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Dear Customer, thank you for choosing Just Answer. I would like to assist you with your question today. I do need a little more information as the issue in drafting to and objecting to orders has several steps or issues depending on how the Court is issuing its order, which party is preparing the order, and whether the order has already been submitted.
If you can tell me what the status is of the order that you are discussing (whether a minute order has been issued, is the other side drafting an order, or any other procedural information, I can better assist you).
Most Courts will allow you to send a letter to the Court with a copy to all other parties noting your request for modification to an order when drafted by the Court. In most cases, there is no need to file a motion to modify an order, it is extraordinary relief in any event (and while it is important for the purposes of telling the court part of your issue, the appearances are noted in the court docket so you will have that issue preserved for appeal if that is the major concern).
You draft the letter to the specific magistrate. There is no "template" or required forms for these letters. If you are addressing a simple and straightforward issue, such as not identifying who was in the courtroom, you can do so quickly without any fuss. It may be a good idea to send a proposed "amended order" containing your proposed language to the magistrate as well. Make sure you identify all changes or amendments you have made so the Court will be able to review it easily.
I have not read your order, and do not know which issues you believe the magistrate erred in drafting. Regardless, the proper way to deal with them is to write a letter to the magistrate (copy the opposing side or sides), and identify the problems (either in law or fact) that you have with the Court's order. The best way to do it is to do this item by item so that the court can go through and choose which issues it wants to change and which ones it does not. Again, drafting a proposed order with the changes to submit with your letter is a good practice.
You usually have 10 days after the Court issues the order to ask for a change in the language (date of service or mailing by the clerk). After that, the order is final. There is a way to ask the Court to correct clerical error or reverse an order, but this becomes complex and expensive for litigation (and not always a primary issue in the case).
(The additional procedures are not for a correction of an order, but are for reconsideration by the Court - this is a different type of relief and this does require a motion, the standard to get a motion like this granted is very high, but in some cases it may be worth pursuing it, this is a litigation tactic and strategy question).
This letter is not filed with the court record. Any issues arising on appeal would have to be found somewhere else in the record (including the clerk's transcript which will show who was in court on the day of the hearing).
I assume that you are positioning this for the possibility of an appeal on this order. If you are doing this, the arguments, facts, and law you presented in the hearing are part of the Court Record.
Usually if there is an issue of trying to change the choice of wording, one party or the other is trying to emphasize the intent of the court in their own direction (another chance to argue an issue before the judge), some judges allow this, most do not appreciate it (they have already decided on the issue after reading and listening to the issues).
Your first motions will be Motions in Limine and will be numbered, each is separate and specific to a single issue so that the Court can easily grant, deny, or pass each one:
Defendant's Motion in Limine # XXXXX: Motion to exclude evidence, Plaintiff's exhibit A
Defendant's Motion in Limine # XXXXX: Motion to exclude evidence, Plaintiff's exhibit L
Defendant's Motion in Limine # XXXXX: Motion for issue preclusion, statute of limitations based on Code of Procedure xxx
Defendant's Motion in Limine # XXXXX: Motion to exclude witness: Plaintiff's witness y
Check with your Court Clerk to make sure your motions comply with local rules and practices (my examples are generally used, but you want to make sure they match your local practice).
Since RC § 2317.02 provides that a husband or wife shall not testify to an act done by either in the presence of the other during coverture, unless the act was done in the known presence or hearing of a third person competent to be a witness, a married woman who has signed a note, and who contends that such note was altered after she signed it, cannot testify that such note was handed to her by her husband, no one else being present, that she examined such note before she signed it, and that the date which such note bore was altered thereafter: Dick v. Hyer,XXXXX 351, 114 N.E. 251 (1916).
The pleadings do not need to be so specific as the motion or the facts presented at trial. It is common to have a cause of action that is plead in a complaint based on certain facts, change as the litigation moves along. There is no need to change the pleadings, and the facts asserted in the motion for summary judgment are likely sufficient to meet the standard.
