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Showing posts with label LEGAL MATTERS. Show all posts
Showing posts with label LEGAL MATTERS. Show all posts

Monday, March 16, 2015

CT LAW TRIBUNE REPORTS $360,000 LEGAL MALPRACTICE JUDGMENT AGAINST ATTORNEY WHO DIDN'T SHOW UP TO DEFEND HIMSELF!


Karen Ali of the CT Law Tribune reports as follows:

"Stamford attorney Richard Grant recently won a $360,000 legal malpractice case. But he's taking no particular pride in the victory. The defendant lawyer, Peter Shafran, never showed up to answer his charges.

"When there is no one there to defend it, it tends to make it easier," said Grant, of the Law Offices of Piazza, Simmons & Grant. "I tried to give him notice. We tried to find him. He never responded. It was a default judgment."

Grant said that to his knowledge Shafran is not practicing law at all in Connecticut. According to the Statewide Grievance Committee website, Shafran resigned his Connecticut law license in 2011 and waived the right to apply for reinstatement for 10 years. The next year, he was reprimanded by the grievance committee for engaging in "unethical conduct" for failing to record mortgage deeds for two 2009 real estate transactions in Fairfield County. A New York court imposed reciprocal discipline and disbarred him there in 2013..."

Monday, February 2, 2015

THE CASE DETAIL! WHY IT IS IMPORTANT!

I am going to talk to you about your case detail.  Now, for most of you who read this blog, you are going to be surprised that I would waste my time talking about this because you've been through the wringer.  You can't even recall a time that you didn't know what a case detail was.  However, just so you know, there are actually people out there who don't know. 

Recently, I heard from one of these people and she told me that for the last eight months, the opposing side had been dragging her into court and subjecting her to court hearings before the judge.  However, during that time not a single one of the motions that the other side had given her and that the judge considered were actually listed on her case detail.  Impossible as that appears to be, it is the truth, according to this person. 

Keeping that story in mind, for all of you I'd like to emphasize how important it is for you to be right on top of your case detail.  Check the case detail at minimum every other day.  Always make sure that your personal record of the activity in your case matches the record that is online.

Again, for those of you who may not know, here is the story on your case detail.  As soon as you file your complaint for divorce, the clerk at the court house will assign a number to your case.  That number will begin with the letters FA indicating that it is a family law case, and then continue on with the year the case was filed, and then add on a bunch of digits that are a bunch of jumble as far as I can tell. 

Next, the clerk will open up a case detail page for you online on the judicial website.  To get there you would go to the following link:  http://www.jud.ct.gov/jud2.htm


That opens up a page which states as follows:


This section of the website provides users with information about Supreme and Appellate, civil, family, criminal, motor vehicle, housing, and small claims cases.
Supreme and Appellate Court Case Look-up
Civil / Family Case Look-up
Criminal / Motor Vehicle Case Look-up
Housing Case Look-up
Small Claims Case Look-up  



You  would click on Civil/Family Case Look-up, and go from there.

Your case detail provides you with information such as the name of the parties in the case, i.e., you and your soon to be ex-husband, your addresses, the names of your attorneys, your attorneys' addresses and their juris numbers, the name of the Guardian Ad Litem in the case, or the names of any important witnesses and their attorneys. 

Every time you file a motion in your case, the clerk will post the name of the motion, the date on which it was filed, and eventually if it happens, the date when the judge granted or denied your motion--just fyi, lots of times motions get filed and nothing happens to them. 

If you scroll down to the bottom of your case detail, you can see when the next hearing dates in your case have been scheduled.  There are two kinds of hearing dates--hearing dates that are scheduled by the caseflow coordinator that have a fixed date and time--those are the ones that end up listed at the bottom of your case detail.  Those dates are usually for your divorce trial, or else for particular motions for which you paid a fee, and for which you obtained a particular date and time and had a marshall deliver the motion to the other party in your case.  Such motions, among others, would typically be a Motion to Reopen, a Motion to Modify, and a Motion for Contempt.  

Other hearings dates are not readily apparent on your case detail, and are for motions which are placed on what is called the short calendar.  If you have a motion placed on the short calendar, you have to come in to court first thing in the morning on the day it is scheduled, sign up for family relations, and then sit around with your attorney all day long, sometimes, until your motion is heard.  This can be incredibly expensive for basically having you and your attorney kick around the halls doing nothing until the quick 15 minutes that the court looks at your motion, listens to your arguments and makes a decision.  Examples of motions that might be on the short calendar are a motion for transportion, motion for exclusive use of the house, or motion for access and visitation, etc. etc.

To find out the date of a motion that may have been placed on the short calendar, you go to the choices listed on the left hand side of the screen with the case detail and click on "short calendars by court location." 

Keep in mind that just because a motion in your case has been listed on the short calendar, this doesn't automatically mean the motion will be heard.  In order to confirm that it is being heard on that short calendar day, you or the opposing side have to mark the motion as ready with the court and with the opposing side.  So if you are unsure if a motion is going to be heard on a particular day, call the day before and ask the clerk if the motion has been marked as ready. 

