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Trial procedure questions in Virginia Circuit Court civil trial,

where I am "pro se"...
Trial procedure questions in Virginia Circuit Court civil trial, where I am "pro se" attorney:

1 Can I personally deliver a subpeona to a witness
2 If I (plaintiff) and defendant both subpeons the same witness, who calls them first
3 When do I provide evidence to impeach the witness for defendant
4 What legal basis can I use to bring up past defendants behavior (pattern and habit)
5 Which documents in my case have to be Certified True Copies to be admitted
6 What kind of statements do I need to AVOID to prevent verdict from being set aside
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Answered in 9 minutes by:
9/15/2013
Andrea, Esq.
Andrea, Esq., Attorney
Category: Legal
Satisfied Customers: 12,554
Experience: 25 yrs. experience in family law, estates, real estate, business law, criminal defense, immigration, and employment law.
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Hi, my name is XXXXX XXXXX I will be glad to assist you in any way that I can, but need a bit more information, if you do not mind,

 

 

Under your Number 4, (What legal basis can I use to bring up past defendants behavior (pattern and habit) For what purpose would you be bringing in past behavior ?

 

 

Thank you,

 

 

 

 

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Customer reply replied 4 years ago

Thank you for responding -


re: the Battery Count; as plaintiff, I have evidence of Battery, and there is evidence PRIOR to the beginning of the time period covered within the Statute of Limitations; i.e. prior Battery (hospital emergency rooom; stitches; police report) where I was assaulted; and ALSO from her (defendant) previous Husband, who volunteered to be a witness, where the similar pattern of behavior happened to him; defendants attorney does not want that evidence to be admitted, and it seems that the only basis I have for the previous Husband to testify is if there is a "Pattern and Habit" of that behavior going back many (17) years - the trial is next Monday (23rd through 25th) and so far, I have been limited to those events which occured AFTER Dec 13th, 2006


 

Dear XXXXX, Thank you for your reply, Please give me a few moments to check a few things under Virginia law and I will have your Answer within about 20 minutes, I hope that will be okay with you, Okay ?

 

 

ANDREA

 

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Customer reply replied 4 years ago

"Okay"

Dear XXXXX, Thank you for your kind patience, Here are the Answers to your questions:

 

1. "Can I personally deliver a subpeona to a witness"

 

You cannot serve the Subpoena. It must be served by an individual over the age of 18 and not aparty to the action. Serving a Subpoena is governed by Virginia Code 8.01-293 which reads, in pertinent part, as follows:

 

8.01-293. Authorization to serve process, capias or show cause order; execute writ of possession and levy upon property.

 

A. The following persons are authorized to serve process:

1. The sheriff within such territorial bounds as described in 8.01-295;

 

2. Any person of age 18 years or older and who is not a party or otherwise interested in the subject matter in controversy. However, in any case in which custody or visitation of a minor child or children is at issue and a summons is issued for the attendance and testimony of a teacher or other school personnel who is not a party to the proceeding, if such summons is served on school property, it shall be served only by a sheriff or his deputy; or

 

3. A private process server. For purposes of this section, "private process server" means any person 18 years of age or older and who is not a party or otherwise interested in the subject matter in controversy, and who charges a fee for service of process.

 

2. If I (plaintiff) and defendant both subpeons the same witness, who calls them first

 

Since you are the Plaintiff and the Plaintiff always puts his case on first, you would call the witness first;


3 When do I provide evidence to impeach the witness for defendant

 

You do not offer any evidence to impeach a witness. You impeach any witness by asking him questions on cross examination, such as "Have you ever been convicted of a crime?";

 


4 What legal basis can I use to bring up past defendants behavior (pattern and habit)

 

You cannot bring up past behavior that is old, This is called "stale" evidence and would not be taken into account. You can bring up recent past behavior to show that the defendant has a "propensity to act a certain way", but you cannot bring up past behavior to prove that he did what you are claiming he did. For example, you can show past behavior or conduct to show that the defendant has a propensity for violence, but you cannot bring up past behavior to show that, "Well, the defendant was violent in situations such as X, Y, and Z; therefore, he was also violent towards me on the date in question" - This would not be acceptable and would not add any weight to proving that he was violent towards you on the date in question (which is the subject of the lawsuit)

