A self-censored chronicle of family court dramas, lived by parents who lost all or some visitation with or custody of a child or children based on perjury and/or other false courtroom evidence
Conley v. Gibson, 355 U.S. 41 at 48 (1957) ~ "Following the simple guide of rule 8(f) that allpleadings
shall be so construed as to do substantial justice"... "The federal
rules reject the approach that pleading is a game of skill in which one misstep
by counsel may be decisive to the outcome and accept the principle that the
purpose of pleading is to facilitate a proper decision on the merits." The
court also cited Rule 8(f) FRCP, which holds that all pleadings shall be
construed to do substantial justice.
Davis v. Wechler, 263 U.S.
22, 24; Stromberb v. California, 283 U.S. 359; NAACP v. Alabama,
375 U.S.
449 ~ "The assertion of federal rights, when plainly and
reasonably made, are not to be defeated under the name of local practice."
Elmore v. McCammon (1986) 640 F. Supp. 905 ~ "... the right to file a lawsuit pro se is one of the
most important rights under the constitution and laws."
Federal Rules of Civil Procedures, Rule 17, 28 USCA
"Next Friend" ~ A next friend is a person who represents someone who is
unable to tend to his or her own interest.
Haines v. Kerner, 404 U.S. 519 (1972) ~ "Allegations such as those asserted by petitioner,
however inartfully pleaded, are sufficient"... "which we hold to less
stringent standards than formal pleadings drafted by lawyers."
Jenkins v. McKeithen, 395 U.S. 411, 421 (1959); Picking v.
Pennsylvania R. Co., 151 Fed 2nd 240; Pucket v. Cox, 456 2nd 233 ~ Pro se pleadings are to be considered without regard to
technicality; pro se litigants' pleadings are not to be held to the same high
standards of perfection as lawyers.
Maty v. Grasselli Chemical Co., 303 U.S. 197 (1938)
~ "Pleadings are intended to serve as a means of arriving
at fair and just settlements of controversies between litigants. They should
not raise barriers which prevent the achievement of that end. Proper pleading
is important, but its importance consists in its effectiveness as a means to
accomplish the end of a just judgment."
NAACP v. Button, 371 U.S.
415); United Mineworkers of America
v. Gibbs, 383 U.S. 715; and
Johnson v. Avery, 89 S. Ct. 747 (1969) ~ Members of groups who are competent nonlawyers can assist
other members of the group achieve the goals of the group in court without
being charged with "unauthorized practice of law."
Picking v. Pennsylvania
Railway, 151 F.2d. 240, Third Circuit Court of Appeals ~ The plaintiff's civil rights pleading was 150 pages and
described by a federal judge as "inept". Nevertheless, it was held
"Where a plaintiff pleads pro se in a suit for protection of civil rights,
the Court should endeavor to construe Plaintiff's Pleadings without regard to
technicalities."
Puckett v. Cox, 456 F. 2d 233 (1972) (6th Cir. USCA) ~ It was held that a pro se complaint requires a less
stringent reading than one drafted by a lawyer per Justice Black in Conley v.
Gibson (see case listed above, Pro Se Rights Section).
Roadway Express v. Pipe, 447 U.S. 752 at 757 (1982) ~ "Due to sloth, inattention or desire to seize tactical
advantage, lawyers have long engaged in dilatory practices... the glacial pace
of much litigation breeds frustration with the Federal Courts and ultimately,
disrespect for the law."
Sherar v. Cullen,
481 F. 2d 946 (1973) ~ "There can be no sanction or penalty imposed upon one
because of his exercise of Constitutional Rights."
Schware v. Board of Examiners, United State Reports 353 U.S.
pages 238, 239. ~ "The practice of law cannot be licensed by any
state/State."
Sims v. Aherns, 271 SW 720 (1925) ~ "The practice of law is an occupation of common
right."
Nothing in this message or the group's archives should be considered legal advise. Please consult an attorney for that stuff because they claim to know these things and will happily charge you a lot of money for sharing their knowledge and experience.
Regarding the re-appointment of Judge Jeffrey Moskowitz
As supporters and constituents we are asking you to forward this questionnaire to the Judiciary Committee of the Maine Legislature.
Many people watching and listening to the Judge Moskowitz re-appointment hearings on Thursday, May 7th, were amazed that members of the Judiciary Committee asked no questions of Judge Moskowitz. This was noticed by one of the many reporters in the audience. Probably most Judiciary Committee members had never appeared in the Moskowitz court, many may have never appeared in any court, so the absence of questions from the committee may have been based on a lack of personal experience.
Because of widespread concern that Judiciary Committee members can’t fully exercise their constitutional responsibility without an interrogation of any Judge that digs into questions of critical interest to the public, and because the public has been largely shut out of the re-appointment process and intimidated by Mr Tardy in an earlier hearing, we offer the following questions for Judge Moskowitz to members of the Judiciary Committee, our elected representatives. We hope they will speak for us. We don’t think they can make a grounded, intelligent, thoughtful decision without answers to these questions:
Best Interest of the Child
What does the Best Interest of the Child standard mean to you?