I'd say call your ex or his or her attorney, but they may lie to you! 

If you want information on the process of how a motion is marked as ready, look at the explanatory information located at the top of the short calendar. 

I also want to point out to you that if you are too lazy to go to the judicial website to keep track of your case, on the upper right had side of your case detail, you can sign up for email notification which will send information to your email account any time there is activity in your case. 

As a final note, you should regularly print out copies of your case detail because court clerks often put misinformation on it and you will need to stay right on top of that and confront them when and if that happens. 

At every point during your divorce, you will have to keep your eye out for trickery and wrongdoing; it can happen anytime and anywhere, and you have to stay alert to everything so you don't fall victim to some scheme perpetrated by the opposing attorney in your case or the clerks of the court.  This is not a personal matter, but it is what happens all the time, and so it is something to keep track of. 

Monday, September 9, 2013

HEARINGS IN CHAMBERS: THE DISENFRANCHISEMENT OF FAMILY COURT LITIGANTS

I was once helping a friend out during her trial in family court, sitting in the audience, standing around during breaks, making supportive comments, etc., giving my impression of how the proceedings were going. 
 
What surprised me was that for the first few days we spent a lot of time sitting around the waiting area while the attorneys in the case spoke in chambers with the judge where they had long conversations behind our backs.
 
For the sake of making this blog more accessible, I will call my friend "Ann".  This is not her real name, but I do want to protect her identity. 
 
Anyway, weeks before this trial started Ann had spoken to her attorney stating repeatedly that she did not want her attorney to have a meeting in chambers with the judge.  She felt that any conversations, any understandings, any rulings and arguments in regard to any decisions and agreements made in the case should be conducted in open court with a court reporter present.  She wanted everything in relation to her case to take place on the record and also she wished to have the opportunity to express her concerns and not just leave everything to her attorney. 
 
As I have stated in a prior article in regard to preserving the record, meetings in the judges' chambers are a major problem because they are used as a means to arrive at decisions that cannot be appealed because there is no transcript of the hearing in chambers where those decisions were made. 
 
Furthermore, it is an opportunity for your attorney to make statements to the judge that you would never approve were you there to hear them, or for the opposing attorney, your attorney and the judge to arrive at agreements without your knowledge, and then just present you with the fait d'accompli. 
 
My friend, Ann, was naturally alarmed by the potential for harm that could result from such meetings in chambers in her case so not only did she tell her own attorney repeatedly that she didn't want any meetings in chambers, she also told the caseflow manager, the ADA Coordinator, and the judge.  She wrote letters regarding this point and also submitted motions. 
 
Still, the judge simply ignored her repeated requests that there be no hearings in chambers and went ahead and had several. 
 
When the court specifically ignores a litigant's reasonable request asking that the court forego certain optional proceedings, this simply disenfranchises that litigant.  It sends a signal, basically, that the court does not care what the litigant wants or thinks. 
 
Like many litigants in this situation, Ann was absolutely upset and traumatized by this blatant disrespect for her wishes and she expressed her dissatisfaction about the situation at every opportunity she had. 
 
My question is, what is the matter with the judge in this case that he would ever disrespect a litigant's request for an open, transparent hearing on the issues instead of secret conferences behind closed doors?  
 
My opinion is that the Judge simply wanted to drive my friend, Ann, into a frenzy so that she would act in such a way as to discredit herself. 
 
So much for justice.  
 
Since that time I have investigated the concept of hearings in chambers.  The first thing I did was look up hearings in chambers in The Connecticut Practice Book and was referred to Chapter 20.  Chapter 20, just so you know, is incomprehensible.  I have no idea what it means. 
 
However, I did go further online and found some guidelines to hearings in chambers from the State of Louisiana.  They are as follows: 
 
[Please note that in Louisiana a hearing in chambers is scheduled upon the consent of the parties.  So if a party does not consent, it should not be held.  Please also note that a clerk and a court reporter would ordinarily be present at such a hearing so the contents of the hearing would be on the record and available for purposes of appeal.  Further, it is worth noticing that these guidelines from the State of Louisiana are comprehensible.  Wow!]
 
Again, see below:

LOUISIANA STATUTES AND CODES

RS 9:302 Divorce proceedings; hearings in chambers; procedure


§302.Divorce proceedings; hearings in chambers; procedure
 
A.  In addition to any hearing otherwise authorized by law to be held in chambers, the court by local rule, and only in those instances where good cause is shown, may provide that only with mutual consent, civil hearings before the trial court in divorce proceedings may be held in chambers.  Such hearings shall include contested and uncontested proceedings and rules for spousal support, child support, visitation, injunctions, or other matters provisional and incidental to divorce proceedings.
 
 
B.  A motion for hearing in chambers pursuant to this Section may be made by either party or upon the court's own motion.
 
