ALL ABOUT SUBPOENAS IN CONNECTICUT!

If you are truly being serious as a self represented party, sooner or later you are going to have to send out Subpoenas to obtain your witnesses and documents that you need for trial. 

You know how we are admonished as self represented parties that we are going to be expected to follow all the procedures just the same as lawyers, etc., etc.  That doesn't mean that you have the same rights as lawyers, by any means.  So keep that in mind as you approach the issue of subpoenas. 

I believe that as Citizens of the United States of America we have the constitutional right to bring our witnesses to trial and to subpoena documents to trial.  Perhaps some of my readers who are particularly familiar with constitutional law can comment on this point.  However, if you are self represented, that so called right is somewhat curtailed. 

This means that you can't just fill out a Subpoena and call in your witness and/or demand documents.  To get a Subpoena, you must first fill out an Application for a Subpoena (Form JD-CV-62) and request permission to obtain such a Subpoena from a judge.  If the judge says, "No, you can't have a Subpoena." then you are stuck.  I mean, how successful are you going to be at trial if you aren't allowed to bring in your witnesses or obtain the evidence you need?  Not very successful, I can assure you. 

You would think that obtaining a witness for a trial or in order to conduct a deposition would be approved by judges as a matter of course.  In fact, this is not the case.  I have frequently been turned down when I applied for a Subpoena, and for no good reason as far as I can tell.  Here is some advice on how to go through the process of obtaining a Subpoena so that you are more likely to obtain one. 

Obtain Form JD-CV-62, the Application for a Subpoena, and fill it out completely.  Use only one form per person or per financial institution that you are sending it to.  I know it says that you can put in the names of two people, but don't.  It just causes confusion. 

Under the section where you are supposed to list the names and addresses of the people you are sending your Subpoena to, the form asks you to to finish up the statement "I believe testimony from this person is necessary because..."  Don't just write out a quick answer here of one or two sentences long. 

Instead, write up a formal affidavit explaining who the witness is, what relationship the witness has to the case, what specific information this witness will provide, and explain why this testimony is essential to your case and attach it to your application.  Make this affidavit at least one page long double spaced and typed and then have the affidavit notarized.  You can have this done for free by one of the assistants at the Court Service Center.  You are much more likely to get your application approved if you do this. 

If you submit an application without such an affidavit and you are turned down for a subpoena by the judge, simply resubmit your request with your attached affidavit explaining in detail why you need the Subpoena.  If you did include the affidavit, rewrite it and make it more forceful and again resubmit it. Just because you get turned down once, that is no reason for you to just give up.  When at first you don't succeed, try, try, try again! 

If you are turned down for a Subpoena and the judge continues to deny you that Subpoena, make sure that the case detail reflects that the Subpoena was denied.  I had four Subpoenas which a judge denied and the case detail listed them as "issued". 

You can imagine that when your case comes up for trial, and your own witnesses don't show up in response to Subpoenas that the court has on record were issued you will end up looking extremely bad.  Also, when the Appellate Court reviews your case on appeal, they will say, what's her problem, she got her Subpoenas.  And if the record says you got them, even though you didn't, who is in trouble?  That's right...you! 

So keep your eye on the case detail to be sure the outcome of your application as listed is accurate.  What happened when my Subpoenas were improperly listed as issued, when they were not, is that I spoke to the judge's clerk.  She acknowledged they had not been issued, but because once a statement is put into the case detail, even if wrongly, they aren't able or allowed or desirous of fixing the "mistake" (or what we suspect is a deliberate misrepresentation!) so instead what the clerk did was replace the entry saying the subpoena had been issued with a statement that the subpoena entry had been moved.  I am not sure what that means, but it sounded better than that it had been issued when it hadn't been! 

Can you believe that the Court plays all these games with Self Represented Parties.  You always have to be on your guard with the Court.  

In addition, if the judge refuses to allow you a Subpoena to bring your witnesses to Court, at some point during the trial, remember to make one or two additional requests for Subpoenas for your witnesses during the trial, and object when the Judge denies you the Subpoenas.  That way, not only do you have a written record of that denial in the case detail, you have a transcript indicating you repeated your request for Subpoenas and that you objected when the request was denied.  This will provide a strong record to the Appellate Court indicating that you wanted Subpoenas and you were not silent and that you objected when those Subpoenas were denied.  This is very important when it comes to an appeal.

Once you have filled out the Application for the Subpoena, you then have to fill out the actual Subpoena which gets sent out.  Be sure to write in the date and time of trial or the deposition you are requiring the witness to come to, and remember to put in the telephone number of the ADA Coordinator in your area if the witness may need assistance getting to the Courthouse. 

Once the Subpoena is approved by the judge, it must be hand delivered to the witness by a Marshall (a proper officer or indifferent person), who will then provide certification to the court that the document was physically given to your witness. 

To obtain a Marshall go the Court Service Center or the Trial Clerk's office and obtain a list of available Marshalls.   Such a list is also available online on the Judicial Website.  For your information, a Marshall sits around in the Court Service Center for one hour during lunch and another hour later in the afternoon waiting for litigants who need assistance.  The problem with these particular Marshalls is that sometimes they have a considerable number of documents they need to deliver and they might not get to your subpoena until two or three or even more days after they receive it.  So if you need your subpoena delivered without any kind of delay because your trial is happening soon or you need those documents quickly, I wouldn't use the Marshalls at the Court Service Center.  And you are well within your rights to ask a Marshall when exactly he intends to deliver the Subpoena. 

You will receive confirmation that the Marshall delivered the Subpoena in the mail, and he will also put a confirmation in your court file. 

The cost of a Marshall is variable or negotiable depending upon how you strike him.  If he thinks you are rich, you can go as high as $70.00, but if you come across as less wealthy, you can pay around $40.00 or so.  Usually the Marshall at the Court Service Center charges less.  Otherwise, if you are truly desperate and can't afford these charges, you can apply for a Fee Waiver.  For further information regarding Subpoenas, check the judicial website at:

http://www.jud.ct.gov/forms/grouped/civil/subpoena.htm

GET THE LOW DOWN ON SUBPOENAS!

