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TexLaw
TexLaw, Attorney
Category: Legal
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Experience:  Lead trial/International commercial attorney licensed 11 yrs
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So here is another question, following the previous one, as

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So here is another question, following the previous one, as I have globally understood the reason of hearsay exception. This is what happened, on which i would like to have your advice: Plaintiff asked for alleged unpaid rents but did not come up with a valid lease agreement. The reason why is becuase a flood occurred just before the end of the lease, sewage problem - it was a lease purchase option - and the house was contaminated so we left the property without moving out our stuff and went to live somewhere else, and the owner (plaintiff) decided a bit later that once the works would be done (by us) we could stay rent free until we would buy the property. Therefore he applied to his insurance for loss of rent indemnities, stating that the lease was terminated and that we had vacated the property due to inhabitability. The document i wanted to exhibit was precisely the copy of that declaration and the sworn statement of loss, to prove thta we were no longer in a rental situation, but just occupying the house for free. I also had an email to confirm, butobviously as hmy lawyer had stepped out just before the calendar hearing without telling mewhat was left to be done, I realized too late that I had missed that important hearing and so practically the court case was lost after the judge refused a motion of continuance to reset the calendar hearing. So even though Plaintiff had declared under oath to his insurance that we were no longer renting his place and got paid $15,000 for his loss of rents, he claimed the opposite to the judge, that we had stood at he property as renters, and got $31,000 from the judge in addition to the $15,000 he got from the insurance. What do you think about that ?

Are you saying that the you had the sworn statement of loss document and the court would not let you use it because there were objections to hearsay and lack of foundation?

If so, then the truth of the matter is that you simply did not follow the correct procedure to get the document into evidence. The way you would have done it is by laying a foundation during his testimony:

"Did you have insurance? Yes."

"Did you make a claim on that insurance for the flood damage? Yes."

"Did you file a sworn state of loss in connection with that insurance claim? Yes."

"Is this a copy of that sworn statement? {hand it to him} Yes."

Then you go through the sworn statement and ask him why he said one thing in the statement and another in court. Then you ask to enter it into evidence as you have laid a foundation and have also proved an exception to the hearsay rule, which would be a Prior Inconsistent Statement.

This would have been what your lawyer would have been able to do. The court won't excuse the requirements of civil procedure and the Rules of Evidence just because you don't have a lawyer. Those rules apply equally to a person representing themselves.

The fact that the judge did not grant you a continuance to get another lawyer might be what you need to appeal. Obviously, the fact that you weren't given any time to get a new lawyer caused you to lose on this very crucial part of the case.
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Customer: replied 4 years ago.

Thank you, XXXXX XXXXX excellent advice. Unfortunately i had a series of mishaps before that hearing that came up to us in a very short notice of time to prepare. I had hardly 10 business days notice. I need to calculate this. My mishaps include 2 printers having a break down, then another breakdown with the car on the way to photocopy and then to the hearing. I am referring to the correspondence of the private adjuster of my opponent, asking for refund of loss of rents and stating thta we had vacated the property after the lease becuase inhabitable and terminated the lease.

I have also the sworn statement in my exhibits, but I could not photocopy it, there was also a problem with the photocopy machine at the Court, can you beleive that ? So I ended up with a limited number of exhibits with 3 copies, and they were discarded with hearsay exception rule.

What made me lose too is that the Defender's lawyer failed to respect a number of precedural rules. I will go over this in next questions.

As of now, the reason why I am asking the above questions is the following :

What do you think of the situation of the Plaintiff who asks for indemnification of losses of rents to his insurance swearing that the renter had left the premises etc.. and next he opens a lawsuit pretending the contrary to get payment of the alleged lost rents ?