 
C.  Except for being closed to the public, the hearings held in chambers pursuant to this Section shall be conducted in the same manner as if taking place in open court. The minute clerk and court reporter shall be present if necessary to perform the duties provided by law.
 
 
D.The provisions of this Section shall not be construed to repeal or restrict the authority otherwise provided by law for any hearing to be held in chambers. Acts 1990, No. 1009, §§7, 9, eff. Jan. 1, 1991.

What I find amazing is that Louisiana, despite being a Southern State--OK, that IS a joke--, figured out how to handle meetings in chambers in family court cases in an equitable fashion as far back as 1991, while we in the Constitution State of Connecticut still can't seem to figure it out! 
 
Or shall I say, the Connecticut Judicial Branch knows very well that holding hearings in chambers off the record independent of the litigants involved and making major decisions in family court cases behind the backs of litigants is absolutely wrong.  But the Branch has found that these kinds of hearings go a long way towards getting rid of litigants that they find troublesome and/or have the nerve to stand up for their rights. 
 
So it is going to be a long, long time before they stop taking advantage of these kinds of secret methods of disposing of litigants.  Personally, I'm not holding my breath waiting for it to happen.
 
What I find interesting about this is how many times I've been in court in Connecticut when Judges have articulated the Open Court Principle--the principle that all hearings in Court should be open and transparent to the public. 
 
I was sitting in on a hearing where one of the litigants turned out to be a member of my Church and she asked to have me removed.  I was embarrassed for this person and immediately got up to leave.  But the judge took that as an opportunity to reprimand the litigant and articulate how important it is for all hearings to be free and open to the public. 
 
Right, free and open, except when the judges choose to have their secret meetings behind everyone's back. 
 
Judges do this to people.  They violate litigant's rights, drive people into extreme emotional states by taking away their children, their livelihoods, their lifelong savings, etc..  Then Judges call them crazy.   
 
 

Sunday, September 1, 2013

WHY THEY DON'T CARE WHAT YOU THINK: THE ROOKER-FELDMAN DOCTRINE AND THE DOMESTIC RELATIONS EXCEPTION!

I just had a friend call me about her case which was recently thrown out of federal court. 
 
"What can I do?" she asked. 
 
I understood her frustration.  Throughout my devastating family court case, I always held federal court out before me as a beacon of hope.  If worse comes to worst, I said to myself, I can go to federal court and ask for relief based upon my constitutional rights. 
 
I had other friends who urged me to go there and knew of others who were there already.  What I didn't realize was that I was actually facing what I call "the stupidity factor" which is when people who know nothing make pronouncements about legal matters they actually know nothing about. 
 
What I mean to say is that going to federal court in order to obtain relief from state court judgments is not as easy as it seems.  There is the Rooker-Feldman Doctrine which states that litigants are not allowed to use the federal court as a court of appeals from state court judgments. 
 
Hello, people, wake up and smell the coffee! 
 
This is why you have to be careful about who you listen to.  I mean, don't even listen to me!  Make sure you double check what I have to say.  Look at my alert at the top of my blog--"I am not an attorney!" 
 
As much as I dislike and distrust attorneys, make sure you check with one before you start bothering the federal court with court actions that ultimately have no place there.  Do your homework first! 
 
Doctrines like Rooker-Feldman protect bad judges, bad attorneys, bad GALs and bad Mental Health Professionals from any kind of accountability for their violations of your constitutional rights.  They are immune, not only because of any judicial immunity they have in State court.  They are also immune because we cannot involve federal court so as to hold these people accountable. 
 
That is why judges and attorneys, etc. have so much fun laughing at us when we invoke our constitutional rights.  Without available federal oversight from the federal court system there is nothing we can do to enforce those constitutional rights.  All they are, when it comes down to it, are a bunch of words on paper given that nothing requires any personnel associated with family court to adhere to them. 
 
And to put a few more nails on the coffin of our constitutional rights, not only do we have the Rooker-Feldman doctrine, there is also the Domestic Relations Exception.  
 
Under this exception, federal courts are required to decline jurisdiction in domestic relations cases when the primary issue concerns such matters as alimony and child support.  The exception originates in the case Barber v. Barber, 62, U.S. (21 How.) 582, 584 (1859)--determined over a hundred years ago--where the Supreme Court ruled, "We disclaim altogether any jurisdiction in the courts of the United States upon the subject of divorce, or for the allowance of alimony..." 
 
Also, in subsequent cases the federal court disclaimed, in dictum, federal jurisdiction of "the whole subject of husband, wife, and child.  I believe there is also a similar probate exception.
 
According to Anthony B. Ullman of the "Columbia Law Review", federal courts have accepted these assertions as implied limitations on their jurisdiction, despite a statutory grant of diversity jurisdiction that nowhere mentions such an exception.  Naturally, under these circumstances the results have been contradictory and confusing. 
 