 

 

5. Which documents in my case have to be Certified True Copies to be admitted

 

The Best Evidence Rule requires that the original of a document must be submitted if the document is presented to prove the truth of its contents. In order for a copy to be admissible, a foundation must first be laid. You must show that the original is not available through no fault on your part, that a diligent search has been conducted to find the original, and that despite this diligent search, the original has not been found;


6 What kind of statements do I need to AVOID to prevent verdict from being set aside

 

There are no words or phrases which would make a Judge set aside a verdict. Verdicts are set aside, or a Judgment Notwithstanding the Verdict (A "Judgment NOV) are granted usually because the evidence does not support the verdict and the jury was swayed by emotion in reaching their verdict, rather than having the verdict supported by the evidence produced at trial,

 

 

Please be kind enough to give a rating of "Excellent Service" because that is the only way that I will receive credit for my time and effort in researching your question and furnishing you with Answers. It will not cost you anything additional to leave a positive rating,

 

 

ANDREA

 

Andrea, Esq.
Andrea, Esq., Attorney
Category: Legal
Satisfied Customers: 12,554
Experience: 25 yrs. experience in family law, estates, real estate, business law, criminal defense, immigration, and employment law.
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Andrea, Esq. and 87 other Legal Specialists are ready to help you
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Customer reply replied 4 years ago

Hello Andrea -


 


I also had additional questions which I tried to send earlier but apparently they did not go through to you -


 


7 I am preparing a Binder with the Trial Exhibits now; can I present at the trial any exhibits NOT contained in the Binder, that I will turn over to the defendants attorney this coming Wednesday?


 


8 At trial, do I present all 3 counts and my case during the same portion of the trial (before defendants attorney makes any response)?


 


9 Can I call defendant during my portion of the case, (before defendants attorney presents the defense)?


 


10 During my opening remarks, can I present my Personal and Professional history (like a resume)?


 


11 As I present each count, (of 3) can I include in the exhibits for that count, a copy of the legal definition of that count, and the elements that should be proven for that claim ?


 


12 In my Binder with the Trial Exhibits, do I include a section defining my claim for damages for each count, and an accounting of those damages that I will be asking for ?

Hello, Mitchell,

 

1. Did the Court instruct you to prepare and submit your exhibits in a binder ?

 

2. If not, then who instructed you to do so ?

 

The questions you have submitted here as Numbers 7 through 12, I had Answered already. Let me see where they went and I will get back to you in a few minutes,

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Hello, again, Mitchell,

 

Here are your new questions and my Answers to your new questions,

 

7. As Plaintiff, you said I put on my case first; so since there are 3 counts at this trial against the defendant, do I put on the entire case for the 3 counts at the same time ?

 

Answer - Each party presents their entire case when it is their turn. You would put on your entire case;. In other words all counts that are in your Complaint will be presented at the same time;

8 Do BOTH attorneys (remember, I'm "pro se") make their opening remarks at the beginning before I begin the Plaintiffs case presentatio; or just me first as soon as the Judge starts the trial ?

 

Answer - You make your opening statement first. If the defendant's attorney wants to make his opening statement at this time, he may do so. Sometimes, the defendant's attorney will say that he reserves his opening statement after the Plaintiff has presented his case and just before he puts on the defendant's case. This is a strategic decision. They can delay making their opening statement until after the Plaintiff completes his case so that they can start refuting the Plaintiff's case right before they present the defendant's case;

9 In my opening remarks, can I present a verbal resume of my past career and personal achievements?

 

Answer - You can say anything you like in your opening statement. But, an opening statement usually consists of a summary of the case, what evidence you will present to prove each issue in your case, and why you should win, i.e., what you have based your case on;

10 In my Binder of Trial Exhibits (which I am preparing now, for a private court exhibit company to arrange and "fix" into a binder) can I include in each section (1 section for each Count) a page with a definition of the Count (i.e. "Battery") and describe that for the jury, so they can understand the scope of evidence necessary for a verdict ?