If you are able to defeat the motion, you are not "winning" on that issue. You are only showing that there is a "triable issue of fact" as to that cause of action. What this means is that even if the Plaintiff asserts a set of facts which are sufficient to present his claim, if you are able to present even 1 fact that they have wrong, or 1 set of facts that legitimately supports an affirmative defense, then they lose the motion, and the case goes to trial so that a trier of fact (judge or jury depending on whether you have a jury trial) will determine which set of facts is more credible.
Defeating a motion for summary judgment will not win the case for you, but it will stop them from winning "on the law" and ensure the case goes to trial.
A motion for summary judgment can be brought on only a single cause of action.
Usually this is a motion brought by Defendants to stop a Plaintiff from bringing certain claims (such as bringing an MSJ against all of the intentional torts in a complaint), and the remaining causes of action will still go to trial. However, when a Plaintiff brings the motion it can also be for only one or two causes of action.
The difference between pleadings and motions is that Pleadings only "allege" facts, they do not have arguments of law in them (they must allege enough facts to meet all of the elements of a cause of action, but that is it). A motion must have both admissible evidence and law to prevail. This requires the party to prove their cause of action with facts based on actually admissible evidence either through declarations or otherwise, and on legal principles.
With litigation, the facts alleged in the complaint to support a specific cause of action may not be the same facts that are finally alleged at the time of trial to support the same cause of action. Discovery and investigation of prior acts may make the old acts insufficient or no longer relevant, while the new facts may be more specific or more appropriate to the cause of action.
The party cannot amend the case or allege ongoing facts (conduct occurring after the filing of the lawsuit) without leave of court, but other facts are allowed and the basis for the cause of action may change, so long as all of the elements for the cause of action are shown.
While the two are related, it is probably easiest to start with thinking of the complaint and the MSJ as separate and unrelated.
The MSJ is a motion that attempts to either (a) get a judgment in the Plaintiff's favor on a cause of action, or (b) defeat a Plaintiff's cause of action based on an affirmative defense. Most MSJs are directed to all of the causes of action in a complaint, or affirmative defenses in an answer, but occasionally they are made on only one cause of action. (MSJs are different from "motions for summary adjudication" which only seek adjudication as to a legal issue, or multiple legal issues, not the entire cause of action, however I note this as they are often filed together).
Defendants most commonly bring MSJs as they attempt to defeat a cause of action based on an affirmative defense (say statute of limitations), and can do so by showing there is "no triable issue of fact" as to when the incident occurred, when the plaintiff first discovered the injury, and when the complaint was filed. There may be legal arguments about how this should be interpreted, but if these three facts are either agreed upon, or so clear that there is no reasonable dispute, a court can rule on the motion and the plaintiff may lose that cause of action, or the entire case.
For a party opposing the MSJ, the standard is merely to show that there is some fact that the moving party is relying on that is subject to reasonable dispute and therefore the matter is subject to a jury trial (or a bench trial).
The motion that you are opposing should be dealt with within the factors and scope of the moving papers. If there are causes of action not identified in the motion, you may need to deal with them at trial if the matter goes to trial, but you do not need to deal with them here. If you have affirmative defenses that are at risk, you need to address those as well. It is key to look to the facts (READ: ADMISSIBLE EVIDENCE) and see what is in dispute, what they failed to introduce, if there is any objection to their evidence (some statements that are put into evidence really aren't evidence at all, just hearsay or statements by counsel).
The Complaint has allegations of fact, if you file a lawsuit and allege fraud, breach of contract, but not negligence, a defendant can defeat your case tactically through defeating the fraud and breach of contract causes of action, even if you have a good cause of action for negligence - you just forgot to include it. (Obviously there are ways to address this, but I am just using this for demonstration purposes). In your complaint, you need to allege facts that support each of your causes of action, otherwise the complaint can be subject to demurrer, motions to strike, and motions for summary judgment. However, as you litigate the case, discovery and investigation often brings in new facts, or uncovers new issues. You do not need to amend your complaint each time that these new facts come to issue, unless you are trying to add a new cause of action or new affirmative defense. The only time that you are required to change your pleading to conform to new facts would be after the other party has made a motion to strike your complaint or a demurrer, or some other motion which requires you to amend your complaint (or parts of it) due to a lack of specificity, or some other defect, which you can address with the additional fact pleadings.
