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Showing posts sorted by relevance for query self represented. Sort by date Show all posts
Showing posts sorted by relevance for query self represented. Sort by date Show all posts

Sunday, August 28, 2011

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!

Monday, October 14, 2013

THE TRIALS, TRIBULATIONS AND HEROISM OF THE SELF-REPRESENTED LITIGANT!

Recently, I had the experience of watching a self represented party defend himself during a court hearing.  In my day, I was also a self represented party for around two years, so I understand what it is like.  Yet watching someone else play that role was still a real eye opener. 

The most important observation I had was to see three highly intelligent, well trained, extremely experienced individuals participate in a process that was clearly damaging to everyone involved--the parents and the children.  Every member of the family involved in this case, it was clear to me, would ultimately end up with severe scars as a result of what was happening that day, and throughout the extended legal proceedings in the case. 
 
But don't let me get ahead of myself.  First, allow me to tell you some of the initial lessons I learned from the experience.
 
SELF REPRESENTED PARTIES ARE THE TRUE HEROES OF THE COURT ROOM
 
Again, as self represented parties we know that we are going to lose, yet we choose to represent ourselves anyway. 
 
Why?  
 
There are some very practical reasons for representing ourselves, the first being that we absolutely do not have any money left to pay an attorney to represent us.  The second most common reason is that even if we did have the money, no one would represent us anyway because we have become courtroom poison. 
 
You have to understand these attorneys, let alone the judges, are all in their little club, and they all gossip with one another, and if their little group has decided they are going to make you miserable and make sure you lose and ruin any attorney who tries to do it differently, that is exactly what they will do.  

Other than that, we do what we do because we believe in the justness of our cause. 
 
Self represented parties essentially make the heroic last stands.  We are Custer and his men and we know that the Indians are going to kill every last one of us.  We are Massada!  We are the Alamo! 
 
Yet, even though we know we will lose, nonetheless, many of us work very hard to learn court rules and the law so that we can conduct ourselves respectably.  I know I spent hours reading up on what I had to do in terms of presenting exhibits, developing an argument, responding with my objections, and examining witnesses.  I know many other people who do the same. 
 
And for what?  Why are we doing all those hours and hours of studying and hard work?  Because we are heroic and we are fighting for what is right, good and true, even though we know that the bottom line is that we will never win.
 
SELF REPRESENTED PARTIES ARE NOT AND NEVER WILL BE MEMBERS OF THE CLUB
 
In these recent court proceedings where I was observing, the day started with the usual introductions and the swearing in of the parties and attorneys that they agreed to tell "the truth, the whole truth and nothing but the truth so help me God."(yes, I know, very funny!!!) 
 
Once that was done the judge announced that it was good to see old friends again. 
 
Of course, we all know that my friend the self represented party wasn't included as one of these old friends.  I mean, self represented parties generally come in for their court proceedings, and then, once they are trashed completely, they leave and the judge doesn't get to see them again.  They don't get "old"! 
 
No, the only ones that get old are the attorneys who keep coming back for say thirty years or more. 
 
What that means is that the self represented party will most likely be representing himself for the first and last time in that court.  The opposing attorney, on the other hand, most likely has been in that courtroom for years and years and will continue on that way. 
 
So while the self represented party is a total beginner and just learning to act as an attorney, the opposing side can apply all those legal skills in his or her sleep.  So right away you have a complete imbalance of power. 
 
Plus, these folks have seen each other at meetings, spent time with one another on committees and commissions; they have loads of history. 
 
In my case, the judge had actually provided legal representation to my custody evaluator and so they had this personal and professional relationship going.  So already they trust one another ten times more than they trust you as a self represented party--you will never be designated as an "old friend."
 
SELF REPRESENTED PARTIES ARE HONORARY MEMBERS OF THE CRAZY CLUB
 
In family court, the most frequently used method to trash the designated losing party is to call that party crazy.  This means that self-represented parties are pretty much guaranteed to end up being called crazy since they are the losing parties.  That means they end up being honorary members of the crazy club. 
 