 

Answer - I believe you will be wasting your money by paying a company to put a binder together of your exhibits because you cannot hand this to the jury. You would hand up to the Judge each exhibit as it becomes relevant in the presentation of your case. You would also hand a copy of each exhibit to opposing counsel of whatever you hand up to the Judge;

11 I am up against a seasond litigation attorney, who has filed a claim "Motion for Sanctions" against my former attorney, his law firm, and me ?! - (for $200,000 !) - I had already paid my attorney over $54,000 - and learned that his malpractice insurance doesnt cover them for Motion for Sanctions claims - what about their covering protecting me from a loss, since I am also named, and they are no longer my attorney ?

 

Answer - An attorney's malpractice insurance covers only the attorney and the firm, if they are named as an insured on the policy. It does not cover clients or former clients, regardless of how much a client has paid to their attorney in legal fees;

 

 

Please be kind enough to give a rating of "Excellent Service" because that is the only way that I will receive credit for my time and effort in researching your question and furnishing you with Answers. It will not cost you anything additional to leave a positive rating,

 

 

If you receive a survey from JustAnswer in a few days, please be kind enough to rate me highly,

 

 

Positive Feedback and Bonus are always appreciated,

 

 

ANDREA

 

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Hello Mitchell, I see that you have had the opportunity to review my Answers to the 5 new questions you posted. Is there anything that you would like me to clarify? If not, please be kind enough to leave a positive rating so that I can receive credit for assisting you. The deposit you made is with JustAnswer and it will not cost you anything additional to leave a positive rating, but it is necessary for me to receive credit . Without a rating, I do not receive any credit or compensation for my time and effort in researching your questions and furnishing you with Answers and information. Thank you for understanding,

 

 

ANDREA



 

 

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Customer reply replied 4 years ago

Hello Andrea -


 


I just prepared a reply to you, and it disappeared - not sure if it came to you or not; but here is a summary:


 


After my email earlier today to you, and recieving yours, I called the customer care center - spoke to a rep in the Phillipines, who was very helpful, and confirmed that I had paid the initial fee, registered for monthly $78, and also authorized a Bonus to you of $80 - I actually authorized another, and after holding for some time, she came back on the line, said there was a "computer" issue, and that someone would call me back from Calfornia tomorrow morning - I asked her if she could notify you about this, and she said she would; in any case . . .


 


I will follow up tomorrow (I'll be at the Trial Exhibit Company here in Richmond, where they prepare documents for litigation) -


 


I'm sure there will be more questions, but I want to get the financial matter out of the way first -


 


Thanks again, Andrea


 


Mitchell

Hi, Mitchell,

 

I saw that they just credited my account with sixty dollars which matches up with what you said because JustAnswer takes twenty-five percent of the bonus. Thank you very much, it was very generous of you. However, regarding the other amount, I wonder if they would have said anything if you had not brought it up. What does a "computer" issue have to do with your money? I don't know about all this, too many technical problems begin to make one wonder what is actually going on.

 

The reply I just wrote to you also got lost, so this is a "rerun" also. Next time you leave a bonus and you see that I have not acknowledged it, that means that I did not receive it, so let me know.

 

Regarding the binder, I have never had to do that, especially at the trial level. I am sure that the company is charging you an enormous amount of money. You had asked if you should include the definitions. Initially, I would have said no, because the Judge defines these things when he is charging the jury, but since the jury will receive a copy of the binder, I would go ahead and include the definition, anything to get whatever edge you can get on the opposing side.

 

Have you prepared your questions for the witnesses yet ? Always remember this rule - Never ask the witness a question if you do not already know the answer. If you tell me what the case is about, I can draft some questions for you and also help you draft your opening statement. On cross examination, you can ask leading questions; they are the questions which start off like this,

 

"Isn't it true that .........." or " Isn't it a fact that ..........."

 

Basically, you will be testifying because you put words in the witness' mouth.

 

Have you done a Trial Memorandum ?

 

The opening statement is very important because that is the first time the jury will be hearing the facts, so you want to make an impact on them that will stay with them throughout the trial. You have to make a lasting first impression so that anything they hear from the defendant, they will be inclined to think of it as all lies.

 

If you like, give me a brief summary of the case because it is much better having the full picture when Answering your questions.

 

I have been on the computer for over 19 hours, so I am going to go out for some air, but I will be back later on this evening,

 

ANDREA

 

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Andrea, Esq.
Andrea, Esq.
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DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

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