With regards to the Best Interest of the Child should a higher evidentiary standard be applied to fit parents?
Should the Best Interest of the Child standard be used where termination of parental rights has already taken place?
Tell us about a time when you applied the Best Interest of the Child standard to arrive at a decision even though personally, you may not have agreed with the outcome. -or- Tell us about a time when you personally felt that deviating from the Best Interest of the Child standard was appropriate. What was your thought process?
Parents
How does a divorcing parent on supervised visits achieve unsupervised visits? You said that mistakes give one the opportunity to improve — how do you give that opportunity to parents in your family court matters that you deem have made “mistakes” serious enough to put them on supervised visits? How does a divorcing parent on supervised visits achieve unsupervised visits? Do parents in family matters in your court room have at least the same as parents in child protection matters? Do you view family matters as a zero sum game with one parent as the winner and one as the loser? Process
Describe a time when you were faced with an ethical dilemma. How did you handle that situation? Without mentioning names, tell us about a difficult family matter decision you have had to make? What was it, what options did you consider, and what was the outcome? What is the typical way you handle conflict in the courtroom? When a decision of yours is successfully appealed, what action if any, do you take to learn from that decision? Describe a time when you became frustrated at a pro se litigant. How did you handle that situation? What words would you use to describe your demeanor in the courtroom? Do you make decisions before hearing the case? Do you use the rules of evidence to arbitrarily exclude evidence you don’t want to hear? Do you use the rules of evidence to arbitrarily exclude evidence that doesn’t support the party you favor? Have you ever changed an order without a hearing? When the day’s testimony is over and you go back into your chambers to consider the case, what is your process for reviewing the day’s information? Do you have a system? Checklist? Are there times when you do not actually need a process after a hearing because you’ve been processing and making decisions in an ongoing way throughout the proceedings? Do you have a minimum amount of time you require of yourself for review? Because of the caseload you face, how much pressure do you feel to make decisions more quickly than you’d like? If you find yourself becoming annoyed/agitated/angry/frustrated, what steps do you take to calm yourself and stay impartial? Do you have a/what is your method for doing this? Do you ever take a recess to compose yourself? How do you keep your own personal ambitions/aspirations from interfering/influencing your decisions? i.e. What if a lawyer who could personally benefit you or your career is trying a case in your court? Along those lines, under what conditions would you recuse yourself from hearing a case? Please describe – with examples – how you view your discretionary powers. What does and doesn’t fall under “broad discretion” for you? How do you keep yourself from being more permissive or forgiving … in any small way … of a person representing him/herself when the other party has representation of a lawyer? Under what circumstances would you change an order at the bequest of one party involved in a case without requiring another hearing? Please offer a few examples of the kinds of behaviors or comments on the part of defendants or plaintiffs that would automatically prejudice you against them – in terms of considering their credibility or anything else? Under what circumstances would you allow a child to testify in open court? Please give us a sense of how frequently you feel confident and peaceful about the decisions you hand down? How often do you look back on your decisions with regret? With self-doubts? And … what do you do about it when this happens? What words would you use to describe your demeanor in the courtroom? What do you do to maintain the demeanor you aspire to? How do you determine when it’s okay to exclude evidence? What words would you use to describe your demeanor in the courtroom? Guardian ad litem
When a Guardian ad litem is assigned to a divorce/ custody how do you provide oversight and management of this court officer? Has a Guardian ad litem ever come to you to discuss a case ex parte? (Three part question – please allow an answer to first before asking the second and third): Have you ever incorporated a Guardian ad litem’s recommendations verbatim into your decision? In doing so – have you not in fact given your authority over to a Guardian ad litem? How do you know if the Guardian ad litem made a bias recommendation? Please discuss how you apply the Rules for Guardians ad litem in your courtroom. Provide an example. How do you handle attorneys and Guardians ad litem who are caught lying in the courtroom? How do you ensure that a Guardian ad litem follow the GAL Rules? What action have you taken against a Guardian ad litem who do not follow the GAL Rules? What about a Guardian ad litem who take actions not authorized by the Rules? Do you permit or exclude testimony about Guardian ad litem bias? Do you permit or exclude testimony about Guardian ad litem misconduct? Are you troubled by the perceived alliance between certain law firms and Guardians ad litem? Are you interested in testimony that demonstrates a Guardian ad litem lied in the GAL report or is that “not relevant”? Please describe your feelings about the current rules in place that govern Guardians ad litem. Are they comprehensive enough? Fair? Should they be changed? How important is it to you that Guardians ad litem strictly follow GAL rules? Are there times when it’s okay for them not to? If so, give a few examples of times when it would be okay to “bend the rules?” How do you ensure that a Guardian ad litem follow the GAL Rules? How do you know for sure if they have or haven’t followed the rules? What action have you he taken against a Guardian ad litem who does not follow the GAL Rules? When would you permit or exclude testimony about a Guardian ad litem bias and/or misconduct? Please describe your feelings about a perceived an alliance between certain law firms and Guardians ad litem? When one parent or the Guardian ad litem accuses the other parent of abuse, do you think the opinion of the Department of Health and Human Services is relevant? Are you interested in testimony that demonstrates a Guardian ad litem lied in the GAL report or is that “not relevant”?
