Jurisdictionary Part 1Cause of Action Moving the Court Flow Chart Part 2- Confidence Facts and Law Liability and Damages We have to prove that the opposing party is legally liable for our damages We Have to prove we were damages as a Direct and Proximate Result What is the proximate causation of this persons damage if there are supposed dam ages. Every cause of action rises as a BREACH OF DUTY- which causes damages. Has to h ave a Cause of Action to cause damages. The Attorney, nor the Judge is going to help - Must move the court and Set/Sched ule the court for hearing. Present facts and the law, the liability and damages , move the court. Anticipate what the other party is likely to do. Part 3- STATING YOUR CASE / DRAFTING AFFECTIVE PLEADING Simplicity to win. Cause of Action / Right to Sue / Right to Get Damages PLAINTIFF- has to STATE the CAUSE of ACTION. Is the Cause of Action. What was the duty? Negligence? Every Cause of Action - Duty? Breach? Damages? Must pro ve the Cuase of Action. DEFENDANT- has to tear apart. Show Plaintiff cant prove. Part 4- Precision and Simplicity If you are Defendant, DONT move the Court. If you are Plaintiff - take deposition, do discovery, move the court. Anything that doesnt get to Judgment is a waste of time. Not all wrongs have a remedy. Causes of Action - "Cause of Action", "Element/s". One or words for causes of ac tion ie: tortious interference. Plaintiff failed to state a cause of action. It must show existance Tutorial Causes of Action - Has to be alleged and proved. (4 elements to cause o f action) 1. Must be alleged and proved an Existance of an advantageous business Relations hip. 2. Intentional and Unjustified interference. 3. Knowledge of the Relationship. 4. Suffered Damages. I have to know it exists. DUTY / BREACH / DAMAGES. They have to prove I had a duty, breach, and damages. REMEDIES: Equitable Remedy and Money Damages, which is At Law remedy(money Damag es or an Action) or some form of Injunction. Must State all of the Elements. Did they state and/or prove the Elements? Failure to state all of the Elements? Did they Prove all the Elements? If not, they must dismiss it. Part 5- Pleadings. 1. 2. 3. 4. COMPLAINT and SUMMONS - If not properly served. Certificate of Service Verification Answer (might not file). Can interwin in an Answer with CounterClaim. AFFIRMATIVE DEFENSE: Always filed Affirmative Defense if you can. this is a PL EADING. OPPOSING PARTY if RECEIVES AFFIRMATIVE DEFENSES MUST REPLY. Part 6 - COMPLAINT Discovery can start at the beginning. The Complaint is statements that the othe r party must Admit or Deny. Dont put anything 5 tools for DiscoveryRequest for Admissions Request for Production Interrogatories Depositions (Only do AFTER first 3 are done) Court Orders / (Includes Subpeonas) (First 3 are mostly used. They are in form of written questions) Oppositing Party through Depositions for a Protective Order on a witness. If we HAVENT WON before TRIAL, we havent done our JOB!!!!!!!!!!!!! PART 7- PLEADINGS Framing our Pleadings Ultimately the only thing that is going to be looked at at trial is the PLEADING S. What is in the Pleadings. From time to time we need to Move the Court to Amend the Pleadings. Amend Plead ings after they file the Answer. Get everything in the pleadings except extra work. Is the Pleading an Element? 1st kind of Pleading is a Complaint. Jurisdicitional allegations. Why the cour t has subject matter jurisdiction. Put the damages. Alledge the Facts. Stating Plaintiff and Defendant entered into a written agre ement. Copy of contract is attached. State ultimate Facts (not that have to go beyond elements). I have to show perf ormance. How did you suffer damages. Wherefore clause, (what it is that we want/damages) PART 8 - MULTI-COUNT COMPLAINT We entered into Verbal Agreement, As a Direct Result Plaintiff lost ---- (count 1) / (Count 2) Tortious Interferen ce. Restate beginning. Defendant knew of the Relationship. Admit / Deny / Without Knowledge Get the FACTS into the Record. Discovery starts with the