The crazy club, in case you didn't know, is the very special club for the mentally ill.  Mental illness is a disability and normally the fact that a person has a disability is not a reason to deny such people their constitutional and human rights.  However, in the court room, the fact that a person has a mental health disability is equivalent to stating that a person is a subhuman monster. 
 
So when the court decides that you are crazy, that is the end of any opportunity you might have to be treated fairly.
 
Usually, of course, most self represented parties aren't mentally ill at all.  They are simply highly principled individuals who are insisting upon their rights.  So what can the Court do when they have no evidence that these self-represented parties have any mental illness and the psychological test results indicate they have no mental illness and mental health professionals support the fact that they have no mental illness? 
 
They will just hint that a mental illness exists even though there is no evidence for one.  The judge, or the opposing attorney will say of the self represented party, we know that there is some mental health problem, but we haven't yet put our fingers on it yet.  The self represented party has some undiagnosed disorder.  Wink!  Wink!  Wink! 
 
SELF REPRESENTED PARTIES COULD BE WINNING, BUT YOU'D NEVER KNOW
 
It is amazing how many details you notice when you are observing and you are not representing yourself. For one thing, as I watched my friend, it became clear to me that every time he presented a series of irrefutable facts in support of his position, the judge would immediately interrupt loudly and start berating him for some minor violation of court rules, and the opposing attorney would jump up with objection after objection, many of them with a very trivial basis. 
 
If they didn't jump up and down and make a lot of noise in response to my self represented friend's strong defense, the judge and the attorney would lapse into silence and stop responding altogether.  The judge would stop making any eye contact with my friend and would start staring fixedly at the opposite side of the courtroom. 
 
Another tactic I saw the judge employ when my friend was making too many points successfully was to ask highly technical questions about court rules which would overwhelm even an experienced attorney. 
 
Then another approach I saw was when the judge stated that a particular legal procedure my friend used was incorrect when I happen to know very well that it was correct.  I had that happen to me frequently during my time as a self represented party.  The judge had no problem making procedure up right on the spot.
 
Another tactic was when the opposing attorney drilled my friend with a whole lot of peripheral and irrelevant questions to the point where he completely lost track of what he was doing! 
 
Judges will never, ever rule in favor of a self represented party if they can help it.  So, you might have a series of motions, one after another, and if those motions are from the self represented party, they will be denied. 
 
Also, while all this is going on the judge, the marshals, the court reporter are all smirking when the self represented party is looking at his notes, or searching through papers trying to find his exhibits.  It's all really amusing to them.
 
Meanwhile, the judge is like, "Take your time, Mr. So and So.  Don't let me rush you."
 
SELF REPRESENTED PARTIES ARE ASKED TO BELIEVE TOTAL NONSENSE
 
In the case of my friend, at one point in the proceedings, he tried to prevent hearsay testimony from coming into the record.  However, the judge allowed that testimony stating that it wasn't being considered in regard to its truth, but only as an indication of how a person relevant to the case felt.  Yet I am sure every last one of us in that courtroom knew the judges' statement wasn't true, and that the hearsay evidence was being considered for its truth. 
 
With me, I was asked to believe that my children who are disabled and that the ADA Coordinator had verified were disabled, were, in fact, NOT disabled. 
 
There is other kind of nonsense we are supposed to believe, for instance, that a parent who has never harmed his or her child ever, who has never sexually molested the child, has never hit the child, has never been criticized in raising the child, all of a sudden requires supervised visitation, or could even end up being barred from seeing the child permanently without any logical justification.
 
AND THEN THE FINAL, MOST BRUTAL CUT OF ALL
 
If there is one thing that comes out most clearly from spending a day in court watching a self represented party, it is that no matter what the facts of a case are they can be spun either in favor of the one side or the other at will. 
 
