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CalAttorney2, Attorney
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Experience:  Civil litigation attorney for individuals and businesses.
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How important is it that a magistrates order be complete or

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How important is it that a magistrate's order be complete or accurate in the content that it includes with the actual order? And how do I ask for the order content to be modified to be more complete or accurate (as opposed to objecting to the order results)?

William B. Esq. :

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).

Customer: The order has been submitted by the magistrate. It does not say who was present at the hearing, as most seem to. I was not present and had objected that I had nnot been noticed, and would like the order to at least be accurate in that regard. Do I do a motion to modify?
William B. Esq. :

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).

Customer: To who would I address the letter at the court? I have not seen examples of letters.
Customer: And is there a place in the court's rules to see if such a letter is allowed?
Customer: To whom should I address a letter to modify the court order at the court? To the magistrate? I have not seen examples of such letters. Also, is there a place in the rules to see if such a letter is allowed? Thank you.
William B. Esq. :

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.

Customer: You mentioned that it is important for "part of my issue". What is most important about this? And does it matter if the court order is not fully representing what was included in a ffiling I had before the court at the time?
William B. Esq. :

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.

Customer: Thanks for your patience, just one last clarification please. So this is the way to do this even if the order has already been entered? Thanks much.
William B. Esq. :

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).

William B. Esq. :

(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).

Customer: Thank you very much. Is there any way that my letter asking for a correction/amended order to the magistrate is then filed in the court case record?
William B. Esq. :

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).

Customer: Doe it matter if the magistrate's order is incomplete or somewhat inaccurate in its reference to the contents of a document I filed that was before the court in the hearing? Or does the fact that my document is already on record take care of that?
William B. Esq. :

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.

William B. Esq. :

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).

CalAttorney2 and 3 other Legal Specialists are ready to help you
Dear Customer,

My "chat" function suffered a significant problem this afternoon. I am not showing my answer to your question posted at all on the page (it appears blank).

Please do let me know if you have any further questions (if I missed any, I do apologize but you will need to repost them).

If I was able to answer your question please do not forget to rate my service.

My apologies for this issue, and again, do not hesitate to follow up if I missed anything.
Customer: replied 4 years ago.
How do pretrial statements work when there is a plaintiff, multiple defendants and counterclaims? I am a defendant with counterclaims against plaintiff.
Dear Customer,

Are you talking about pre-trial briefs written to the judge explaining the claims, counter-claims, defenses, and issues, or are you discussing opening statements made to the jury?

Customer: replied 4 years ago.
A pretrial statement required to be submitted before a pretrial conference with the judge, including what fact and law issues are to be decided, status of settlement, etc. if I am defendant and also have counterclaims, do I do two pretrial statements? And do I or how do I provide a defendant pretrial statement document before I have seen what the plaintiff submits? Thank you.
Dear Customer,

You only need to file one copy of the pretrial statement (it is actually "lodged" with the court and not filed). You will not have a copy of the plaintiff's statement, and he will not have a copy of yours. Check your local rules carefully, some courts require the statement to be served on the other side, while some allow you to lodge your copy without serving the other side. (Most require service, but you want to check).
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Customer: replied 4 years ago.
How do I handle defenses to claims and counterclaims all in one pretrial statement? Do I have separate subheadings for each under facts vs. law for example? And how much detail is typically in these for facts and law? Thanks
The way in which you draft your brief is up to you.

Generally there is only one section for "Statement of Facts" but there is a separate section for each cause of action (whether you are describing the weaknesses in the claim or your affirmative defenses they can both usually be included in that section either with or without sub headings).

Unless there is a specific local rule requiring you to draft your document in a specific way (read the rules, there may be one), this is a choice of style to make the document as easy to understand and persuasive as possible (while making it as objective on its face as you can). It is supposed to be an objective statement, but it obviously has an argumentative aspect as you will be arguing your points to the court and believe yours to be compelling over those presented by the defense.
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Customer: replied 4 years ago.
What is the difference between statements and outstanding legal issues to be decideded vs. stipulations of law? If I think there are multiple statutes that support my defense, where should I cite those? Thank you.
Statements of fact are factual issues surround the case. For example, Plaintiff and Defendant signed document x on date y. According to the document Defendant was to deliver 100 pounds of flour to Plaintiff within a week and Plaintiff was to pay $5. On date z defendant failed to deliver the flour.

Outstanding legal issues are disputed issues over law. For example, if the statute of limitations is an issue, there is often a dispute as to how the statute should be calculated. (meaning is it from the time the leak in the roof was first discovered, or is it from the time the cause of the leak was discovered - assuming there is case law or statutes supporting both arguments, this would be an "outstanding legal issue")

Stipulations of law are agreed upon issues: "Both parties agree that the statute of limitations is 2 years" (while they disagree as to when the statute starts to run, they agree it is 2 years long).

If you have multiple statutes, cite all of them. You cite your strongest statute first, and cite the remaining ones behind it. "The statute of limitations is 2 years" 23 statute 12; see also 14 code sec. 15; 12 code sec. 13. (Use the "see also" to show that there is additional authority to support your point. If there is especially strong language, you cite that language in parenthesis behind that citation: see also 14 code sec. 15 ("the statute is 2 years because it is 2 years")

I hope this helps, my apologies if the examples are a little simplistic, you need to make sure your citations are in the proper form for your jurisdiction, but please ask if you have any questions, I will be happy to elaborate.

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Customer: replied 4 years ago.
If a law is cited accurately in stipulations and I think it supports my case, is there Any downside to stipulating many legal statements?
There is generally no downside to citing law in your favor. If a legal principle is stipulated to by both parties, it is usually a good idea to provide the legal authority for it (with your primary, and if appropriate supplemental authorities), but not to overly burden the court.

The idea is that even though the issue is stipulated you do not want to have the issue glossed over by the Court if it later becomes at issue, but at the same time you do not want that fact or law to take up undue amounts of space or judicial time and resources when there are more important issues of disputed facts that you need to focus on.
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Customer: replied 4 years ago.
If we haven't agreed on anything, do I put anything under stipulations? The format looks like it is asking what each party is willing to stipulate to. Thank you.
If appropriate (depending on the tone and course of your litigation), you need to contact the opposing side to see what issues you can stipulate to. Usually these are very basic issues that are not at issue in the litigation. (again these are things such as both parties agree the statute of limitations is 2 years, and the 2 year statute applies here - even if there is a dispute as to when it begins to run).

Do not put in things that you stipulate to if they are not yet stipulated. The purpose of this document is to tell the judge the status of the case, what facts and law are at issue for the trial, and what facts and law are already agreed upon.

The two parties should have agreed on at least some facts and law by this point in the litigation, but you need to make some communications with the opposing side to determine what issues if any can be agreed upon.

The tenor of these conversations are not usually "open ended"- "what can we agree upon", but rather "close ended"- "I am willing to stipulate to x, y, and z facts, and issues of law 1, 2, and 3, are you willing to stipulate to these issues, and do you have any additional facts or law you propose for stipulation"
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Customer: replied 4 years ago.
Is it unusual that the other side, represented by a lawyer has not contacted me, pro se in any way about this? Pretrial statements are due soon.
Customer: replied 4 years ago.
In listing witnesses In a pretrial statement, do I need to have already contacted them and gotten their agreement first? And is it possible to have a witness in reserve in case you need them, as I don't know what the other side is intending for evidence yet?
It is not all that unusual (even if both sides are unrepresented) as it is not uncommon for attorneys to procrastinate or simply wait until just before the document is due before actually working on it. I would not read too much into this as a single issue or event. This may be an opportunity to discuss settlement if that is an option in your case, but again as an isolated incident it is not a significant issue in most cases).
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You must list all witnesses you intend to bring to support your claims or defenses.

These witnesses can be compelled to attend by subpoena. While it is nice to get their agreement to appear, it is the best legal practice to follow through with the subpoena to appear at trial with even favorable witnesses (advise them that you are sending it only to protect your rights at trial).

The only witnesses you do not need to disclose are those that you intend to call to impeach the opposing side's witnesses once they are disclosed.

If you do not disclose a witness that you wish to bring to testify in support of your claims, you will lose the right to call them at trial.
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Customer: replied 4 years ago.
Are items that the other side has admitted considered things I should put under stipulations? Or not without their additional agreement? If not, is there a way to note that the items have been admitted in my pretrial statement otherwise?Also, are statements of what is in a trust document or POA document considered a statement of fact vs. a statement of law?
The admissions are generally not considered "stipulations" for purposes of this document. What you do is put them down as statements of undisputed material fact (similar to the language used in a motion for summary judgment), this way you are not telling the other party they stipulated to something when they did not, but you are telling the court that there is a fact that was not disputed by the other side (and you can cite to the discovery response, document, or other evidence which shows the other party agrees to or admits that fact to support your statement). The pre-trial statement is generally not a motion or pleading which requires evidentiary attachments or declarations (again check local rules), but references to exhibits are encouraged as exhibit lists and sometimes exhibit books are often submitted at the same time.

If an exhibit is particularly important, you may of course attach it to bolster your position (again, this is the "persuasive/objective" document).

Quotes or text from a document are statements of fact. A statement of law is something that will come from case law or statute that is the controlling authority on how the court will rule in the case. (using the statute of limitations example again. The statement of fact would be: "Joe and John entered the contract in year x, John breached the contract in year y, Joe discovered the breach in year z, and filed the complaint in year a" The statement of law would be (from John's side): The statute of limitations for breach of contract is 5 years (statute 1); the statute begins to run at the time of the breach (case law (a)). The statement of law (from Joe's side) the statute of limitations for breach of contract is 5 years (statute 1); the statute of limitations begins to run at the time of discovery (case law (b)).

In my example, while both parties have agreed upon facts, and agree as to the law for the statute of limitations, they dispute the law as to when the statute begins to run (this is important as it can make the filing late, and thus cause the plaintiff to lose his right to sue).

In your question, the language within the documents are statements of fact. The way in which they will be interpreted will be governed by the law you put in your statement of law.
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Customer: replied 4 years ago.
Is there any way to add exhibits or witnesses in response to seeing the plaintiff's pretrial statment and witnesses? I have very little detail regarding the evidence they will include right now. Also, is there a difference for exhibits or witnesses intended to impeach the other side's witness or exhibit? I have seen a reference to this. Thanks very much.
You can add witnesses and/or exhibits to impeach the other side's evidence or witnesses after you have lodged your pre-trial statement, it is common practice to include a statement such as "Plaintiff reserves the right to present any other witnesses or evidence to impeach those statements or evidence presented by Defendant at trial" or similar language in order to ensure those rights are preserved.

Generally this only applies to other witnesses (to impeach the veracity of their testimony, contradict their statement, etc.). It may apply to other exhibits but usually this is also in conjunction with witness testimony.

For purposes of your pre-trial statement, focus on the exhibits that you intend to produce or introduce to support your case, and to support any affirmative defenses you may be asserting. There really is no value in hiding your affirmative exhibits and risking the other side excluding them at trial in their "motions in limine" due to your failure to disclose them. At this point in the litigation, it is unlikely that there is any document or evidence that the other side does not already have (minus any testimony that you may have to impeach one of their witnesses).
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Customer: replied 4 years ago.
I am defendant and also counterclaimant. How complete does my pretrial statement need to be? And do I need to amend my pleadings if something is new additional or different than in my original answer or counterclaims? Are the statements in the pretrial at a pleasing level but with supporting details?
Your statement needs to be complete - cover both your affirmative defenses to any causes of action against you, and your counter claims. The idea is to tell the judge exactly what the issues are before the Court.

If you have new claims (or defenses) you will need to amend your pleadings. Unless the cause of action or defense is in the pleadings it is not before the Court. Including the additional issue in your pre-trial statement is not sufficient to do this.

The statements are only a way to give the judge an overview of your case. This is a "summary" of what is going to be heard at trial. They are not pleadings or motions to the Court, and while it is very important to be comprehensive, accurate and truthful, there is no "official" notice of the facts or allegations included in them for purposes of pleadings etc.
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Customer: replied 4 years ago.
Any other advice on level of detail? Should facts be at a conclusion level and note the supporting exhibits? Or tell fact details to tell more of a story? I know this is very general, do any help is appreciated. Thanks.
You will want to have the facts placed in a narrative (make it so that it is readable and can be easily understood by the judge without much effort, a story is usually easiest to follow). References to evidence will build credibility, if you run short on space you can use footnotes or endnotes strategically.

As far as what facts must be included, you need to include all facts that you rely on for your legal arguments. The traditional rule is: "If it is not included in your statement of facts, you cannot use it in your legal argument section." (This is not a rule of court or something that you will get in trouble for if you include something later on in your paper, but it is a good way to make sure that you are including all of your necessary facts to support your arguments).

A statement of facts should be that, "a statement" this means if you are claiming the light was red, you say at the time the car crossed into the intersection the light was red. You can deal with the fact that the other side wants to argue the light was green later on in your legal arguments (you are not fudging or playing with the court, you are simply stating the facts as you say they are, if you believe it is truly disputed, you can note it - either in the body of the section or in a footnote by simply stating "the other party disputes this fact").

The decision on how to present this is a legal style and strategic decision that you will need to make, but I hope this gives you a basic idea of how these sections are put together.
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Customer: replied 4 years ago.
So all affirmative defenses and count claims must be covered, with statements of facts that support them. In regards XXXXX XXXXX is it the goal to include enough to support the story and defenses, or are you supposed to literally include all fact statements - with lots of exhibits and many claims and defenses, that could be a lot. The Plaintiff has been very unforthcoming in discovery and not detailed in saying which specific laws or which specific parts of documents are violated, so far.
You need to cover everything that you want to present at trial - or that needs to be covered in order to give your arguments context.

If the opposing side has not been forthcoming in its discovery responses, and vague as to the law they believe should apply in the case, you are not required to supplement it or speculate on what you believe they will present. This is not a good format to be "catty" in (do not be overly aggressive, or repetitive) but if the other side has not provided facts or argument, simply say so. Remember the purpose is to tell the judge what you expect to present at trial, and what you expect the factual and legal arguments to be. If you are unsure due to these issues during discovery you can say so.

Some briefs are very short, others are longer, good use of headings and clear breaks in sections can assist in making yours easy to understand and more useful to the Court in assessing your case before trial. Again, check your local rules, you do not want to submit an over length brief if at all possible (some courts accept an extra couple of pages, but if they have a page limit, they are expecting you to narrow your issues or summarize in less detail).
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Customer: replied 4 years ago.
Is a plaintiff accountable for statements their counsel makes in hearings in court about a defendant? And if I want to use statements made in motion hearings leading up to the final pretrial hearing, how do I present them into evidence at a trial and show them as exhibit? I have transcripts.
Yes, parties are bound by statements by counsel. (This rule is not absolute, and it is possible to avoid the implications of earlier statements but they are always available for purposes of impeachment of later contrary testimony).

To introduce evidence like this it is usually best to do so in a pre-trial motion in limine to preclude the other side from introducing the contrary evidence and thus tainting the jury.

The evidence itself should be admissible as part of the court record. This is a basis for the court to take judicial notice of the testimony and allow it to be admitted. You will need to include a separate "request for judicial notice" in your papers (it is like a mini motion asking the court to allow the evidence under the basis of it being part of the court record) and a short statement in your declaration stating that the documents are true and correct copies of those filed with three court).
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My apologies for typographical errors, I am currently on my handhold device.
Customer: replied 4 years ago.
How would the testimony from a previous hearing then be seen/heard/reviewed at trial? And can you tell me why introducing testimony with a motion in limine precludes the intro of contrary evidence later please? Thank you.
In a jury trial, the testimony is read into evidence. A witness, either favorable, or more commonly, the party being impeached, will be given a copy of the transcript and asked to read the pertinent part or parts out loud. In a bench trial, the copy of the transcript is usually given to all parties, the judge and three witness to read and review the pertinent parts, although they really should be read aloud.
I will respond regarding motions in limine in just a couple of hours when I am back at my desk. If you require a response more quickly, please let me know.
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Customer: replied 4 years ago.
Do I need to list testimony at prior hearings on my exhibit list or are they automatically available? And would it be desirable or possible to use affidavits by me to be submitted (as exhibit?) to get facts or recounting of events into the evidence in a more efficient way partly?
Customer: replied 4 years ago.
A couple quick q's if you could please:Since I don't know what evidence the other side is going to use, can I add witnesses later if needed to rebut want they are doing?Can I authenticate reports off of bank accounts that I have myself (gotten electronically)?If I list a witness in my pretrial, can I then choose not to call them, and do I open them up to the other side if Iist them and don't call them?

If you have reason to believe that the opposing party will attempt to introduce or present evidence or argument that is contrary to evidence that was revealed during the discovery process, or determined during law and motion, you can make a motion in limine to preclude them from presenting the adverse statements or evidence at trial.