Pleadings. Judge may never read the Complaint. PART 9 - ANSWERING THE COMPLAINTIf Defendant Answers only, put Deny / Admit / Without Knowledge. Demands Strict proof thereto? Counter-Claim Cross Claim - within the answer I have a Cross-Claim against another party withi n the suit. Cant complete Discovery until After the opposing Party Answers. Affirmative Defense - KEEP IT SIMPLE : Plaintiff action is barred by the Statut e of Limitations. If I AM PLAINTIFF Pleadings State CASES, they State Causes of Action, they state the Factual Eleme nts. Outside of the Pleadings are - Motions, Discovery, If it isnt pleadings, no relief is okay. Must be in the pleadings to get a chan ce of Relief. PART 10- AVOIDING THE ANSWER. Motion to Dismiss the Complaint can include, 1. Failutre to State a Cause of Action, 2. Failure to Join an Indespensable Party, 3. Motion to Strike 4. Motion for more Definate Statement, 5. Lack of Inpersonam Jurisidiction, 6. Lack of Subject Matter Jurisdiction, 7. Failure to State the Elements !!!!MUST Move the Court to enter an Order!!!!. -for failure to state a cause of action -Allegation of Damages is necessary for breach of contract. -failure to state damages RULES, STATUTES, CASES, CONSTITUTIONS, at times Public Policy. 3 Ways to NOT Answer-???????????????????????? 1. Motion to Strike (Copy of Case) / Set it for Hearing / Vague Ambiguous, Defendant should be ordered to state the complaint m Restate the Complaint? Use Affirmative Defenses. Statutes of Frauds, Estoppel, PART 11- DISCOVERY OF EVIDENCE Judge is not supposed to Object for the Other side. Have a court reporter. 5 tools to get into evidence: Request for Admissions: Admit the truth to the following. True / False - Moti on to Compel Discovery if they are not answering. Request for Production: Get everything, books, records, Interrogatories: Use them sparingly. We have a couple times to use it. Some up front, Some after Deposition and Before Trial (Affidavit is NOT Admissable) - His testimony. If Affidavit is signed by anothe r party, another party, not named, etc. is hearsay and is inadmissable> Rules of Evidence Court Powers / Speical Court order Motion to Compel and set it for hearing. If they have produced it, they can not remove it. Plaintiff's first Request Plaintiff;s second Request - pursuant to the rule, I want to see the originals. PART 12- MOVING THE COURT Depositions - NOTICE OF TAKING. MOTION TO SHOW CAUSE Before you MOTION FOR CONTEMPT Subpeona Power - I want to depose the ___________________; then go to judge and YOU ARE COMMANDED. Clerk can issue subpeona they can do a Motion for Contempt. If I/Attorney does the Subpeona first file Motion to Show Cause, then after if they dont follow, then file Motion for Contempt. Record Speaks for Itself. He Hasnt answered. NEED To get Record of the FACTS i n the Pleadings. Sometimes to get the Order completed, you might have to file a WRIT OF MANDAMUS, It is Ordered and Adjudged that ...........Wherefore Defendant is moving the cou rt PART 13. MEMORANDA PART I Rules, Statutes, Case Law controlling that Court Judicial Notice/ Imperative Judicial Notice.- of a statute, law, case out of Flo rida (Bond vs. Us.). Use JN's sparingly. How to Keep from being Appealable. To build the case. What do I have to set up for Appelate court. Cant subpeona judge, bailiff. MUST get a court Reporter. Approaching the Bench - Don't beg, plead, dont ask, MOVE THE COURT - Tell them a bout the Rule of Law, the Facts, Demand the Court do..... Be prepared to recuse the judge if he/she objects or is bias. PART 14- KNOWING THE LAW Every court house has a court library and a librarian. Findlaw.com How to Cite the Law: Blue Book. Cite it Correctly. Whenever you have a motion or memorandom, make sure to have a copy of the case, include a copy for the Plaintiff in advance. CITING Case Law, means including the CASE!!!! PART 15-MEMORANDA PART II In a Motion - Combination Motion can happen. Keep motion short!!! Memorandum in support of Defendents Motion to XXXXXXXX - talks abou the facts th at applies, and the