It is clear that what occurred in my case and also in the case of my friend is that the judge and the attorneys had made an advanced decision in regard to who was going to win. 
 
We spent hours in the courtroom that day, undergoing a ritual that already had a foregone conclusion, going through the motions, pretending that the judge was listening and carefully considering the evidence, when in fact he was not.  His mind was already made up. 
 
Still, that wasn't all in terms of the damage.  Then came the most brutal part of this process when my friend had to sit silently as the judge gave him a long lecture full of lies and misrepresentations pretty much stating that everything that had happened wrong in the case was his fault.   

That is where the self represented party's real heroism comes in, when he or she has to face that kind of outright disrespect and wrongdoing in silence, while still maintaining a semblance of dignity and outer calm. 
 
Isaiah 53:7  "He was oppressed and he was afflicted, yet he opened not his mouth."

CONCLUSIONS

What I found absurd in this whole situation is the fact that the professionals in that courtroom were applying skills that were developed hundreds of years ago to the present situation.  We don't use leaches to cure physical ills any longer, we don't put people in the stocks.  So why are we using a legal approach that is more appropriate to prior centuries instead of living in the present and using the knowledge that we have today?  We don't put victims of polio in iron lungs; we inoculate them.  Why are we doing the same when it comes to divorce?  That is, acting like we are living in an era when we burn people at the stake?

We now know as the result of family systems therapy that when you harm one member of the family, you harm them all.  You can't just haul one person out of the family and trash that person with trumped up accusations and think that every member of that family will not suffer for that in the end.

Why can't we think that?  Because we live in the modern world and we have made major discoveries about how the human brain works long since the  legal system developed theories about hearsay.

Now, it is all very nice that the attorneys and the judge in this case cited a psychiatrist who conducted an evaluation.  However, it is important to note that the concepts upon which that psychiatrist based his report were only developed in the last 50 years and we still have a long way to go in terms of insights and understandings.  But one thing I do know since I have observed the field of psychiatry very closely over the years, and that is, I don't think that the concepts of psychiatry were intended to destroy the relationships between parents and children, or to subject parents to ritual torture in the courtroom.

These legal professionals want to have their cake and eat it to.  They want to use legal weapons invented in the medieval age to eviscerate fit parents and to use children as informants against those parents, a role that will scar them for life.  And they want the right to use the modern weapons of neurobiology to do it.  No ethical mental health professional would agree to participate in such a proceedings.  Why?  Because the mental health profession is a healing profession which has the obligation to do no harm, not to take sides in a legal proceeding which they know is antithetical to the physical and mental health of every family member involved.

I can't say that I have all the answers to the problems raised by divorce.  It's just that the one thing I do know is that what is going on and what I observed that day in the courtroom with my self represented friend is fundamentally unjust and should not be happening.  I also said to myself, here you have three highly intelligent legal professionals, all college educated and with three additional years of law school, and they can't figure out that what they are doing is absolutely appalling?  What's the matter with these people?  It's not exactly rocket science.  I'm not sure what, but we need to do something to stop this.

Friday, November 4, 2011

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.

Wednesday, February 20, 2019

THE LOW DOWN ON SUBPOENAS FOR A SELF REPRESENTED PARTY IN CT!



If you represent yourself in family court, you will have a difficult challenge ahead of you as I've explained in previous posts.  




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:

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.

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.

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.

Wednesday, March 25, 2015

FOR JUDGES, BULLYING SELF-REPRESENTED PARTIES IS A WAY OF LIFE: JUDGE CORINNE KLATT REPEATEDLY POUNDS KATHI SORRENTINO IN MAY 23, 2014 CUSTODY HEARING!

In an earlier blog on the Kathi Sorrentino case, I had spoken of the book "Man's Search For Meaning" in which Viktor Frankl stated that of all the many sufferings he endured in the Nazi Concentration camps, the worst he had to bear were not the physical privations, but the verbal abuse he had to put up with on a daily basis. When asked, "Why was this so?" his answer was, "Because it was so unfair." 