WHAT IS A FINAL JUDGMENT?

In my case, there are always problems which ultimately means that I usually have one motion or another waiting to be heard in Court.  Rarely, if I seriously don't like the outcome of a decision, I will go to Appellate Court and ask them to review the Trial Court's decision for accuracy.

As citizens of this great country, we are able to appeal a judgment of the Trial Court "as of right".  However, we are only allowed to appeal judgments that are final, not judgments that are temporary, or what is known as interlocutory judgments.

One primary difficulty I have faced in going to Appellate Court is that, inevitably, the opposing attorney in my case will file a Motion to Dismiss stating that the Trial Court Ruling I am trying to appeal is not a final judgment. 

The first time I read that I was completely floored because I had no idea what a final judgment is as opposed to any other kind of judgment.  So I lost that first Motion to Dismiss because I simply didn't know how to answer the objection.  So, to make things easy on you folks, and to prevent you from majorly losing like I did, let me inform you regarding the issue of the Appellate Court and final judgments. 

This is the most important point.  As I have said, you are only allowed to appeal a final judgment.  A final judgment is a judgment that takes place after a conventional trial on the merits of a case which disposes of all parties and all issues.  This final judgment is ordinarily, but not always, articulated in a Memorandum of Decision submitted not long after the trial has concluded. 

A final judgment can be understood in contrast to an interlocutory judgment which is a provisional, interim, or temporary judgment.  An interlocutory judgment is generally put into place between the beginning and end of a lawsuit in order to resolve a particular legal issue which is not the final issue being heard at trial.  An example of this could be an evidentiary issue or a discovery issue. 

Otherwise, an interlocutory judgment could be made in order to prevent irreparable harm from occurring during the course of the lawsuit.  A good example of the latter would be alimony or child support orders, pendente lite, which make sure that the children in a divorce case have sufficient money to pay for shelter and food during the course of the lawsuit.

Most interlocutory orders cannot be appealed because state and federal courts do not want piecemeal litigation.  However, some interlocutory orders have been considered final judgments for the purposes of appeal.  The standard for determining whether an interlocutory judgment can be appealled was established in State v. Curcio 191 Conn. 27 (1983). 

In this case, the court determined that an interlocutory judgment can be considered final if it meets the following guidelines: 

1.  Where the order or action terminates a separate and distinct proceeding or;

2. Where the order or action so concludes the rights of the parties that further proceedings cannot affect them. 

In this second prong, the requirement is that the party seeking to appeal must establish that the Trial Court's order threatens the preservation of a fundamental right and that this right will be irrestrievably lost and the party irreparably harmed unless he or she immediately appeals.

Some examples of appealable interlocutory orders are as follows: Taff v. Bettcher, 243, Conn. 380 and Madigan v. Madigan supra 224 Conn. 758, 620 A.2d 1276 (1993) where the Court determined that interlocutory orders in regard to custody or visitation could be considered final for the purposes of appeal. 

In Taff v. Bettcher, where custody was at issue, the court stated that the consideration is whether an order so impacts the rights of the Parties as to require immediate review.  In regard to issues of custody and visitation the courts stated that when it comes to a temporary custody order, appeal is the only means of assuring the rights of parents because a lost opportunity to spend time with a child is not recoverable. 

There was also Sweeney v. Sweeney, 271, Conn. 193 (2004) where the Supreme Court determined that interlocutory orders in regard to a child's education are appealable.  Here the court felt the case should be heard because it impacted the parents' authority to make decisions on behalf of their children, the denial of which could cause ireparable harm.

When it comes to final judgments, the judgment for the dissolution of your marriage was final.  A judgment regarding a motion to reopen is final.  Once a judgment has been made, you have twenty days to appeal it.

Where you as a litigant can get into trouble, however, is when you do not realize you have been given a final judgment and then you miss the appeals period because you were unaware that the clock had started ticking. That happens often when the Judge doesn't actually write up his decision and just states it in open Court, leaving it up to you to figure out what just happened.

I had a problem where I was litigating a particular motion which became so complicated that the Trial Judge came up with five different Memoranda of Decision on the case, adding extra pieces of his judgment as he went along. So, which one of those Memoranda was the final judgment? 

Well, you can be sure the judge stated that the Memorandum most inconvenient for me was considered the final judgment. 

Since Trial Judges don't want to have their decisions reviewed by the higher Courts, they aren't exactly going to make it easy for you to figure out what is what when it comes to a final judgment. So, how are you supposed to figure out what is going on, particularly if you are a self represented party? 

One way to find out is simply to ask in open court once the Judge has verbalized his ruling. You can say, "Your Honor, is that a final judgment?" and then he can answer "yes" or "no" and you can run with the ball he throws you one way or another. 

If you are unsure and you haven't received a written ruling, your other option is to later on file a Motion For Articulation asking the Trial Judge to clarify the point for you.  You can even go into detail and ask, if not, is this an appealable interlocutory judgment, if you think it might be.  But don't wait for an answer before filing your appeal, because you could wait forever. Judges often don't bother to respond to self represented parties when they ask for articulation. And once you have missed the deadline, you've lost your case simply by default. 

Also, when it comes to tricks, often the Court will issue its final judgment in a Memorandum of Decision, and then the clerk will dilly dally for a week or so  before dropping it in the mail to send it on to you.  The appeals period begins as soon as the Court issues its decision, not when you receive the decision in the mail.  So make sure you check the judicial website for when the decision comes out, again, so you won't miss your opportunity to appeal.

TRIAL MANAGEMENT ORDER - DEC. 1, 2009

In my previous blog, I discussed the Standing Orders which you must comply with in preparation for a pre-trial hearing at family court.  At this point, I would like to review the Standing Orders which you must comply to in preparation for a trial. 

If you are heading for trial, this means that you were unable to hammer out an agreement with your X during your pretrial conference.  Still, this does not mean that negotiations aren't continuing as you move in the direction of trial. 

Often, your attorney is meeting with the opposing attorney casually while waiting in the corridors for hearings on other cases, or giving the opposing attorney a quick phone call with a proposal here or a proposal there, or writing letters to the opposing attorney with suggestions for a settlement. 

