What is your status?
The official position of the CT Judicial Branch in family court is articulated in a handout that they give you when you submit your appearance as a self represented party. It states as follows:
"A self-represented person must abide by the same rules of procedure and the rules of evidence as lawyers. It is the responsibility of self represented parties to determine what needs to be done and to take the necessary action."
While this seems reasonable on face value, if you dig down deeper, keeping things equal between self represented parties and attorneys is literally impossible.
One reason for this is that the Rules of Procedure in "The CT Practice Book", and the Rules of Evidence are encylopedic and there is no way an average person would be able to wade through them and figure them out on time for a hearing or anything of that kind.
Second, self represented parties do not have the same power and authority that attorneys do when it comes to obtaining documents and ensuring that their witnesses are available for Court hearings and/or trials. While attorneys have the power to issue subpoenas at will, self represented parties cannot do so.
In other words, self represented parties do not have subpoena power. Unlike attorneys, if they wish to issue a subpoena, self represented parties must ask a judge for permission, and God help them if the judge doesn't want to give them permission.
What is a subpoena?
According to Findlaw, a subpoena is "a request for the production of documents, or a request to appear in court or other legal proceeding." There are two kinds of subpoenas. One is a subpoena duces tecum (pronounced "doo-seez tee-kum"), which requires you to produce documents, materials, or other tangible evidence. The second is a subpoena ad testificandum (pronounced "ad test- te-fi-kan-dum"), requires you to testify before a court, or other legal authority.
Why is this important? Because proceedings in family court are testimony driven and evidence driven (through documents, tape recordings, video, etc.). If you want to prove the correctness of your legal position in family court, you will need both. Without them, you will lose your case. Period.
This is why the power of subpoena is so vital and why not having that power in a family court proceeding is so damaging to self represented parties and why it puts such parties in a position of considerable weakness in contrast to attorneys.
So how does the Family Court system handle subpoenas with self represented parties?
What it does is require self represented parties to request that a judge sign off on all subpoenas. So if you want to subpoena either evidence or witnesses, you must file an application with a judge, who will then be required to approve it. I will post the link to the application form you would use below. At the same time as you file an application, you must also fill out the subpoena itself and file it along with your application form. See below:
The official position of the CT Judicial Branch in family court is articulated in a handout that they give you when you submit your appearance as a self represented party. It states as follows:
"A self-represented person must abide by the same rules of procedure and the rules of evidence as lawyers. It is the responsibility of self represented parties to determine what needs to be done and to take the necessary action."
While this seems reasonable on face value, if you dig down deeper, keeping things equal between self represented parties and attorneys is literally impossible.
One reason for this is that the Rules of Procedure in "The CT Practice Book", and the Rules of Evidence are encylopedic and there is no way an average person would be able to wade through them and figure them out on time for a hearing or anything of that kind.
Second, self represented parties do not have the same power and authority that attorneys do when it comes to obtaining documents and ensuring that their witnesses are available for Court hearings and/or trials. While attorneys have the power to issue subpoenas at will, self represented parties cannot do so.
In other words, self represented parties do not have subpoena power. Unlike attorneys, if they wish to issue a subpoena, self represented parties must ask a judge for permission, and God help them if the judge doesn't want to give them permission.
What is a subpoena?
According to Findlaw, a subpoena is "a request for the production of documents, or a request to appear in court or other legal proceeding." There are two kinds of subpoenas. One is a subpoena duces tecum (pronounced "doo-seez tee-kum"), which requires you to produce documents, materials, or other tangible evidence. The second is a subpoena ad testificandum (pronounced "ad test- te-fi-kan-dum"), requires you to testify before a court, or other legal authority.
Why is this important? Because proceedings in family court are testimony driven and evidence driven (through documents, tape recordings, video, etc.). If you want to prove the correctness of your legal position in family court, you will need both. Without them, you will lose your case. Period.
This is why the power of subpoena is so vital and why not having that power in a family court proceeding is so damaging to self represented parties and why it puts such parties in a position of considerable weakness in contrast to attorneys.
So how does the Family Court system handle subpoenas with self represented parties?
What it does is require self represented parties to request that a judge sign off on all subpoenas. So if you want to subpoena either evidence or witnesses, you must file an application with a judge, who will then be required to approve it. I will post the link to the application form you would use below. At the same time as you file an application, you must also fill out the subpoena itself and file it along with your application form. See below:
Application for Subpoena:
Subpoena:
This seems logical, doesn't it! Ok, but this is the problem. Most judges will simply refuse to approve your request for a subpoena. They just won't. You'd think you would have the procedural due process right to command the presence of your witnesses and obtain necessary documents to prove your position in Court, but you don't--at least not according to CT Family Court judges. Lawyers do, not self-represented parties.