The context in which Mr. Frankl's words make the most sense in our Family Courts is in regard to how Judges bully and badger self-represented parties during hearings.  In ways that are very predictable, judges treat the represented party as if he can do no wrong, while judges consistently browbeat, harass, and pass judgment on the character of the self represented parties. This is one of the most unfair aspects of our corrupt Family Court system.

This phenomenon represents an ongoing, hidden disgrace in terms of how the Court treats litigants in Family Courts throughout the State of Connecticut.  In the hearing that took place on May 23, 2014, Kathi Sorrentino fell victim to the policy of abusing self-represented parties, and thus ended up losing custody of her son, Storm.

In this blog, I am referring to Judge Corinne Klatt who conducted Kathi Sorrentino's trial, but the bottom line is the techniques judges use in abusing self represented parties are well known and clearly judges discuss and share approaches.  So all of them stand guilty of the same abusive behavior, not just any single judge. 

Disregarding Court Rules:

The most common piece of nonsense Judges allow in hearings with self represented parties is to allow the opposing attorney to submit motions right when the hearing starts.  This is a violation of the due process right to know what you are being accused of in advance of the proceedings.  Thus, with Kathi Sorrentino, Dr. Eric Frazer submitted a status report that Kathi hadn't had the opportunity to see prior to the hearing.  Second, in Kathi Sorrentino's case, the judge allowed the opposing attorney to switch around the order of the witnesses right in the middle of the hearing which gave him considerable advantage.  As long as attorneys can manipulate the legal proceedings at will and a self-represented party has no recourse for that, it is unlikely that a self-represented party will ever have a fair hearing.

Often, judges will mislead self-represented litigants about court procedures as a way to disrupt their legal defense.  For instance, in my case the Judge told me that I did not have to object to decisions I disagreed with because the rules of the CT Practice Book had changed and objections were no longer necessary to preserve your right to appeal.  In fact, this was totally untrue. 

Likewise, Judge Corinne Klatt told Kathi Sorrentino that you are not allowed to object to a question that the opposing attorney posed, when in fact, of course you can.  Also, Judge Klatt told Kathi she was not allowed to object to an answer.  Ok, so you might not be able to "object" to an answer, but you can certainly expose the weaknesses in an answer during later examination.  

At other times when Kathi Sorrentino was legitimately standing up to state her objections, Judge Klatt responded with, "Please, stop interrupting." and "Stop shouting out in the courtroom."  So an attorney who objects is objecting, but a self represented party who objects is interrupting or shouting. This kind of judicial reframing of the actions of a self-represented party turns the application of a standard court procedure into a form of wrongdoing which could be punished by a contempt of court.  How can you possibly argue on behalf of your position under such intimidating conditions?  

Shouting loud commands:

Judges also bully self-represented parties by using repeated loud commands.  For instance this exchange during one part of the May 23, 2014 hearing:

Kathi:  Did I ever deny you any time during your parenting time?
Sam:  No.
Kathi: Not mine because, as you...
Sam:  No.
Kathi:  You admitted...
Judge Klatt:  All right.  All right.
Kathi: You do ask to...
Judge Klatt:  All right.  All right.  All right.
Kathi: Ok.
Judge Klatt:  He's answered the question.  You're not to argue with the witness; understand me?
Kathi: Ok.
Judge Klatt:  Ask your next question.

As I read through this transcript, I didn't see that Kathi had been arguing, but this is the point, that the Judge imposes an interpretation on a neutral situation and finds wrongdoing where there is none. 

Other behaviors like this include repeatedly going "Stop, stop, stop, stop" when Kathi Sorrentino was doing something minor like handing over an exhibit too quickly, or another variation, "Whoa, whoa, whoa, whoa!" when Kathi asked the other side to show proof in regard to a statement they made.  Or when Kathi tried to elicit testimony from her ex-husband as to why he refused to continue with court ordered co-parenting therapy, "No. No. No. No. No."  