Law. This court should __________________because (CITE)______________________, MAKE YOUR ARGUMENTS IN WRITING!! ARGUMENTS: -The foregoing issue has not been adjudicated. And the court to adjudicate -No evidence has been presented to contradict Plaintiffs allegations in regard t o the foregoing issue. -Plaintiff has not completed discovery. Plaintiff has a motion for _______________________, an in house camera? Epstein v. Guidance. -It is reversable error to grant summary judgement where depositions are still p ending. (tell judge what it is by Cases from court above you...In your memorandum, and at hearing to judge: did you read my memorandum? did you read my motion? -Memorandom has 1.Caption, 2. Tilte, 3. Preamble, 4.Citations, Wherefore clause (enter an order to deny...), Copies of the cases PART 16- LEGAL AUTHORITIES: 1. Constitutions 2. Statutes, Annotated Statutes / Cases 3. Cases that Control the Trial (Advisory (another state) / State Supreme Court) 4. Federal district court 5. Public Interest How to read the authorities: When one party argues trade secrets - you can ____ ___________? AMENDING A MOTION, FILING, ANSWER 1. Call the Attorney and ask first. No need for court to have to honor it 2. If #1 fails, file a motion to amend, with or without leave of court? PART 17 - COMMON EVIDENCE TRAPS -Failed Authentication if its a copy. Has to be Reliable. -Affidavit. Are they available for Cross Examined, then its not hearsay. -Subpeona- records, tell us about the chain of custody. -Hearsay -Objections - hearsay, rule 90.102?, irrelevent, reliability, relevance, competa nce, privelage, prejudice, leading. it can be kept out where its prejudicial. Object- unduly prejudice this honorable court. Presumptions- shifts burdan of p roof. -Judicial Notice-Admissability - Credibiltiy, Relevence, Reliability, Material, if it will affec t the outcome. MUST PRESERVE YOUR RECORD\ PRIVELAGES Attorney/client PrivelagedWork Product- has to be anticipation WAIVERS IMPEACHMENT - testimony / impeach for inconsistant prior statement. -Character- only if convicted / or moral perpetude. PART 18- EXCEPTIONS TO HEARSAY -Statements to self interest; whoever said that had to be contrary to his intere st -Not likely to make false statements - for consideration by jury -Excited utterance rule- how excited were they? Are they like that all the time ? Continuation of Impeachment: Defective Capacity Lack of First Hand Knowledge Incompetant Substantial evidence Declarant is not available, and not subject to cross-verification. -Testimony by Attorney- Excuse me, Bar Rule Prohibited This attorney does not have first hand knowledge, and if he does or if he is goi ng to testify, he must be put under oath. DEPOSITION: WHAT HAPPENED: AND THEN WHAT HAPPENED: PART 19 - CIRCUMSTANTIAL EVIDENCE Direct Facts. I can ask that the judge/jury infer. We can infer from the Direct facts only. You CAN NOT infer from inference. You can win a case on Circumstantial Evidence. Is it a fact that I............... Authentication: - Court Records are self authentication. Non Self Authenticating: -Photocopy / Object -Require Originals TRIAL - 3 days before trial - Settle the Case: -If you have a case and -Right to a jury. Judges decide the law, jury decide the facts. Sometime judges can decide the la w and the facts. -Opening Statement: Your honor, we will show you that........... -Closing Statement- We presented evidence, we showed you ......., you heard the testimony of .............., you heard the testimony of the plaintiff, you heard the customers to which of all stated that.......... gadiwells.com PART 20-Preparing Order -WRITE THE ORDER -Be the First to offer to write the Order. -On and For the Record, Repeat what Judge Said. -Submit Order. If ...does not comport with Judges formal ruling. This Cause hav ing come before the court.....ordered and adjudged, (including Finding of Fact, and Conclusion). This court finds that (finding of Fact). Make sure to include Finding of Facts. If not, you have nothing for the Appelate Court. -Include Transcript. -If