In my experience, when it came to obtaining documents from banks and corporations, my Judge declined to sign subpoenas on my behalf but instead ordered my ex to sign authorizations to obtain access to the documents. So how did my ex sign those authorizations? Slowly. Further, as all judges and attorneys know, authorizations do not have the force of law. This means the banks and corporations essentially refused to cooperate, or later cooperated with great reluctance so getting the documents ended up being like pulling teeth, and I still didn't get the entire set. Plus, I had to pay for the entire expense, not only for the copies of documents for me, but an additional set of copies for my ex. Go figure.
In my experience, when it came to obtaining documents from banks and corporations, my Judge declined to sign subpoenas on my behalf but instead ordered my ex to sign authorizations to obtain access to the documents. So how did my ex sign those authorizations? Slowly. Further, as all judges and attorneys know, authorizations do not have the force of law. This means the banks and corporations essentially refused to cooperate, or later cooperated with great reluctance so getting the documents ended up being like pulling teeth, and I still didn't get the entire set. Plus, I had to pay for the entire expense, not only for the copies of documents for me, but an additional set of copies for my ex. Go figure.
So this is the paradox. They tell you that you must act in Court exactly like an attorney, but then they don't give you the same power and authority of an attorney to pursue your case. Not fair? Well, too bad for you.
Is there any recourse if a judge refuses to grant your application for a subpoena?
My recommendation is that whenever you submit a request for a subpoena that you attach to that request an affidavit indicating why the subpoena is necessary. In addition to a very clear and concise statement as to the need for that particular witness or documentary evidence, the content of this affidavit would be as follows:
If the subpoena is for an expert witness, then you would include the following information: 1) The date when you submitted the required "Notice of Expert Witness" to the Court; 2) Confirmation that you sent the expert witness' report to the opposing party as required by Court Rules and that you have included the witness' name in your trial compliance in advance of trial.
If you have a fact witness, then you would simply indicate that you have included the witness' name in your trial compliance in advance of trial.
In regard to documents that you wish to subpoena, include in your affidavit exactly why those documents are important and indicate that you have listed the documents you anticipate receiving via the subpoena in your trial compliance. So even though you don't have them yet, you list them and put the word (anticipated) in brackets to indicate you expect them to be produced per your due process right. If you don't know quite what they are exactly, you come up with a reasonably fitting description. This way your request is on the record in another location.
If it turns out that, despite the fact that you carefully filled out the forms appropriately and you submitted a well written affidavit, the judge still denies your request for a subpoena, as often occurs, you still have the option of requesting a hearing to have your application reconsidered. See below the form you would need to fill out for such a hearing.
Request For Hearing/Denied Application for Issuance of a Subpoena
Of course, this is ridiculous. Can you imagine how much time it takes to fill out the forms, be denied, submit an affidavit, resubmit request, be denied, request a hearing, wait for hearing, be denied, etc. etc. etc. This can continue for weeks, meanwhile the day of trial is looming on the horizon and you have no idea whether you can actually present your case in a competent manner because you are being denied access to witnesses and documentation necessary to do so!
But that's all in a day's work when it comes to how the CT Family Court screws self-represented parties. I am aware that, since my day, the website for the CT Judicial Branch has been crammed with all sorts of information and advice for self represented parties. If you didn't know how the system works and you just looked at the website, you'd think life was delightful for self represented parties. Bottom line, however, is that no matter how they have prettied up the website in a PR campaign, the practice of the law in family court has remained unchanged and self represented parties are just as disadvantaged as ever before. I hope everyone gets that from this discussion.
Where do you stand if you are able to jump all these hoops?
For one thing, you are completely stressed out because in the weeks prior to trial you just didn't know if you'd have the witnesses or documents you needed to present your case. You've probably done double or triple the work preparing to argue a case despite not having what you needed. Then you ended up getting discovery after all. At the last minute, you might have found new documents with completely new evidence. You realize that the expert you thought wouldn't come is now going to be there. So now you have to rewrite your argument again. That's one scenario.
Another scenario is that the opposing party will simply ignore the subpoena or dispute the subpoena. What the judge is supposed to do is enforce the subpoena, but often he or she just won't do that. The same goes for subpoenas sent to banks or other corporations--they'll ignore them or dispute them, and you won't be able to do anything to force them to comply because the judge will refuse to take action on your behalf.