For your information, when the attorneys write letters with proposals for settlement, they write them with the words "FOR SETTLEMENT ONLY" at the top of the page.  Supposedly, when they do that, this means that neither attorney has the legal right to bring whatever has been written in the letter to Court and present it to the judge in order to get advantage in court.  It is supposed to be a protected and confidential document. 

However, I was just observing a hearing a couple of weeks ago where the judge allowed letters clearly labeled "FOR SETTLEMENT ONLY" into the trial as full exhibits.  I myself found a letter a former attorney of mine had written for settlement only used by a judge in a recent determination he made in regard to a motion I'd made. 

So, if you don't want the information used against you, never ever write it in a letter no matter what. 

In this intensive environment where everyone is working to reach a settlement, even in very high conflict divorces, it becomes possible to arrive at an agreement.  Still, as you move towards that trial date, you are required to prepare specific documents in preparation for the big day.  These documents must be submitted to the caseflow office and the opposing attorney not less than 10 (ten) calendar days before the assigned trial date. 

If you are having expert witnesses come to trial, you must disclose them in accordance with the Practice Book Sec. 13-4 at least 30 (thirty) days in advance. 

Many of the documents required for trial are the very same documents you were expected to provide for the Pre-trial Conference.  They are as follows:

1.  Financial Affidavits:  Current sworn financial affidavits, including a detailed income statement, a list of assets and liabilities, the sworn to value of all assets, current value of all retirement and employment benefits and any proposed distribution;

2.  Motions:  A list of all pending motions, including motions to be decided before the start of trial (in limine) and motions for protective order;

3.  Child Support Guidelines Worksheet: The fully completed form;

4.  Proposed Orders:  A list of what orders you want the judge to give you in accordance with Practice Book Sec. 25-30(c) and (d), which shall be comprehensive and set forth the parties' requested relief;

5.  Proposed Parental Responsibility Plan:  If you have one, a written stipulation detailing the plan which you would like included in the proposed orders;

6.  Affidavit Re Children:  An Executed Affidavit concerning Children (JD-FM-164)

Other documents that are required are unique to the trial and reflect the fact that documents and witnesses have now been specifically selected for the purpose of developing arguments at trial which will support your position.  These documents are as follows:

7.  List of Witnesses:  A list of  the names of all witnesses each party reasonably expects to call as part of their case in chief, as well as any reasonably anticipated rebuttal witnesses, including an identifer (that is, party, eyewitness, or expert), as well as a brief description of what each will testify to;

8.  List of Exhibits:  A list of exhibits each party reasonably expects to introduce in evidence, indexed by P plus a number for the plaintiff, and D plus a letter for the defendant, with a brief description of each exhibit.

Usually this list of witnesses and the list of exhibits, as well as the list of motions, are put together in a single document.

The actual exhibits are not to be sent to the Caseflow Office but are to be exchanged by the parties as part of the compliance with this order.  The parties usually meet in the Courtroom at 9:15 a.m. immediately before trial and finish up the labeling of the exhibits and exchange the documents right then and there.  Each of the parties should have an extra set of exhibits which they will provide to the Court during the course of the trial.

I always make sure there is also another additional copy of the exhibits because it never fails that as the trial goes to the second or third day, the opposing counsel will claim that they have lost their copies of my exhibits and I'll have to supply additional copies to them again.

Next, in response to the lists of the exhibits, each counsel submits another document listing objections to the admission of opposing counsel's exhibits, and includes with each objection a statement regarding the grounds for the objection, if there is one.

So the focus with the preparation for pretrial is more one of obtaining discovery and determining what is out there, while the focus of the trial is to take what you have found as a result of discovery and make a case with it.

 Finally, there are a few more documents which finish up the array which are:

9. Computer Analysis:  A computer generated alimony and child support cash analysis, calculated by a program that is only available to attorney's, I believe.  So if you want to put one together I think you have to pay an attorney to do it for you.  This analysis should make it clear whether you are using gross or net income, and it should also provide an indication of how the split would go based upon different proposed support plans, i.e. 50-50, or 60-40, whatever.  These computer reports should be exchanged by the parties.

10.  Dissolution Report (JD-FM-181) or (JD-FM-181A, used in civil unions):  The judge can then use the information on this paperwork to put together the divorce decree.

If these witnesses and documents were all available to you, it should be possible to negotiate a fair and equitable agreement between you and your soon to be X  based upon what you have.  That's why the judges put together the standing orders, because they should encourage behavior that is reasonable and sensible. 

Unfortunately, what happens so often is that one or the other party refuses to provide the necessary financial documents and then the judges let them get away with not providing the information. 

This happens frequently in situations where the judge appears to concluded that one or the other party was the offended party, based upon some whim or impression that you, as a litigant, will never know the basis for, or else, one or the other attorney's was very good at stating his or her case either for or against you. 

Be that as it may, if a judge sides against you, then that judge will not care to enforce any of the rules unless it compromises you, or puts you in a bad position.  Essentially, judges put their hands on the scale; they disregard what the law requires, and give the side they like the right to do exactly as they please.  As a result, what could be a fair and equitable system turns into a kind of organized free for all with all the superficial trappings of structure, but deep down, the reality that the Court is implementing of a system that is riddled with inconsistent and unfair rulings where thousands of innocent men, women and children are buried underneath a mountain of injustice. 

PRETRIAL STANDING ORDERS - AS OF DEC. 1, 2009

There are two big events that take will place in family court in regard "to your matter" (as your case is often called!)--one is the Pretrial and the other is the Trial. You would be missing out on how these two big events unfold if you weren't aware that your attorney, or you, if you are a self represented party, is required to submit a considerable number of documents several days in advance before such an event takes place. 

In this article, I will be talking about the Pretrial. 

As you may or may not know, the vast majority of cases in Family Court do not go to trial and are instead resolved through negotiation.  In order to facilitate this negotiation, the Court offers pretrials in advance of trial. 

This is an opportunity:  a) for both sides to put their cards on the table and state what they are willing to settle for and b)  it is also an opportunity to hear from the "pre-trying authority" or most likely a judge made available for the purpose.