In 1992, in another case, Ankenbrandt v. Richards, the Federal Court further defined the domestic relations exception stating that it has to do with custody and alimony issues only and not to other issues such as torts. 
 
Still, the bottom line is that this exception gives the Federal Court a broad range of authority to simply dismiss cases emerging from family court particularly when they are brought by self represented parties. 
 
Thus, the Domestic Relations Exception provides an additional barrier to litigants attempting to obtain relief from the denial of their Constitutional and Human Rights.
 
With two such solid barriers in place, no wonder family courts everywhere have such a widespread reputation for negligent legal practice and the routine violation of litigants' rights.  No wonder they are laughing at you, and no wonder they don't care what you think and figure they will get away with all sorts of wrong doing and criminal behavior.
 
Not that I am advocating that you sit down and die in the face of these obstacles.  I would definitely do your research and find a basis in case law for arguing against them.  But don't be na├»ve and think it is going to be easy.

Friday, August 30, 2013

I'M A RAMBLIN' MAN! CONTROLLING YOUR WITNESSES ON THE STAND!

If I could go back in time, I would probably tell my self represented self not to go to Court and represent myself.  Seriously, I was like a lamb going to the slaughter in the Courtroom.  On the other hand, now that I've gone through the experience I have more information to write in this blog, so I guess I benefited in other ways through my experience. 

All of you folks reading this blog are benefiting from my damned horrible experience of self representation! 
 
One of the worst aspects of representing myself was trying to maintain some modicum of control over the proceedings  when everything in the Courtroom was militating against me, starting with the Judge. Up to this point, I have talked about raising objections, primarily focusing on procedural and evidential issues that could arise in court.  However, there is also the area of objections you can raise in regard to testimony witnesses provide to the court.  
 
I can recall a particular moment in trial when my ex was on the stand.  I'd been asking him questions when all of a sudden he went into this long diatribe where he said that I had taken our kids to Mexico.  Huh!  I thought to myself, Mexico?  I've never been to Mexico.  So I addressed the Judge and told him, "Seriously, your honor, I have never been to Mexico and I have a passport to prove that."  In response, the Judge said to me, "You don't need a passport to go to Mexico." 
 
Now, in fact, you do need a passport to go to Mexico, but at that moment, what did I know?  Nothing!  Like I said, I'd never been to Mexico, still have not been to Mexico, so subtleties like whether I do or do not need a passport to travel there were quite beyond me.  So how was I going to shut my ex up while he was going on and on about fabricated trips to Mexico? 
 
There are actually quite a few ways to cut short a witness if he or she is rambling on in directions you don't intend for them to go.  For instance, you can say, "Objection, your honor, non-responsive!"  That would be the appropriate objection if you asked the witness a question and received a response that did not address the issues you raised in your question and instead provided other information that was damaging, misleading, or confusing to your case.  I want to tell you what a different trial I would have had if I had just known to say that! 
 
Instead, once my ex got on the stand, he simply rambled on about whatever was on his mind--i.e. my trips to Mexico, his theories of the case, why he shouldn't have to be subjected to examination on the stand--all sorts of material.  Meanwhile, the judge and the opposing attorney simply sat back and enjoyed my discomfiture. 
 
Another good objection would be "Objection, your honor, assumes facts not in evidence."  In other words, since there had been no evidence presented at the trial indicating I'd gone to Mexico, there was no factual basis for stating I had gone there or a reason for bring up the point.  Thus, such a statement should be stricken from the record.  There are all sorts of reasons for throwing testimony out of a trial, testimony that is both good and bad.  
 
In my case, the opposing attorney loved to say, "Objection, your honor, relevance."  I don't know why, but whenever she said that, my brain would go into jam mode.  I'd be like to myself, "Yeah, why is this fact relevant?  I'm not sure.  I've forgotten."  Of course, once I was at home and done for the day, the reasons would come back to me, which was rather unhelpful in terms of timing. 
 
What made relevance hard to recall, let alone explain to the judge, was the fact that all the judges in family court generally ruled to eliminate opening remarks from the trial.  I'm sure that was done on purpose!  Without your opening remarks, it is very hard to explain why you are proceeding down a certain line of questioning because you have been unable to provide a context in advance.  Then when you try to explain the relevance of your line of questioning, you end up getting into a full blown explanation of your case all of which is not allowed. 
 
My experience with testimony at trial was like trying to make my way across a minefield--every other question I heard, "Objection, objection, objection." to the point where I could barely ask any question, or present any evidence, and I was trying to make my argument based upon the threadbare remains.  And I only had some remains because the judge had mercy on me and lowered the standards somewhat so that a bit of my argument made it through. 
 
There is also the point that you should keep in mind when considering proceeding to trial as a self represented party.  When you are eliciting testimony from a witness, keep in mind that there are different kinds of examination--direct examination, cross examination, redirect examination and recross examination.  Each of these categories of examination require a different kind of questioning technique.  So at cross examination you are not allowed to ask the same kinds of questions as you would at direct examination. 