This is not all the aggravation you are likely to deal with. For instance, when you get all your witnesses to Court, most likely at considerable expense--most require several thousands of dollars to appear--the Judge will refuse to allow them to provide testimony. No, the Judge may not be so blatant as to say you can't put your witnesses on the stand! What the Judge might do is continue the trial to a later date so you would have to go through another round of requesting subpoenas to get them to come back. Plus, you would have to pay the witnesses additional witness fees. As for any documentary evidence you may wish to submit, unless you have memorized every detail of the Rules of Evidence, good luck getting them accepted by the Court as evidence! In my case, I had 90% of my exhibits denied admission as evidence.
This is not all the aggravation you are likely to deal with. For instance, when you get all your witnesses to Court, most likely at considerable expense--most require several thousands of dollars to appear--the Judge will refuse to allow them to provide testimony. No, the Judge may not be so blatant as to say you can't put your witnesses on the stand! What the Judge might do is continue the trial to a later date so you would have to go through another round of requesting subpoenas to get them to come back. Plus, you would have to pay the witnesses additional witness fees. As for any documentary evidence you may wish to submit, unless you have memorized every detail of the Rules of Evidence, good luck getting them accepted by the Court as evidence! In my case, I had 90% of my exhibits denied admission as evidence.
I hope you see how self-represented parties are completely screwed here. This is why I consider them so heroic because the odds against them are extraordinary. This is one observation I have in regard to the subpoena situation for self represented parties. The other observation I have is how hypocritical the CT Family Court system is to conduct business in this manner.
It’s not just family court. I’m a pro se civil litigant and followed the rules/forms for issuing subpoenas for a hearing on my motion in the Complex Litigation Docket at Stamford. But Judge Genuario followed neither Practice Book nor forms and did not actually deny them. I went to the hearing without the subpoenas being issued and, at the request of adverse counsel, was asked to tell what the witnesses would be asked to testify about. (This was supposed to be ex parte to the judge). At the hearing the judge told me he was represented by adverse counsel’s firm, Ryan Ryan Deluca, in a case that just recently settled—concerning something that happened before he was a judge—and he’d give me time to decide if I wanted him to recuse. I didn’t ask for his recusal, though I couldn’t find any case on state or federal web site where he was represented by RRD. (Before he was a judge, Genuario was a state legislator, so if it had something to do with that, he would’ve had to be represented by the AG) I can only guess that the case was sealed, a practice unique to CT when it comes to privileged parties like judges and certain lawyers. The judge went on to deny my motion without any hearing of the issues, and get this—on the basis of grounds not pleaded by adverse counsel, and which he himself said was irrelevant. I filed a motion for reconsideration that he denied with one word, before adverse counsel could respond or a request for adjudication could be filed—in other words a void judgment. To hell with the rules and standing orders of the CLD—or the fact that you’ve paid $325 to get on that docket. Very clear that Genuario was working for Charles Deluca—a little side hustle while getting his salary from the state.
ReplyDeleteThank you for sharing information about how we can represent our self in family court. Please share more updates.
ReplyDeletehttps://ccj.ncsc.org/~/media/Microsites/Files/CCJ/Web%20Documents/CBA%20Annual%20Meeting%20Dinner%202012%20(2).ashx
ReplyDeleteSee Chase Rogers' address to the Bar dinner in 2012 re her opinion of pro ses. This hostility from the top trickled down to poison the whole Judicial system against pro ses. Transcript might be an interesting thing to publish more widely.
Thank you for advertising the relatively new subpoena appeal process which went into affect quietly around Dec. 2015. Sadly, it appears that the JB does not advertise it well.
ReplyDeleteHowever, I do take exception at you poo pooing the process. Prior to that, self reps had absolutely no recourse if an application for a subpoena was denied. Do you know how much effort went into getting that appeal process instituted?
Yes, it's not perfect, by any means, but its one step forward, if only a tiny step, it's better than none. Now let's see if it can be improved.
As for enforcing subpoenas, this is also a lawyer's nightmare, not just a self rep one. Just ask Congress as they try to get Trump's financial records through subpoenas to no avail. Thank you.
You are wrong when you state the "self reps had absolutely no recourse if an application for a subpoena was denied." You could resubmit your application with an affidavit articulating in greater detail your need for the subpoena. I've never heard an attorney in family court complain they couldn't get what they wanted via a subpoena. I have heard pro se parties complain, however.
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