The benefit of this is that instead of allowing the evidence to be presented to the fact finder (judge in a bench trial/jury in a jury trial), the information will never be presented at all, therefore the finder of fact will not be tainted with the improper evidence.

Furthermore, use of motions in limine can be very helpful in driving settlement discussions as a beneficial ruling on such a motion can be determinative of the case (if the issue you preclude is crucial to the claim, they may be interested in dismissing or offering a significantly reduced settlement demand).

The other benefit to you is that it gives you the opportunity to review the rules of evidence that you plan to use to object to their evidence or argument in advance and prepare accordingly - this is not really a legal stance, but more of a trial prep fringe benefit as a preview of the evidence code and arguments for and against your position will be helpful before you go to trial.

Any evidence you intend to introduce, and all witnesses you intend to produce at trial must be disclosed, or you will lose the ability to call them at trial.

The only exception to this rule is for witnesses and exhibits that are used for impeachment purposes for those witnesses called by the opponent. While it is a litigation strategy call for you to make (do you want to "give away" the fact that you have certain witnesses or evidence, or do you want to reveal them, one consideration is that you do not want to risk the chance that the witnesses or evidence will be precluded, I recommend erring on the side of caution, but this is my personal stance, and even my own position may change depending on the circumstances of the litigation.

Sometimes it is possible to have written testimony introduced as an exhibit and stipulated to by both parties as evidence in the case. It is not as compelling as having it read in most instances, but it may be less time consuming. Again this is your call and the circumstances of the case will be the determining factor.

To get the facts of the case presented, you must present them in the form of admissible evidence - meaning witness testimony, physical evidence, or documents that are "authenticated" either by witness testimony regarding their authenticity (either they wrote them, received them, or can recognize their signature), the document is kept by the witness in the normal course and scope of the witness' business records, or the document is subject to judicial notice.

You cannot simply submit an affidavit to create the evidence to build your case. You may testify as a party witness as to the facts of your case, so long as you have personal knowledge of the facts you are testifying to (not hearsay).

The manner in which you present your case is a matter of litigation strategy, again making the case as easy to understand as possible, with an emphasis on your own position and why you deserve to prevail (focus on the elements for each of your claims and affirmative defenses), so that the trier of fact can follow your presentation of the case easily. This will also help you keep track of your own presentation (trials can get confusing quickly, even for experienced trial counsel, while you need to ensure you "hit all the points" keep it as simple as possible).
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You may generally add witnesses to rebut those witnesses identified by the opposing side. While the express rules do not allow for addition of those witnesses to rebut evidence, you can generally make a pre-trial motion to request the right to add these witnesses based on the late disclosure. There is no guarantee to allow these witnesses, but most courts desire that the trial be conducted on the merits, and a lack of witnesses is generally adverse to that interest. With that being said, if you have a general idea of who is going to be helpful, I would recommend listing them.

You can authenticate bank records you have obtained yourself. You have personal knowledge as to how the records were obtained, and you can testify as to their accuracy based on your personal knowledge of the bank account history.
(I assume that this is your bank account).

The other party may not call a witness you have listed that you later choose not to call. Remember, you are only listing the witnesses to be called on this document, there is a separate subpoena that must be issued to the witness to compel them to appear in court.
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Customer: replied 4 years ago.
If I think I have counterclaims that may be out of the jurisdiction of the court the main case is in, but don't know for sure, what should I say about jurisdiction in my pretrial? They are serious claims.
May I ask why you believe the counterclaims are outside the Court's Jurisdiction? (This would make a difference in how you frame your arguments as you proceed).
Customer: replied 4 years ago.
The court is probate court. The claims included unlawful transfer/taking of funds from a bank account I am owner of, as one example. I have good evidence. Also, what would that technically be called? Also defamation and possibly fraud.As a separate question, the complaint was originally filed as a declaratory judgment, but was amended and niw has claims like breach of fiduciary duty in it - without any specific citations of what laws have been supposedly broken. It has seemed a mismatch to have these serious claims added under that complaint heading?
If the accounts are related to the probate, the Court may exercise jurisdiction over the matter. While I cannot give you specific legal advice, I can note that it is costly and time consuming as well as "a waste of judicial resources" (a key phrase if you wish to pursue a motion this way) to have 2 trials instead of 1 when the issues, parties, and facts, are the same.

You can do one of two things. 1) you can note in your pre-trial statement that there are outstanding, related, issues that you intend to pursue in a subsequent action. Or 2) you may make a motion to amend your answer and cross-complaint to add a cause of action for "conversion" to allege the facts regarding this unlawful withdrawal from the account.

You can find the elements for a cause of action for conversion here:
The amendment of the complaint creates additional risk of liability for you. Unfortunately, this is a common amendment and is likely valid. You do not need to include law to make a valid amendment, you only need to allege facts to support the elements for the causes of action (remember these are only allegations, they must later show actual evidence).

It is true that these are more serious allegations. However, there are also different standards of proof necessary to prove these more significant claims. To prove a negligence claim, you only need to show that "by a preponderance of the evidence" the defendant was negligent (a "51%" standard). To show these more serious causes of action, you must show by "clear and convincing evidence" that the defendant engaged in the willful conduct, this is a higher standard of proof tilted in favor of the defendant.

At trial, the plaintiff will be required to set out the law (there is generally settled law for breach of fiduciary duty) and show how you breached your fiduciary duty - this means that you had to have done something more than acted negligently or done your job in a sloppy manner.
Dear Customer,

I have come across an article written by a Connecticut law firm that describes some of the procedures we were discussing. I thought you might find it useful in your matter:
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Customer: replied 4 years ago.
Thank you very much. I have a couple of witnesses who don't want to testify, but at least one will if I subpoena (which I understand I need to do anyway). I may not need one dependening on what the other side does. Should I enter both and then tell whether I have to use them later?
This is a strategy question. As a "general practice pointer" meaning something that attorneys do in most cases, but will not do in other instances depending on the circumstances, it is best to identify all of your potential witnesses. You will avoid having your witnesses barred by failing to name them should your trial strategy change as you get closer to the trial itself, and you will have peace of mind knowing that you have covered all points in both your claims and affirmative defenses (you don't need to call all of them, but you have reserved your right to do so).

Another practice pointer: subpoena all of your witnesses (including those "friendly witnesses" you expect to show up anyway so that if they do not show it will give you a basis to argue for a continuance in the trial itself to allow for the appearance of this subpoenaed witness).

Again, these are general pointers, and may not be appropriate depending on the litigation posture, course of your matter, and any expected issues that you believe may arise as a surprise, or would benefit from an element of surprise (so long as your witness is not going to be barred for failure to name them).
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Customer: replied 4 years ago.
How do I enter admissions by the plaintiff to my discovery requests, and admissions or denials in their answers to my counterclaims?

If I've given items in my discovery responses to the plaintiff and I want to use them in court, do I still need to mark them as exhibits?

And lastly, how do I enter documents that were filed previously with the court, like a motion to dismiss and/or its attachments?

I can't thank you enough for all your excellent help.
You generally enter admissions (and other discovery responses) through live testimony (either having the responses read by your witnesses (including yourself as a party witness), or in impeachment should the party wish to testify to something else at trial). Again, if at all possible, the use of motions in limine to preclude issues or exclude unfavorable evidence. Most of these statements will be hearsay unless they are read by the party that made the statement, this is the reason it is most often used for impeachment purposes.

It is possible to having these responses admitted through simply submitting the documents (usually only in a bench trial), but it does lose its efficacy. This depends greatly on how the Court wishes to conduct the trial, and it is usually a good idea to ask ahead of time, the Court clerk should be able to tell you what the judge prefers.

You need to mark all of your proposed trial exhibits. Your trial exhibits and exhibit numbering will be different from your discovery requests and responses.

Previously filed documents can be admitted before the court under "judicial notice" as these documents were previously filed with the court, but this does not mean the statements or information in the documents are admitted. The legal arguments in the documents may be admitted for purpose of the legal arguments at trial, but you will have to follow the remaining rules of evidence to get the facts in (authentication, not hearsay, etc.).

You can narrow the scope of these documents by identifying the specific parts of the motion papers or exhibits as exhibits for trial instead of simply identifying the entire document.
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Customer: replied 4 years ago.
I provided a lot of discovery responses, and some documents with them. The other side has only ever responded to my admissions, no interrogatories or production of documents. They recently did a trumped up motion to compel I think in order to partly enter all my discovery responses into the court record. They have also previously attached unrelated documents to their motions.

1. How do I make sure I get their admissions "in" to the trial?
2. Should have done motion to compel earlier. Can still do motions. How to best handle?
3. I objected in my discovery responses that I was not allowing for evidence at trial just because providing in discovery. How do I not have them just put into trial everything they have entered as docs in court filings (and attached to other motions, etc .? Thank you very much.
Dear Customer, I can respond to your questions in full later today when I am at my desk.

In the meantime, can you please let me know your jurisdiction, the date the opposing party's discovery responses were due, and the date of your trial. Our earlier conversation dealt with common principles, but I need some more specific information to assist you with discovery disputes.

I hope all is well.
Customer: replied 4 years ago.
Responses were due March 27. I followed with two later attempts to get compliance. Was concerned to do motion to compel right because of potential consequences, and had several other motions from the other side that I was combating. Am going into pretrial conference in a week. It's Ohio. Any help appreciated much
Dear Customer,

I have researched the Ohio Rules of Civil Procedure and found some information on discovery motions but have unfortunately been unable to find the key information that I was looking for. In my own jurisdiction, there are clear cut-off dates for filing discovery motions (in your case what is called a "motion to compel discovery responses", or a "motion to compel further responses to discovery" as appropriate).

In Ohio, Code of Civil Procedure 37 covers these motions and the only requirement is that the motion be brought after giving "reasonable notice" to the opposing side. This would theoretically allow you to file your motion now (I would not waste any time if you decided to do so). Both the Ohio Code of Civil Procedure, and the Ohio Rules of Court require that you engage in efforts to settle discovery disputes with the opposing side prior to filing your motion (phone calls, emails, letters, etc. - do what is reasonable under the circumstance as you will need to make a declaration to file with your motion explaining your efforts to the judge when you file).

The only time that you file discovery questions or answers with the court is when you have a discovery motion. This means that if the other party answers your question properly, that response is not included as part of the motion (it may be included as part of an exhibit only incidentally if it is copied into the exhibits of your motion, but it is not part of the motion itself).

A link to the Ohio Code is found here (look for the discovery sections, and section 37 in particular):

If you wish to get the information from the discovery responses into evidence (requests for admission, answers to interrogatories, etc.) you will need to get testimony or evidence to support the statements. The purpose of discovery is to find out information, you need to turn this information into admissible evidence at trial. Discovery responses can be used to impeach a witness at trial, but they do not take the place of or supplement testimony or evidence.

The same is true with documents that were attached as exhibits to prior pleadings or motion papers. Carefully read what the basis was for admitting these documents into evidence for purposes of the exhibit - was it only because of the existence of the document, or was it for the content of the document (what it actually said). You can prepare objections to evidence based on these prior documents - you will need to carefully review the evidence code, particularly hearsay and its related exceptions, prior to trial, get a copy of a trial guide to evidence (use a very short handbook or pamphlet so that it is actually useful).

Again, with evidence that you expect to be presented by the other side, but that you believe is objectionable, try a pre-trial motion in limine to get the document excluded (or at least excluded for those parts you believe are inadmissible for whatever reason). This will allow you to put the full legal argument before the judge, and give you the time to think it through without having to work "on the fly" at the time of your trial.

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Customer: replied 4 years ago.
So if I want to use the other side's admissions that they gave me, do I file them as an exhibit or just wait and use them in rebuttal?

Also, how do I enter copies of letters I have electronically but don't have the originals with my signature anymore because I sent them to the other side?
You will need to use the admissions as rebuttal to testimony. Asking the witness the same question on the stand, then if they give another answer, asking them why they provided the earlier answer in their request for admission.

If you only have the documents electronically, that is your "best evidence". You can use print outs of the electronic documents and submit those in your exhibit binders. You can testify as to their authenticity and account for the reason why you no longer have the originals.
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Customer: replied 4 years ago.
So do I submit them as exhibit or just keep in reserve and I can refer to them? If I can't get a witness to answer (it's from a company and I don't know what person to ask, as they have been dealing only through attorneys?) do I enter them as exhibit and then read them into evidence myself?
The discovery responses will not be exhibits. You will keep those for impeachment (like you note, if the witness gives a different answer you can ask ask them why they provided a different answer (and quote it) in their discovery responses). There are many different strategies to deal with this in trial and ways to discredit the witness.

The discovery response by itself however is not evidence.

Evidence will be correspondence between the parties during the actual incident. It will be communications that the two parties had leading up to the breach in contract, the claimed breach of duty, or other incident. It will be objects or physical evidence showing one party's liability.

Focus on these when you are preparing for trial - these are the things that the trial will focus on, the discovery responses are how you can expect the other side to respond to them (if they do not, you can "correct them").

You can get witnesses to testify about these facts and create admissible evidence, but the discovery responses are not evidence in and of themselves.
Customer: replied 4 years ago.
Do rules of a Probate Court by definition also comply with the rules of the Court of Commom Pleas?
The Rules of Court of Common Please govern Probate Court Proceedings Probate Code 2101.32(

I also came across a statute regarding the Probate Court's right to exercise jurisdiction over matters tangential to the probate proceedings related to our earlier discussion and legal authority to amend your complaint (this is still discretionary by the court, but the court does have statutory authority to do so if it so desires):
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Customer: replied 4 years ago.
So for understanding pretrial statement filing requirements, would I need to look at both the probate court and the county common please rules? As well as the specific order the court made that had a list of what they want in the pretrial statement?
That is correct. The order of precedent would be: first the court orders; second the probate rules; and third the common pleas rules.
Customer: replied 4 years ago.
The court order is for a pretrial statement with a list of exhibits 7 days before the hearing, and a list of other topics. The common pleas rules list some different set of elements/categories for a pretrial statement, and says it must include a statement that all exhibits have been exchanged by the parties, not just a list, and is due at least 2 days before the hearing. How would you interpret/reconcile these?
When the court order is that specific, and in contradiction with the general rules, the rule is to follow the court order.

From what you have posted, it seems that the court order will control.
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Customer: replied 4 years ago.
Is there any where in civil rules that says that or something to that's effect?

Also, how do rebuttal witnesses and exhibits work? Does each side have to submit them ahead of the trial or are of the pretrial hearing, or do they just "appear" unannounced or get introduce without prior notice at trial?
The Probate Code for procedures gives the judge extensive control for dispute resolution procedures:

Rebuttal witnesses are generally only brought forward in response to testimony or evidence presented at trial by the other side. (Again, if you expect something adverse, you can try to prevent it from coming in through in limine motions, which will require you to introduce your evidence - so make your judgment call accordingly as to whether it is worth the "surprise factor" at trial, or reducing the prejudice to you in trial of the adverse information coming in.
Customer: replied 4 years ago.
The county rules say that the pretrial statement is to be served on all other trial attorneys, and the there should be a statment that the parties have exchanged and marked all exhibits. Are all attorneys considered "trial attorneys" (for example other defendants who have not listed as trial attorney) and are the parties exchanging exhibits just the plaintiff and defendant or with all defendants also? (there are a lot).
If your local rules require an exchange between all trial counsel, every attorney, or party appearing without an attorney, that will be participating in the trial must receive a copy of the documents.

Courts use these exchanges to simplify the trial process (everyone will know what "plaintiff's exhibit 1" is when the plaintiff goes to move the document into evidence, and everyone will already have a copy, cutting down on trial time and focusing on the issues. This is also an opportunity to review the opposing parties' proposed evidence and make appropriate objections, and prepare for them accordingly (it helps reduce the element of surprise).
Customer: replied 4 years ago.
Sorry for the follow up: the rules say for pretrial statements go to all trial attorneys (so everyone), and then say that the pretrial statement must say that "the parties" have exchanged all exhibits. Are "the parties" the plaintiff and me as one of the defendants or is that everyone? The other defendants to my knowledge have all been passive other than some filing an original answer.
Unless the other defendants have been dismissed (either following their own motion, or dismissed by the Plaintiff), they will need to be served with a copy (their rights and interests will be at stake during the trial and they are entitled to the documentation.

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Customer: replied 4 years ago.
So you would expect that everyone get a copy of all exhibits before the pretrial conference? That's before decisions on what might be excluded for example?
That is correct. (This also makes it easier for you to do your motions in limine as you will have the actual document in front of you that the other side is proposing to introduce as an exhibit, and you have the time to review the evidence code and see where the document fits or fails to fit in as evidence should you wish to exclude it).

These exhibits are not yet evidence. Before an exhibit becomes a piece of evidence it must go through a process of being introduced to the Court, being given to a witness to identify (or "authenticate"), then asking the judge to allow the document into evidence (at any point the opposing side may object).