they have a transcription, get a Certified Copy, not a recording, of the Tra nscript. PART 21 -JUDGEMENTS AND EXECUTION CHECK the Judgement. Must have an Execution (many times they forget, or dont). Must include an Execution which is a Writ. Writ is issued by the clerk. Go to clerk, bring the judgment, have them issue a writ, which COMMANDS the Sherriff to take possession. might have to post a bond. -If you get a judgment make sure it says : "For which let execution issue..." T his commands the Sherriff to execute the judgment WHEN AND HOW TO SETTLE: - Make your case BEFORE trial. Making a Record. counting Cost and Risk of Tria l. -Make an Appealable Case. -Try not to be the first one to make an offer. -Attorneys fees and costs. Or an offer of judgment of Attorneys fees. Make sure to Exclude Attorney Fees Prior!!!!!!!!!!!!!!!!! -Prey for it in Pleadings. -When am I entitled to interest. IMPORTANTL: If I sue on Promissory Note and pr omissory note was bearing interest. I am entitled to the interest of the PN through the Date of Judgment -If I sue for negligence, you can't get pre-judment interest, but CAN get a Post -judgment interest. -If you sue on a PN, or Non-negotiable instrument, you MUST PREY FOR it in the P leadings. Embezzlement loss. MUST ASK FOR IT -When its time to do the judgment Make sure the COURT puts in there a Pre-Judgme nt Interest, and get Post-Judgment Interest. GETTING RELEASES -I release every and all rights and causes of action that I may have had or had from the beginning of the world. If he sues again after release, file and Affirmative Defense - Release and Waive r RELEASE AND WAIVER PREPARING FOR APPEAL -Defendant did not plead all the essential facts in their pleading. !!!!!(Cause of Action and the Elements of the Causes of Action missing)!!!!! -Get transcripts of all the Hearings. Pay for Attendance. PART 22- Preserving Your Objections Preserve your objections> If a judge interrupts, let him know, your honor, I am trying to make a record. I have a right to make a record. -Stick to the citations, and provide them. This is what the statute says, this is what the case says..."". -Your honor, the rule say this should be done. WRITTEN OBJECTION- make them on the record, make them timely, Motion to Reconsider / Motion for a Rehearing - Judge signs order. Good thing t o file. WATCH YOUR TIME. Gives another opportunity to make a record. ASK FOR REHEARING BECAUSE JUDGE was wrong, or that the Plaintiff. PREPARE FOR APPEAL. Notice of Appeal - must be filed within 30 days of the Judges Order. DONT DELAY . Drafting an Appelate Brief- like a memorandom. what are the issues. The issue s are. What is the law, citing, here is the record. PART 23- JURISDICTION Where does the authority come from? -Can get a petition and change the Constitution. -In Personam - over person. In rem- is things, like dead person, probate. Maxi ms- A thing similar is never exactly the same. Self-Evident Truth MAXIMS CONTROL THE COURT~!!!!!!!!!!!!!! Learn all the Maxims- You can control the judge this way. COURT CAN NOT DISAGREE WITH MAXIMS ---Constitutions create Maxims. The wisdon o f the Constitution that are in the underlying fixed MAXIMS Statutes are JUDGED by MAXIMS - Case Law is controlled by the Maxims. Rule maki ng power is in the Court. Courts can not legislate substantive law....how fast you can drive, etc. how man y,..you can own. Courts can not disseminate legislature. Courts have INHERENT power to Enforce t heir Rules. Court has equitable power and discretion. LACHES- equitable remedy - Resonable time. SHERRIFFS Boss is the CIRCUIT COURT Courts Part 24-CONTROLLING JUDGES Must be LEGAL SUFFICIANCY. What did the Appelate court say what is Legal Suffic iancy. Part 25-SUMMATION Frame the Pleadings. Make a written record of the objections. Demand Justice. I cant find the law but your honor let me provide the ....and tlet me bring the witness, because by god, there should be a law about this, and Im hoping that you'll make the right judgm ent after I show you why. In the spirit of the right.