(A judge, you may recall from my previous posts, is also entitled "the finder of fact" when he is conducting a trial; just like God, who, in the bible, has a whole lot of names, judges have a lot of names too!)

The judge will provide feedback to the parties regarding what he or she thinks you could get if you decided to go to trial with the documentation and witnesses you have.

When I have participated in pretrials, most often the attorneys in the case met with the "pre-trying authority" (or "judge") in his chambers (or "office") and pretty much hammered out most of the anticipated agreements, and then the Parties straggled in afterwards for the pre-trial hearing just to express their final views and tweak the wording here and there. 

This can be truly irritating if your attorney pretty much went into chambers and negotiated away all of your rights, which happens quite frequently in high conflict divorces.  

This is what is helpful to know about the pretrial compliance--i.e. the documentation and your list of witnesses which you put together in preparation for the pretrial hearing.  These documents are extremely informative to you as a litigant in terms of alerting you regarding the direction your attorney intends to go in. 

If you pay attention to the  documents and witnesses your attorney intends to use, you can ask the kinds of questions you need to ask in order to persuade your attorney to work more faithfully on your behalf.  For example, if you are complaining that you are a victim of domestic violence and the police officers who provided reports of that domestic violence are not on your list of witnesses, you can be sure your own attorney does not intend to bring up the issue of domestic violence no matter how often he responds to your inquiries with "Sure, sure, I'll bring it up."  Everything you need to argue a point must be in your pretrial compliance, so if something isn't there, you need to confront your attorney about that immediately before you go to pretrial.  Otherwise, if the document or witness regarding an issue isn't there, it is gone as an issue. 

The documents that you need for your pretrial compliance must be submitted to the trying authority on the day of the pretrial.  However, this material must be provided to the opposing attorney at least seven (7) calendar days before the scheduled pretrial and include the following:

1.  Memorandum:  A non-argumentative memorandum, including jurisdictional facts, statutory authority, marital history, the ages of the parties, any information about the health, education and employment history of the parties, and a statement as to whether or not fault is at issue in the case.  This is where you state your case in a clear and forthright manner;

2.  Proposed Orders:  State what is it that you want in a divorce agreement and write it out in a list format.  These are written out in accordance with Practice Book Sec. 25-30(c) and (d);

3.  Parental Responsibility Plan:  Write out what kind of parenting arrangement you would like on Form JD-FM-199.  If you are in agreement with your X regarding your plan, just write the plan out as is.  However, if there are still areas of disagreement, indicate where those areas are;

4.  Motions:  Write out a list of all pending motions, including motions that have to be addressed just before trial such as a motion in limine (to exclude evidence from the record) or a motion for a protective order (to prevent a witness from being subpoened or deposed);

5.  Financial Affidavits:  Use Form JD-FM-6 to provide a detailed income statement, a list of assets and liabilities, the sworn-to value of all assets, current value of all retirement and employment benefits and any proposed distribution;

6.  Statement of Stipulations and Disputes:  A statement indicating where you and your X are in agreement regarding the division of assets, along with a statement indicating where there exist continuing disputes;

7.  Appraisals and/or valuations:  Appraisals of real estate or personal property,  or valuations of a business;

8.  Pension Valuations:  Estimates of the value of any retirement accounts that you have;

9.  Taxes:  Copies of individual or joint (whatever is relevant to you) federal and state tax returns along with the backup documentation for the last three years  (of course, don't restrict yourself to three years if you think something beyond the three years timeframe might have relevance to the case);

10.  Tax Documents:  For those of you who have an interest in a business, copies of business tax returns and K-1 statements for the last three years;

11.  Child Support Guidelines Worksheet:  A fully completed child support guidelines worksheet that the Parties agree to.  If the parties disagree, one from each Party with the recommendation each has for child support.

12.  Affidavit Concerning the Children:  Form JD-FM-164 filled out, signed and notarized.

As you can see, pretty much all the information you need to conduct a trial is included with all of this material. 

Altogether these submissions tell a complete story, not only to the judge (pre-trying authority; finder of fact), but also to the opposing attorney. 

In this version of the Standing Orders the last remark is that the orders "do not include and are not intended to be addressed to guardians ad litem for minor children."  I am not sure I understand this because, as I recall it, all of these documents were addressed to the GAL in my case and the GAL was present at all the hearings, pretrial and otherwise. So, I am assuming that all this means is that there are no pretrial forms or documents that the GAL needs to provide prior to trial; only the Parties need to provide anything.  

It is now 2011 and these orders were written in 2009 by Judge Lynda Monro, but I couldn't find anything more recent on the judicial website.  I would keep an eye out for anything more recent, and definitely check in the Practice Book to be sure that you are entirely accurate in your understanding of what is required here, just in case there have been some changes since 2009.

THE HEARSAY RULE--WHAT'S IT ALL ABOUT?

I can't say that I am entirely on top of all the rules regarding evidence.  I will readily admit that I'm still at the beginning of my journey when it comes to the subject.  However, at this point I have gathered sufficient confidence to comment on "The Hearsay Rule". 

The reason why this rule particularly interests me is because I have been shut up by this rule more than any other rule since I first arrived in court years ago. 

"Well, my mother said..."    INADMISSIBLE! 

"Well, my friend, Bob, told me that Joe..."  INADMISSIBLE! 

"Well, a bunch of my friends who were there said..."  INADMISSIBLE! 

How annoying is that?  Imagine having the Court shut you up every time you tried to give your testimony.  No, don't imagine it, just live it, once you try to go to Court without knowing what hearsay is. Trust me, you don't want to go there and embarass and humiliate yourself!

Apparently, Hearsay isn't allowed as evidence in the courtrooms of the United States of America.  So what is hearsay? 

Hearsay is a situation where the witness does not have direct experience of the fact or the truth he is stating, and only knows the information because someone else told him.

 

In other words, no gossip is allowed in the courtroom.  

According to Article VIII of the Federal Rules of Evidence, the definition of hearsay is a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." 

In order to assertain whether a statement in court is hearsay, the Court can scrutinize the statement with the following three questions: 

1.  Has the statement been made under oath?;

2.  Was the statement made in front of the tribunal (judge or jury)?;

3. Was the statement subject to cross examination?  

Such a statement can be oral, written, or nonverbal. 