MeGAL is working to bring about change to a badly broken Family Court and Guardian ad litem system. These questions came from concerned citizens and parents who have experienced this court. If you would like to find out more please contact us at MeGALalert@gmail.com or find us on Facebook.
Questions that we hope the Judiciary Committee will ask Judge Moskowitz
ANDJUSTICEFORALL.BANGORDAILYNEWS.COM
Complaining About Judicial Conduct - The Oversight of Judges
ANDJUSTICEFORALL.BANGORDAILYNEWS.COM
We welcome a chance to respond to Divorce Corp's invitation to speak out on the topic, "oversight of judges" or the efficacy of corrective action for allegations of...
We welcome a chance to respond to Divorce Corp‘s invitation to speak out on the topic, “oversight of judges” or the efficacy of corrective action for allegations of judicial misbehavior. The brief answer to the issue posed by Divorce Corp is, “there is no functional oversight of judges.” But it is more complicated than that. Our opinion comes from the perspective of our varied experience in family court reform in Maine. And … we write with some understanding of (a) Judicial Branch mechanisms for judicial oversight, and (b) the Maine state legislature’s take on its “oversight of the judiciary” (which includes judges) as a part of its constitutional powers. Problems with the complaint procedure for judges are a small part of much larger, more serious systemic problems with the entire family court system. We feel that a dysfunctional complaint system for judges cannot be looked at in isolation, while the rest of the system seems irreparably broken and in a state of near collapse.
There is an historic lag between the Judiciary’s self-concept of the nature of judges and that of the present day, informed public. In a pre-tech world, when the personal attitudes and behaviors of judges were less visible to the public, a large part of a judges’ power/mystique rested on his/her distance (invisibility) from public view. It was easier to sell the public an ideal image of core judicial attributes: impartiality, fairness, adroit use of discretion, adherence to the law, etc. However, in a Facebook/twitter/e-mail world, a poorly functioning judge may get continual exposure – warts and all, and this exposure puts a serious dent in the “ideal image” of what a judge should be. Judges can’t escape the social media world in which everyone else lives. A bad judicial judgment can go “viral”. Traditional judicial ‘gravitas’ has been dealt a blow from which it will never recover.
How then to deal with the new reality of “warts and all” judicial images? From what we can see in family courts, the legal establishment is in self – serving denial of the problem. Judicial misconduct or the need for any form of corrective action get handled by a mix of firm denial, legalistic complaint – driven approaches, placement of “buddies” on the complaint committee and by attacks and slurs on those who would complain. It is the problem of self-regulation of any industry. It gets magnified in a very closed, very opaque system in which a great deal of money is involved.
In the midst of this new reality, the Maine Judicial Branch takes little visible administrative or management action in correcting judges. More troubling, if one looks at a recent posting on their web site, they seem to be overtly calling for greater bench/bar coziness. A recent proposal to replace, or modify, the Maine Code of Judicial Conduct seems aimed at an even more judge-friendly approach. One telling phrase from the “proposal” jumps out: “… valuing close and regular contacts between the bench and the bar and in fostering involvement of judges with lawyers and non-lawyers in the larger community where judges live and work.” To public readers this phrase sounds like a call to enhance further the “old boy network”. Especially, if one considers the already “close regular contacts” that go on between the bar and the bench right up to and including the Supreme Court. The bar has huge, powerful, not always wholesome influence on judges. By using a mix of bullying and “make nice” techniques they manage gain judicial compliance and “correct their actions”- if unfavorable to the BAR. One wonders about the impact of all of this coziness on judicial impartiality and the issue of “undue influence”? The BAR plays a pivotal role in supporting or opposing judges up for re-appointment. One worries that the criteria for these judicial appointment or re-appointment matters are how lawyer friendly is this judge? This is all done beneath the public radar:
(A) Formal Judicial oversight mechanisms:
i) Judicial Responsibility and Disability Committee: Here is the link to this committee:
A big problem here is that this committee ignores the glaring fact that 74% of family court cases are ‘Prose’. A similar 74% would probably be complainants. This web site as “how to” is not “user friendly” for a ‘Prose’ complainant. It is multi-layered process, each layer must be put to rest before taking the next step. It is a very legalistic process. It requires legal knowledge. And the outcome? From what we can determine from many informants, ZIP!