Only when the exhibit actually becomes evidence can it be used in your arguments, presented to a judge or jury, or otherwise affect the presentation of your trial.
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Customer: replied 4 years ago.
Are legal briefs something addiional on top of a pretrial statement? And are they optional, required, or asked for by the court? One reference to them only generally, in the local rules, not in common pleas rules or civil rules as far as I can tell.
This would be a very local question. My experience in most of the jurisdictions I work in is that the Courts look for a pre-trial statement. Then as you get closer to the actual trial date you submit what are called "pocket briefs" which are short legal briefs arguing key issues of fact that you are trying to get the court to decide prior to trial, along with your motions in limine regarding evidence.

A good resource for this type of distinction would be the Court Clerk, but generally for a pre-trial statement, it is a statement of the law and facts on each point with an identification of those issues you believe will be most important or most disputed during the trial itself to allow the Court to prepare for the trial appropriately. (This may be referred to as a legal "brief" as there is no hard and fast definition for this term).
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Customer: replied 4 years ago.
Would the submission of those briefs be at the discretion of the attorneys, if it doesn't really say anywhere else? And the goal is to get them decided prior to the trial? Are these legal and factual issues an additional brief or just fact?
Pocket briefs are motions just like the motions you submit during the course of earlier litigation. You file them before trial and the opposition gets a chance to file an opposition (all on very short notice, with limited time to respond - these are generally very short and very focused motions).

The decision as to whether or not to file a brief or in limine motion prior to trial is a tactical decision. If you believe the issue is of high importance, and the law is particularly compelling, it is probably worth it. If it is a side issue and not worth the time, it may not be worth filing a brief. But again, tactically some attorneys will attack anything they believe they can exclude or that they can win without having to go through trial. As we talked about earlier, some of these motions can result in a settlement prior to trial due to their importance.

Sometimes the Court will take the brief under submission and will not decide until after hearing part of the trial, so the Court will have a lot of discretion into how it deals with these motions, and you do not always need to read too much into the Court denying a motion up front.
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Customer: replied 4 years ago.
So would this be like a mini motion for summary judgment on a specific claim? Or what would a motion to get a ruling on a fact or legal issue prior to trial be called please?
Usually they are for specific issues, but occasionally they do deal with the entire matter.

The reason they are important is that the cumulative effect of specific issues can significantly change the course of trial. Even if the Court does not wish to rule on the motions, placing them in front of the Court in a clear and concise manner will give the Court time to think through them before trial. (Plus you will have time to put your argument together and address the opposition before it becomes an oral argument).
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Customer: replied 4 years ago.
Thank you. So what would one be titled like? "motion to...."? Could you give me some examples please? And are these separate for fact and law?

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).

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Customer: replied 4 years ago.
Would there also be motions to stipulate issues of fact or law? And what would those sound like please? The plaintiff has not stipulated anything with me and it seems like there should be many things that could be determined up front of a basic nature and some not so basic.

Given that the plaintiff has not stipulated anything with me, what is likely to occur in a pretrial hearing to try to reduce the items to be considered for trial? Thank you very much for the excellent help and patience.
You wouldn't make a motion to stipulate to anything (issues or law), but you can include in your pre-trial statement proposed issues that should be stipulated (or that you are willing to stipulate to). The Court can encourage the other side to stipulate to the matter in your pre-trial conference, but you cannot force anyone to stipulate to anything.

As a practical matter, courts do not like to waste time dealing with matters or issues that should be stipulated to, and the opposing party should be encouraged to cooperate with reasonable proposals to stipulate (and should be making their own proposals).

I am more than happy to help, and I hope that the information proves to be useful.
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Customer: replied 4 years ago.
You're extremely helpful, so thank you. So should I go prepared with a list of what would stipulate to? The Plaintiff's attorney has not contacted me, and has never contacted me before a motion or to schedule a hearing, would not respond to my settlement agreement offer, and has never responded to any interrogatory or request for documents (only admissions).

Also, their Pretrial statement did not cover the categories in the court order, and their list of exhibits included items like "various memoranda and emails between plaintiff and defendant " and "various bank account reports" without any specifics and without having given them to me (I did send mine to them). How can I object to unspecific items I haven't seen?
Go prepared with your issues that you are willing to stipulate to. You do not need to share this with the other party.
You can object to this broad and insufficient identification by the other side by simply objecting to any evidence. You can cite the opposing party's history of failing to cooperate in support of your motion.

I cannot promise the court will grant such a broad motion (to exclude all evidence) even though it has the authority to do so, so you may wish to prepare separate motions in the event the court does not grant the motion requesting that the other party comply with the original order.
Also, if you know that certain categories of documents are privileged you can make a motion to exclude them based on that privilege even if the motion is based only on the type of document.
This opposing counsel is operating a very difficult course of litigation and is unlikely to gain any favor with this type of conduct.
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Customer: replied 4 years ago.
Is there a way to introduce additional exhibits after I've submitted by exhibit list? First, Some might be in rebuttal specifically, either if I get specifics before the trial or at trial if I don't.

Secondly, may want to bolster my position with additional exhibits? Suggestions on how you can introduce additional exhibits in these cases? Thanks for working in a Saturday. :)
exhibits that are being introduced for impeachment (not rebuttal, but impeachment where you are showing the other side has introduced false evidence can be presented at any time without any further action by the court (be prepared for an objection but use of evidence for impeachment purposes is well recognized.

For all other exhibits, you will need to make a motion to the court to supplement your exhibit list. In your motion identify the new exhibits, why they were not included earlier, and how the other side it's not prejudiced by the late disclosure (they already have the document, you referenced it in moving papers, etc but especially in your case, I'd the other side had not presented an exhibit list of any substance it would be difficult to find how they are now prejudiced by this late addition).
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You can make the same motion regarding additional exhibits for evidence in rebuttal on grounds of surprise (the theory or claim presented in an affirmative claim or defense was unexpected based on the course of litigation and pre-trial discussions/conference.
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Customer: replied 4 years ago.
What is the relationship between the pretrial statement and the pleadings (claims, answers, counterclaims)? If an item is not also covered in the pretrial, is it "gone"?

If new facts supporting or adjusting factual statements in claims have been discovered or understood differently since the pleadings were filed, do you need to amend them before trial? Or if different claims have been understood differently?
Your pre-trial statement can be thought of as a "courtesy" summary to the judge with all the issues you expect to see at trial. It is not filed as part of the court record and does not add any claims to the case (however the opposite can be true in a sense, the judge has discretion to bar a party from introducing issues not identified in a pre-trial statement, but this is discretionary and the affected party can dispute such a decision in motion papers during trial - often in what are called l pocket briefs" discussed above, the very short legal arguments made during trial)

If you need to amend your pleadings (add a cause of action or affirmative defense - usually you do not need to worry about dropping them) you need to make a motion to amend the pleading in question, identify why the other party is not prejudiced, why the amendment is taking place at this time, and how the amendment will not affect the court proceedings (same factual issues as other claims, theories of law are easy to separate for the trier of fact, etc.)

Customer: replied 4 years ago.
What are the terms for looking up and what is required to prove funds go from a particular source to a particular receiver or use? If A wrote a check to B which B deposits into one of several joint accounts and then later B wrote a check for C, D and E? What is required to prove A's check went towards item E for example?
You are trying to provide evidence for "tracing" or "tracing funds".

This can be difficult and often will need to be done based on "circumstantial evidence" such as showing deposits made within a few days of a withdrawal in the same amount. Control by the same or a joint interest, a lack of other sources of funds, an absence of other similar deposits when there was no money coming from the original source. Some cases require expert testimony to show tracing, while others rely simply on bank records as common bank account withdrawals and deposits are within the understanding of the average citizen and an expert is not necessary to interpret them.

There is no absolute or clear way to prove tracing, it is something that is done based on the evidence you present and showing in the appropriate standard of proof (preponderance of the evidence or "more likely than not" - negligence; or "clear and convincing evidence" for intentional conduct - or if you are trying to discount those claims against you, just enough to make a trier of fact believe it is possible you did not do these things).
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Customer: replied 4 years ago.
Where would you look for case law or statutes regarding this, to set out how one should look at this? (especially with regard to the total funds picture?) or other terms to look for? This is an attempt to track funds through a personal account to a business and to implicate the business.

Here is a link to an article published by a law firm regarding tracing funds (specifically from trusts) and identifies the issues the Court will look at (specifically whether or not the account that the funds are "allowed" to be in actually has money to cover the deposits from the trust). Most of the law that is cited is from federal bankruptcy cases, but the same general considerations should apply to Ohio case law, and will at a minimum give you the right terms to search for.

As far as implicating the business, you would need to be implicating the business for some bad act or actions that the business took in order to get compensation from the business. Alternatively, you can ask that a "constructive trust" be instituted thereby freezing the funds pending the outcome of the litigation and requiring that the money be placed back into use as identified in the trust.
Customer: replied 4 years ago.
Thank you very much. I am protecting against these claims.

In terms of spousal privilege, can a spouse testify for some things to validate their spouse's recounting of events or documents, for example, and still refuse to testify against them in other matters in the case?
Spousal Privilege (Ohio Code Sec. 2317.02(D) covers communications between spouses that are made in the absence of others, or information that is learned from a spouse when there is nobody else that can hear the communication. Communications made when others are present are not covered by the privilege.

Your spouse may testify as to those communications that take place in the presence of others, but not with you alone. Generally, when a privilege is waived as to a single conversation, it is waived as to all conversations (if you let your spouse testify as to one conversation you had, you will likely "open the door" as to other conversations you may not wish to be part of the testimony). This is a trial strategy call, but you are running a significant risk if you think that there are conversations you wish to keep suppressed under the privilege.

Testimony by a spouse about his or her spouse

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).

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Customer: replied 4 years ago.
When do I do and file motions in limine to exclude evidence? They don't seem like regular motions to be filed in the regular court record. Do I prepare and take them with me to the pretrial? And will they be decided then?

Also can I or should I do a motion to included evidence Or other wise prepare to defend against something I think the other side will try to preclude?

And what is a motion to preclude an issue (is it to take a legal issue off the table as not applying? Or based on facts?). Thanks vry much.
Motions in limine are usually filed under a schedule established by the Court in the pre-trial orders. Some Courts have standing orders for pre-trial motions (check with the Clerk if you do not have a copy). Some judges wish to hear motions in-limine at the time of the pre-trial conference, but many do not, reserving this for later.

Motions in-limine are filed and served on the other side (usually service requirements are by e-mail or fax so the party gets them right away), then they have a short time to respond (a day or two), and the Court can make a decision at its leisure, sometimes only telling you on the day of trial.

Motions to exclude evidence or issues are made as part of your motions in limine. A motion for issue exclusion is to exclude an entire issue from the trial. One example would be a claim for "elder abuse" which the defendant later discovers that the plaintiff is not old enough to qualify as an "elder" under the statute. This issue should be precluded (even though it should have been an msj earlier in the case, excluding it from trial in a motion in-limine is reasonable given the fact that the evidence on the issue is undisputed, the question of law can be decided immediately by the court, and it will significantly reduce trial time of issues that should not be disputed).
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Customer: replied 4 years ago.
There's an order for all pretrial motions by a date. But isn't there also the ability to present written as well as oral motions in the trial? At this in trial motions also motions in limine?

Does the process you're describing mean that they aren't decided at the pretrial hearing?
The date for pre-trial motions would be the date for your "motions in-limine". (The definition of a motion in-limine is "at the threshold" of trial, meaning immediately before the trial begins, some courts do away with this term and simply call all such motions "pre-trial motions").

Courts generally do not take "oral motions." You argue evidence issues orally (say the other side tries to introduce a document but has no authentication for it, you object as to lack of authentication, the other party will offer some argument in opposition, and the court will make a ruling). But most issues that require a motion will be dealt with in "pocket briefs" described above, this allows the Court to consider the law that supports either side's arguments and reasons for or against granting the motion. Unlike your previous motions, you will have no time to review the other side's papers prior to submitting yours, both the motion and opposition will usually be submitted at the same time (this of course may change based on the Court's orders, but this is most common), and the time to draft these motions is very short (sometimes over the lunch hour). To prepare for this type of fast moving motion practice (and your trial in general), read and review the Ohio form jury instructions for each cause of action or affirmative defense, and understand what issues you need to prove or attack. There is usually case law or statutes "annottated" for each of these. (Check your law library if you cannot find this information online).

Most courts do not hear motions at the pre-trial hearing, it is designed to allow the Court to review the issues, calculate the amount of time necessary for the trial, go over issues that can be resolved by stipulation, and identify any other pre-trial orders that need to be issued. Again, check with the court clerk and see if the Judge will hear any motions at the hearing. If so, you can present them assuming you have properly served the other side so they can draft an opposition prior to the hearing.

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Customer: replied 4 years ago.
At trial, are the motion and oppositions being submitted in response to a request by the judge? Or what initiates this "two at a time" action?

Also, if I think the facts say that many of the Plaintiff's claims should be stipulated away, should I come with a list of potential stipulations and are they both fact and law?
They can be in response to a request by the judge, or by a motion by one of the parties. For example, if the other side puts on all of their evidence, but you believe they have failed to meet one of their causes of action as a matter of law (they just didn't submit any evidence whatsoever to support element x), you can make a motion to dismiss that cause to the Court. (Some courts may allow this to be made orally alone but most will request briefing).

It is always worthwhile to have a list of issues that you believe you can stipulate to (both law and fact) in advance of the trial. This way you have thought about them beforehand and the implications of such a stipulation. You can also be prepared when/if the Court asks about such stipulations to shorten the trial time. Remember, at a minimum, every issue or element that is stipulated to is one less thing you will have to put on evidence about.
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Customer: replied 4 years ago.
How do I tell how much to amend my pleadings (affirmative defenses and counterclaims) if at all? And at what level of detail should affirmative defenses be (for example, citing a part of a document that supports my authority to do something - do I then need to specifically state what actions I took that fit that exactly? ) Of are affirmative defenses more like "placeholders" - where as long as the basis of the defense is there, that is enough?
As a rule, amended pleadings at this stage should be very specific: you have either discovered facts that support a clear case of fraud (for example), or elements that will support a defense of consent (again for example). You will want to allege these clearly with enough factual allegations to give the court a basis to permit you to change the pleadings at this stage in the litigation. While you generally do not have to cite the facts in extreme detail, you will need to cite them with sufficient clarity to allow the court to see that there is a basis for the amendment.

Some judges are more strict than others when it comes to this (or simply have different styles). Some will allow amendments with rough allegations based on facts that you plan to present at trial, while others require more detail.

When it comes to your affirmative defenses. While it is best to have these defenses in hand (in your pleadings) at trial, you can bring them up again in argument to the Court.

I would generally recommend having your pleadings be clear (and concise as possible without omitting your reasonable claims) so that you do not risk losing one of them at a later date if the Court denies your attempt to introduce the defense or amendment later.
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Customer: replied 4 years ago.
If I amend my counterclaims does that mean the plaintiff would then get another chance to respond ( and add 28 days)?

If the basic countclaim is still valid but I have more facts to support, how do I tell whether to add them into the pleadings? Could be lots of detail ?
Usually, if you are permitted to amend, the other party will have a much shorter time to respond. (The idea is that everyone should already have all of the facts from discovery, and that the purpose of amending the pleadings is simply to properly "frame the issues" for trial).

If you have a counterclaim for "fraud" and you want to add more detail to your counterclaim for the same cause of action "fraud" you will not need to amend your cross-complaint. However, if you wish to add a new cause of action for "intentional infliction of emotional distress" for example, that was not included in your original cross-complaint, then you would need to amend your pleading.

As long as the cause of action is included in your pleading (and the other side has failed to eject it up to this point), you do not need to amend it now to add more factual support.

(If they attack your cause of action in a pre-trial motion specifically, you may need to add more facts there, but you will not need to take any affirmative action to preserve your cause of action).
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Customer: replied 4 years ago.
The Plaintiff's pretrial statement was scanty, skipping several areas in the court order and listing general categories of documents in their exhibit list (like various memoranda between plaintiff and defendant). This is after also not answering any interrogatories or request for production of docs. The statements in their pretrial are also in some cases not factually accurate. Their pretrial statement was also filed online in the case records like a regular filing.

How should I object to this lack of substance?
And what to do if they have added a new claim implicating a new business entity that has not been mentioned before (under the witness list)?
Regarding the substance of the pre-trial statement, my understanding of opposing counsel in this matter is that they are sloppy at best, XXXXX XXXXX dismissive of both you and the court in their papers. (It is not respectful to the Court to file a partially completed document, or to only partially comply with the court's order). You do not need to do anything regarding their half-complete statement, let the judge deal with that.

The facts that they put in the statement itself are not the actual facts of the case, yet. To actually become evidence, the other side must introduce exhibits and testimony to support each of the facts it wishes to place at issue at trial. While you are free to dispute the pre-trial statement, and you should do so if the Court appears ready to rule on one of these "facts" you generally do not need to do that in this format.