Going back to what my Mom said, was my Mom under oath? Did she make her comment in front of the Court, or was she there to be subjected to cross examination?  Guess not.  So what she had to say is not admissible in Court. 

The same goes for what Bob and that bunch of friends had to say!  Is Bob anywhere in the courtroom?  No?  Then to heck with what Bob had to say.  The Court won't listen to it because why?  Because its's hearsay, that's why!  This means that if you want information presented to the Court from your Mom, Bob and that bunch of friends, you are going to have to ask them to come to Court personally in order to testify as to what they said.   

Bottom line is that, most of the time, if a statement is being offered to prove that something is true, then the person making the statement has to come in and say it, otherwise the Court will absolutely not consider it. 

Why is the Court so strict about this?  Primarily, there is an understanding that we as human beings are generally unreliable regarding our perceptions.  Our memories are flawed and often in error. 

Also, there is the problem with the whisper down the lane element.  Do you guys remember playing whisper down the lane in Elementary School?  The teacher would whisper a comment into the ear of the first student.  Each student in the class would whisper the comment into the next student's ear until the last student.  Inevitably what the first student heard would be radically and outrageously different from what the last student heard. 

The exclusion of hearsay arises from the concern that something will happen similar to what occurs with the game whisper down the lane.  A statement could be misheard, or remembered improperly, and it could have gone through several mutations before ending up in the mouth of the witness in the courtroom. 

Are there any exceptions to the The Hearsay Rule, times when second hand information becomes admissible nonetheless?  Yes, there are about 30 exceptions.  See what I'm saying?  This is why I have avoided the subject so far.  Can you believe 30 exceptions?  You can't!  Well, I can't either, and don't expect me to list them all.  But here are a few: 

1) Excited Utterance:  This is when a person makes a statement right in the middle of a crisis, when he is still affected by it;

2.  Present sense impression:  A comment that a person made about conditions at the time the person made it.  You don't necessarily have to be in a crisis in this circumstance;

3.  Declarations of present state of mind:  If a person is describing his mental state as opposed to the physical conditions surrounding him or her;

4. Business Records Exception:  Business records created during the ordinary course of business are considered reliable and can be used as long as a proper foundation is laid for them when they are introduced as evidence.  You'd probably have to have someone familiar with the records available to answer questions. 

One exception I am particularly amused by is the one entitled "Forfeiture by wrongdoing".  That's when the person isn't available to provide first hand testimony because the accused killed him or rendered him unavailable in some manner, by threatening him, or breaking his kneecaps, etc.  You can always count on the Court to find a nice way of putting something like that! 

Sorting out the issue of hearsay is a little more complicated than this. But my intention here is just to give you a general idea so you can run with it.  Don't wait until you walk into a hearing to find out that your testimony is inadmissible, and then feel stupid.  Find out beforehand.  Get your witnesses in to back up what you say, or risk losing.

THE LIMITS OF REVENGE

One thing I hear a lot from friends of mine going through bad divorces is, "I'll sue him for that!"  The person they want to sue can be anyone--their attorney, the sucky accountant, the GAL, yes, the GAL is a big one to sue even though I have the feeling that they've got almost complete judicial immunity, the teacher who bad mouthed them about the kids or maybe even the custody evaluator who did worse.

All of these folks are rotten to the core and ought to be sued in my opinion.  Of course, after a year or so in a bad divorce, you pretty much have grounds to sue at least half a dozen people.  It's amazing how many people there are out in the world ready and prepared to make your life miserable, all for money, power, and position.  So, it isn't surprising that sooner or later litigants in family court start talking about how they are going to sue. 

Unfortunately, a lot of them start talking about it long after the opportunity is gone.  

Why?

Because, ladies and gentlemen, there is something called "The Statute of Limitations."  Every state has one, including Connecticut.  This means that after a certain amount of time, unless a legal exception applies, you can no longer sue a person for an injury because the Statute of Limitations has run out. 

The following is a list of some of the common limitations on your right to sue in Connecticut:
Defamation - 2 years
Fraud - 3 years
Injury to personal property - 2 years from date injury was discovered
Libel - 2 years
Medical malpractice actions - 2 years from date of injury
Breach of Oral Contract - 3 years
Personal injury actions - 2 years from date of injury
Professional malpractice - 2 years from date of injury
Slander - 2 years
Breach of Written Contract - 6 years
Wrongful Death - 2 years from date of death

These are mostly civil actions.  I believe there is no Statute of Limitations in regard to criminal actions.  Furthermore, the Statutes of Limitations vary according to cause of action, and they also vary by state. 

The timeframes I have provided are strictly those of the State of Connecticut.  If you live in another state, you will find different Statutes of Limitation for that other state.  

So when does a Statute of Limitations start to run?   A Statute of Limitations is said to start running at the time a claim accrues.  Ordinarily, that is the time at which an injury is suffered.  After that things become more complicated. 

For example, there is the Discovery Rule.  The Discovery Rule states that sometimes it isn't possible to figure out that an injury has occurred until long after it has happened.  For example, you may not notice an error in a will until the person dies and the will is being executed. 

When the Discovery Rule is applied to a situation, you can extend the Statute of Limitations in regard to your case.  However, you really have to read up on your matter and consult with an attorney to see if your claim to extend the Statute of Limitations will hold up in court. 

Another way to extend the Statute of Limitations is by arguing the Statute has been tolled because the victim was a minor, or because the victim was mentally incompetent at the time the injury occurred.  Or, perhaps you were in a coma and unable to pursue your legal rights.  Unfortunately, at this point, Connecticut has no law which extends the Statute of Limitations for injured minors. 

Any of these Statutes of Limitation can be circumvented by a prior agreement of the Parties involved.  So make sure you look at any agreements you sign to make sure that you preserve your rights. 

One problem for victims of high conflict divorce is that they miss the Statutes of Limitations because the divorce is still underway.  That means they are too exhausted with the ongoing litigation to get around to filing a lawsuit. 