For more information on the various kinds of objections you can raise during testimony at trial, see the following link:


For more information on the various kinds of witness examination, see the following link:


The bottom line, though, is that if you don't know anything about how to elicit information properly from a witness, the opposing attorney and the judge will run circles around you.  This is where any self represented party benefits from observing as many trials as possible before entering court for his or her own trial.  Otherwise, there are books and CDs, some by NBI (National Business Institute) which can clue you in on these procedures so you have a mastery of them before you pursue your own case in court. 

RELATED ARTICLES:

http://www.divorceinconnecticut.blogspot.com/2013/08/your-honor-i-object-preserving-record.html

http://divorceinconnecticut.blogspot.com/2010/09/excuse-me-could-you-say-that-again.html

Sunday, August 4, 2013

BURDEN OF PROOF: PART II

Whenever you go to family court for a hearing, it is important to ask your attorney what is the burden of proof that the judge expects you to meet in order to win your case.  Different issues you bring before the Court require different standards of proof, and if you know what those standards are, it will be easier for you as a litigant to understand why the judge reached a particular conclusion.  It will also be easier to know what documentary evidence you need to provide to your attorney in order to achieve good results. 
 
There are two cases that immediately come to mind for me when I consider the issue of burden of proof.  The first is Fish v. Fish S.C. 17500 where the primary question for the Supreme Court was what burden of proof did the Plaintiff have to meet in establishing that the Defendant was not a fit parent so as to justify denying him parental rights.  Did it have to be the standard of clear and convincing evidence as determined in Roth v. Weston, 259 Conn. 202, 234-235 or did it merely have to be that of the best interests of the child standard as delineated in Connecticut General Statutes 46b-56b.

In this case, since custody was handed over to a third party who was not a parent, the Supreme Court determined that the standard must be one of the fair preponderance of the evidence.  Since both the Trial Court and the Appellate Courts in this case wrongly based their determinations on the "best interests of the child" standard, rather than the standard of "Fair Preponderance of the Evidence", their decisions were overturned.
 
The second case is the Joe Watley case where Joe and Karin lost their parental rights to their children based upon the doctrine of "predictive neglect."  The Supreme Court determined that the burden of proof which the Department of Children and Families used, that of "potential risk"--a 10% risk--was too low to act as the basis for denying citizens their right to parent.  Instead, the Supreme Court determined that DCF must use the standard of "more likely than not" or the standard of finding by the "preponderance of the evidence.

There are four standards of proof that are generally significant in court.  I mean, there are some fairly offbeat standards such as "scintilla of proof" which I am sure have some legal significance on rare occasions, but what is important to this article are those you will meet regularly when you go to family court.  These four are as follows:

Probable Cause:  This is a relatively low standard of evidence, which is used in the United States to determine whether a search, or an arrest is warranted.  It is also used by grand juries to determine whether to issue an indictment.  This is the standard often used to obtain a prejudgment remedy.  This is relevant if you have filed a civil case in connection to your family court case in regard to abuse or financial wrongdoing for which you hope to obtain a prejudgment remedy.  Probable cause requires a fair probability that contraband or evidence of a crime will be found.  Courts vary when determining what constitutes a "fair probability", some saying 30%, others 40%, and others 50%.  This is the standard of proof you need to meet in order to win during an Oneglia hearing.

Preponderance of the Evidence:  Evidence that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.  This standard is also known as the balance of probabilities, i.e. "more probable than not" and is the burden of proof required in some civil trials.  The standard is met if the proposition is more likely to be true than not true, or to put it another way, if there greater than 50% chance that the proposition is true.

For those who have been following the tragic Trayvon Martin case the preponderance of the evidence is the standard of proof used for immunity from prosecution to be granted under Florida's controversial "stand-your-ground" law.

For information on how the Connecticut Judicial Branch defines this standard, please click on the link below:

http://www.jud.ct.gov/JI/civil/part3/3.2-1.htm

Clear and Convincing Evidence:  Clear and convincing evidence means "a firm belief or conviction" that an event has occurred.  It is the intermediate level of burden of proof sometimes employed in the civil court.  In order to prove something by "clear and convincing evidence" the party with the burden of proof must convince the trier of fact that it is substantially more likely than not that the thing is in fact true. 

This is a lessor requirement than "proof beyond a reasonable doubt" which requires that the trier of fact be all but certain of the truth of the matter asserted, but a stricter requirement than proof by "preponderance of the evidence," which merely requires that the matter asserted seem more likely true than not. 

Further, this standard is used in many types of cases including civil liberty cases, the probate of both wills and living wills, and of interest to those who deal with family court matters, in cases addressing juvenile delinquency and child custody. 

FRAUD:  Just in case you wanted to know, in family court, fraud must be proven using the standard of clear and convincing evidence.