There are also situations where a judge doesn't think you are conducting your examination fast enough as a self-represented party and after each question barks out, "next question!, next question!, next question!" as Judge Klatt did with Kathi Sorrentino.  Or consider this outburst from Judge Klatt when she didn't think Kathi was going fast enough in her examination "This is the last time, move on to the next question.  I have ordered you five times.  I've actually counted.  Five times I've ordered you to move on from that subject.  Next question or I will stop this cross examination." 

Treatment like that inevitably leads self-represented parties to feel hurried and fragmented and judges do it for that reason.  Judges also like to tell self-represented parties off for using up so much of the Court's valuable time on their miserable self-defense.  For instance, Judge Klatt: "We are not going to turn this into a three day procedure.  Please."  Or else this exchange during Ms. Sorrentino's cross-examination of her ex:

Judge Klatt:  Just ask your next question.
Kathi:  So we have it on the record that Storm is registered...
Judge Klatt:  Please ask your next question.
Kathi:  with Dr. Landis...
Judge Klatt:  Are you finished with your questions?
Kathi: Okay.
Judge Klatt:  Are you finished with your questions?
Kathi:  No.  No, I'm not.
Judge Klatt:  Please.  Then go.

Again, when Kathi Sorrentino was attempting to make her final remarks she didn't say them fast enough for Judge Corinne Klatt as the following interchange indicates:

Judge Klatt:  Other than that, what do you want to tell me because...
Kathi:  Why?
Judge Klatt: ...quite frankly, ma'am, I'm about to shut you off.
Kathi:  Why?
Judge Klatt:  We've got three minutes left.  You've taken all day.  And as I've indicated, I think that's been a deliberate behavior on your part...
Kathi:  I'm sorry.  It's not deliberate.

Soliciting or Providing Testimony Outside Judicial Role: Frequently, when judges see there are big holes in a case, they will simply find a way to get the testimony in that is necessary to throw it in the direction of the particular litigant they've decided will win.

In my case, I recall the judge asking my ex's attorney questions about some retirement accounts in my ex's name thus cluing the attorney in on what arguments to use to get my ex excused from the penalties he should have endured for not reporting them on his financial agreement. 

In Kathi Sorrentino's case, the judge intervened extensively  and simply elicited the testimony he wanted to get out of Mr. Sorrentino, rather that leaving it up to the attorneys to argue to argue their case.  If you have the judge inserting evidence into the case of his own volition, and disregarding his role as neutral decision maker, how can you possibly believe that you have a fair trial.

Direct Personal Attacks:

Then there are the direct personal attacks on the self-represented litigant's character which are the most difficult to take and are a matter of course when a self-represented party is involved in a hearing.  For instance, there is the interchange between Judge Corinne Klatt and Kathi when Judge Klatt makes fun of her for not knowing the meaning of the word "filibuster":

Judge Klatt:  This is not let's ramble on because, really, that's all you're doing.  Are you familiar with what a filibuster is?  Ma'am, are you?
Kathi:  No. No.
Judge Klatt:  You're not?  Not at all?
Kathi:  No.
Judge Klatt:  You're a college graduate, aren't you?  Or I know you're enrolled in college...
Kathi:  English and Studio Art major.
Judge Klatt:  All right.
Kathi:  And I'm in school now for...
Judge Klatt:  All right.
Kathi:  and Education major.
Judge Klatt:  And you don't know what a filibuster is?
Kathi:  No.  Not off the...
Judge Klatt:  That's where somebody keeps talking just to stretch things out without really getting to the point of the issues at hand and which is what I think you're doing to me here.

There is something inherently wrong when a Judge of the superior court thinks it is acceptable to make fun of a self represented party for not knowing the meaning of a word. 