Plus, in the end, as I have said, there are so many people to sue, who you gonna start with, right! 

Still, if you think you have a good case and you really want to pursue it, don't mess up the opportunity by missing the Statute of Limitations.  Keep track of when you have to file and consult with a lawyer about how to safeguard your right to sue. 

Usually, the lawyers, mental health professionals, and accountants who have victimized you have already victimized multiple other people before they got to you.  So the work you do in following up and pursuing a wrongdoer will save other people from suffering the way you suffered and, bottom line, it is absolutely worth it.

UNEQUAL TREATMENT OF SELF REPRESENTED PARTIES - CHECK OUT THE PREARGUMENT CONFERENCE AT APPELLATE COURT!

You know how the court system is always telling self represented parties that we are supposed to act like attorneys in every way and follow all the required court procedures?  Apparently, we aren't entitled to any special treatment because we are self represented parties.  


But don't we know how hypocritcal that is!  Don't we know how attorneys are given preferential treatment over self represented parties on many occasions! 

Well, this past week I found out another way in which attorneys get preferential treatment--in appellate court.  Up until now, a clerk at appellate court has informed  me, there has been an internal policy in appellate court denying self represented parties access to preargument conferences.  Apparently, only attorneys have been given the opportunity for preargument conferences. 

Can you believe that!  I don't know about you guys who are self represented parties, but I am getting a little sick and tired of being told I have to live up to the same exalted standards regular attorneys have to live up to while at the same time enduring constant and ongoing discrimination within the judicial system against me as a self represented party. 

Come on, now, enough is enough!!!  

The other situation I can't stand is when judges reveal their prejudice outright, ruling against you, and then when you try to argue your point further, they make it clear they will only listen if you have an attorney to argue on your behalf:  "Go get an attorney!" 

Isn't it our constitutional right to represent ourselves before the court, and when we represent ourselves don't we have the right to equal justice before the law? 

Luckily, I have been informed by an appellate court clerk that this particular policy of excluding self represented parties from preargument conferences in appellate court will be changed as of January 1, 2012.  For the future, as of that date, self represented parties will be allowed access to the preargument conference.  And even now, in advance of this change, since we are so close to the end of the year, the clerk told me that if you request a preargument conference you will most likely get one. 

I say that somewhat guardedly because when I then asked for a preargument conference in my case, I didn't get one.  Maybe I have cooties or something! 


Important Point:  Since opening up preargument conferences to self represented parties is such a new policy, I wouldn't wait passively to have your case deemed appropriate.  Give the clerk a call and demand a conference.

For those of you self represented parties who will hopefully have access to preargument conferences in the appellate court, here is a quick overview of what is involved. 

Take a look at the Handbook of Connecticut Appellate Procedure (handed out free of charge to all self represented parties at the appellate court) on pages 9 and 10, which is section #4 of the Handbook.  Yes, I know this handbook was written in 2003, but it provides a good foundation for what you need to know.  Just make sure you are up to date by rechecking anything I have said here with the most recent Connecticut Practice Book. 

Purpose of the Preargument Conference:  Essentially, the preargument conference is carried out pursuant to Connecticut Practice Boook Section 63-1.  It is ordinarily conducted by judge trial referees (retired judges over the age of 70) or senior judges. 

There are three purposes to the preargument conference:  


1. The conference helps attorneys "identify their strongest and weakest claims" to see whether their case is worth pursuing further.  In doing so, each attorney will outline what the issues are on appeal and cite the authorities supporting their positions; 


2.  The pretrial conference allows attorneys to discuss with the judge the possible settlement of the case; 


3. Pursuant to the Connecticut Practice Book Section 65-1, it allows the judge to consider whether the case should be directly transferred to the Supreme Court.  


Preparation for the Preargument Conference:  Preargument conference statements must be filed in advance of the conference in accordance to the Connecticut Practice Book Section 63-4(a)(5).  


Along with the statement you should file:


1.  A copy of the trial court's written memorandum of decision or a copy of the transcript of the trial court's oral decision, if the transcript is available and 


2. A copy of your preliminary statement of issues.  


In cases deemed appropriate by the Chief Justice, Chief Judge or designee the parties are informed by letter of the date and location of the conference.  


(As I said previously, until now no cases including a self represented party were deemed appropriate!  What a lovely loophole to use in order to evade the requirement that you provide equitable treatment to all litigants!  Well, that group over there just wasn't "deemed appropriate"--RIGHT!)


Anyway, apparently they are deemed appropriate now, so self represented parties, pay attention to these instructions so you can take advantage of this new opportunity that is opening up for you.  


Pursuant to Connecticut Practice Book Section 63-10 all clients must be present at this meeting or else.  


The handbook continues on to say that experience has shown that settlement in a case is more likely to occur before the parties have invested time and money in writing briefs, so conferences of this kind are ordinarily scheduled prior to submission of the briefs.  If briefs are anticipated, they are ordinarily delayed until this preargument conference has taken place.  


The discussions that take place during this conference are confidential and subsequently direct disclosure of the content of these discussions during oral argument before the appellate court is not allowed.  


Is it of any value to attend these preargument conferences?  I don't know.  I think it depends upon your level of experience in litigating as a self represented party.  I have attended pretrial conferences and found that because I was self represented the judge simply blew off the conference and the opposing party resorted to hot air and rhetoric rather than a serious discussion of the issues.  That was a waste of my time.  


However, since I now have more experience, I think I could do a lot better job next time.  It really is up to you to utilize your skills of self assertion and knowledge of the law in order to demand that the conference be conducted properly.  I generally consider any opportunity the court gives you to speak up about your case, no matter how small or seemingly insignificant, an important opportunity to refine and focus your approach and make it better.

CHILD SUPPORT AND ALIMONY IF YOUR EX HUSBAND DIES: CGS 46b-82 AND CGS 46b-84(d)

I didn't really pay attention much to the this issue because I was so overwhelmed when the financial agreement in my case was being put together. But it really is a good question: what do you do to safeguard yourself and your children financially in the event that your ex husband dies?  So here is the answer.  

