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hocuspocusme, USA Legal
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I am pro se in a civil matter, involves Breach of Contract

Customer Question

I am pro se in a civil matter, involves Breach of Contract unjust enrich const trust,& 5 other allegations. After the judge granted motion to compel, the opposing counsel failed to follow the court order. At an evidentiary hearing on 9/17/08 I was not prepared & the judge commented do I have to lead you around in this court when I asked the defendant a question the judge intervenes & the defendant doesn't answer properly worst of all he doesn't sanction them. I believe after 2 yrs of litigation/lack of case mgt discovery has been clouded/destroyed. The judge ordered to prepare a Rule16 scheduling order be filed 10/17. 10/3 the attorney sent a letter trying to pulloff a stunt saying we need to file a 16.1. The opposing counsel hasn't requested/objected to discovery besides a depo on 5/07. After trying to contact him he ignored me. I called the court they said file it/comment on it. How do I file a Rule16 order so it doesn't hurt me later. Also my motion to reconsider been denied. They do not have a defense/merit. I need to correct this quickly do I go for partial summary judge? The bank statements show the factual basis for my claims yet he is claiming that they provide the factual for his defense.
Submitted: 8 years ago.
Category: Family Law
Expert:  hocuspocusme replied 8 years ago.
Arizona Rule 16 is a rule for ADR (alternative dispute resolution) which requries parties to try to settle disputes on the telephone or my person . The rule was implemented in the Supreme Court and requires attorneys to confirm that the mandatory conference has taken place and to specify the outcome. Arbitration is non-binding according to Rule 72d. Since you are representing "pro se" you should send a formal letter to the opposing attorney requesting to set up a formal ADR meeting and that you wish to have the results sent to the judge for review. Let me know if you have any further questions.
Customer: replied 8 years ago.
Unfortunately I didn't mention that ADR occurred and failed a long long time ago, even though the opposing party tried to screw it up. The opposing party's lawyer offerred 5k to the Plaintiff when she had already paid 10k for a lawyer's representation up to that time. The conference was held by telephone after her lawyer quit his law firm ande did not leave a forwarding address, and at that point the Plaintiff was sick to death of the failure by her lawyer to do anything other than the original complaint. The opposing lawyer told the Plaintiff he would be sending a statement for her to sign which he never did so the Plaintiff filed her one sided account of the results of ADR with the court. She had investigated all the forms of ADR and determined when offerred the 5k that the opposing party was not serious about ADR. She went on with the case and 2 years later the judge is ordering a scheduling order be made as if the parties had just had a scheduling conference and decided what the limits are for continued disclosure and discovery to be made until. The order in the evidentiary hearing is not normally made in an evidentiary hearing for sanctions. The way the minutes read was first he said "Motion for sanctions denied because it is too harsh for the circumstances. Then he said "The court orders that disclosure be completed by October 31st" Then he ordered that the parties prepare a rule 16 scheduling order and after it is filed the court will set a pretrial conference. I think the judge is acting like the tail end of the evidentiary hearing was a scheduling conference and wanted the parties to continue to confer to decide on when they should have all trial preparation done. What do you think now? There are plenty of questions I have asked along the line if you look at the prior questions made from this email address if you really want to help.
Expert:  hocuspocusme replied 8 years ago.
Yes you are right. It appears after reading your questions that the pre-trial is set and you must prepare for that. You asked how to file a rule 16 order so that it does not hurt you later? There is no filing a rule 16. The compromise was suggested and the parties did not come to an agreement thus you are going to the next step which is pre-trial conference. I am assuming discovery has been done. It should have been done. I think you should prepare yourself for trial and make sure all depositions have been taken and all affidavits have been taken and prepare yourself with that and the evidence submitted. Make requests for evidence and interrogatories. Let me know if you have further questions.
Customer: replied 8 years ago.
Yes I do have further questions. I have been readu=ing about requests for admissions. Can I attach a spreadsheet showing a breakdown of transactions that are in a particular bank statement assigning them to categories of did they benefit the Plaintiff alone, did they benefit the Defendant alone, were they for the benefit of both parties, and finally a category for unknown where it is unknown whether a particular transaction is for one or the other or both's benefit, and then request that he admit that that is a reasonable breakdown of the transactions into those four categories? On unknown deposits I have assigned them to the benefit of the Defendant since he should get the benefit of the doubt in those transactions. Can I ask a blanket request that he admit that all the bank statement breakdowns for the entire time we were cohabiting where he agreed there was an agreement to share common household expenses are reasonable breakdowns and ask him to pick any specific objections of particular transactions he wishes to challenge? Or do I have to do each transaction separately? Rule 36 says he has to do a reasonable inquiry to determine whether to admit or deny and can't just say I don't know, and can't deny without some supporting reason. And as far as the order goes, I'm just going to say everything is done except for these requests for admission. What do you think?
Expert:  hocuspocusme replied 8 years ago.
Any evidence that you plan to show at trial should be submitted now or it will not be allowed at trial. You have to show your hand now, just as the other side has to show their hand now. If you feel this spreadsheet will benefit your case then I suggest that you submit it as evidence, if not withhold it. Yes you can ask that he admit about the bank statement breakdowns. That is done in what is called an interrogatory request. Requests for admissions are normally requests for genuine documents to be produced. You must be specific in your requests at this stage. That is correct as far as you stating that he request what you wish, but you must be specific. You need to plan what you wish to ask for to plan your case. Interrogatories are questions that you wish to ask in order to discover the evidence to have the requests for admissions(documents).
Customer: replied 8 years ago.
Huh? I served one set of interrogatories and he just answered with "I don't remember" and "I don't know". Requests for admissions I thought were used to get another party to 1. admit the truthfulness of statements of fact, 2. the genuineness of documents 3 the accuracy or legitamacy of opinions or 4. the appropriate application of law to the facts. So when I state "Do you admit the following spreadsheets have assigned the transactions of the bank statements to their appropriate categories as to who they benefit?" Is that too general? Do I need to ask "Do you admit the assignment of transactions to categories according to who they benefit are correct for each spreadsheet shown with one spreadsheet for each bank statement involved?" Or do I have to say "Do you admit the categorization of transactions shown in spreadsheet titled 'July 14th, 2003 to August 12th, 2003' are correctly assigning transactions to the party to whom they benefit" Or do I have to say "Is the transaction shown for eating at Burger King as a point of sale correctly categorized as for your benefit"
Expert:  hocuspocusme replied 8 years ago.
Yes you need to be specific and he cannot answer all the questions simply by stating that he does not remember especially if you are detailed with your questioning and specific. That is avoiding releasing the information for the case. You must contact the opposing attorney and express your concern about the interrogatory and if the lawyer does not make his client answer the interrogatory properly then you will file a motion with the court that the opponent is withholding evidence in the interrogatories.