If the other party submitted their statement through the normal case filing system, check with the local rules or the clerk and see if that is the way the clerk wants them filed as well. The way the document is filed does not change whether or not the document has any weight either factually or as a legal argument. It is important, and will help the court, but it is not a recognized pleading or motion.

If they have a new claim that they raise for the first time in the pre-trial statement, that is not supported by any of their causes of action, you can oppose that in a motion in limine. However, the bigger issue here is that they are trying to add a new entity, unless that entity was already a party to the lawsuit, they will not be permitted to pursue a claim against that entity without first properly serving the entity with a complaint and summons, and allowing the party time to appear and defend itself. (If the entity is a sole proprietorship however, this may not be the case, but you can still move to have the cause of action excluded for lack of notice during the discovery period and Plaintiff's failure to properly identify all causes of action in the pleading stages (I do not know if this will work for sure, but given the more specific details of your situation and if you can find appropriate case law to match - this is possible and is commonly done but this is a very fact specific analysis that has to be done)).
Customer: replied 4 years ago.
So what would a motion in limine sound like for this? A motion to exclude the witness because of lack of identification in either pleadings or discovery?

Also, given that I am pro se, if I have listed laws I think support my position in my pretrial and given a good overview of facts, is it likely I do not need to provide additions legal reasoning to "wrap things together" (through filing another legal brief or something)?
I cannot tell exactly how each of your motions will be phrased, but usually they are something along these lines:

Defendant's Pre-Trial Motion No. 1: To exclude Witness X as Plaintiff failed to properly disclose in pre-trial statements per court order.

Defendant's Pre-Trial Motion No. 2: To exclude claim of breach of fiduciary duty as Plaintiff failed to properly identify any facts sufficient to establish a fiduciary relationship between the defendant and the plaintiff.

You will need to "cut and copy" your law from the trial brief and put the specific points in each of your pre-trial motions. The motions need to be very specific and will either "rise or fall" on the law that you put in them, the court will usually not read through the entire pre-trial statement to make a decision on your pre-trial motion.

To give some more perspective, the parties will each submit a set of pre-trial motions, the court will review them and basically give an order that says: Plaintiff's pre-trial motions 1 - 5 are granted, 6 - 8 are denied, and 9-12 are put over, and similar rulings on Defendant's motions.

Check with your local self help desk or law library to see if you can get a better idea of how your judge does this (perhaps even the court clerk will give you a little bit of inside information on the procedure so that you are better prepared). My information is general, and your local practices may be more specific or different (even different courts that I work in within a couple of miles of one another have slightly different approaches once we get to trial under local rules or judge's orders).
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Customer: replied 4 years ago.
These are for failures to disclose just in the pretrial statment? Or the combo of the pretrial and the pleadings?

This Isn't pre-emptying the trial when evidence is to be presented?

Could you or would you also exclude claims based on facts you can include?

Are these different from a motion for summary judgment?

Sorry for the follow-up, and thank you.
You can make them separately, your issues with the discovery responses are different from a failure to properly identify exhibits in pre-trial.

Using these in limine motions to address discovery failures by the other side is not quite the proper way to address them (you really need to make a motion to compel at the time the responses were due, but this will at least give you an opportunity to force them to show their documents).

You can use these motions to attack both legal and facial issues. Pick a single issue of fact, or pick a single legal issue, to draft each motion.

These are not motions for summary judgment, but the effect can be very similar (such as when one exhibit is precluded as evidence thereby making it impossible for one party to prove its claim - this is usually not so dramatic, but it can significantly change the landscape for trial if used carefully, and can help drive settlement discussions, which gives you control over the outcome).
Customer: replied 4 years ago.
For failures to establish enough facts to support a claim, before a trial, what am I evaluating? Just the pleadings and their pretrial statement?

Can I add my own facts for why a claim should be excluded? (that the document does authorize actions for example)?

Sorry for the confusion. I can't find local rules or example that cover this.
Look to each element in each cause of action, if there are admissible facts to support each one, then you would not be able to make that type of motion.
If there is a specific piece of evidence that the other side will not object to on evidentiary grounds, and it creates a complete and independent basis for a defense or affirmative claim, you may make the pre-trial motion as a motion of law.
The idea here is that all of the facts are either stipulated or the exhibits are not contested on evidentiary grounds. The court is only making rulings on law, not making its own finding of fact (that is reserved for trial)

These motions are helpful for many reasons, they frame the issues for the court and bring the relevant law to hand for both the parties and the court. But in the end, the motions will not take the place of a trial to resolve disputes over fact.
Customer: replied 4 years ago.
I still can't find local examples, so does this make sense:

Motion to exclude a claim (what do I call this?) because the facts that are known and the law that applies doesn't support it now. (do I attach facts to support? Is this like a mini motion for summary judgment?). Or can I only cite facts that we've agreed to ( there are none yet).

Motion to exclude a witness...

Motion to exclude some evidence...

Are these all motions in limine.? Or just called pretrial motions?
The format of your motion will remain the same as for other motions in the case (Introduction, statement of facts, law, legal argument, and conclusion), except that they will be much shorter given the nature.

These are all included in your pre-trial motions. If the court does not make a distinction between the types of pre-trial motions, both legal and evidentiary issues are argued in the same manner on the same time line as stated in your Court order.

You can cite to any facts that you can provide evdentiary support for, and you may object to any facts which you believe they do not have admissible evdentiary support for. For each motion, you will need to cite to the facts and law in support of that motion separately.

Here is a pdf example of motions in limine (after a revision) in Federal Court:

Here is another explanation of motions in limine and why they can be useful written by a large firm (I have no affiliation with this firm, but it is a clear and concise statement about these types of motions and their value - it deals more with excluding a criminal record, but the value of using this tool is the same regardless as to what rule of evidence you are using, or legal issue you are hoping to have ruled on as a matter of law prior to trial):
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Customer: replied 4 years ago.
I can't thank you enough for all your help. Are these motions just filed as usual in the court case record and to the others side? Or should they be sent to the judge?

Given that I am new to this, what is the downside of trying to exclude a claim (or is it dismiss a claim?) as best I can? Will I prejudice a later trial o
If I fail? Or is it likely that the other side is going to do a lot of these, given their attitude so far?

When do I need to get into th evidence transcipts of hearings before the court or other case filings (like the Plaintiff's response to a previous motion of mine)? And are these evidence? And can I introduce these myself or would I need witnesses? The only peopl in court so far for the plaintiff have been their attorneys and the admissions didn't answer my question regarding who from the plaintiff company had answered them.

the motions should be served on the other side and filed with the court.

Generally, there is not a downside to losing such a motion, as it only means you cannot win the issue without a decision or"finding"of fact which can only happen at trial. However, you should make your motions considered to have a good chance of success as less meritorious motions may distract the court from more solid ones.
The statements made in prior hearings are not evidence except for the purposes of impeachment, and for deciding arguments of law (but this really isn't evidence in the sense of facts to build your case, it is evidence in your pre-trial and trial motions on the law to argue that the other party is bound by the prior legal position they took).

If the other side answered your requests for admission, but did not identify the officer or agent providing the response, they did not properly answer. Again this is something that is properly dealt with in discovery motions, but it can add to your motion to "exclude plaintiff from introducing evidence not specifically identified" using the court order for authority. You can adj that "in the alternative" the court require the plaintiff to provide both the evidence, and answers to your discovery (or at least the verification for the responses to the requests for admission).
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Customer: replied 4 years ago.
The plaintiff has not identified one manager from their company to testify, who was replaced by a higher level executive in my later dealings with them before they eventually filed the suit. would I pay the costs of getting this higher level executive to court in additon? The lower level manager wasn't in on key later discussions and has proven very prone to misrepresentations.Also, if I have written high level memo stating that they didn't think my actions were wrong and now are claiming they are, is this promissory estoppel and how do use it?More important: some of my potential motions are for big issues, excluding large claims and denying standing. Should I format these as separate motions vs. in a list mini motion format like the motions in limine doc from the criminal case? The local count rules say a motion shall be supported by a memorandum in support.
The additional employee or executive can be compelled to attend by subpoena. You can issue the subpoena to this individual and pay witness fees (travel expenses if the witness is outside a certain mileage from the court), and they will be forced to appear. Furthermore, as the executive is an officer of the Defendant, you can compel them to attend as a party witness (the subpoena is just an additional way to compel their attendance and give you leverage with the court in the event they do not show - failure to adhere to the subpoena results in a bench warrant).

The memo can be introduced into evidence under the business records exception to hearsay (you need to have the "custodian of records" or person who maintains and keeps these business records testify that it was kept as all other business records of this type, or you can have it introduced with testimony by a person who wrote the document, was the intended recipient of the document, or was a party to the document being drafted or reviewed).

Your document may or may not be "promissory estoppel" (I do not know what the facts are surrounding the document), but I can tell you that a significant reversal in opinion and actions by a department head will create a question of credibility for the new claim).

I like to format my motions independently for larger issues, it gives you the space to provide your separate memorandum for each and separate the issues from one another for the Court. For every motion that you file, you need facts, legal arguments, and admissible evidence (with authentication in the motion), to support your request for relief. This is true whether you file a separate document for each, or file a series of motions in the same document.

If your local rules require a separate memorandum, it may be best to file the motions as independent papers (you can still number them if it makes it easier to track, but having the documents filed separately will not make a significant difference from the tactical standpoint, and it is best to comply with local rules and customs). I would check with the Court Clerk, as it is not unusual to put in two or three more significant motions independently, and then a larger number of evidentiary issues and objections in a single pleading, but this is a local practice issue, that you want to check to see what your judge wants.
Customer: replied 4 years ago.
There are no stipulations agreed to and the Plaintiff's attorney did not return my calls. They continue in their filings to claim wrongdoing at a high level with statements that wrap up either inaccurate facts or inaccurate representation or application of laws or both.

There have also been a lot of hearings in which I now believe they have been trying to get me to say things to be able to use them against facts they know are in my favor.

1.). If I think there are a few foundational facts or legal conclusions that would direct the trial and or dialogue "east v. West" or at least help keep them from continuing to make certain claims that aren't supportable, how do I get those decided by the court? What would a pretrial motion be called for this (it's not evidence related.) it feels like a mini motion for summary judgment, it includes referencing some facts of the case, not just pleadings (so isn't a motion to dismiss claim x I don't believe), or is it a motion to ????? That X applies in this case, or does not apply, or that a person based on these facts and this law therefore owed duties to person D and not person K?
Unfortunately there is little that can be done with obstinate counsel. (I wish there was, it would make litigation far more efficient and cost effective for all parties).

You can make motions for issue preclusion based on evidence discovered during the course of litigation. They are not necessarily appropriate for pre-trial motions as you are correct in that they should be brought as motions for summary judgment, however, if you are making them as issue preclusion for purposes of trial given the fact that Plaintiff has failed to produce any exhibits to support certain causes of action at this point in the litigation in their pre-trial statements as required, that may be sufficient to give you a good faith basis for the motion.

The legal issues are good grounds for pre-trial motions. Unlike a motion for summary judgment which is based on issues of fact, a motion based solely on an interpretation of law is proper and appropriate for the Court to rule on without a finding of fact. If there is no basis for a duty between two parties, then the court should give a ruling on that issue and preclude it from being presented at trial. Issues of law are solely decided by the court and are not subject to "findings of fact".
Customer: replied 4 years ago.
Should I be instead asking for partial summary judgment, which I think requires leave of Court at this point? But it's also a lot of work to do right it seems, and I am short on time for the number of things I'm trying to do.

Also, I think civil rules say you have to plead all affirmative defenses or can't use at trial, how specific do these need to be? If I have a statement or umbrella I can fit a detailed defense ino, is that enough? Or do I need to amend my affirmative defenses?
You can make the motion for issue preclusion if you like or you can ask for leave to file for summary judgment. This is a litigation strategy issue for you, I can't tell you which decision to make here, but it may be easier just to get the issue in front of the judge and see how to respond to the opposition.

You must plead all of your affirmative defenses. If you do not have them specifically plead, you may wish to amend your pleadings so that you do not lose them. Again, this is a litigation strategy as to how you wish to go about this (do you want to do it simply in a pre-trial motion, or do you want to make it in a full on motion, but you really don't have time to give proper notice, etc. - but I would make full use of the civil code for the ability to amend prior to trial, etc. to make sure that you have all of the authority available for the Court to make its ruling in your favor).
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Customer: replied 4 years ago.
In motions in limine, can I cite facts inside of the motion (I did x, they did y) or do I also or instead need an affidavit attached by me stating what I did, etc?

Also, there have been a lot of hearings , in this case and also in separate estate hearing (in which the other defendants in this case were not noticed or present). How can I best guard against the plaintiff who was present using statements I may have made and taken out of context either in hearings in this case or the other unnoticed case, to adversely impact my more formal evidence like documents? Given how unstraightforward this all has been, and the number of interactions especially.
You may cite facts in your motion. However, you do need to support your facts with evidence (just like you have with other motions, declarations, documents supported by declarations authenticating them, or statements made in the record (also authenticated in your declaration)). It is somewhat tedious, but necessary.

As far as the statements that may be misconstrued, you just need to deal with them as they come up. There really is no easy way to deal with these things other than to oppose each statement as the other side introduces it. If they for instance say that you said "The accountings for year x were incorrect", when the full statement was "The accountings for year x were incorrect in this book, as cross-referenced to this book which shows the proper values ..." you will just need to introduce the complete statement in your opposition. This will do two things, first it will show the true context of your statement, and second, it will make the opposing side look underhanded and untrustworthy. (I know that many statements are not so easy to show as untrue or out of context, but that is the basic method for opposing their introduction).
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Customer: replied 4 years ago.
If they try to preclude large defenses or large documents with statements from other hearings, is there any way to object on the basis that the full set of facts need to be reviewed and not preempted because of one statement made in one hearing? I don't have specifics, just a sense of how these folks work.

Can you ever say you were mistaken or that the statement doesn't fully explain something?

Is there any way to specifically exclude a hearing from another case if the other defendants weren't involved or noticed or anything?
The absence of the other parties will not constitute a basis to exclude testimony. To deal with this you will simply need to state you were mistaken in the earlier testimony, it was given without full understanding of the facts or discovery, or whatever else the circumstances were. It is a question of credibility for the trier of fact, nobody is expected to have perfect recollection, and a truthful and understandable reason for the first testimony differing from the testimony at trial is not unexpected. Do not expect the other attorney to make it easy on you (many try to make a big deal out of nothing) but a straightforward and believable statement will make those tactics backfire as they will appear as bullies.
Customer: replied 4 years ago.
Any advice on how to handle the following:
There are a lot of claims and countclaims. There is no agreed upon stipulated facts or law. The other side keeps repeating basic statements that are false regarding what I did or have admitted, for example. And their pretrial statement gives no specifics in their exhibit list (a list of the docs that we're filed with the complaint over a year ago and misc categories like various memos, various bank reports), includes no factual issues, and states the outstanding legal issues as restatements of their high level demands/claims (did I breach duties and aren't I liabl for attorney fees, etc).

How in a pretrial hearing should I try to assert the issues I believe are outstanding an accurate portrayal of facts and issues to b tried? As it's hard for a pro se to distinguish what to emphasize to an expert judge. Thoughts?
As an initial matter, be prepare for the court only conduct a short hearing. you may not have any issues addressed along these lines.
to get the most out of the hearing, come prepared with a list of issues that you believe are at issue for the trial.
The court will not make any determinations as to the credibility of either party at this hearing so making factual arguments outside the motions we have discussed (they have not identified any exhibits whatsoever to support their claim
My apologies I am on my handhold.

Outside those motions, factual dispute will not be considered. Focus on the legal issues you believe will be in play, and the evidence you intend to present.
It may help to focus on your case and causes of action.
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Customer: replied 4 years ago.
So do I assume that the details of motions of limine or other motions to exclude issues are "to be determined" at some time after the hearing and focus on a higher level definition of scope and flow of the trial? What issues I think need to be included, what witnesses and how long, etc.? Since there is nothing stipulate yet and the other side has provided no specifics on exhibits, and did not answer items like jurisdiction or burden of proof in their pretrial, it all seems a long way from being able to specify who does what at at trial?

What is the likelihood the other side has some ambush planned I don't get?
that sounds right, it is possible that the judge will rule on some of your motions at the hearing, however there is no way to rely on this.

you can use this as an opportunity to educate the judge about the issues both in the case and the other side conduct. the judge may or may not take this into consideration and how it connects the trial but by bringing it to the courts attention you will at least have an opportunity to be heard on the matter.

by keeping your focus on the issues we discussed you will make sure that you cover the factors the court will take into consideration for certain when planning trial. you do not want to miss this opportunity to put those before the court

your motions in Lemony will still be pending and you will still have the opportunity to argue those at some point in the future if the court decides not to hear them now (courts do not always hear oral argument on the oceans and lemony but they may come up later in the trial and you will have briefed the court on the issues).