Condemnation for being intelligent:

With women who are representing themselves, there inevitably comes a point where the Judge will comment on how intelligent you are.  I personally know several women this has happened to.  This occurs because in these cases of abuse, the Family Court racketeers particularly choose women who are intelligent because the misogynist court system, I believe, is immensely gleeful to have the opportunity to humiliate and demean intelligent women. 

Also, they are aware that bright women are very likely to fight long and hard for their children, so this means more money for everyone all around. 

In Kathi's case, as with so many others, Judge Corinne Klatt's commentary on Kathi's intelligence is predictably interlaced with insult as follows:

Kathi:  I'm confused, your honor.
Judge Klatt:  Ma'am, you know what, Ma'am?  It is my obligation to assess the credibility of witnesses and I don't think you're in the least bit confused.  You're a bright, intelligent woman that has thoroughly prepared for this hearing and I think you're deliberately presenting to the Court in a fashion that makes you--that you're attempting to tell the Court or imply to the Court that you're confused.  I am not believing you in that regard."

But then after celebrating Kathi's intelligence, albeit in a very abusive manner, Judge Klatt tries to insult that intelligence by pretending that the entire court proceeding is not a direct attack on Kathi in the following interchange:

Kathi:  What I'm sensing and I'm hearing is that--that this is about me being accused of [being] an alienator and not complying with Court orders and I'm doing what I can to show that I am.
Judge Klatt:  Well, I hesitate to accuse, ma'am.  That's -- it's an affliction.  It is not -- it is not a crime we're accusing you of.

Right, it's a mental illness not a crime, as if that matters,  because the outcome for Kathi will be the devastating loss of custody of her child.  So is Judge Klatt trying to say that Kathi shouldn't worry about it?  How irrational is that? 

Increasing the noise level to drown out the truth:

The bottom line is that whenever Kathi Sorrentino succeeded in making powerful points in her defense, which was actually quite frequently, Judge Klatt would find a frivolous reason to strike that testimony from the record.  In addition, if Kathi was pursuing a successful line of questioning that proved that she was innocent of wrongdoing, inevitably Judge Klatt would allow the opposing attorney to jump up and down with irrelevant objections and commentary, or else she herself would interject discouraging remarks and observations. 

While for the better part, Kathi was able to make her points nonetheless, I recall being completely sidelined by those kinds of distracting techniques in my day.

The represented party can do no wrong:  

Meanwhile, the represented party pretty much gets away with anything he wants.  He can provide extensive hearsay testimony, make unsupported and outrageous statements without being required to provide the slightest bit of evidence.  He can refuse to answer the questions or answer them with outright lies and get away with it.  In other words, for the person who has an attorney to advocate on his behalf, hearings like this are a breeze. 

For instance, at one point while examining Mr. Sorrentino on the stand, Kathi Sorrentino was able to point out that he had no evidentiary basis for his accusations.  Immediately, Judge Corinne Klatt rushed to his rescue stating, "Well, ma'am, to be quite frank, that -- those comments are stricken.  You want to know why?  Because I am the one who determines credibility, not you."  

A hearing solely for show:

What this adds up to is that Kathi Sorrentino's hearing on May 23, 2014 was simply for show, a casual bow to the legal requirement that the Court allow a citizen a hearing before depriving her of her constitutional right to parent.  The outcome of this hearing was already predetermined. 

But yes, given the fact that legal techniques and procedures are geared to expose the truth, it does take the active intervention of the Judge to subvert the proceedings and conclude with an entirely unjust final judgment as happened in this case. 

Many of the self-represented parties who undergo this trial by outright wrongdoing by a judge talk about how exhausted they feel afterwards.  They are exhausted by the direct personal attacks and exhausted by the constant perversion of the truth.  It can feel as though you are an exhausted boxer staggering around the ring flailing back at punches that appear to come out from all sides. 

There is nothing fair or just about such proceedings.  The fact that Connecticut Family Courts conduct such show trials is a disgrace.  With the passage of last years Bill #494 and with the upcoming Bill #5505, there is hope that we can correct these kinds of abuses.