Beyond a Reasonable Doubt:  The highest burden of proof in any court proceeding is proof "beyond a reasonable doubt" and is ordinarily only used in criminal court proceedings.  When a person stands trial, the jury must begin with the assumption that the accusations against the defendant are false.  A juror can only find in favor for the government at the end of the trial if the prosecution has erased all reasonable doubts about the defendant's innocence from the juror's mind.  The "presumption of innocence" is essential to the criminal process. 

The mere mention of the phrase "presumed innocent until proven guilty" keeps judges and juries focused on the ultimate issue at hand in a criminal case:  whether the prosecution has enough evidence to prove beyond a reasonable doubt that the defendant committed the alleged acts. 

This is the standard normally required in criminal court because such proceedings can result in the deprivation of a defendant's liberty or even in his or her death.  These outcomes are far more severe than in civil trials in which monetary damages are the common remedy.

There is also a standard known as "beyond a shadow of a doubt" but I won't go there!

For Protective MothersWhere I find this subject of interest to protective mothers is in regard to what standard of proof is required for domestic violence civil protection orders.  In the State of Connecticut, the standard of proof is "the discretion of the court".  I'm not sure what the heck kind of standard that is, to be honest!  Here is a quick definition I located online at "The Free Dictionary".  Judicial Discretion is "Discretion is the power or right to make official decisions using reason and judgment to choose from among acceptable alternatives."  This strikes me as a rather extensive and broad-ranging level of power which could and has resulted in family court litigants experiencing serious legal abuse.

Of course, what is worse are those states that have no standards at all such as Minnesota.  The vast majority of States use the "preponderance of the evidence" as their standard.  States such as Connecticut that rely on the discretion of the judge often in practice use standards such as sufficient cause, reasonable cause, or good cause, which could be anything from probable cause on up to the preponderance of the evidence.  So Connecticut has a pretty low threshold when it comes to how much evidence you need to meet the legal standard required to determine that there are grounds for an order of protection.  That's actually good if you are a protective mother.

CONCLUSION:

The bottom line, however, is how little judges take into consideration the burden of proof which they are supposed to be using.  In the Oneglia hearings I have observed, judges simply proceed with the standard of "clear and convincing evidence" rather than that of "probable cause" which they are supposed to be using.  In the memoranda of decision I have seen, particularly those from family court, judges often don't even refer to the burden of proof or provide supporting case law to buttress their rulings.  They simply do what they feel like. 

So while I have given you this long, exhaustive explanation regarding what the legal system means when it refers to the burden of proof, and it is important for you to know what it is, don't hold your breath expecting the Court to adhere to it.

RELATED ARTICLES:

http://divorceinconnecticut.blogspot.com/2013/08/burden-of-proof.html
 

Saturday, August 3, 2013

BURDEN OF PROOF: PART I

I was at a recent hearing where the plaintiff was trying to expose her ex husband's financial fraud.  This is extremely difficult to do because family court will do everything it can to obstruct any woman who attempts to hold her ex husband accountable financially. 
 
Unfortunately, many cheating, lying exes get some additional help with this since the banks and brokerage companies hold strictly confidential the majority of financial records which could prove such fraud, and the only way to get your hands on those documents is through discovery ordered by the Court. 
 
However, post judgment, the likelihood that you will obtain such discovery through a court order is mostly nil. 
 
Why? 
 
Because the Courts prefer to protect and shelter evil doers, particularly your slime bag ex.  So most judges will quietly stick their fingers on the scale of justice and decide against any kind of discovery when you go to family court with a request.
 
If you want to swim against the tide and see if you can get discovery nonetheless, you would have to meet the burden of proof standard established by Oneglia v. Oneglia 14 Conn. App. 267 - 1988, "proof beyond a mere suspicion" or probable cause. Supposedly, if you meet that burden of proof, you will then be able to move forward with discovery.
 
Needless to say, my friend lost. 
 
Again, not because she didn't have proof beyond a mere suspicion, but just to say that no matter what she did, the Court was going to rule against her because they don't like reopening cases post-judgment, particularly for a woman.  
 
So what does burden of proof actually mean? 
 
We've heard these terms bandied about on TV--"probable cause" to search a private home,  and "beyond a reasonable doubt" to prove someone guilty of murder.  We've heard "Innocent until proven guilty."  But what does that all mean? 
 
The Burden of proof represents the extent to which a plaintiff or the government has to prove its case in order to prevail in a legal action. 
 
There are three types of burdens: 
 
There is the tactical burden of proof, or the persuasive burden of proof which applies to how each party in a case argues regarding what the Court or a jury should infer from the proof they have before them. 
 
There is also the evidential burden of proof, where each side presents documentation to prove each of their positions correct. 
 
Then, finally, there is the legal burden of proof which is what I am addressing in this article. 
 
The legal burden of proof represents the obligation the plaintiff or the government has to prove the elements of the case in order to win the lawsuit.  By elements of the case what I mean is that any legal charge includes more than one component.  The one bringing the charge must show that each component exists, and also must show the extent to which each component exists such that it meets the requirements of the law.  One such component might be a motivational component in a crime, such as intentionality.
 
