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I have access to Lexus Nexus Academic and pretty good with

research but need additional guidance...
I have access to Lexus Nexus Academic and pretty good with research but need additional guidance. Can a deposition not entered into the list of exhibits for a Final Hearing be successfully used for a motion to reconsider or on appeal for the purpose of impeachment of a witness? We have 7 days left to file a motion to reconsider. Our current attorney dropped the ball on us as we had asked him to enter several other items including the deposition into the list of exhibits . He specifically told us that depositions were not entered into the list of exhibits but were used to ask questions from. We ran out of time on our 6 hour trial and that was all the time we were allotted.
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Answered in 11 minutes by:
7/5/2013
Dimitry K., Esq.
Category: Family Law
Satisfied Customers: 41,221
Experience: I provide family and divorce law advice to my clients in my firm.
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Thank you for your question. Please permit me to assist you with your concerns.

A deposition that is not entered into a list of exhibits is not part of the case. Any motion for reconsideration must be based on existing arguments, claims, and exhibits in evidence that were formally made part of the case. Just because a deposition is taken does not mean it will be used, and if it is not used (as is in this situation), it is no longer able to be used for an appeal. I wish I had a different answer for you but if an argument or a document is not brought up in the mail trial, it cannot be brought up in a subsequent motion

I am genuinely sorry, good luck.

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Customer reply replied 4 years ago

The deposition was mentioned at pretrial and trial but the statements which impeach the testimony were not spoken about. Our attorney told us that depositions are not entered into the record of exhibits, which after the trial and decision I now know to be false upon research

Tim,

If a depo was mentioned but never entered, it is not formally entered. Neither is the argument for impeachment, which must be brought up at the main trial for it to be later available on appeal or via reconsideration. Your research is correct, depos must be entered into trial, and if not entered you cannot use them to file objections, appeals, or motions in this instance.

I am sorry.

Dimitry K., Esq.
Category: Family Law
Satisfied Customers: 41,221
Experience: I provide family and divorce law advice to my clients in my firm.
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Dimitry K., Esq. and 87 other Family Law Specialists are ready to help you
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Tim,

I will be logging off to get some rest. If you have any additional concerns, please follow-up and I will respond to them in the morning when I log back online. Please be well and if satisfied, kindly do not forget to rate my responses. Thank you.
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Customer reply replied 4 years ago

So am I charged for these followup questions

Tim,

Until you rate my answers positively, I do not get compensated for my work. Right now the site has your deposit which it has not yet released to me. If you do not rate positively, the site keeps the deposit and I do not get compensated for my work. If you ask follow-up questions, this thread will not close even if you rated in the past, and if the questions are within the same scope I will be happy to reply to them. But if you ask questions that are beyond the initial request, I would then ask that you post them separately, and if you rate them also, then there may be additional charges.

Good luck and please be well. I will speak with you in the morning if you have additional concerns.

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Customer reply replied 4 years ago

thank you

Customer reply replied 4 years ago

Can we depose the other party if technically the case is still open? Our attorney told us the case is still open for 70 days. The other side used up an hour of trial time trying to get the new judge to hear an old argument used before the previous two judges. Our attorney objected and was the court agreed he may be right but allowed the other attorney time to argue his point so an hour of trial time was used up. It has been 23 days since the hearing

Customer reply replied 4 years ago

We had three different judges sit in on the 5 hearings and the final hearing was the newest judges first time to sit in. Court started 20 minutes late because of confusion of where the hearing was and who was presiding over it. The attorneys were asked how they would like to proceed and both said that equal time would sufficient. The other party had argued a point before the previous two judges unsuccessfully and acted as if the final hearing was the time to argue his point again. Our attorney objected to his argument the judge took the objection into advisement tended to agree with our attorney prima fascia but allowed oral arguments anyway. After hearing the arguments the judge ruled in our favor and allowed the final hearing to begin where only testimony and evidence was introduced. In total we lost an hour of our hearing time. No one asked for additional hearing time at all. I believe the other side was allowed, mistakenly, to question the witnesses for a longer period of time as our cross examination only lasted 16 minutes. Perhaps our attorney used up the majority of his time questioning our witness. But I believe that the additional hour lost could have been well spent asking and answering questions. No rebuttal examination was done by our attorney. The hearing was 23 days ago, the decision was received 3 days ago and we have 7 more days to file a motion to reconsider or appeal. Our attorney has not called us back since we faxed the decision, which we picked up from the court. I understand we can file a motion to reconsider and then appeal.
Is there any other post-decision relief we can seek, besides a motion to reconsider/appeal?
Is there such a thing as asking for additional hearing time post decision because the time wasted by the other side so seriously prejudiced our case? Please cite cases
In a motion to reconsider can we ask for the one hour of strict hearing time back? Please cite case law?
Can we file multiple motions to reconsider which are about different issues?
Must motions to reconsider preserve all appellate issues?
Can we seek injunctive relief outside the court to get the court to listen to our motion/arguments before appeal?