I have not read your papers, but I believe you are under a significant motion for summary judgment here. To break down the tasks before you draft the opposition to the motion, first review the facts (or separate statement of undisputed facts) upon which the motion is based, see what you agree happened, see what you disagree with; second, look at the evidence that is being introduced, is it properly "authenticated" this motion requires all of the facts or exhibits that they are attempting to introduce to be authenticated (usually through declaration of someone with firsthand knowledge of the document at issue, for example), this is true with all motions, but this one in particular given its nature; third if there are objectionable exhibits that are being used as "evidence" note them down and come back to them to see what the proper evidentiary objection would be; fourth review the papers and see what the major arguments are and points you need to address (usually there is a common theory of law that you will need to address), and fifth, begin drafting your opposition.
This flow sheet is something I have used, it may be helpful to break down the tasks when addressing your own (opposing an MSJ can be overwhelming even for counsel).
The standard for evidence in the MSJ is the same as for trial. You will need to take a look at the evidence code (especially the parts that they cite when they are trying to use exhibits as evidence). There is no "easy" way for them to get information to the Court, this motion can result in a judgment without trial so the standard is more strictly adhered to than in most motion work.
Attack the motion on both the law and the facts. If there is a separate statement, you will need to address the separate statement item by item, citing both whether you agree or disagree, but also the admissible evidence which you believe supports your disagreement. (Again, you will need to properly authenticate any admissible evidence, while the standard may be more relaxed on the opposition side of these motions, I would recommend against taking chances).
There should not be a risk of the magistrate adding additional facts not argued by the moving party in support to create a valid claim. The court is not supposed to practice law, and is certainly not supposed to make legal arguments where the other party failed to do so. You are always going to run a risk that something you say or introduce in your opposition will be used in the reply brief against you, it happens in most motions between even the most practiced attorneys, but when you are calculating your litigation strategy here, keep in mind that this motion is "playing for all the marbles" meaning if they win a judgment in their favor, you will lose the opportunity for trial. You may have more issues to deal with later on, but leaving strong arguments on the table is a tough call against these odds.
I do wish I could give you more specific information/advice on how to tackle the arguments on this one, but I do hope the balancing factors are at least somewhat helpful.
The facts and law that the Plaintiff has put before the court on this motion are the ones that the current argument are based on. You need to address those facts and legal issues in this opposition. The opposition should be focused on defeating this specific motion as the level of detail required is far too much to allow a broad attack against the other party of any value.
If the difference between the two sets of documents is favorable to you, or if you believe that drawing the Court's attention to the fact that the opposition is playing with two sets of cards, you may do so. The fact that the documents have been placed into the court record makes them subject to judicial notice and you can use them to show that difference (either to discredit the exhibits introduced by the Plaintiff, or simply to show the unreliable nature of the documents).
While the Plaintiff will have an opportunity to file a brief after your opposition, a Reply Brief, is limited to addressing only those issues (facts or law) that are brought up in the opposition. The Court is not supposed to consider new facts and law introduced for the first time in the Reply.
(Here is a short case opinion I found from Ohio regarding a Motion for Summary Judgment in a breach of contract action. The non-moving party failed to present an opposition, so it is not a great example, but it does have more specific language and some good law to help you understand the type of issues you are dealing with: http://www.clermontcommonpleas.com/Kennedy's+Landing+v++Ju+Jus+MSJ.pdf)
You need to send it in.
If my understanding on this is right, you faxed it to the Court (but it was the wrong dept. or something like that?). The magistrate told you that you could fax it in a second time, but it would be a late filing.
All you will need to do in these circumstances is simply submit the same document, use a cover sheet that says you are submitting it to the Court pursuant to the Court's instructions on xx/xx/xxxx in open Court as a late filing due to the erroneous filing with the Court at fax (xxx)xxx-xxxx on date yy/yy/yyyy .
You make a motion to file a paper late if you are going to miss the statute or court rule for not getting it in. In your case, the court told you that you could resubmit the document but that "it would be late." I wasn't there, but oral language such as this suggests a court order.