Using a lawyer may make the legalistics a bit easier to navigate, but it is expensive and a lawyer must always be careful not to be too aggressive in promoting a claim or they may incur charges of disrespecting a judge and face a ‘sua sponte’ complaint from the Overseers of the BAR. It is a fraught situation to say the least, and having a lawyer doesn’t seem to make any difference in obtaining “corrective action”.
ii) Use of a Supreme Court appeal mechanism to address judicial misbehavior. In theory this is a possibility. The Supreme Court will hear cases involving claims of abuse of judicial discretion, but the attorney making the claim must walk a careful line. Here is a reproachful quote that may shed light: “[the lawyer] displays what appears to be a general disrespect for the court and for opposing attorney…”. This quote comes from a recent Court’s decision. This remark from the Court resulted in a ‘sua sponte’ complaint from the Overseers of the Bar, a subsidiary of the Court, about the lawyer, who had written a lengthy, unusually detailed, carefully documented brief. It made the case of serious judicial impropriety too perfectly!
(B) More Systemic approaches: Legislative actions of the Judiciary Committee of the Maine legislature.
The passage of legislative bills into law is one systemic strategy that, it is hoped, will correct some family court actions.
We have had some modest success in getting legislation passed in 2013 aimed at Guardian ad litem reform. It was the first rewrite of the GAL rules in many years. But … Its subsequent implementation in any family court is a question of judicial discretion, judicial enforcement, judges following the law. Most don’t know the law; most ignore it claiming “judicial discretion”.
i) Passing laws or bills aimed at correcting excessive judicial discretion. This is much needed but a daunting legislative challenge. The challenge comes in the form of the Legislature not being sure of the boundaries of its “oversight of the judiciary” constitutional mandate. But we are working on it.
ii) Public testimony in opposition to judicial appointment and reappointments when these issues come before the Judiciary Committee of the legislature.
We have only just tried this approach this year with mixed results. On the one hand, testimony from the public about the egregious actions of a judge up for re-appointment raised serious doubts about the judge’s fitness. For the first time ever the re-appointment was not a slam dunk. It got postponed until the following week. In the interim, the divorce industry rallied the troops and conducted an email blitzkrieg on committee members endorsing the judge as a paragon. They also conducted a “slur campaign” on those who testified. It was an amazing performance from which we learned much. It is all part of the record, and we shall return to try this approach with modifications based on “lessons learned”.
In summary, family court problems are a complex network of interacting systemic problems. Attempts to solve one issue such as judicial misconduct have to be looked at in terms of the total system.
MeGAL is working to reform the Family Court and Guardian ad litem system. If you have had an issue in this area we would ask that you contact us at MeGALalert@gmail.com of find us on Facebook.
7 Steps for Managing Awful Opposing Counsel - “Honestly, based on the dealings I’ve had so far, I dislike the other attorneys more than the opposing spouse! Why do attorneys have to make everything so personal?”
The guy who said that practices family law in Florida, and I couldn’t agree more.
You’ve had the same experience. The opposing counsel is making you miserable. You are not alone.
My friend in Florida asked, “How do you deal with attorneys like that?”
I’ll attempt to answer. However, I’ll warn you now that there isn’t a secret formula for these situations. There isn’t a perfect solution for dealing with these difficult humans.
When I’m dealing with one of these lawyers, I assume that we’re in for the long haul. These folks typically drag out every element of the case.
How to Never Let Your Clients (Or Opposing Counsel) See You Sweat
Here’s my advice:
1. Accept it. Accept that they are who they are and that you can’t change that reality.
2. Be normal. Make every effort to resolve your cases as amicably as usual. Be yourself. Don’t let their anger, hostility, and bad behavior change you. Don’t spend any special time or effort coming up with some magic plan of action because it’s not likely to work, and it only raises your clients’ expectations.
3. Explain the increased expense. Tell your clients that you’re likely to go to trial. Explain to the clients how this sort of behavior works in these cases. Explain that it drives up the costs and that they’re in for a long, expensive battle unless they want to concede now and be done by taking a grossly unfair deal. Help your clients understand that a bad deal is a choice some people prefer when compared to letting opposing counsel drag things on forever. Do a cost/benefit analysis with your clients.
4. Inoculate yourself with your clients. Tell your clients they’re going to have doubts about the quality of your representation and the fairness of the process. Help the clients understand that opposing counsel is acting in an effort to have that impact. Explain that opposing counsel’s bad behavior undermines confidence in you, and that’s the intent. Explain that it makes clients feel out of control. Predict the future for your clients—a future filled with ugly comments, unpleasant interactions, and protracted litigation. Help your clients understand that ultimately, the outcome will still be fair and reasonable.
5. Avoid emotional counterpunching. Make no effort to psych out opposing counsel. Tell your clients why you aren’t going to bother. Don’t attempt to be a bigger jerk than they’re being. Try not to engage in the crazy behavior. Moving forward with the process is the only agenda.
6. Get ready for trial. Keep moving your cases forward. Always have an event on the calendar. Assume you’re going to try these cases, and don’t get sucked into the endless insanity of unproductive settlement discussions.