I hope I covered everything I apologize for the spelling errors I'm still on my handhold and traveling but I wanted to get back to you as quickly as possible
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Customer: replied 4 years ago.
You are a great help and I appreciate your willingness to revisit some of these issues, for us "newbies".

In terms if priorities, if I'm choosing between effort on revising my affirmative defenses and getting motions in to exclude issues, which is most important? Any advice here would be great.

Also, if you were the plaintiff, going after the pro se, what would you try to spring? They aren't as inept as their pretrial filing looks.
Make sure your pleadings are correct, it is easier to address the other issues later if necessary.

I am not sure what issues the opposition will bring up (I agree they probably have more experience than they are showing) but trials focus on the necessary elements to prove every cause of action (kind of like baking a cake, every cake has specific ingredients). If you look for those elements that are disputed (or that you are worried about in particular), you can usually identify the exhibits our evidence that will be entered.

As far as "springing" the opposition will likely be very aggressive in trying to discredit you and your testimony (even for minimal or trivial issues) working to minimize damage from this type of trial tactic may be a good investment. Again straightforward responses (even if the answer is I don't know) is the best response when confronted with adverse facts, even follow up questions.
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Customer: replied 4 years ago.
In my affirmative defenses, some have a statement of fact (I am not an X; I was never given Y), some cite a law or part of a document that is the basis of a defense, some have both a citation and thn a paragraph or two of explanation regarding the defense. How much detail should they have? Are there any requirements that make an aff. Defense "complete enough" or is it enough it or an umbrella for it is listed?

Also, as affirmative defenses are not pleadings that require responses, if I amend just them will that trigger another response cycle with th Plaintiff

Thank you.
You need to plead every element of the affirmative defense. For example, in a car accident case, if you are alleging the affirmative defense of contributory negligence, you must allege (in simple straightforward facts) that (1) the Plaintiff owed a duty of care - to drive within the normal and accepted standards; (2) the Plaintiff breached that duty - failed to maintain lane, failed to keep a safe speed, etc. (you do not need to be extremely specific, but you need to give enough information to show the breach when you are amending just before trial); (3) that the Plaintiff's breach was a proximate cause of the injury (accident).

For your particular situation, you may only need to file a motion to amend your pleadings (your answer) specifically to add affirmative defenses. Check your defenses carefully and see if you have not yet already alleged them sufficiently in your pleadings originally. If you have already included enough factual allegations to support your defense in your original (or "operative" - the last pleading filed) answer.
Customer: replied 4 years ago.
If it's just the affirmative defenses, will this cause another review cycle by the plaintiff?

And do I file just the affirmative defenses section ( my original answer had answer, aff defenses, and then counterclaims) and I don't want to make it look like I'm amending things I'm not, thanks.
If you decide you are going to make a motion to amend, you can make it to amend just the affirmative defenses that you need to add. If you are lucky, the court may allow you to simply amend by motion with the only opposition being the opposition to your motion itself (if any). This really is what should happen.

You will submit a pre-trial motion to amend your answer to add the specific affirmative defenses, attach a copy of the proposed amended answer, and put your changes in bold font so the court can find them easily.
Customer: replied 4 years ago.
Does the entry of a motion for summary judgment automatically stay or stop a trial date? The pretrial hearing was not even listed at the court, but held and was instead of being about the trial all about the entry by the plaintiff of a summary judgment motion, which was set for hearing on the same date originally entered as the trial date. No pretrial order has been entered, just an order for the summary judgment hearing. But another rule says the trial date sall not be moved without showing of good cause.
A motion for summary judgment by itself will not stay a trial date. Some judges will continue a trial date when a motion for summary judgment is filed as the motion will make a trial unnecessary. (If the party that has filed the motion wins, they will have judgment entered in their favor before trial).

If the Court has entered a specific order replacing the trial date with a hearing date for the motion for summary judgment, that would take precedent over the general rule regarding moving trial dates (the court will have decided that the hearing on the summary judgment is "good cause" to continue the trial).

It is possible to have a trial begin on the same date as the motion for summary judgment is to be heard (meaning the hearing will happen in the morning for example, and if the motion is denied, the trial will go forward beginning in the afternoon). This is not very common as it is a huge waste of resources to have the parties prepare for trial, have the court set aside trial time on the calendar, and then have the possibility that the trial will not go forward at all due to the motion being heard.

I would recommend checking with the Court Clerk and confirming that the trial is continued, that the only thing on the docket right now is a motion for summary judgment by the Plaintiff, and then you can prepare from there. You have options, if you wish to make a motion for summary adjudication on certain issues you may (this is similar to those motions in limine we discussed where you are trying to throw out parts of the case, but this is much more comprehensive and requires more in depth legal research and analysis in your moving papers). But you will need to be prepared to put together a comprehensive and coherent opposition to the motion for summary judgment. Your burden of proof is not going to be very high (all you have to show is that there is a "triable issue of fact") but it is extremely important that you do it properly or the Plaintiff will win the case without you having the opportunity to go to trial.
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Customer: replied 4 years ago.
Is is not easy to get straight answers verbally there. I had to work hard to even find the court room this last time as it wasn't posted the way it usually is. Should I make a written request to the magistrate for clarification on what's next, and if so, what's the best way to do that?Would it be enough for notification of the parties if the original scheduling order listed a trial date and nothing else has been sent since?Thanks much.
My first suggestion is merely made to cover all potential easy avenues. Many Courts now have online "Registers of Actions" or similar online case management systems that allow you to check and see what is going on with your case. These are not always easy to read (even if they are available). However, these services may allow you to see whether or not your trial has been continued or taken off calendar - clarifying the order from the bench.

It is extremely difficult to work within a system where the civil servants (the court staff) are unwilling to help the public - which is their very function.

If you are unable to get the matter resolved, you can write a letter to the Court (addressed to your judge, asking for clarification of the court's "bench order" and asking if the trial has been continued, or if the Court is only allowing the Plaintiff's motion to be held on the same day as "trial call". You will need to "cc" opposing counsel with this letter.

I hope that you are able to get some assistance from the Court staff (or online), as that is their job function, but if not (and opposing counsel is unable, unwilling to assist, or simply untrustworthy - even savvy and uncooperative counsel should at least give you a copy of the court order - if they do you can follow it up in a "thank you" letter that is also a confirmation letter that you can use in the future to confirm what they told you and your joint understanding of the order.

Please let me know if this is helpful, and if I can be of any further assistance. You are in an unusual and difficult position with the Court staff being unwilling to help with such a simple task.
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Customer: replied 4 years ago.
Thank you very much. There's a lot he that is not on the "up and up" unfortunately, including conflicts in that the Plaintiff's attorney was m stepmother's and mine as POA and also acted as mine as executor for a few months after her death (until I continued to question asset assignment and status and objected to past poor service of the plaintiff - who I do not believe is the rightful successor trustee), and is also trustees or on boards of 3 of the 4 charities that my stepmother left money too. Add that the law firm told me there were 2 wills, gave me only one when my stepmother told me she changed it, and that the same law firm has refused even my subpoenas to request all will information as executor and as a defendant in the other court case. filed motion to remove me as executor the same day I was supposed to get back subpoena results as executor for wills and bank accounts. Had a lawyer in the beginning who was too local and kept drafting answers having m admit things that were not true, with no good explanation why when I asked and who told me the bank records I have "must be a mistake". Have been doing this myself since.

Anyway, their summary judgment motion now is claiming different law and different reasoning than their complaint for my supposed breach of fiduciary duties, with documents added to support facts. Are these pleadings then additive to the complaint pleadings? If I debunk them, do the original ones still remain as well, if they haven't amended their complaint?

I appreciate your help. Thanks.

Anyway, their motion for summary judgment now says

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.

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Customer: replied 4 years ago.
If the motion for summary judgment covers different law and reasoning, not just different facts, than the original complaint, what relationship is this to the original complaint? Would the other cited laws and reasons in the original complaint still be pending even If they"win" on the ones they've filed? Also, their motion covers breach of fiduciary duties to the beneficiairies, for example, and does not necessarily cover pleadings from the original complaint about actions exceeding POA for example, or bad faith claims (all of which I do not think are accurate).

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.

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Customer: replied 4 years ago.
So just to clarify, as long as the basic cause of action is the same, it doesn't matter what else was pleaded in the original complaint and the motion for summary judgment?

If so, what is pending for trial if they 1.) win their motion - is it anything that is "left" in the original complaint, including a.) the cause of action (breach etc), and also b,) their previous legal reasons - many of which are not accurately quoted or misapplied , c.) any other plead facts, and d.) other emails for relief?

Where would it say a motion for summary judgment can only be for 1 or 2 causes of action? They at doing several causes against me and also have sme statments against my countclaims, which are 4. ?

Thans very much.

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).

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Customer: replied 4 years ago.
Thank you for the process recommendation.

There is a high level accusation of wrong doing(several related). There are the facts of what tweaks done (some of their claims are factually inaccurate), so there I am dealings with what facts I can call into questin - either by questioning their offered evidence (tho MSJs can use affidavits that don't have t line up t regular trial evidence standards, is that right?)

The laws and portions of the trust and POA docs that they included in the MSJ are 1.) different than before and 2.) in st least one area, easy to defeat and I believe they know it (the cited law was not effective during the time period my actions occurred and the law says it does not apply to acts before it was adopted).

If I show that the cited laws and portions of the trust and POA docs specifically in the MSJ do not prove their cause of action (with their facts or questioning also their facts)), is there a danger that there is some other combo of laws and portions of trust docs you could claim make the facts prove the cause of action that is NOT in their MSJ , that a magistrate could input into their MSJ and say they won on a different law and doc portion than they included in their MSJ? They have been making different arguments for a long time in multiple filings than they are making in the MSJ (which is much mor specific) and at least one major cornerstone of their basis seems very suspect, if not more

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.

Customer: replied 4 years ago.
If I am dealing with one set of legal arguments and selection of POA & trust docs language in the MSJ, and another set of legal arguments and selection of POA &Trust doc language in the complaint, should I defend against the MSJ arguments and doc selections onl in responding to the MSJ? Or try to respond to the MSJ arguments and doc selections AND the complaint arguments and doc selections in responding to the MSJ? They are quite different, even though the cause of action is same at high level. And magistrate is very friendly to other side.

Would there's be the opportunity for the other side to respond to my opposition to the MSJ and for them to THEN bring in the legal arguments and POA/ trust doc sections they aren't including now in the MSJ from the original complaint?

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:'s+Landing+v++Ju+Jus+MSJ.pdf)

Customer: replied 4 years ago.
Thank you. XXXXX undoubtedly come back on all of this with you, so thanks.

Another topic: my pretrial statement I faxed to the judge on the order, and sent plaintiff and all others copies and copies of exhibits. At the pretrial hearing, the magistrate (not the judge) told me I faxed it to the wrong place at court. I apologized and told him I sent to all other parties and asked if I could refile it to the right fax number, he said I could and that it is late.. I am thinking I should refile, but with a motion for leave of court with an extension or something, with an explanation and the receipts showing I faxed to the judge, and that th other parties aren't disadvantaged because they all got theirs? Or suggestion? I think I have filed things this way before so did not know. Not good, I know. Thank you.

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 .

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Customer: replied 4 years ago.
So, note the instructions as you say but not move for leave of court for extension to file or anything? Don't you usually also have to ask for leave to file something late, or are you thinking it's already been approved for late entry because of what he said? Given the environment, I probably need to do whatever has best chance of being OK. Thanks very much.

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.

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Customer: replied 4 years ago.
Thank you very much for your in depth and helpful answer.

What do I call a request for clarification of schedule status to the magistrate?

Also, there is a basic set of facts and law (statutes and cases) that support my position I believe. (many of same facts of the other side, some additional, and then law and the POA and Trust docs themselves) - the exclusions we talked about and in combination with one another. I had to choose between getting in amended affirmative defenses and other motions in exclusions, and did the defenses (the deadline for motions was the pretrial hearing date). How best to leverage that now? Should I attempt to file a motion (partial or total) and ask else for an extension? Or is there a way to use a response to an MSJ to do more than just negate their arguments and prove there is material fact?

Than you very much.
The request for clarification of a scheduling issue would be a letter to the Court Clerk (you may address a copy to the magistrate as well, but the proper recipient would be the clerk). You could simply ask the Clerk what the scheduling is, and if the trial is still on calendar as there was confusion in the last hearing. While the clerk may be difficult over the phone, they should respond to a written request, particularly when copied to the Court.

Most MSJs do have common legal issues with both the motion and the opposition - these arguments showing the proper application vs. the application argued in the motion are key to your opposition. Additional law and facts are of course equally important - but this is all dependent on your specific case and facts.

The affirmative defenses you have included in your pleadings will come into play at your trial, and in the MSJ. You can argue that the Plaintiff's motion should fail as the affirmative defenses defeat the causes of action, and that you have facts and legal argument sufficient to support your affirmative defenses. (This again does not mean you win on the affirmative defense, only that there is a triable issue of fact, therefore the MSJ fails).

Regarding a motion to exclude evidence (motion in limine) or a motion to extend time to file such a motion - I cannot advise you as to whether or not you should file these motions, you can file the motion now, or there may be an opportunity to do so as you get closer to trial, (either way you would be asking the court for additional time, you would need to narrow your request for relief to very specific and very clear evidentiary exclusions - issues that clearly should be excluded from trial as opposed to those issues that are based on procedural issues such as the Plaintiff's failure to disclose) but remember the importance of defeating the MSJ when managing your time.

The MSJ is limited to just that. You need to defeat it by showing there is a triable issue of fact as to each cause of action, or that there is a triable issue of fact as to an affirmative defense to each cause of action.
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Customer: replied 4 years ago.
Thank you for the suggested sources earlier also, they were very helpful.

Does a MSJ have the same burden of proof as would be required in a trial? So you could show question of material fact relative to the elements needed for the cause of action?
The burden of proof would be the same. The moving party must show that the facts supporting the motion are either undisputed or that there is no reasonable dispute as to the facts supporting the causes of action, and that the affirmative defenses are not supported by any reasonably disputed facts.

To defeat the motion you only need to show that there is a "triable issue of fact" as to any one element to the cause of action (or causes of action) in the motion. To do this, you must show that either the exhibits that are being introduced by the moving party are not admissible, are not relevant to the element they are purported to support, or are a misrepresentation of the statement. Alternatively, you can show that there is contrary, admissible, evidence that would raise a "triable issue" as to whether or not the moving party will succeed in proving its case in chief.

As to the affirmative defenses, you need to introduce admissible evidence to support each element of each affirmative defense to show a triable issue as to each of them. If the moving party has introduced facts to negate any element, you may have to address those facts to create a triable issue (this depends on the motion).
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Customer: replied 4 years ago.
Can you point me to examples of MSJ's and examples of responses to MSJ's? The MSJ is 18 pages with 200 pages of exhibits attached (copies of every check individually, not just overviews, POA docs, etc). Problems with factual statements that are inaccurate, facts known important not cited, inaccurate citation (highly redacted and out of context) of trust and POA docs, laws not applicable cited - so lots wrong. Trying to tell best approach to attack and still tell alternate story, but not do more than should.
I will send you some links to examples a little later today when I am back at my desk. Unfortunately, what you are describing is the general nature of MSJs. I will get back to you as quickly as I can.
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Customer: replied 4 years ago.
thank you very much. Believe I have a lot of potential arguments and facts, as originally did a detailed motion to dismiss and have been digging in a lot all along., on cases and statutes also. So thank you for all your help.
Your memorandum of points and authorities in opposition should be that - a memorandum of the legal authorities and arguments on the facts at hand, not necessarily a minutia argument as to each issue of fact that is misrepresented by the other side. While using these factual misrepresentations strategically can be effective, trying to do so for each misrepresentation in 200 exhibits will overwhelm your opposition.

Instead, use your opposition to the separate statement of undisputed fact to identify your opposition to each factual point that you disagree with. When you do this, you both allow yourself more room to write your memorandum of points and authorities effectively, and you can identify the factual misrepresentation along with your own factual support for your position. (usually this is in a three column chart formula where you enter the exhibit or "undisputed fact" in the first column, whether you agree to the fact or disagree in the second, and your evidence supporting your position if you disagree in the third. You will then need to introduce your evidence (usually a document supported by a declaration authenticating the document).

Here are some links to different articles describing ways to maximize your opposition, as well as sample oppositions to MSJs to provide you with some different perspectives from my own, and ways to formulate your own arguments. You can find additional ones using a simple internet search, after reviewing a couple you will get the feel for how these are put together.

The fact that you already have the law down will greatly help you in this motion. Researching the law that they cite, particularly to see if the law is actually on point, or if it has been overruled or contradicted, is especially important.