The burden of proof ordinarily rests upon the person or government entity that makes the charges, while the defendant proceeds with the assumption that he is innocent. 
 
The latin maxim associated with these respective positions is as follows:  semper necessitas probandi incumbit ei qui agit, which means, "the necessity of proof always lies with the person who lays charges." 
 
Depending on the kind of case, the plaintiff or the prosecution will have to achieve a specific level of proof in connection to the elements of the case in order to win.  These levels can be as low as the Oneglia standard of "beyond a mere suspicion" or "probable cause" all the way up to the highest level "Beyond a reasonable doubt" which we are familiar with in criminal cases. 
 
It is like that old adage of the "straw that breaks the camel's back."  The plaintiff, or the government, has to throw down as many straws as it takes to reach the breaking point where disbelief dissolves into belief.  There are demarcations for each standard, or for the number of straws that you have to throw down in order to meet those standards.  
 
While this should be a standard measured in a fairly mathematical way, and some articles on this subject, in fact, do measure each standard by percentage, in real practice, we who experience the arbitrary nature of adjudication in family court know that these standards are applied fairly randomly and arbitrarily.  More on this in Part II.

RELATED ARTICLES:

http://divorceinconnecticut.blogspot.com/2013/08/burden-of-proof-part-ii.html

Monday, October 1, 2012

TAPE RECORDING CONVERSATIONS

Apparently,  the State of Connecticut is now a two party consent state when it comes to tape recording conversations.  So if you are thinking of tape recording an upcoming conversation with your ex or another person,without letting them know, you may get into trouble legally. Before taking any action, see the link below:
 

Sunday, September 30, 2012

WHERE DO I GO FROM HERE?

I am proud to state that, after I wrote my last blog entry earlier today, I made considerable progress on the document I've been trying to get done.  Something about writing a blog seems to help grease the wheels of inspiration. 
 
Right now I am submitting my final petition to the Appellate Court to see if the CT Supreme Court will consider my complaints.  My guess is that they will not consider them because they haven't considered them from the moment I walked through the door of Family Court. I mean, why should the light of common sense ignite at this point in the game?
 
Coming from a family of teachers, as I do, it makes me shake my head to see such a stubborn group of people like Judges who set a course in a particular case and no matter how bad the course is that they have established will stick to it to the bitter end.  One of the cornerstones of intelligent thought is the ability to reconsider, the ability to reset the course based upon new information, the willingness to see things from more angles than one and to tolerate grey areas. 
 
Of course, if there is one thing I am clear on, it is that Family Court judges can't stand intelligence and they can't stand intelligent people.  In the course of trial, if a judge tells you that you are intelligent, you know that you are in a lot of trouble with your case. 
 
I am preparing right now to consider the steps I will need to take once my petition gets turned down.  Once that happens, where do I go from here? 
 
According to the absolutely last page of the Handbook of Appellate Procedure, page 25, if you are denied a petition to the Connecticut Supreme Court, you can immediately file a petition with the United States Supreme Court.  I have to say that I've been told this before repeatedly, and it was only until today that the news sank in. 
 
This is a situation just like monopoly.  Once you are turned down by the State Courts do not pass go, do not collect $200, do not go to federal district court, skip them all, zip around the board and go all the way to Washington, D.C. and check your complaint out with the very highest court in the land.  Permission to do this is granted by 28  U.S.C. Sec. 1257. 
 
You can appeal to the U.S. Supreme Court not only from an Appellate Court denial of a petition to go to the CT Supreme Court, if your petition to the Supreme Court is accepted, but your case is denied on the level of the CT Supreme Court, you can also go directly the the U.S. Supreme Court.  
 
The only problem with this approach is that generally only 1 to 2 % of cases that go to the U.S. Supreme Court are accepted for consideration.  That is an absolutely miniscule number and a particularly discouraging one for litigants.  I can imagine the odds are even lower for self represented parties such as myself. 
 
One thing to keep in mind for those of you who are not in the least bit discouraged--and I am one of them--make sure you file a stay of execution so that any actions against you can be stayed until the result of your appeal comes in.  Thus, the Handbook says, "If a party wishes to obtain a stay of execution pending decision by the U.S. Supreme Court, that party may seek such a stay by filing a motion for a stay within 20 days of the appellate judgment." Practice Book Sec. 71-7. 
 
If your petition was denied on the Appellate Court level, you have to file your motion for a stay of execution in the Appellate Court.  However, if your case in the U.S. Supreme Court was denied, you have to file your motion for a stay of execution with the Supreme Court. 
 
And don't forget that deadline, please.  You have 20 days from the date of judgment or 20 days from the motion for reconsideration of the judgment, either one. 
 