In order to safeguard your child support and alimony there is CGS 46b-82 and CGS 46b-84(d) which allows the court to order life insurance naming the other party as beneficiary to secure payment of periodic alimony obligations, and/or naming minor children as beneficiaries to secure child support payments.  In the same way as alimony and child support payments, an order for life insurance can be modified upon a showing of a substantial change in circumstances. 

When it comes to an order for life insurance, there are things that the court can and cannot do.  For example,  the court can order that a party maintain life insurance to secure alimony and child support.  But it cannot order that a party take on a life insurance policy which he or she cannot afford.   

The Court cannot order that either party maintain life insurance for children over the age of 18.  But it can order life insurance for as long as the obligation of child support or alimony lasts.

Not only is it important to have a provision that maintains life insurance to secure child support and/or alimony, it is also important that the former spouse can confirm, on a regular basis, that the insurance is in full force and effect. Unfortunately, the provision in my divorce degree that allows me to obtain proof from my ex that the life insurance policy is in place is pretty much useless because my ex, upon request, simply provides me with completely unreliable documentation. And there have been so many violations to agreements I have made with my ex that if I pursued them all, I'd be in court every day of the week. So I pretty much don't bother.

However, you can avoid the problem I've had to deal with by putting wording into the agreement that bypasses your ex husband and allows you to go directly to the life insurance company itself.  Such wording would be as follows:

"Proof:  Husband shall furnish written authorization to the applicable life insurance agents or companies for Wife to receive proof of the maintenance of such insurance upon request."

Also, it is important to have such a provision state that if the party did not maintain life insurance in violation of the agreement, a preferred claim may be made against that party's estate after his or her death.  Such a provision could be worded as follows:

"Claim Against Estate:  If Wife survives husband and for any reasondoes not receive the full benefit of the life insurance specified in this section, she shall have a preferred creditor's claim against the estate of Husband for the full amount of the insurance proceeds payable to her hereunder, less the amount of such proceeds actually received by her."  Something similar could be written for the children's claims as well.

Keep in mind that according to the law, (see Hunter v. Hunter, 41 Conn. Sup. 289 (1989), if an ex spouse and/or child is removed as a beneficiary of such a life insurance policy contrary to the terms of the divorce judgment, they may recover the proceeds of the life insurance policy from the beneficiary who replaced them.

Finally, here I am being rather gender biased, assuming only the husband would be required to obtain life insurance on behalf of his ex wife and his children.  In fact, the Wife can be obligated to obtain life insurance as well to cover her contribution to the maintenance of the children, etc.  So it could end up with both having life insurance to cover costs in case either dies.

GETTING YOUR MOTIONS HEARD: THE SHORT CALENDAR AND MARKING PROCEDURES!

Much of the law has to do with nit picky details. Not only do I like following through on them myself, I also like to tell everybody all about them.  Maybe that's the reason I keep up with my court case and write this blog because I love them so much.
 
Submitting the Motion: 
Anyway, these are the nit picky details involved in getting the motions you write to court for a hearing.  First of all you write the darned motion and then you submit it to court (and by this I mean family court, because civil court has an entirely different procedure). 

Lawyers are required to file all their motions by email.  You, however, as a self represented party are supposed to submit your motions either by fax or personally.  I prefer to submit my motions personally because there is nothing better than getting a date stamped copy of your motion.  Then it is undeniable that you did submit the motion. 

Remember, it is entirely possible that if  the clerks are not feeling good about you or the judge is looking at you cross eyed, they will deep six your motion if they can.  A date stamp is irrefutable proof that you filed the motion. 

The Short Calendar:  Once you have submitted your motion, the clerk will place your motion on the short calendar which comes out a week before your motion is due to be heard.  Normally, you get a couple of weeks before your motion is heard. 

If you have filed your appearance properly (Form JD-CL-12), you should receive a copy of the short calendar in the mail.  You can get an appearance form at any Superior Court Clerk's office, Court Service Center, or on the Judicial Branch website. 

The calendar tells you the date and time of the hearing for your motion as well as all the other motions filed by attorneys and self represented parties who filed motions when you did.  The date and time when your motion will be heard is listed in the first column of the first page.  It will also include the address so you won't get mixed up about which courthouse to go to. 

Marking Your Motion "Ready":  If you are not interested in following through on your motion and do not want a hearing, then you just ignore the short calendar and don't bother to show up.  It will simply not be heard.  That actually happens with a lot of motions because lawyers often submit motions just for show for a client who doesn't know that there is a difference between submitting a motion versus getting it heard.  Also, folks sometimes just submit motions to get information on the record.  However, if you are interested in having you motion heard, you will have to mark it as ready. 

To mark a motion as ready, you have to call the opposing attorney and let him or her know that you are intending to mark the motion as ready so they need to be in court at that time.  Then you call the marking number (call the clerk's office and ask them to transfer you to the marking line) and provide the following information after the beep: 

1. The position of the case on the short calendar--the number that is in parentheses at the top of the entry for your motion on the short calendar;
2. The name and docket number for your case;
3. The number of the motion and the name of the motion;
4. The statement that the motion is to be marked as ready;  5. Your name;
6.  The statement that you have informed the opposing counsel of record that the motion is marked as ready. 

Being There: After that, all you have to do is be there at the time of the hearing.  In order to find out which courtroom you are going to be in, you should check in with the clerk who has that information or the caseflow manager.  

You will be allowed around 20 minutes for your matter.  If the judge thinks that a fair hearing will require more time, he or she will very likely send you to the case flow manager, to schedule another hearing date that will allow you more time to argue the motion.  

There are usually a considerable number of motions that will be heard on any particular day and there is no way of knowing when your motion will come up.  This means you pretty much sit there until they call your name.  You could be lucky enough to be heard right away, or you could end up waiting all day.  You might want to take time during the breaks to see if you can put together a negotiated solution to your problem.  If not, have fun sitting around. 

Of course, sitting there can be quite educational since you often have the opportunity to listen to other parties bringing up issues very similar to the ones you have.  That way you can get a sense of how these motions are handled and how the judge tends to rule.  So, it isn't all wasted time necessarily. 

I believe that once you have filed a motion, you have around 90 days to get it heard, and then it is considered null and void unless you file a form and reclaim it, at which point you go through the whole short calendar, marking as ready procedure again. 