 

Thank you for your follow-up, Tim. My apologies on the delay, I was offline for most of the day. Please allow me to respond to each question that is within the scope of your initial request.

Can we depose the other party if technically the case is still open?
If the judgment is rendered, deposition would not help, it had to have been done prior to the judgment being entered and the hearing held.

Our attorney told us the case is still open for 70 days. The other side used up an hour of trial time trying to get the new judge to hear an old argument used before the previous two judges. Our attorney objected and was the court agreed he may be right but allowed the other attorney time to argue his point so an hour of trial time was used up. It has been 23 days since the hearing
This may be an appeal based on the basis of having the judge not provide sufficient time for you to make you case. But upon reading your follow-up facts, I do not see that as likely successful. Your attorney's ineffective questioning and a refusal to ask for more time is not grounds for an appeal. Since nobody asked, the higher court will likely not see it as a viable issue.

Is there any other post-decision relief we can seek, besides a motion to reconsider/appeal?
You can refile on a different ground or basis, but otherwise for your specific case that is the proper process.

Is there such a thing as asking for additional hearing time post decision because the time wasted by the other side so seriously prejudiced our case? Please cite cases
No. That should have been objected to or brought up in any way by your attorney.

In a motion to reconsider can we ask for the one hour of strict hearing time back?
Please cite case law?
You can, it won't be granted. Please see above.

Can we file multiple motions to reconsider which are about different issues?
Yes, you can. That, however, will really not be a good idea as it may anger the judge and permit hm to grant blanket dismissals. It is better to make one motion that has multiple issues rather than multiple filings of one issue as it would not be efficient.

Must motions to reconsider preserve all appellate issues?
No.

Can we seek injunctive relief outside the court to get the court to listen to our motion/arguments before appeal?
Not sure what you mean. Can you clarify?

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Customer reply replied 4 years ago

Can we go to a higher court or a judge and ask for him to weigh in prior to us going to the appeals court , the referee who sat in on trial is just that and not a judge.


Appeals here must be filed within 10 of a decision we will file a reconsideration first


By the way our attorney said that depositions are not entered into the record as an exhibit in this state and I looked on lexisnexis and could not fins any appelate cases here that do not substantiate his point. He is saying we can reference the deposition in the motion to reconsider as it is considered to be part of the record. What is your take on his position about the deposition. We are scared as he has not had any contact with us for 3 days post decision until we started firing off faxes and emalls today but he could only talk for a few minutes as it was a holiday weekend and people were waiting


 

Thank you for your follow-up.

"Weighing in" that you are referring to is that motion for reconsideration. An outside unaffiliated judge has no right or basis to weigh in.

I do agree that if the deposition was formally entered, it becomes part of the record, but not otherwise. My apologies but we went over this point before, referencing a deposition if it was never made part of record will not work as it was never utilized in your case. I would suggest that you very seriously consider shopping for a new appeals attorney who could assist you.

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Customer reply replied 4 years ago

I agree about the attorney. But could you please do a little research into the NH system and depositions in family court? The system here is a bit different. You can reopen your divorce here into eternity on new points etc, etc many other states limit the time to reopen

My apologies but I am going to have to politely request that you open that as a new question. Doing research into depositions is a very hhigh level and time intenstive request.

I am sorry.
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Customer reply replied 4 years ago

no this was my original question


 


...."


Can a deposition not entered into the list of exhibits for a Final Hearing be successfully used for a motion to reconsider or on appeal for the purpose of impeachment of a witness?".....

Tim,

I will go ahead and out at this time. Hold on, please.
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Customer reply replied 4 years ago

No you are not getting out that easy

Tim,

I have spent a good deal of time researching, answering, and explaining your situation. I have provided you with quite a bit of information and options. But I am not going to spend 8 hours reviewing depositions in the state where you are seeking assistance as that is beyond the scope of site limitations. Perhaps a different professional can assist you further, but this is where my personal expertise ends. Please take care.

Sincerely,

Dimitry, Esq.
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Dimitry K., Esq.
Dimitry K., Esq.
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Experience: I provide family and divorce law advice to my clients in my firm.

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