7. Get it over with. Try the cases. Your clients need finality. They need it to be over. You’ve prepared them for the inevitability of a long, hard slog, and they know it ends with the judgment of the court. Push it forward and get it finished. That way, neither you nor your clients will have to deal with these difficult humans any longer than necessary.
As I said earlier, there isn’t an easy solution for these most difficult lawyers. Just do the job and accept that they make the process inefficient, expensive, and unpleasant. By pushing forward and disconnecting from the aggravating insanity, you’ll survive this case and be ready for the next one. Unfortunately, you’ll likely have another case with these same lawyers and have to deal with their negative behavior again down the road.
If knowing that you’ll have to deal with these people over and over is something you can’t tolerate, then sadly, this work may not be for you.
HOW DID CHILDREN OF DIVORCE GET STUCK WITH THE VISITATION PLAN THAT AFFORDS THEM ACCESS TO THEIR NON-RESIDENTIAL PARENT ONLY ONE NIGHT DURING THE WEEK AND EVERY OTHER WEEK-END?
What is the research that supports such a schedule? Where is the data that confirms that such a plan is in the best interest of the child?
Well, reader, you can spend your time from now until eternity researching the literature and YOU WILL NOT DISCOVER ANY SUPPORTING DATA for the typical visitation arrangement with the non-residential parent! The reality is that this arrangement is based solely on custom. And just like the short story, "The Lottery," in which the prizewinner is stoned to death, the message is that deeds and judgments are frequently arrived at based on nothing more than habit, fantasy, prejudice, and yes, on "junk science."
This family therapist upholds the importance of both parents playing an active and substantial role in their children's lives----especially in situations when the parents are apart. In order to support the goal for each parent to provide a meaningfully and considerable involvement in the lives of their children, I affirm that the resolution to custody requires an arrangement for joint legal custody and physical custody that maximizes the time with the non-residential----with the optimal arrangement being 50-50, whenever practical. It is my professional opinion that the customary visitation arrangement for non-residential parents to visit every other weekend and one night during the week is not sufficient to maintain a consequential relationship with their children. Although I have heard matrimonial attorneys, children's attorneys, and judges assert that the child needs the consistency of the same residence, I deem this assumption to be nonsense. I cannot be convinced that the consistency with one's bed trumps consistency with a parent!
Should the reader question how such an arrangement can be judiciously implemented which maximizes the child's time---even in a 50-50 arrangement----with the non-residential parent, I direct the reader to the book, Mom's House, Dads House, by the Isolina Ricci, PhD.
Indeed, the research that we do have supports the serious consequences to children when the father, who is generally the non-residential parent, does not play a meaningful role in lives of his children. The book, Fatherneed, (2000) by Dr. Kyle Pruitt, summarizes the research at Yale University about the importance of fathers to their children. And another post on this page summarizes an extensive list of other research.
Children of divorce or separation of their parents previously had each parent 100% of the time and obviously cannot have the same arrangement subsequent to their parents' separation. But it makes no sense to this family therapist that the result of parental separation is that the child is accorded only 20% time with one parent and 80% with the other. What rational person could possibly justify this?
"Normal parents can put the needs of their children first. They know that demeaning and demonizing their partner harms the children, and however they may feel, they do not want to harm their children. The problem of brainwashing children arises when one or other parent or both put their needs first and use the children as weapons against each other. These are the adults who have personality disorders that go unrecognized in court. There both parents are given an equal hearing the problem occurs when one parent lies and cheats under oath, manipulates the judiciary and everyone in the case while the normal parent looks on in horror. Women will always be given the benefit of the doubt over men especially by men which is why so many men loose their children. The training of so called experts in the universities and in workshops has been in the hands of radical feminists for the last forty years as a result there is no level playing field between parents any longer. All I can say that I have seen children deprived of a loving parent reconnect after years of demonizing that parent. For other parents they have to live with the injustice for the rest of their lives their child or children are to damaged to ever know the truth." ~ Erin Pizzey
Review from the late Carl Fredrich, founder of the American Pro Se Association 2012 ~ " "How to Win a Lawsuit Without Hiring a Lawyer" is a very informative book -- and for those who find themselves in certain circumstances it can be said to be indispensable. The book might be more appropriately entitled: "Pursuing A Lawsuit Without A Lawyer: Even Against the Authorities." This book, as far as we know, is the only simplified low cost resource addressing an area of increasing need -- where one's rights have been trampled or denied by police or other officials and how you can do something affordable about it. The book actually contains an enormous amount of information and legal theories and specific instructions on how to proceed with respect to a number of issues. Considering it is a generic law book written to address both Federal and all 50 states laws, it possesses both the advantages and drawbacks inherent in covering so much territory. The book also addresses this difficult problem and stresses the need to consult specific state statutes and/or the necessary specific information on any administrative law forums should they be applicable. (These are often called 'administrative law court' but they are really central panels of the administrative branch -- not judicial branch of government.)