(I provided several links - there are more that you can find using a search for "opposition to motion for summary judgment" or "sample opposition to motion for summary judgment", some may be more helpful than others, and there is no need to read each of them, please use them at your discretion and as best suits your needs, as always I am more than happy to answer your questions and I hope this is helpful and not overwhelming on top of your current motion, the idea is more to give you a feel for the way these are structured rather than for a detailed read of each).
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Customer: replied 4 years ago.
Thank you very much for your help, and for being so responsive. This is a situation where I think the law and facts are on our side, but not easy to get through in the right way as a novice.
These motions are time consuming, and I do wish you the best. As always, if you have any questions please do not hesitate to ask.
Customer: replied 4 years ago.
Any way to talk with you on the phone?
Unfortunately, under the terms of the forum, I am only permitted to contact customers directly through the website. I am sorry.
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Customer: replied 4 years ago.
That's OK. Your help is excellent, s thank you.Can you help verify how long I have to respond? State law says you can file opposing affidavits up to day of hearing, with no mention of any response paper against for example their arguments or law and doc citations, but any motion has to be filed 14 days before the hearing. A separate county rule just on motions (not MSJ per se) say any memo contra to any motion must be served within 10 days of the motion. 1.). An affidavit is separate (I would assume attached) to an argument response overall?2.). How do you read these deadlines? Thank you,
The local rule cannot contradict the state rule by giving you less time or making it more difficult to respond (similarly it cannot restrict the Plaintiff), but the State Rules of Civil Procedure are somewhat vague on this matter.

What County are you in?

Clareomont County for example has a very clear set of rules on when MSJ oppositions are due:

While declarations may be acceptable if late in some instances, if the statute or rule you are referring to is specific to only allowing those very very near the date of hearing, I would assume that this is only for those documents and that all of your Points and Authorities and exhibits must be introduced at the earlier date (either 14 days from date of service, or 14 days prior to hearing, whichever applies to your county). In either event, putting together a declaration is relatively straightforward for these types of motions in relation to the complexity of your points and authorities and the drudgery of your opposition to the separate statement of facts, so it usually is worthwhile to do so at the same time.

Also, I have not reviewed the Ohio rules on MSJs thoroughly, but in California, there is a rule that the moving party is required to provide a Word copy (or other computer file equivalent) of the separate statement so that it is more cost effective for the responding party to go through and make their objections with referrals to evidentiary support (or agree as appropriate). This is also easier for the Courts as the format is easier and they only have to review one set of docs, since it is the same one that was drafted by the moving party.
Customer: replied 4 years ago.
Hamilton count common pleas. Also, the plaintiff has no separate statement of stipulated facts, just a text document that us mostly quotes from laws or cases, some statements of facts.
You have ten (10) days from the date that the motion was served on you to file your opposition.

This is not a lot of time, but it should be sufficient if you are able to work through the matter methodically.

If there is only a single document, it is likely the memorandum of Points and Authorities alone. If there is no separate statement, you do not need to address them in a separate document, and you can address them within your own "points and authorities".

The use of a separate statement can be helpful as it allows for the use of additional space in your memorandum, but I do not see a specific allowance for this document in the local rules. In either event you can still address the misstatements of facts (don't waste time or space if it is immaterial to the case, or is not building your argument, but you can use these misstatements to your advantage as best fits your case and arguments within the memorandum).

Just to make sure I am reading from the same rules, here is what I have found: (from the Court site:
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Customer: replied 4 years ago.
It's in probate but that's under common peas, so I think that's correct. Thanks.In motions for summary judgment can you add evidence that you have that has not been introduced into the case yet (in discovery or testimony for example) - either documents (letters, emails, accounting numbers for expenses, etc) or your account of events in a new affidavit for example, Or do all t facts have to come out of a document or transcript of an event that has happened specifically in the case?
Customer: replied 4 years ago.
Also, can I make an exhibit that combines or calculates numbers based on facts or numbers in case documents? I want to show some percentage comparisons.
Yes you may. They are not admissible as evidence, but you can use them as "demonstrative" exhibits.
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Customer: replied 4 years ago.
Can I oppose based on new evidence / documents that I have that have not been introduced into the case yet, if with an affidavit that shows I can attest to their authenticity (vs only relying on what has already been included in discovery, testimony etc,?

What to do if the plaintiff is grossly misrepresenting basic material known facts (on purpose ) to manufacture a fit with law and elements of actions? Less an issue of material facts not known than material facts conveyed very inaccurately - several very key ones. Surprisingly blatant.
As to the documents that were not introduced in discovery, if the documents were not identified in discovery requests by the other side you may introduce them and use them without any issues. They are documents relevant to the case, they can be authenticated (either with declarations or affidavits by you or another person), and they can be used to provide facts in support of your opposition. If they were asked for, but not produced in discovery, you may have an issue of the Plaintiff arguing that you are precluded from introducing them for your failure to produce. You have a call as to whether it is worth trying to introduce them and dealing with this argument or not (it may distract from your argument, or it may enhance it if the judge allows it and the documents - usually on the grounds that the documents were equally available to the other party and there is no surprise or prejudice to the other party).

With regard to misrepresentations by the other party. This is extremely common in many types of motions. Unfortunately the truth is stretched to amazing lengths, and it is the other party's task to show the court the true nature of the facts by citing the inaccuracy and the facts to support their side. To do this you are effectively discrediting the other attorney, or impeaching them. You call out the fact as cited by the other party (the inaccurate one), then you show the fact (the real one) and then you show how the other side only cited a part of the document, or a part of the facts. You can find other ways to do this depending on the facts, but simply call them out on the big facts or issues and as you do it multiple times the credibility decreases, and the judge loses confidence in the party's ability to tell the truth as to the facts, and similarly the truth as to the law. Your argument however builds credibility at the same time. (You do the same with the arguments of law).

You likely have your own arguments of law and issues of fact you need to build in as well, you do not usually spend your entire argument identifying faults in the other party's argument, and you likely have to include your own independent arguments.

As always, please remember the caveat - these are general considerations, and your argument in opposition may vary, please accept this only as a general construction. Other attorneys have different styles and different approaches as well.
Customer: replied 4 years ago.
The known fact cited accurately with the actual doc authority (POA, etc) and supporting cases and law would support a decision in my favor on many claims. How can I include a cross motion for summary judgment with my opposition? Outstanding facts are not many.
You would need to file your own Motion for Summary Judgment.

This is permitted procedurally, I just do not know whether or not it is permitted in your case under the current pre-trial order (do you have enough time?), it is possible that you do, and competing motions for summary judgment are common.
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Customer: replied 4 years ago.
What is a judgment option if the actual facts and law in the case don't support the movant's position in an MSJ and also dont't have outstanding material facts (for at least some claims)?
If facts and law do not support the motion, the motion should be denied.

If you are talking about the situations where the party is misrepresenting a material fact - that becomes an issue of disputed fact as the parties dispute which is the truth.
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Customer: replied 4 years ago.
Some of my counterclaims I do not think belong under the probate court, even if they are connected to the same events invoved in the complaint. The plaintiff barely responded to counterclaims in their MSJ. With a trial potentially next, how should I handle the counterclaims in the MSJ? And who is responsible of claims or counterclaims are filed and pursued in the wrong court? I think I saw something about parties being responsible for costs if they file in wrong court? Thank you.
The party that has filed the affirmative claims (either as the complaint or cross-complaint/counter-claims) is responsible for their own pleadings.

This means that the Plaintiff has no duty or obligation to address your counter-claims in their MSJ. They can limit their MSJ to only their affirmative claims, and only out of necessity address your affirmative defenses to those claims.

If they have not raised any of the issues in your counter-claims in the MSJ, and the counterclaim issues do not act as defenses to the MSJ (either as affirmative defenses to the claims, or by raising a triable issue of fact to any of the claims), then it is not beneficial in most cases to raise those counterclaims in your opposition, this is not the proper paper for you to bring those issues to the Court's attention unless it is somehow related to the Plaintiff's motion.

As far as the appropriate venue for your claims. If your claims are brought in the inappropriate venue and the other side does not object, the court assumes jurisdiction over the claim and you can proceed. In most cases, if the opponent does object, they must do so early in the case (usually before they file an answer), and it is not unless you fail to change the case to the proper venue voluntarily that you become liable for any attorneys fees and costs the other party incurs in a successful motion to change venue. What this does is give you an opportunity to review their objection to venue and either agree with their position and move to a different court on your own, or oppose it, but risk incurring fees for their motion if you are wrong.
Customer: replied 4 years ago.
Their motion is actually entitled Motion for Declaratory and Summary Judgment. The complaint type from the very beginning has been for a declaratory judgment only. I have at times raised this in hearings, as I believe the original purpose of the complaint was much more declaratory judgment than it is now. The original complaint focused on having the court declare that they are the trustee and other items. Filed motion to dismiss, they filed amended and much escalated complaint citing much wrongdoing by me that do not believe is right, and demanding funds as well as punitive action (with no substantiation as to why). Raised the question of jurisdiction by the court in my pretrial statement on the items that are not declaratory judgment in nature, and believe there may be a misfit on some of these. Should I raise this again in my opposition ? And is it significant that this is a motion for declaratory and summary judgment?
The most recent complaint is the "operative one" and you must work with that framework, even if the facts alleged are nonsensical. You can dispute them in your opposition of course, but by filing an amended complaint they effectively expanded the scope of the lawsuit.
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Customer: replied 4 years ago.
Does it matter that the motion is for a "declaratory and summary judgment?". Any difference from just a MSJ?
No, they just identified the type of additional relief they are requesting.
Customer: replied 4 years ago.
I have been questioned without any advance warning at times in hearings in subjects not related to the hearing that was benign held. In one case, the hearing is from a different case (for the estate) vs. the civil suit case. Can I object to the entry of testimony from another case, that was not noticed ahead as a deposition but is trying to be used that way?
Unfortunately the statements made in court in response to either issue can be used in the court proceeding. However, if you can show through your moving papers that the response was due to questioning on a matter unrelated to the main hearing, or was a best effort or best approximation on your part to respond truthfully to the Court, and that you can show there is a reason why there may be a distinction between the words as shown by the Plaintiff in their moving papers either due to blatant misrepresentation (partial transcripts showing only those portions favorable to the Plaintiff for example), or simply due to the fact that after further consideration and the time to more carefully research the matter you have a different response and you can supply evdentiary support for this new response which refutes the position put forward by the Plaintiff.

So, you cannot object to the introduction of transcripts of prior testimony, but you can vigorously attack the unfair, improper, or selective use of this information.
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Customer: replied 4 years ago.
I have written twice to the court asking whether the trial will proceed on the same day as originally scheduled, given that we have an MSJ hearing now scheduled, if the MSJ fails. One of my requests has now been posted as a motion for clarification for the same day, the other was a memo/letter with the question sent to the magistrate, and I have received no response. There was no discussion of timing, order, procedures, evidence in or out, witnesses or anything about the trial at the "pretrial hearing" - it was all about the MSJ which the Plaintiff delivered at that time. Are there procedural or content issues that could normally have to be discussed or set in some manner before an actual trial? Two days were originally set on the schedule order. No other notices or anything about it have been rendered.
This is a matter of preference for the judge.

If you have a bench trial (no jury), there generally is less of a need for pre-trial conferences or discussions as the Court can sift through the issues on its own and schedule the trial accordingly.

If you have a jury trial, pre-trial motions and a meaningful pre-trial hearing are helpful. It is possible to go through pre-trial motions the morning of the first day of trial, I have had judges do that as well, but it was calendared that way in advance. At the least you do have the ability to file your pre-trial motions, if nothing else it will protect the matters on appeal, but it will force the Court to examine the issues and hopefully make a ruling.

Submitting pre-trial motions or motions in limine a day or two before trial if there is no pre-trial conference or other calendaring rules to help (there should be at least a deadline to file motions somewhere), will put the matters at issue before the Court, and again preserve the issues for appeal. If prejudicial information or exhibits are admitted into the trial, it may be sufficient for an appellate court to re-examine an adverse judgment.

I do not know what is going on specifically with the calendaring in your case or why you are being given minimal information, and consideration, but the only way to protect your case is to keep moving forward with your papers and motion work, and do not miss any opposition deadlines, particularly on this MSJ.
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Customer: replied 4 years ago.
The "motion for declaratory and summary judgment" includes response to my counterclaims, in which the plaintiff is seeking judgment as a matter of law that my claims either fail to state a claim for relief, or fail to establish injury, lumping 4 counterclaims together. Isn't this a motion to dismiss, and can it just be included like this?
Oppositions to your affirmative claims can be included in the MSJ. In fact, the most common use for an MSJ is to defeat an affirmative claim by showing some defect or lack of evidence that would stop the moving party from winning under their cause of action even if the matter were to go to trial.

To defeat this attack against each of your 4 affirmative claims, you will need to show why the "lump attack" fails to defeat the element that they are claiming you have failed to state sufficiently.

For example: in a more common MSJ brought by a defendant, the defendant would argue that the plaintiff's case fails, and judgment should be entered against the plaintiff, because the statute of limitations applies to each of the causes of action (even if the statutes are different lengths). The plaintiff would respond that the MSJ is not appropriate because there is a dispute over when the injury was discovered, thus creating a triable issue of fact in which the Plaintiff can show that to the jury that the injury was discovered later than what is claimed by the defendant.

You will need to address the MSJ as it applies to your claims, while you do not need to prove your claim absolutely, you do need to put enough information into evidence to show that there is a basis for your affirmative claims and a basis for the Plaintiff's liability to you. It usually makes sense to place all of your admissible evidence into your motion as a loss on this motion means an end to the case, but this is a litigation strategy decision.
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Customer: replied 4 years ago.
The motions to dismiss have to meet a standard that assumes that all the counterflaims pleadings are factually true, is that right? (12(b) I think). Can I also in responding to their motions to dismiss (or declare as a matter of law) add any additional facts or argument or law to fend off their motion to dismiss, in part because this is in an umbrella for motion for summary judgment?
This is not a motion to dismiss, so the Rule 12 standard does not apply.

The Plaintiffs have moved for Summary Judgment, and the standard is that unless there is a triable issue of fact judgment will be entered in their favor on each of the issues or causes of action they have identified, both their affirmative claims and your's.

Unlike a motion to dismiss where you can defeat it based on a presumption, at this point in litigation you must be able to show admissible evidence to support your position. Many claims that beat a Motion to Dismiss later are turned down in a Motion for Summary Judgment as discovery and investigation simply do not reveal sufficient admissible evidence to support each of the elements of the claim at trial.
Customer: replied 4 years ago.
Their responses to my countclaims read very diffently than the main MSJ part. They are making blanket statements like "the remaining allegations fail to state a claim on which relief ma be granted" referring to my pleadings that included statements of facts and law and had documents attached for evidence at the time, without any further substantiation of why they fail or what the standards or elements would have to be or citing any law They don't even list what they claim undisputed facts to be, or cite boilerplate like statute of limitations. Just states that they seek judgment as a matter of law that they aren't liable. What do they have to show to do this? Sorry if this is repetitive.
It is not repetitive at all.

It appears that they have not done a very thorough job of making their MSJ as to your affirmative claims for whatever reason. Regardless, do not dismiss it and make sure that you show thorough admissible evidence to support each and every element to your affirmative claims. Defeating a "boiler plate" motion is not always as simple as it ought to be, but you can certainly draw attention to the fact that they were lazy and incomplete in their efforts to attack the causes of action.
Customer: replied 4 years ago.
That I cannot get my question regarding whether there's still a trial is serious given that I'm being accused of significant wrong doing and I have now tried 3 different things, 2 in writing. One of my requests has been made a motion on the first day. There is much wrong on the other side. Not to sound overly dramatic but this is some kind of violation of civil rights or something to not be able to even know this. Other ideas?
If it is not on the website, they won't respond to written requests, and the judge won't address it until the first day scheduled for trial. I don't have any better idea than going to the court and asking court clerks until you get an answer.

This is an unusual and frustrating situation, the best advice I can give you is to prepare as if trial were to start that day (I understand you are preparing for the MSJ on the same day, but if you have your exhibits ready to go and you are prepared to move forward with trial (opening statements, motions in limine prepared, etc.) you will avoid being caught unaware.
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Customer: replied 4 years ago.
Thank you. What is the standard for picking cases to apply to a situation? Is there a term for needing to select cases that actually "fit"? Or a term or standard for what is not a good "fit"? The other side is using things far afield and I have good cases that are close.
There is a hierarchy for finding cases. The closer the fit the more persuasive your cases will be (the better the authorities). If the other side can only find cases that are "approximate" or referenced to the matter, but you can find cases that are identical or very close, your cases will have far more weight and should be given more credit than the opposition's.

This of course is subjective in some respects, but the closer you get with the facts, the better you can argue the application of the law will be the same.
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Customer: replied 4 years ago.
toHow do I object to evidence they have included with the MSJ so that I don't condone its admittance - in my response?