Generally, the only reason you would want to make the motion is to ensure that the Court is going to accept the document, if the Court is already aware of the issue and given you instructions to file, you don't stand much to gain by asking a second time formally.
While I can't give you specific legal advice, and it seems you are not being given reasonable direction from the Court or even assistance from the Court officials as to the time or contents of your next appearance, I can give you a quick analysis of the risks surrounding this motion for you to consider in how to move forward.
First, this is a very basic document. The pretrial statement is not a moving paper or a response to the other party's moving papers, you are not seeking an order or a judgment, and you can not have one issued against you based on the content of your paper. While failure to file one entirely can create issues, the document itself is not going to carry the day. (As a practical matter, entering any sort of order or judgment against you based on even a complete failure to file would likely be subject to reversal on the standard of "abuse of discretion" so that is unlikely as well).
Second, the purpose of the document is to help educate the court about the trial and the issues. Courts generally want this information. Giving the magistrate you are in front of the benefit of the doubt, perhaps a disdain towards pro pers and reliance on counsel made him disinclined to believe there was anything to gain by reading yours, hence the unprofessional dismissiveness. (Remember, I am not involved in your case so I lack the additional history and context, but this is one potential reason why a court may not be overly interested in it outside of bias). My more likely analysis is that since an MSJ was filed, the Court is uninterested in a pretrial statement at this time due to the fact that trial has been replaced with the MSJ.
Third, the time and energy it would take to draft, file, and argue a duplicative motion for filing of a pre-trial brief at a time when your trial may or may not be moving forward can probably be better spent in opposing the MSJ, which has a very real possibility of ending this litigation adversely to you.
Finally, even if the Court decides not to read your pre-trial statement, you will have both complied with the Court Rules (there may be some dispute over timing, but it is moot with the MSJ pending), and have taken the time to familiarize yourself with your own aspects of the case, both pro and adverse, on the law and the facts and have gained a benefit.
While the Court's bench statements may have been vague, the fact that everyone has already been served, and that the Court allowed you to file, even if late, makes it highly unlikely that any motion is necessary at this time.
Your document must stand alone. You may reference the fact it was included in a prior pleading if it is helpful in building your argument, but I would recommend doing so only if it is compelling, you do not want to take away from your primary argument.
I am not sure what the additional money is about, it may be intended to increase settlement posture, or leverage in the motion, but I am only speculating.
Acting as a witness in and of itself will not subject a person to jurisdiction. Being a party to litigation on the other hand generally will.
Depending on the witness' activities outside of acting as a witness (did the just appear as a witness in the jurisdiction, or did they stay in a hotel, visit family, etc.) these activities would subject them to personal jurisdiction in many instances (you would need to read and apply the specific codes for this situation).
You would need to bring a motion to compel. There would not really be a statutory basis for it as discovery has closed, but it would be based more on the Court's informal order. (It may work, but it would at least put something in the docket).
Claims and counterclaims are all tried in the same case (in most cases), but can be tried separately. The management of the trial is left to the discretion of the judge. Usually if the facts are the same the matter is tried in the same proceeding, if a single cause of action, or single determination of fact can do away with a number of issues, that single factor can be tried independently. But again, this is left to the discretion of the judge in how he or she wishes to conduct the trial.
Your facts need to come in during the testimony. You will have an opportunity to cross-examine those witnesses placed on the stand by the Plaintiff, at which point you can ask them about the testimony they have provided, and you have the opportunity to put on your own witnesses and introduce your own facts/documents/testimony to support your contentions, defenses, and claims.
Closing arguments are reserved for a summing up of evidence that has already been introduced into court, and for making oral argument about how you believe the case should be decided. You cannot introduce new facts in closing argument, you must do so during the trial itself through witness testimony.
Usually the two are filed together. I believe the examples I sent had motions for leave and the surreply in a single paper even though they are technically two steps. If not, please let me know and I will see if I can find additional examples.
-my apologies, I am on my handheld and it is not cooperating today. But you should not need a noticed motion or hearing date to file your surreply, although the court does need you to provide it with authority to consider the additional paper - hence the request for leave.
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