PRO SE RIGHTS: Sims v. Aherns, 271 SW 720 (1925) ~ "The practice of law is an occupation of common right."
Brotherhood of Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1; v. Wainwright, 372 U.S. 335; Argersinger v. Hamlin, Sheriff 407 U.S. 425 ~ Litigants can be assisted by unlicensed laymen during judicial proceedings.
Conley v. Gibson, 355 U.S. 41 at 48 (1957) ~ "Following the simple guide of rule 8(f) that all pleadings shall be so construed as to do substantial justice"... "The federal rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits." The court also cited Rule 8(f) FRCP, which holds that all pleadings shall be construed to do substantial justice.
Davis v. Wechler, 263 U.S. 22, 24; Stromberb v. California, 283 U.S. 359; NAACP v. Alabama, 375 U.S. 449 ~ "The assertion of federal rights, when plainly and reasonably made, are not to be defeated under the name of local practice."
Elmore v. McCammon (1986) 640 F. Supp. 905 ~ "... the right to file a lawsuit pro se is one of the most important rights under the constitution and laws."
Federal Rules of Civil Procedures, Rule 17, 28 USCA "Next Friend" ~ A next friend is a person who represents someone who is unable to tend to his or her own interest.
Haines v. Kerner, 404 U.S. 519 (1972) ~ "Allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient"... "which we hold to less stringent standards than formal pleadings drafted by lawyers."
Jenkins v. McKeithen, 395 U.S. 411, 421 (1959); Picking v. Pennsylvania R. Co., 151 Fed 2nd 240; Pucket v. Cox, 456 2nd 233 ~ Pro se pleadings are to be considered without regard to technicality; pro se litigants' pleadings are not to be held to the same high standards of perfection as lawyers.
Maty v. Grasselli Chemical Co., 303 U.S. 197 (1938) ~ "Pleadings are intended to serve as a means of arriving at fair and just settlements of controversies between litigants. They should not raise barriers which prevent the achievement of that end. Proper pleading is important, but its importance consists in its effectiveness as a means to accomplish the end of a just judgment."
NAACP v. Button, 371 U.S. 415); United Mineworkers of America v. Gibbs, 383 U.S. 715; and Johnson v. Avery, 89 S. Ct. 747 (1969) ~ Members of groups who are competent nonlawyers can assist other members of the group achieve the goals of the group in court without being charged with "unauthorized practice of law."
Picking v. Pennsylvania Railway, 151 F.2d. 240, Third Circuit Court of Appeals ~ The plaintiff's civil rights pleading was 150 pages and described by a federal judge as "inept". Nevertheless, it was held "Where a plaintiff pleads pro se in a suit for protection of civil rights, the Court should endeavor to construe Plaintiff's Pleadings without regard to technicalities."
Puckett v. Cox, 456 F. 2d 233 (1972) (6th Cir. USCA) ~ It was held that a pro se complaint requires a less stringent reading than one drafted by a lawyer per Justice Black in Conley v. Gibson (see case listed above, Pro Se Rights Section).
Roadway Express v. Pipe, 447 U.S. 752 at 757 (1982) ~ "Due to sloth, inattention or desire to seize tactical advantage, lawyers have long engaged in dilatory practices... the glacial pace of much litigation breeds frustration with the Federal Courts and ultimately, disrespect for the law."
Sherar v. Cullen, 481 F. 2d 946 (1973) ~ "There can be no sanction or penalty imposed upon one because of his exercise of Constitutional Rights."
Schware v. Board of Examiners, United State Reports 353 U.S. pages 238, 239. ~ "The practice of law cannot be licensed by any state/State."
Davis v. Wechler, 263 
7 Steps for Managing Awful Opposing Counsel -
ReplyDelete“Honestly, based on the dealings I’ve had so far, I dislike the other attorneys more than the opposing spouse! Why do attorneys have to make everything so personal?”
The guy who said that practices family law in Florida, and I couldn’t agree more.
You’ve had the same experience. The opposing counsel is making you miserable. You are not alone.
My friend in Florida asked, “How do you deal with attorneys like that?”
I’ll attempt to answer. However, I’ll warn you now that there isn’t a secret formula for these situations. There isn’t a perfect solution for dealing with these difficult humans.
When I’m dealing with one of these lawyers, I assume that we’re in for the long haul. These folks typically drag out every element of the case.
How to Never Let Your Clients (Or Opposing Counsel) See You Sweat
Here’s my advice:
1. Accept it. Accept that they are who they are and that you can’t change that reality.
2. Be normal. Make every effort to resolve your cases as amicably as usual. Be yourself. Don’t let their anger, hostility, and bad behavior change you. Don’t spend any special time or effort coming up with some magic plan of action because it’s not likely to work, and it only raises your clients’ expectations.