You have two options (you may do both). You can make objections to evidence as part of your points and authorities (for example, they argue that the light was green because Susie Jenkins says so, and in your opposition you argue the light was red because of the dept of transportation records, and Susie Jenkins testimony should be stricken because it is hearsay); and you can file a separate document that is an "Opposition to Evidence in Submitted by Plaintiff in Support of MSJ" Where you would identify each document or other piece of evidence and make your objection as to evidence.
Customer: replied 4 years ago.
What are material facts they omit completely? Do they go under disputed facts?

And is a statement like "x breached his fiduciary dutie to y" a statment of fact! It implies that that's who duties we're owed to, etc.

If they omit material facts, you simply add them into your points and authorities, then you submit your own "Defendant's Separate Statement of Undisputed Material Facts" using the same format we discussed: Columns with Column 1: fact; Column 2: exhibit supporting the fact; Column 3: Undisputed/Disputed: blank

The statement "x owes a duty to y" is a statement of law. The facts such as x was y's attorney is a statement of fact, then you would use the case of john v. joe says attorneys owe a duty to their client to make a statement of law that x owes a duty to y.

Statements of law go in your points of authorities, not in your separate statement.
Customer: replied 4 years ago.
I do not see a specification in Ohio for any formats needs for this? Or exhbit formats like this? The plaintiff never responded to stipulation of facts in their pretrial, just wrote text on other topics, and their MSJ is similarly just text with some subheadings: intro, factual background (listing some facts, combing some portions of trust and POA docs with some evaluative statements that aren't accurate), Argument with what they are entitled to. Where would I see a need to do something different back than they have done? Or is that just smart to do?
The format is up to you. You can copy their format as it is most likely assured to meet the standards requested by the Court, or you may use a format that you feel is easier to read and clear to the Court. The format I suggest is what is used and required in CA. I do not see any formatting requirements in Ohio, and the vacuum suggests that there is room to submit documents at discretion of the litigant.

I would use a format that is clear and understandable. From your description the Plaintiff's papers were jumbled and unclear, perhaps you can use a similar format but make it clear and easy to read. This is a judgment call you will need to make, but the most important thing is to make sure your arguments are clear, the format is easy to read and that you get it in on time (a later pleading is less effective than one that has a different format).
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Customer: replied 4 years ago.
Can you point me to elements of "self dealing"? Being claimed very generally only.

Also, if you never saw or knew about a document, what is the principle that says you cshouldn't be held accountable to following it (a trust)? I see law about not knowing about an amendment, but this was even the original doc.

Thank you very much.
Unfortunately, this gets into the area of practicing law. The claim for self dealing is a very general cause of action, the defendant must be in a fiduciary relationship with the plaintiff, must engage in conduct that is a breach of that relationship, and must benefit, or intend to benefit from the transaction ("self" dealing). The tort is usually plead very generally, and the case law analysis is very fact specific, to attack this tort you will need to do analysis from several cases that are on point (there are many) and show the distinction of your case from those that found liability, and similarity to those that did not.

Similarly, the case law that you have already found may have similarities close enough where you can draw analogies and references sufficient to create sufficient authority to support your position.

I wish I could help you further on this issue, but I cannot do the case law research and analysis, it is just far too close for me to feel comfortable under the rules of the forum and my state bar restrictions, but I am more than happy to consider answering your further questions, and even if you are in doubt as to whether it is within the proper scope or not, please ask and I will let you know.
Customer: replied 4 years ago.
thank you. To wha extent can you hold the outside accountable for their attorney's statements in court hearings? They at trying to claim as fact things they agreed otherwise to in other hearings.
You should be able to hold the other side accountable for what was said or done in prior hearings - they are making representations to the court which are supposed to be truthful to the best of the attorney's knowledge, information, and belief. It is difficult to separate issues of fact from issues of law. Usually it is far easier to hold the other side to issues or arguments of law made by counsel as opposed to their statements of fact.

The problem is that they can usually argue that through discovery and investigation their interpretation has had to change, so do not rely on this too much, but you can bring it up in trying to show the different arguments. Your position is stronger given the stipulations to fact, but be careful not to put your entire argument into this position. If you can find some case law binding a party to earlier argument/facts that will bolster your position significantly, but there is no outright prohibition on it, it just decreases the other party's credibility.
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Customer: replied 4 years ago.
What happens if a court doesn't have jurisdiction on a part of a case? This is Probate and there is a contract involved done prior to the principal's death.
The court would be unable to render judgment on those issues outside its jurisdiction. The matters within its jurisdiction are still subject to a valid enforceable judgment, but the facts and evidence for the case include all of the relevant facts and evidence.
Customer: replied 4 years ago.
How do I protect against a segmenting of the case in an unfair or illogical way?
If they are making a motion to do so, you need to oppose it (usually there is legal authority in those situations).

If they have structured their argument in an illogical manner, it is up to you to draft an opposition that shows the facts and law in a clear and concise format. There is no requirement to draft a mirror image document, but I would advise trying to keep it so that a judge can easily reference your arguments against theirs. You can bring up their attempt to obscure the issues as a rhetorical point (it is sometimes effective).
This is largely an issue of style and strategy to make your argument more compelling beyond a position on the facts and law.
Customer: replied 4 years ago.
Can I and should I refer to their Exhibits in my evidence vs, filing another copy with my opposition? And how do I "use" a page of their Exhibit, for example, without admitting the entire document as OK for evidence?

Exhibits that were only filed with the other parties not the court (for pretrial they only wanted a list), I would have to refile them with my opposition to use them, is that right?
The easiest way to make sure that you are specific and precise with your exhibits (what you are relying upon) is to identify each and every exhibit in your own motion and in your own declarations for authentication etc. This way you can object to introduction of evidence without placing your own motion at risk (even though your own objection is only as to part of the opposing party's exhibit).

If an exhibit is not filed with the Court it is not (or should not) be considered in the motion. Any such exhibits would have to be authenticated and filed with the motion in order to substantiate your arguments.

In order to simplify the matter - your arguments should rely on "Defendant's Exhibit 1, 2, 3, etc." and your opposition to their arguments would be stating that Plaintiff's Exhibit A, B, C, etc." lack evdentiary foundation, are irrelevant, are unduly inflammatory, or whatever the applicable objection is for each exhibit. You can also reference specific exhibits in the Plaintiff's papers in support of your own motion, but it does not hurt to use them as "Defendant's Exhibit 12, Plaintiff's Exhibit B" (showing that both parties have used it as an exhibit).
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Customer: replied 4 years ago.
is it all right to refer to a document on file with the court already ( a previous affidavit or document, for example) or should this "stand alone"?By the way, I can't thank you enough for all your help.What is likely "up" if the plaintiff has added a good chunk of filing money to the case account at this stage?

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.

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Customer: replied 4 years ago.
A jurisdiction question: if someone testifies voluntarily at a trial for another party, are they voluntarily subjecting themselves to a court or state's jurisdiction in the event that someone wants to then add the, to the case?

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).

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Customer: replied 4 years ago.
I filed the opposition. The rules say the adverse party can file affidavits up to day before. I would like to add evidence with an affidavit, does the affidavit cover 1.) that I have personal knowledge, .2) that the attached document is authentic copy. Can it also included statements of events that occurred? And what about any explanation of why something was done by me?
Affidavits cover facts.

This includes facts that are within your personal knowledge vs. argument as to why the facts support your position,(the distinction can sometimes become blurred so there is a judgment call and strategy as the other side must oppose statements in your affidavit, and you need to gage how much you are willing to risk on opposition or how much opposition you believe will detract from the merit in the remainder of your document). Depending on the nature of your litigation, if your thought process is at issue, statements as to why you did something at the time you did it would likely be considered relevant statements of fact.

You can authenticate documents, and attach the documents as exhibits.
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Customer: replied 4 years ago.
Is there a way to group or organize statements of fact and attached documents, because there are multiple causes of action and also claims vs. countclaims?
There is no set way to organize your document, chronologically is usually my personal default, but the main goal is to make the document understandable. If you need separate sections for each cause of action you can use that as a framework add well, but remember, the judge is likely to only read it once, so make it easy to read and supportive of your main points.
Again, these are my personal guidelines, even I vary depending on the situation, so please use your discretion.
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Customer: replied 4 years ago.
Can/should I state a fact and then include "(see exhibit x attached)? Or do separate statements: I did x. Y is a copy a letter I sent to B.?

Is it permissible to state that you have never been told or instructed about x by any person? Or that person x never instructed or told me about Y? I am being held accountable to documents I never was given and didn't know existed. The same law firm that would have been responsible for giving them to me (as my parent's attorney and mine while POA) is the law firm suing me in court for not following the trust docs they never gave me.
You can use either format, although the second is far more effective and less likely to be attacked due to form.
When drafting a declaration, remember, each statement of fact or authentication of a document has a separate, independently numbered, sentence or paragraph. You avoid objections to your declaration, and when declarations are sustained they are compartmentalized so they only affect the specific fact or document being objected to.
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Customer: replied 4 years ago.
I have had a person repeatedly saying one thing in the phone and then writing me a letter that falsely stated both what they said and what I said. Those letters are now being put in as evidence.

I have a couple of letters to the executives of the company before the lawsuit in which I was specifically objecting to this creation of a false paper trail.

In additon to entering my letters, can I state as facts things like:

I never said X.

I was told Y not z. ?????

Thanks by much.
You can definitely include this information in there. You may want to include whatever exhibits or letters that support your statements. You can note that these "confirmation letters" were prepared unilaterally and you did take issue with them at the time (showing that you did not simply ignore them). Those are some of the issues that usually come up (This is of course a tough issue, but this is one way to tackle it).
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Customer: replied 4 years ago.
What is the fatest way to get confidential information that is published by the other side in court filings deleted? The other side included multiple pages of confidential bank and Id info, unredacted in their motion. I wrote the Plaintiff's counsel immediately and called, as the local rules as this type of info should not be published. I got no response, wrote the bank execs, they said they would fix, now the counsel has a motion in to ask to have info redacted that won' be heard till next week. There must be some way this is normally done fast with this type of sensitive info?
The only way to have a request for redaction heard more quickly is to have the motion moved to an "ex parte" motion. As I assume you do not intend to oppose the motion, you could offer to send a notice of non-opposition to the other attorney and ask that the motion be heard ex parte (or on 24 hours notice), this will advance the hearing.

Alternatively, you can appear in court ex-parte (give the other side 24 hours notice of your own motion to redact per the applicable rules), and include in your motion the opposition's papers. To qualify for an ex-parte, the standard you need to show to the court is why the delay from this week to next on the hearing will cause you irreparable harm, and therefore the court should issue relief on this shortened notice.

Check your local rules regarding notice for ex-parte appearances (I was unable to locate the specific rules for Hamilton Co. online, and do not want to lead you astray).

There is no special hearing schedule or set aside for this type of matter, so you will need to look to the general motion rules.
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Customer: replied 4 years ago.
So, how now to be prepared for trial with no instructions and no idea of how much time anyone is going to have?


Also, do I need the originals of everything? Potentially a lot of material.

Thanks for the help, very much.
Trial prep is a lot like getting your Opposition to the MSJ prepared. You need to make sure you have your exhibits in order, your objections to their anticipated and actual exhibits, and a good understanding of the elements for each of the causes of action, both their claims and your affirmative defenses, then your counter claims.

Use the jury instructions as a checklist to give your preparation some framework (I still like the California Civil Jury Trial Instructions: as they are very complete).

For your exhibits, you will need a lot of papers: you need a copy for you, a copy for the opposition, a copy for the judge, and one for the witness. (4 copies of everything). If it is a lot, prepare exhibit binders and tab and cross-reference them so that you can find them quickly and refer everyone else in the room to the proper document.

The trick to trial is being organized, you can have a really great day at trial even if the other side "beats you up" on some evdentiary issue, just by looking better, having your documents at hand, and being able to respond to their issue quickly and calmly with a reference to "exhibit L".

You can also build your trial theme by grooming the elements for every cause of action and making sure you submit at least one piece of evidence or testimony to support every element. (some documents or exhibits will submit more than one).

Finally, practice moving exhibits into evidence. (Do this a lot) You will improve your poise, and avoid a lot of unnecessary objections which will throw you off. (If the exhibits are not "premarked" you will have to ask "Can this be marked as Exhibit K" first) First identify the document (This is Exhibit K), so everyone knows which page in their exhibit books to be looking at; then to the Judge "May I provide the witness with Exhibit K" ), judge says "yes"; To witness, "Do you recognize Exhibit K?", witness says "yes", You ask "what is Exhibit K?" Witness tells you: it is a letter, a bank statement, a candy bar wrapper, etc.", You ask "How can you Identify It?" Witness States "It has my signature, I recognize the handwriting, a coffee stain from where I left my latte, etc." You ask the Judge "Your Honor, may I move Exhibit K into evidence?" Judge says "yes". Exhibit K is now in evidence and you may ask this witness and any other about Exhibit K.

I will see if I can find some trial guide summaries available online to forward to you in the next day or two.
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Customer: replied 4 years ago.
Are there ways that a spouse can help a defendant doing their own trial, who is not a lawyer?
A spouse may not represent a party, but many courts will allow the spouse to assist in organizing documents, keeping trial notes, and even consulting privately at the counsel table. You may want to ask before hand, or be prepared for this to be denied, but there is no reason the court should not allow the spouse to fill the role of a paralegal.
Customer: replied 4 years ago.
What responsibility does a party have if they are listed on a pretrial statement as a witness?
A party identified as a witness must appear at trial as a witness, there is no need to issue a trial subpoena as is required for third party witnesses.
Customer: replied 4 years ago.
This would be a non party, is a spouse of a party

Also, if I want to provide some information because I think it will help clear up some things, but the info is related to a business in which I am not an owner, how should it be marked or what should it say on it s that it is clear this is for a limited purpose and provided with permission only (something like?) to help out and not to say that it's now OK to make those topics part of the case?
The spouse of a party must be subpoenaed to appear as a witness by an opposing party (they can appear voluntarily, but cannot be forced to appear).

Business records can be introduced through the "custodian of records" or the person who is familiar with and responsible for keeping those business records under Ohio Rule of Evidence 803 (6).

Here is a copy of the Ohio Rules of Evidence (this will be vital to you during your trial):

(there are publishing companies that publish summaries online or in print for trial that can be helpful, but you can use them at your discretion - the introduction of evidence and blocking the other side's evidence can make or break your trial as it is built entirely on what is admitted to support each and every element).
Customer: replied 4 years ago.
I am actually responding to one last discovery related question I was compelled to do (even though they had nev asked for this info before). But it's technically not my information to give, related to my spouse's business. So any suggestions on how to provide but make it clear I am not just volunteering up info tha isn't mine and not agreeing that the scope should be expanded?
Unfortunately, this is more of a litigation call that you will have to make. Ohio has adopted Federal Rule 26(b) which governs the scope of disclosure and probably covers this matter. Parties must disclose information unless it is less cumbersome or expensive for the requesting party to obtain it from a third source.

You can find Rule 26(b) and the relevant language here:

If you provide documentation, I always recommend making a formal response to the demand, where you answer each demand or request for documents item by item, making your specific objections, and if necessary your production with reservations such as "information provided in the interest of furthering the matter, but without any representations as to accuracy etc. as is coming from a third party" or language that you feel comfortable with or as suits the situation.
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Customer: replied 4 years ago.
Can a person authenticate a document for evidence by doing a notarized affidavit for me to take to court? So that it isn't just me saying it?
At trial, documents must be authenticated by testimony. Here is another publication that may be helpful regarding how to get exhibits into evidence:
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Customer: replied 4 years ago.
Is there an way for a person who can't attend a trial to provide I input, via an affidavit or something? We're dealing with people in far distance from the court.
The only way to get testimony into evidence is for the witness to actually appear. There are very limited exceptions which you can find in evidence code 804.

The idea is that the other side needs a chance to cross examine your witness and the court must evaluate the witness' veracity.
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Customer: replied 4 years ago.
I have a situation where the basic claim I believe is not supported by fact or law, and the plaintiff continues to expand the scope of their questions (in hearings and in has been in discovery) to try to "dig up" information that tries to portray me and my spouse generally in a bad light, that is beyond the basic question of whether I was authorized to do what I did as a POA and seems either intended to embarass or has some legal purpose I don't understand. One objection I made was met by the magistrate saying " well, you'll have to answer this sooner or later" with no other clarification. Besides me saying something is not relvant, what can I cite that helps bolster this line?
As far as the scope of discovery goes, they may be permitted to ask. But in relation to your MSJ and trial I would suggest looking up evidence code 402 and the case law interpreting it. (A lot of it is criminal law so watch for specific instances that may not apply, but criminal law evidence cases can apply to civil ones so long as there is no specific ground in the criminal matter that would not apply in civil).
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Customer: replied 4 years ago.
How do I deal with exhibits relative to having an original of an old document (only one) to show authentic, and give copies in binders? Can I out holes in the copies in the binders for judge, etc. and do I keep the old original and show it to court?