Now when you answer interrogatories, answer them complete but, brief. Dont elaborate.
Customer: replied 8 years ago.
What happened you were answering so well before...I already filed a motion for sanction of rendering of default for the opposing counsel's failure to follow an order to disclose, answer interrogatories, and allow inspection and copying of some documents, and an evidentiary hearing was held that I failed to show the defendant himself was culpable in the failure to follow the order because the Defendant's attorney claimed all responsibility and said don't fine him, fine me if you have to fine someone, but my client is innocent of any failures to disclose and discover"
Can't you remember what I said's important. I have been ordered as the minutes of the evidentiary hearing state to create an Rule 16 order to be filed with the court by October 17th(today) after which the court will set a pretrial conference. I have tried to confer with the opposing counsel and since I was unable to discuss the order with him I have decided to make the order myself alone as the court told me to when I called and explained. At 2:30 this afternoon I got a call from the lawyers assistant stating they filed a motion to extend the time they needed for filing this order. I'm going to do my order anyway becasue I did not motion for extra time myself and they didn't do it soon enough's supposed to be done 48 hrs in advance. So I am going to make an order requiring all disclosure and discovery be complete except that the Defendant shall be ordered to respond to the requests for admission served to them this same day October 17th 2008 by November 26th 2008 upon which all pretrial discovery will be complete and that I will be objecting to their request for extension of time since I'm SICK and TIRED of their stinking delay's been 2 years for Christ's sake.What do you think?
Expert:  hocuspocusme replied 8 years ago.
This is my final opionion on the subject. They have the legal right to delay for a continuance on the issue one time. You also have the right to ask for a continuance one time if you need it. It is sometimes used as delay tactics and it is frustrating. It cannot go on much longer. When you make a decsion to go to court with a case as such, this is what you have to be prepared for. You have taken the appropriate measures, just be patient. You have made the request for all discovery to be complete by a certain date and that is all you can do. That is a reasonable request.
Customer: replied 8 years ago.
Ok OPI Onion I don't think you answered my question now. I asked what do you think about my order being right to file, and I also mentioned I was going to say in the order that I will be objecting to their request for extension but it was only yesterday and it's supposed to be 48 hours in advance. Do I need an expert witness to present spreadsheets? I consider myself an expert of spreadsheets now but I doubt if the court would. Do I need to order anything else? Is there something I forgot? Can I order that the guy tell me where my motorcycle is being hidden from me. He just keeps ignoring that matter completely, which is one of the counts of my complaint.
Expert:  hocuspocusme replied 8 years ago.
I saw your question but, did not comment on it because I did not think it was a good move on your part.

Let me walk you through this with my opinion:
You can object for the extension, but it will likely be granted as I told you they have a right to one continuance with good cause as you do , also. You should ask for a specific date for all discovery to be in, though. Great move on your part.......

Expert witnesses cost a lot of money. If you can get a free expert witness do so.
An expert witness is one with great knowledge and credentials in their field.

You cannot order him to tell you about the motorcycle, but if he did not admit it in the interrogatories, then you should devise some kind of questioning plan at trial to trip him up to show the court that he is withholding the evidence or to mark him as a "hostile" witness if he will not cooperate. I hope this helps now.

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