3. Explain the increased expense. Tell your clients that you’re likely to go to trial. Explain to the clients how this sort of behavior works in these cases. Explain that it drives up the costs and that they’re in for a long, expensive battle unless they want to concede now and be done by taking a grossly unfair deal. Help your clients understand that a bad deal is a choice some people prefer when compared to letting opposing counsel drag things on forever. Do a cost/benefit analysis with your clients.
4. Inoculate yourself with your clients. Tell your clients they’re going to have doubts about the quality of your representation and the fairness of the process. Help the clients understand that opposing counsel is acting in an effort to have that impact. Explain that opposing counsel’s bad behavior undermines confidence in you, and that’s the intent. Explain that it makes clients feel out of control. Predict the future for your clients—a future filled with ugly comments, unpleasant interactions, and protracted litigation. Help your clients understand that ultimately, the outcome will still be fair and reasonable.
5. Avoid emotional counterpunching. Make no effort to psych out opposing counsel. Tell your clients why you aren’t going to bother. Don’t attempt to be a bigger jerk than they’re being. Try not to engage in the crazy behavior. Moving forward with the process is the only agenda.
6. Get ready for trial. Keep moving your cases forward. Always have an event on the calendar. Assume you’re going to try these cases, and don’t get sucked into the endless insanity of unproductive settlement discussions.
7. Get it over with. Try the cases. Your clients need finality. They need it to be over. You’ve prepared them for the inevitability of a long, hard slog, and they know it ends with the judgment of the court. Push it forward and get it finished. That way, neither you nor your clients will have to deal with these difficult humans any longer than necessary.
As I said earlier, there isn’t an easy solution for these most difficult lawyers. Just do the job and accept that they make the process inefficient, expensive, and unpleasant. By pushing forward and disconnecting from the aggravating insanity, you’ll survive this case and be ready for the next one. Unfortunately, you’ll likely have another case with these same lawyers and have to deal with their negative behavior again down the road.
If knowing that you’ll have to deal with these people over and over is something you can’t tolerate, then sadly, this work may not be for you.
HOW DID CHILDREN OF DIVORCE GET STUCK WITH THE VISITATION PLAN THAT AFFORDS THEM ACCESS TO THEIR NON-RESIDENTIAL PARENT ONLY ONE NIGHT DURING THE WEEK AND EVERY OTHER WEEK-END?
ReplyDeleteWhat is the research that supports such a schedule? Where is the data that confirms that such a plan is in the best interest of the child?
Well, reader, you can spend your time from now until eternity researching the literature and YOU WILL NOT DISCOVER ANY SUPPORTING DATA for the typical visitation arrangement with the non-residential parent! The reality is that this arrangement is based solely on custom. And just like the short story, "The Lottery," in which the prizewinner is stoned to death, the message is that deeds and judgments are frequently arrived at based on nothing more than habit, fantasy, prejudice, and yes, on "junk science."
This family therapist upholds the importance of both parents playing an active and substantial role in their children's lives----especially in situations when the parents are apart. In order to support the goal for each parent to provide a meaningfully and considerable involvement in the lives of their children, I affirm that the resolution to custody requires an arrangement for joint legal custody and physical custody that maximizes the time with the non-residential----with the optimal arrangement being 50-50, whenever practical. It is my professional opinion that the customary visitation arrangement for non-residential parents to visit every other weekend and one night during the week is not sufficient to maintain a consequential relationship with their children. Although I have heard matrimonial attorneys, children's attorneys, and judges assert that the child needs the consistency of the same residence, I deem this assumption to be nonsense. I cannot be convinced that the consistency with one's bed trumps consistency with a parent!
Should the reader question how such an arrangement can be judiciously implemented which maximizes the child's time---even in a 50-50 arrangement----with the non-residential parent, I direct the reader to the book, Mom's House, Dads House, by the Isolina Ricci, PhD.
Indeed, the research that we do have supports the serious consequences to children when the father, who is generally the non-residential parent, does not play a meaningful role in lives of his children. The book, Fatherneed, (2000) by Dr. Kyle Pruitt, summarizes the research at Yale University about the importance of fathers to their children. And another post on this page summarizes an extensive list of other research.
Children of divorce or separation of their parents previously had each parent 100% of the time and obviously cannot have the same arrangement subsequent to their parents' separation. But it makes no sense to this family therapist that the result of parental separation is that the child is accorded only 20% time with one parent and 80% with the other. What rational person could possibly justify this?
