago.

when they gave him the yellow slip it didnt say trial it just said next court the judge said pretrial, the date when he returned on the seven time he requested for dismissal due to speedy trial rights they overruled he objected thats when they gave him the yellow slip when he came back to court he said there trying to form a jury he objected and said i thought this was a pretrial im ill prepared the court said were going forward!lol

Expert:  Roger replied 1 year ago.
Something like that certainly isn't normal, so that may be valid grounds to challenge this via appeal.
Roger, Attorney
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Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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