So there you have it!  Dull, dry, nit picky, and essential to the legal process.

WHAT TO EXPECT AS A SELF REPRESENTED PARTY

As you may know, I am a self represented party.  This means that when I arrive at the clerk's office to ask a question, I often get a response from a clerk which goes, "I cannot provide legal advice.  If you need legal advice, go and get an attorney."  Of course, that very same clerk, asked the very same question by a person who is obviously indigent or low income, will freely hand out legal advice.  So there is a bit of a class based double standard here. 

Be that as it may, it is important for you to know that there is a long standing legal and historical basis for your right to represent yourself rooted in the sixth and fourteenth amendments.  So when the opposing attorney attempts to prevent you from representing yourself, and she will if you are in family court, you have a strong basis for defending yourself.  Once you have established your right to act as a self represented party, what can you expect from the judicial system? 

Basically, in the U.S. judicial system there are two attitudes towards self represented parties.  One attitude is that self represented parties have the money but can't be bothered to hire attorneys and so they are absolutely not entitled to any flexibility.  The other attitude is that most people would not choose to represent themselves but are doing so because they don't have the money or don't feel they can obtain a proper defense any other way.  Connecticut is one of the few states that takes the more benign attitude towards self represented parties and, at least in theory, acts accordingly.  As one judge told me, I have a legal obligation to bend over backwards in order to accommodate your needs as a self represented party."  

Still, the handout you receive as a self represented party states that, "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."  This is the official position of the judicial system.  

However, if the court system actually followed through on this approach literally the whole legal system would collapse, granted that over 50% of parties are self represented and fairly incompetent. 

So what gets done to incorporate the unique needs of a self represented party in court while at the same time preserving a represented party's right to a fair and impartial hearing?  First, once the judge has determined that there is a self-represented party in the proceedings, he or she may explain the process to the self represented party before proceeding.  The judge might say something like "I'm going to hear both sides of the case.  The defendant will first explain his case, and you will have a chance to respond.  Please do not interrupt the other party when he is presenting his case, etc." In other words, the judge will provide a quick overview of proper courtroom behavior for the self-represented party. 

Second, the judge might explain to the self-represented party what are the elements of the case and what is the burden of proof required in order for the self-represented party to prove his or her case.  In one situation I was in, the judge had the clerk provide a copy to me of a central ruling which described exactly what I was required to prove in my case.  He then told me he was going to call a recess in the hearing so that I could have a chance to review the case and decide whether or how I wished to proceed further. 

During a hearing with a self represented party, the judge may cut to the chase and just say "tell me what you have", or "what is your argument" so you can just state your case outright rather than present evidence or examine a witness on the stand in your stumbling and inadequate self represented party manner.  Frequently, rather than sit back passively, in a case where there is a self represented party the judge will intervene with his own questions of both you and the witnesses in order to delve into the issues and obtain more information. 

Third, particularly in family matters, the court will lower the standards in regard to evidence so that you don't have to establish a foundation for the documents you wish to submit to the court.  The other party can object, but frequently they don't since judges can make life difficult for them if they do. 

Essentially trial courts are required to accommodate the needs of self represented parties as long as doing so does not infringe upon the rights of the other side.  I'm sure that gets to be a pretty difficult line to draw, but my impression is that they interpret the line liberally.  Of course, my impression also is that judges will give you all that accommodation and flexibility in court and then return to the office and kind of knee jerk rule on the side of the represented party all in the spirit of attorney-attorney solidarity, but that may just be an impression rather than a reality.  

In accordance with a general policy throughout the judicial system in the U.S. the courts in Connecticut will accept any papers submitted by self represented parties and, at least in theory, interpret them as liberally as possible searching them diligently in order to locate anything that might represent a meritorious claim or defense.  This means that when I went to civil court, the clerk was ready to accept anything I was going to give them.  In fact, the court has a fill in the blank form with the heading "motion" where you can simply write in by hand what you are complaining about and submit it to the court for a hearing. 

However, there are limits to the court's liberality.  For example, if you miss a deadline, you miss a deadline, just the same as any other attorney.  Too bad for you.  If a motion you submit to the court requires a fee and must be delivered by a marshall, it requires a fee and must be delivered by a marshall, so don't try to avoid the requirements. 

The appellate court simply will not accept documents that are not formated properly.  However, if you ask they will give you a break and give you more time to revise them so they meet appellate court requirements.  Of course, they would give that very same break to an attorney as well.  The appellate court will try to accommodate you by giving you a free copy of their booklet "Handbook of Appellate Procedure" plus an additional free copy of their booklet with sample forms.  Also, keep in mind that there is a section of the judicial website which is devoted to providing information for self represented parties at:  http://www.jud.ct.gov/lawlib/SRP/default.htm

Still, even though there is all this lip service about the rights of self represented parties, you know that if you are acting as your own counsel, you are a second or even third class citizen.  The court will take advantage of the fact that you don't know the law to work injustice.  When it came to one of my motions, I had to submit a few "Requests for a Hearing" before the court would schedule my motion for a hearing.  This would never happen to an attorney.  Attorneys can just call in and demand a continuance on a court hearing and get one.  Self represented parties have to go through a song and dance for a continuance.  Attorneys can meet the judge in the hallway and have a nice chat.  You cannot.  So don't be naive.  Yes, you are not a lawyer, but you can still make your way through the system and achieve decent results if you keep your cool and follow procedure.  I will always believe that a self represented party who is committed, although he or she does not have the skills or connections of a lawyer, will always outdo an attorney who doesn't give a sh_t, and unfortunately most of them don't give a sh_t.

One point I would like to make is that as you represent yourself, do not spend your time on your emotions.  The point is, what is the law, and is what you are requesting in compliance with the law.  Nothing else matters.  If you become emotional and strident, and if you act on the basis that the injustice you are enduring in court is so severe that you have a right to circumvent protocol, you could end up being marginalized, at which point the court will automatically deny anything you ask for, or you could even lose your right to self representation.

So, that is pretty much it.  Go forth and conquer...or at least, give it a try!