The stay of execution will give you time to put together your petition to the U.S. Supreme Court.  Of course, it may be you don't want to go to the U.S. Supreme Court.  Maybe you want to sue the State through the federal court system.  I don't know.  I'm not sure if it is allowed. I will have to check into that.  Skipping federal court seems like a good idea, like you are taking the short cut to the top.  It seems really free and easy and like you would save a lot of money. 
 
On the other hand, it does worry me that you have a one shot chance and then you are done.  Then you face the bill of costs from the opposing attorney who says you have been such a problem you have to pay all the legal fees for your insistence upon taking the case to the finish line. 
 
At least if you start at the beginning with federal court you probably have a slightly better chance of succeeding that you'd have in the U.S. Supreme Court with their odds of 1 to 2 percent.  It certainly gives me a lot to reflect upon as I continue forward and submit my motion in the next few days.  Its a game of strategy and I have to figure out how to play it--move the pawn, the rook, the King, the Queen?  Whichever way it goes, I will have to take the path right from here to the end.

Thursday, September 6, 2012

WHAT IS HEARSAY?

I don't know if any of you have ever spent too much time listening to a hearing in court, but I'm sure most of you have definitely watched television movies with court scenes in them.  
 
In these scenes, during testimony, if one of the attorneys is not satisfied with a question, he or she will sometimes stand up and say "objection your honor, leading the witness", or "objection, your honor, speculation."  What does it mean when an attorney says, "Objection, your honor, hearsay." 

What is hearsay, actually?  
 
According to the Electric Law Library, hearsay is secondhand information that a witness heard from somebody else and did not hear or see it himself.  Generally, hearsay is inadmissible because it isn't trustworthy and because hearsay violates an individual's constitutional right to confront his accusers. 
 
According to Wikipedia, the constitutional right to confront your accuser is a clause of the sixth amendment to the United States constitution which provides that "in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him."  Further, "generally, the right is to have a face-to-face confrontation with witnesses who are offering testimonial evidence against the accused in the form of cross-examination during a trial."  
 
The fourteenth amendment makes this right available not only on the federal level but also in the individuals states.
 
So what does this mean in real terms?  Essentially, you are not allowed to say, "Jim told me that Sally admitted to killing Mr. Jones."  Why is that hearsay?  Because Jim is not there in the courtroom to talk about what he personally heard.  Witnesses are only allowed to talk about what they heard personally.  
 
The primary litmus test to determine whether a statement or document is hearsay has to do with the intention behind presenting that material. 
 
For example, if a witness makes a statement in trial court reporting on comments made by another person outside of the hearing in order to prove that those comments are true, then it is hearsay.  The reason is because the person who made those comments is not available for cross-examination. 
 
Furthermore, according to Electric Law, "Statements in the forms of letters, affidavits, declarations, diaries, memos, oral statements, notes, computer files, legal documents, purchase receipts and contracts all constitute hearsay when they are offered to prove that their contents are true."
 
However, if a witness comments on statements made by another party outside the courtroom, or if various kinds of documents are presented to the trial court for purposes other than to prove the truth of the comment or the contents of the documents, then they are all allowed.  
 
For instance, if they are simply offered to prove a person's state of mind, rather than the truth, then they are not considered hearsay.
 
Even with safeguards to preclude hearsay, there are so many exceptions to the rules that frequently hearsay is admitted nonetheless.  Overall, there are around thirty exceptions to the hearsay rule.  
 
Some common exceptions which allow hearsay testimony in are as follows: 
 
1.  Excited Utterances.  For example, if the person making the statement is still under the stress of experiencing the event.  For instance, if Sally had just murdered Mr. Jones fifteen minutes ago, was waving the weapon around yelling in Jim's hearing, "I just murdered Mr. Jones!";
 
2. Death Bed Confessions.  For example, if Sally, just before breathing her last breath stated to Jim, "I just murdered Mr. Jones!" and then died;
 
3.  Statements contrary to your own best interests.  This would include a situation where Sally said to Jim, "I know I may get the death sentence, but I just murdered Mr. Jones!";
 
4. Business records created in the ordinary course of business. 
 
5.  Public records, family records, records from ancient documents of established authenticity;
 
6.  Prior testimony, such as a copy of testimony from a previously held deposition where the opposing side was present. 
 
Why is it important to know what hearsay is? 
 
The only way that a litigant can prove his or her case is to present evidence to the trial court.  If there is evidence that will decisively prove your case, the opposing side will do whatever is possible to eliminate your evidence from the record.  One of the primary ways the opposing side can do that is to claim that your evidence is hearsay. 
 
Once you know what hearsay is you can get witnesses in to testify directly in regard to your evidence, or you can inform yourself in regard to the exceptions to the hearsay rule and get your evidence in through the methods provided by these exceptions.  By doing so, you can block the opposing side from ruining your case. 
 
At the same time, once you are informed regarding the rules about hearsay, you can prevent your opponent from slipping evidence into the record that has no business being there. 
 
If the proof is in the pudding, make sure you are the one who decides on the the ingredients used to make it.