"Normal parents can put the needs of their children first. They know that demeaning and demonizing their partner harms the children, and however they may feel, they do not want to harm their children. The problem of brainwashing children arises when one or other parent or both put their needs first and use the children as weapons against each other. These are the adults who have personality disorders that go unrecognized in court. There both parents are given an equal hearing the problem occurs when one parent lies and cheats under oath, manipulates the judiciary and everyone in the case while the normal parent looks on in horror. Women will always be given the benefit of the doubt over men especially by men which is why so many men loose their children. The training of so called experts in the universities and in workshops has been in the hands of radical feminists for the last forty years as a result there is no level playing field between parents any longer. All I can say that I have seen children deprived of a loving parent reconnect after years of demonizing that parent. For other parents they have to live with the injustice for the rest of their lives their child or children are to damaged to ever know the truth." ~ Erin Pizzey
ReplyDeleteReview from the late Carl Fredrich, founder of the American Pro Se Association
ReplyDelete2012 ~
" "How to Win a Lawsuit Without Hiring a Lawyer" is a very informative book -- and for those who find themselves in certain circumstances it can be said to be indispensable. The book might be more appropriately entitled: "Pursuing A Lawsuit Without A Lawyer: Even Against the Authorities." This book, as far as we know, is the only simplified low cost resource addressing an area of increasing need -- where one's rights have been trampled or denied by police or other officials and how you can do something affordable about it. The book actually contains an enormous amount of information and legal theories and specific instructions on how to proceed with respect to a number of issues.
Considering it is a generic law book written to address both Federal and all 50 states laws, it possesses both the advantages and drawbacks inherent in covering so much territory. The book also addresses this difficult problem and stresses the need to consult specific state statutes and/or the necessary specific information on any administrative law forums should they be applicable. (These are often called 'administrative law court' but they are really central panels of the administrative branch -- not judicial branch of government.)
PRO SE RIGHTS:
ReplyDeleteSims v. Aherns, 271 SW 720 (1925) ~ "The practice of law is an occupation of common right."
Brotherhood of Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1; v. Wainwright, 372 U.S. 335; Argersinger v. Hamlin, Sheriff 407 U.S. 425 ~ Litigants can be assisted by unlicensed laymen during judicial proceedings.
Conley v. Gibson, 355 U.S. 41 at 48 (1957) ~ "Following the simple guide of rule 8(f) that all pleadings shall be so construed as to do substantial justice"... "The federal rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits." The court also cited Rule 8(f) FRCP, which holds that all pleadings shall be construed to do substantial justice.
Davis v. Wechler, 263 U.S. 22, 24; Stromberb v. California, 283 U.S. 359; NAACP v. Alabama, 375 U.S. 449 ~ "The assertion of federal rights, when plainly and reasonably made, are not to be defeated under the name of local practice."
Elmore v. McCammon (1986) 640 F. Supp. 905 ~ "... the right to file a lawsuit pro se is one of the most important rights under the constitution and laws."
Federal Rules of Civil Procedures, Rule 17, 28 USCA "Next Friend" ~ A next friend is a person who represents someone who is unable to tend to his or her own interest.
Haines v. Kerner, 404 U.S. 519 (1972) ~ "Allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient"... "which we hold to less stringent standards than formal pleadings drafted by lawyers."
Jenkins v. McKeithen, 395 U.S. 411, 421 (1959); Picking v. Pennsylvania R. Co., 151 Fed 2nd 240; Pucket v. Cox, 456 2nd 233 ~ Pro se pleadings are to be considered without regard to technicality; pro se litigants' pleadings are not to be held to the same high standards of perfection as lawyers.
Maty v. Grasselli Chemical Co., 303 U.S. 197 (1938) ~ "Pleadings are intended to serve as a means of arriving at fair and just settlements of controversies between litigants. They should not raise barriers which prevent the achievement of that end. Proper pleading is important, but its importance consists in its effectiveness as a means to accomplish the end of a just judgment."
NAACP v. Button, 371 U.S. 415); United Mineworkers of America v. Gibbs, 383 U.S. 715; and Johnson v. Avery, 89 S. Ct. 747 (1969) ~ Members of groups who are competent nonlawyers can assist other members of the group achieve the goals of the group in court without being charged with "unauthorized practice of law."
Picking v. Pennsylvania Railway, 151 F.2d. 240, Third Circuit Court of Appeals ~ The plaintiff's civil rights pleading was 150 pages and described by a federal judge as "inept". Nevertheless, it was held "Where a plaintiff pleads pro se in a suit for protection of civil rights, the Court should endeavor to construe Plaintiff's Pleadings without regard to technicalities."
Puckett v. Cox, 456 F. 2d 233 (1972) (6th Cir. USCA) ~ It was held that a pro se complaint requires a less stringent reading than one drafted by a lawyer per Justice Black in Conley v. Gibson (see case listed above, Pro Se Rights Section).
Roadway Express v. Pipe, 447 U.S. 752 at 757 (1982) ~ "Due to sloth, inattention or desire to seize tactical advantage, lawyers have long engaged in dilatory practices... the glacial pace of much litigation breeds frustration with the Federal Courts and ultimately, disrespect for the law."
Sherar v. Cullen, 481 F. 2d 946 (1973) ~ "There can be no sanction or penalty imposed upon one because of his exercise of Constitutional Rights."
Schware v. Board of Examiners, United State Reports 353 U.S. pages 238, 239. ~ "The practice of law cannot be licensed by any state/State."