The exhibit binders are courtesy binders and are not expected to contain the original. So long as y your binder tabs and ring holes do not impair the ability to understand the original you should be fine.

With regard to the original document, the original should be submitted as evidence whenever possible. If it is not possible "a true and correct copy thereof" can substitute, but you need to have it verified as an authentic copy through testimony or one of the hearsay exceptions.
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Customer: replied 4 years ago.
Is there a way to show the original but not hand it into the keeping of the court over a multi day trial? We have very strange stuff occurring at court.

Can you give me an idea of how a hearing in an MSJ is held? Motions so far have been pretty loosely held, with the moving party stating, then the opposing stating, then some back and forth, and often the judfe's mind is set before he comes in. There are several very substantive false representations by the movant - in facts of my actions, my statements, and then also complicated but false representation of what is really in the POA.
The way evidence is secured in court is a matter that is left to the discretion of the trial judge. If you believe you have a viable way to preserve evidence without it staying lodged with the court (photocopies of documents etc.) You can purpose that to the court, but it is ultimately up to the judge's discretion.

As for the format of your MSJ hearing, my experience is that the court will follow the same format with perhaps more time for argument, so come prepared to address key points quickly and with authority (you don't need to repeat, but you can "focus" an argument). If the court gives a tentative ruling read it carefully as those are the issues the judge found compelling in the briefs and intends to rule that way unless his mind is changed at the hearing.
Customer: replied 4 years ago.
How do I find out if there is a tentative ruling that is given? I've never seen one there before, but may not have known where to look.

The plaintiff so fa does not bother to systematically state for example the elements of the cause, and supporting facts, or refer to what burden of proof, etc. Tends to be a lot of high level allegations (breached duty, must be held accountable ,etc).

I believe the actual PA and Trust docs and laws validate my actions.

Is it OK to have excerpted copies of some laws you cite or bring up?
Ideas on how to clearly make case that the real elements haven't been proven? Thanks very much.
Tentative rulings are used by some courts to give the parties an advance written decision so the oral argument is more focused. These are routine in some jurisdictions such as California, while others do not use them at all. To see if your judge issues these rulings you will have to check with the court clerk, or another local reference given your difficulties with this department. Rulings are usually available online or by phone.

You may use any of the legal resources I provided to you, but you are responsible for checking the case law and statutes to ensure they are current (most of these issues are fairly well established but you do want to ensure you have Ohio authority whenever possible).

Use a solid
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Customer: replied 4 years ago.
thank you. Would it generally be acceptable or appropriate to hand out a page with excerpted statutes on it or something similar in a hearing? To get some focus on specifics? Or is that disrespectful of the court?

And if I am my own witness with a lot of exhbits at trial, how to provide testimony and put them in, in a "story"?
That would not be disrespectful, but it is not commonly done. Having something like that available for yourself however is a very good thing.

If you are your own witness, you will testify in a "narrative" fashion, telling the story as you wish - so long as you are only speaking to facts as you know them to be, not inferring facts, guessing, supposing, or giving hearsay.

Here are two helpful publications (they are from other states, but the information is very useful, some of it is pretty basic, but I think it is worthwhile, especially in preparation of evidence, testimony, and how to get documents into evidence. (I would still recommend going through the exercise I identified above regarding how to move an exhibit into evidence - that is very important.
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Customer: replied 4 years ago.
What is best use of time I am given in hearing, when I have previously submitted an opposition to the MSJ? The plaintiff tends to give a broad overview when they first talk for their motion. Their "story" is a false overall construction at a high level based on numerous false "facts" - my actions, the contents of the POA, etc. Claiming a basic set of what I did "wrong" that is different than they ever have and different than in the Amended Complaint they filed.

My opposition went through a point by point list of their "facts" I dispute, and then offered an alternative view with facts that I think is right. But it is a lot to cover, and at the same time requires "blowing up" several items because the "house of cards" is so much based on false statements

Is there any legal need to verbalize things I have written in my Opposition?
Or ideas on best use of time and attention?.

Thoughts please?
This question really is a legal strategy question that is outside my scope in this forum. There are many factors that drive an oral argument, you can choose to focus on destroying their credibility (I.e. they cannot even stick to their own statement of facts and the documents are so manipulated they appear to be fabricated); you can argue at the intellectual level (I.e. case law and statutes support your position based on facts as you present them to be); you can wait for oral argument and simply rebut every major point made by the plaintiff (you will need to be "on your toes" for this - prepare for this anyway as you will be expected to be able to respond to argument - do not be afraid to ask for time to research if necessary, but this is frowned on)

I hope this helps, I wish I could guide you more specifically but I do not want to give you ineffectual advice even if I was permitted to do so through this forum.
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Customer: replied 4 years ago.
I appreciate your assisting and understand completely about the limitations.Is there any legal difference in what I have provided in writing vs. what I say at the hearing? Would it be viewed together as a whole at an appeal? Or is needed or preferable to cover the bases that are already in your document again at the hearing?
Usually judges say they do not want to hear the same thing they have just read, but in most cases the arguments are very similar, but you may be able to focus the argument or identify the most important issues for the court to focus on. Also, as responding party, you have the opportunity to respond to the reply brief.

I omitted one thing in my earlier response, you want to make sure there is a court reporter there so the transcript is recorded on appeal if necessary. With budget cuts, not all courts provide reporters so you may have to get your own.
Customer: replied 4 years ago.
The other side in the pretrial didn't answer jurisdiction or venue (2 categories in the order for the pretrial statement), only listed general exhibit as a category ("various memoranda between plaintiff and def", various bank statements), and did not give me any copies of any documents as required by the county rule. They did put lots in their MSJ later. I had been trying to get the bank reports they subpoenaed (ask edfor copies in my discovery, they never responded). (should have done motion to compel but did not). I tried to file motion in limine on day of pretrial (last day for filing) and magistrate said not to, the other side would just agree to give me. The other side sent a CD that includes some docs, but not all from subpoena list, and not even all of them that they included in their MSJ. So they're including bank reports in the MSJ not included in the supposed subpoena results they got from the bank, and I question their validity based on some I have from my own account.

Does the provisioning of docs in an MSJ "cure" the complete lack of provisioning in the pretrial process? Technically, I haven't been given a single exhibit by plaintiff through the pretrial. They also never responded to any other requests for docs, or interrogatories, ony admissions (should have done more earlier I know).

Can I object to th validity of the docs because they weren't in the supposed subpoena results I was given?

Unfortunately, while you may argue the disclosure was inadequate under the court's instruction, the fact that it was informal may not give you a lot to stand on.

If you believe the other side is fabricating documents it may be worthwhile to order a complete copy of the subpoenaed records yourself - you should have been given the information for how to do so by the subpoena company, it may be pricey, but if you think they have gone so far as to fabricate a document it may be worth it.
Customer: replied 4 years ago.
The subpoena was served by the court to the bank, requested by the plaintiff. I asked for copies from the plaintiff in discovery. What they've given me I dont't think is complete or accurate. The time for discovery is passed, trial soon. Is there a way to get these? There is no question that they don't want me to get them.Two other general questions please:Is there somewhere I need to check for specific Ohio rules or local rules about opening statements, closing, binder requirements at trial or oth procedural matters? I don't see anything at that level in the Ohio Civil rules or county?Is something that was attached to a party's pleading automatically considered to be "in" the evidence for an MSJ or Opposition to MSJ? The Plaintiff put some core documents in again with their MSJ but referenced others just as a footnote to other docs submitted previously (put the trust docs in their MSJ, only referenced the POA in footnotes, referencing their Complaint which has it attached.Thanks for all you do.
Not to belabor the point, but with discovery over, you are looking for ways to patch over this timing issue. As bank records and other voluminous business documents are almost always copied electronically by third party vendors you may be able to request a full digital copy from the subpoena service. They are the ones retained by the other side to do the copying. You will have to pay the service for it, but it may be worth it depending on your case.

Alternatively, if you can find clear breaks in documents (such as receiving pages 1-26, 33-50, or date range June - Sept., Dec. - Feb.) you can either ask the court directly or make a demand on the party to do a "review" of the documents to see if they may have omitted anything. If you want to preserve any issues on appeal you will need to do this in a motion before the Court, otherwise there will be no formal record, but I don't know from a strategy viewpoint how significant that is to you.

I have not seen any rules available online (at least in my search) for trial conduct - the only ones I see are the Hamilton County local rules - probate:
Usually trial rules are established by the departments themselves, and the clerk should be the one to offer assistance (I understand this is not a very helpful suggestion in this instance, but perhaps they will aid you in this, or another probate attorney's office will be able to give you a list).

Documents attached to pleadings do not automatically become part of the record for subsequent hearings. They may be recognized as part of the court record (a hearsay exception), but the court does not recognize the substance of the document. This means, the court will recognize that the party has introduced a bank statement x, but will not review it for the truth that it shows the plaintiff purchased a candy bar on the bank register contained in bank statement x. You can argue about the allegations claimed off of the statement, or even admit it into evidence yourself with proper verification.

You can of course comment/argue based on a party's decision to argue what you believe to be key issues in footnotes.
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Customer: replied 4 years ago.
What kind of motio would I need to make to preserve the lack of these documents on appeal or otherwise out it on record? Things are missing, things have been tampered with and they''re key docs.

How will a trial likely cope with both claims and countclaims? Do you do 2 trials back to back?

Given that other docs at not automatically available at court, where/how do my affirmative defenses come into play here? Obviously some of my facts are to support those, and in a case with lots of claims and counterclaims, how do I approprriatrly bring them up along the way, tied to facts - or do I have to wait until closing arguments?

Thanks very much for this.

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.

Customer: replied 4 years ago.
In testifying can I reference or somehow link the facts that I am providing to either an element of a cause of action or a law? As a basic example the other side is ignoring that the POA is durable, and that the actions were while trust was revocable, and are applying criteria that do not match those facts. The actual fact would be what the POA says , when an act occurred. Can I also say what a statute says about that fact for example as a part of the story and testimony, not just what till closing arguments? There are lots of moving parts in this and if I can't link anything till the end, I think things could easily get lost given that they are misrepresenting things a lot. Thank you.
You can tell a story and link it with "Now I am going to talk about how I went about implementing the POA" "Now I am going to talk about how I decided to read the trust"

I can't promise the judge will allow exactly those types of transitions, but that is a reasonable way to link your testimony (I believe at least one of the links I provided you above gave a really good example of how to put your testimony together like that).

You cannot argue law in your testimony, it has to stick to the facts. the only exception would be "state of mind" I interpreted the POA this way because I thought the law was this. You cannot say, I did this under the POA, and it is proper because statute xyz says it is.
Customer: replied 4 years ago.
So can you set up the elements someone needs to prove in your opening? Or only do the "arguement" in the closing? I did read the links and will also go back. The tough challenge h is that there seems to be such disregard for anything specific so far. I've read every case I could find and all the statutes and th POA and trust and don't think the general inflammatory claims have any merit, so am trying to think of ways to combat this.

Would it be all right to say, when I read the POA it says this,,,?

Also, as I am vulnerable to not knowing how best to object to improper questions (relevancy bing key) what can a civil defendant do I'd the questions are unfairly targeted to impeach you? Is ther any equivalent of not doiing yourself harm? The truth is on my side I believe, but I havea already been put in some situations where they work very hard to ut words in my mouth and go not aeas that really have nothing to do with this. Thoughts?
Your opening statement is an opportunity to "preview the evidence" and your view of the case meaning your main statements will be prefaced like this "I believe the evidence will show ..." Some attorneys (especially when they are learning) simply start every paragraph of their opening with those words.

To overcome an irrelevant or improper question, you need to simply state "Objection your honor, relevance". You do not need to raise your hand, raise your voice, or get upset - in fact taking your time to do so in a calm manner each time can often give you the time you need to refocus and respond to questions that you were not prepared for due to them being so far afield even if the judge orders that you answer them.

You would be able to give an explanation for "when I read the POA ..." in direct testimony. for example, Judge, I am now going to explain why I made the distributions to my great aunt sally ... when executing the POA, I understood at the time I did the distribution that I had the authority to do xyz ... " This is how reading your own testimony in as a pro-per can look. You of course need to find something that works for you, but it is an example.

There is no rule against giving adverse testimony against yourself. So there isn't going to be anyone looking out for you other than yourself. The best place to look for limitations on what they can ask you about is the evidence code. Review it carefully (most of it is inapplicable, but the parts that do apply are very important - again, it may be worthwhile investing in one of the "trial guides" or similar commercial handouts as it will give you a one or two sheet handout with applicable case law and statutes to support your objections.
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Customer: replied 4 years ago.
Thank you very much for the help - and for being willing to provide advice in this way, as well as this can work.What is the basis for objecting to the use of evidence that you haven 't been given previously, especially if asked for in discovery or should have been provided in pretrial exhbits etc.?
That is what you would use the pre-trial motion in-limine for. You make a motion to exclude all evidence not presented in response to the pre-trial orders. Then when they attempt to enter something new, you can just object and cite the order excluding all non-disclosed exhibits.
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Customer: replied 4 years ago.
We had a hearing on the MSJ. I had filed opposition and also affidavits with multiple docs of supporting evidence, The magistrate asked for what other evidence I had to submit, and we spent over 1 1/2 hours with me presenting docs of evidence and him asking questions. The other side filed a response to my opposition on the day of t hearing, so I did not see it till a couple of days later. Decision in 14-28 days.

Can I reply to the plaintiff's reply to my opposition? Can I or should I file anything in follow-up to the hearing itself? The plaintiff has changed their position again in the reply to my opposition, and threw in a couple of things in their "last word" at the MSJ. Thanks very much.
Dear Customer,

I am pleased to hear that you were given the opportunity to at least present the documents you have in support of your position, and to respond to questions by the Court. It is generally a good sign that the Court is looking into the positions of the party and is interested in taking a sincere look at the legal positions and evidence being presented.

As far as filing an additional document. There is such a thing as a "surreply" that you can file in opposition to a reply brief that brings in new evidence, new legal arguments, or otherwise addresses issues that are outside the scope of the opposition.

The grounds for filing the surreply are that the reply brief is limited to addressing issues in the opposition (the theory is - very roughly - that if the responding party did not oppose the issue there is no need to further argue it). You need leave of court to file this brief, but the request for leave of court is usually filed at the same time as the surreply itself.

Here is an example of a surreply from federal court:

And here is an example from Ohio Court of Common Please:
Customer: replied 4 years ago.
Thank you. What is an accepted or good source for the legal definition of a term, if I can't seem to find one in the case law?
Black's Law Dictionary is one of the best sources for legal definitions. (It is usually accepted as a reliable authority and is commonly cited in both legal briefs and court decisions).
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Customer: replied 4 years ago.
If you can, can you tell me what the following would cover:" a judicial proceeding concerning a power of attorney". The law says it doesn't apply to acts done by a person under a POA before a particular date, but does apply to judiccial proceedings concerning a POA commenced after a particular date. Is this a distinction between acts done and a proceeding on the POA doc itself in the absence of acts?
Without reading the case law, and based only on the statements above, I would make the following interpretation:

A person acting with Power of Attorney would be covered by those powers if they acted after the Power of Attorney became effective (either the date the document was signed, or the date the document was deemed to become effective - if the terms of the document gave the person powers at some point in the future "if I am deemed incompetent by 2 physicians" for example).

The person is not covered by the Power of Attorney for any acts occurring prior to that date, even if those acts were in furtherance of the goals of the power of attorney. There may be other protections or defenses for claims against the person, but the power of attorney is not one of them.

Similarly, once the power of attorney is terminated, the person is no longer covered for acts under the powers or in furtherance of the powers.

This law should not apply to when the lawsuit is filed, it should only apply to when the acts complained of occurred.

I hope this helps, remember, I have not read the case law, so you need to make your own assessment as to whether or not this is a realistic interpretation of the law.
Customer: replied 4 years ago.
Is it normal practice for the other side to keep misrepresenting (in different ways) what you have done and said? The reply to my opposition says I offered no evidence, when I did multiple documents; says I admitted things I have consistently refuted; and appears to keep escalating the verbiage - now into only breached duties ( I believe evidence says I didn't ) but the other side is escalating to using phrases like "stealing" - whic I did not do. I am refuting again, but should I be objecting to the misrepresentations? The more evidence I produce, the worse they sound. Is this normal?
Dear Customer,

While I wish I could say this is unusual, it is not.

You need to keep addressing the misrepresentations. You do not need to go into great detail and length, but it is usually a good idea to not l let these things slide by unnoticed (plus it puts the unnecessary and unprofessional arguments to light with the Court).

I am sorry you have to deal with this, this type of motion work is terribly unprofessional (and in my mind shows a lack of actual facts and law to support their position).
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