|
This can't be important, can it? It sounds like it applies to
complaints (when commencing an action), but I'd rather have everything
done by mail.
Rule 11, Federal Rules of Civil Procedure:
"Every pleading, written motion, and other paper...must state the
signer's address, e-mail address, and telephone number."
|
| |
| |
Barry <barry@polisource.com> wrote:
Rule 11, Federal Rules of Civil Procedure:
"Every pleading, written motion, and other paper
...must state the signer's address, e-mail address,
and telephone number."
This can't be important, can it? It sounds like
it applies to complaints (when commencing an
action), but I'd rather have everything done
by mail.
Re-examine what you think you mean by "it" as you use that word above.
Given your above stated preference, if you are referring to civil
litigation in a U.S. district court, also pay careful attention to the
word "if" when you read sub-para. 2(E) of FRCP 5.
|
| |
| |
In article <26gis35dtkdl2cfrg9d0dgu9a7mpfodsin@4ax.com>,
Barry <barry@polisource.com> wrote:
This can't be important, can it?
Yes, it can.
It sounds like it applies to
complaints (when commencing an action),
Wrong. Read and understand the actual language in Rule 11.
but I'd rather have everything
done by mail.
Too bad. The court is _not_ operated for your convenience. *grin*
With mail being _days_ (plural) in each direction, it is 'multiple kinds of
dumb' to insist on mail for 'minor matters' that can be dealt with in a
30-second phone call.
Well, unless it is your _intent_ to drag out the proceedings as long as
possible, that is.
|
| |
| |
On Mar 1, 6:41 am, Barry <ba...@polisource.com> wrote:
This can't be important, can it?
Everything in the Federal Rules is important, if you're in Federal
Court. The Rules Committee didn't just spend time to sit around and
think it up and put it in there for fun. All of the language is there
for a purpose.
It sounds like it applies to
complaints (when commencing an action),
No, it applies to _everything_ filed in the court. That's why it
says "_Every_ pleading, written motion, _and_other_ paper."
If you have a problem reading and interpreting something as simple as
the name and address requirement of Rule 11, how on earth do you think
you're going to do when you have to deal with more complicated rules,
or with statutes or caselaw? Does this in any way indicate to you
that you might be better off with a lawyer representing you?
but I'd rather have everything
done by mail.
Check with the clerk in the District Court where your case is
pending. I assume you are a pro se plaintiff (representing yourself)
in a Federal civil suit. Apart from the obvious advice that you
should GET A LAWYER (since you otherwise have very little chance of
success), they are who you should ask with any procedural questions.
They cannot give you legal advice, but they will certainly tell you
whether your submission is acceptable for filing or not, and it is
better to find this out before the filing deadline -- instead of after
you submit something at the last minute and have it rejected and as a
result miss the filing deadline.
Most (maybe all) Federal courts now require all documents in an
existing case to be submitted by email, in PDF format, through their
proprietary, secure filing system. After papers are filed, and
accepted, they are accessible to the public through a separate program
known as PACER ("Public Access to Court Electronic Records").
Attorneys who practice in Federal Court have to be registered members
of both the E-filing system and the PACER system and to submit all
papers (other than original complaints) purely in electronic form. I
am not sure exactly how they treat pro se litigants, except I'm aware
that you may be permitted to make your filings in paper form, by mail,
if you are not a lawyer. The court clerks will then scan your
documents into PDF format and post them on PACER like everybody
else's. I don't know if this also means you can force the other side
to send _you_ everything in paper form.
Obviously, you _do_ have an email address and know how to use a
computer or you wouldn't be here on MLM.
Rule 11, Federal Rules of Civil Procedure:
"Every pleading, written motion, and other paper...must state the
signer's address, e-mail address, and telephone number."
I don't follow your logic. What does the rule excerpt you quote have
to do with whether you do everything by mail?
Even if you are permitted to file by mail, you still should put your
name, address, e-mail address, and telephone number on every paper (or
electronic document) you file. The point is, the other side (and the
Court) both need to have current information on how to reach you by
any of those means.
Good luck. If you're representing yourself in Federal Court, you'll
need it. You really ought to get a lawyer. If your case has merit,
and you haven't found someone to represent you yet, you haven't looked
hard enough. OTOH if you've already checked with a large number of
lawyers and none of them have any interest in taking your case (and
none of them have been able to refer you to someone who CAN help you),
you have to ask yourself whether that might say something about the
merits of your claim.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
|
| |
| |
On Sun, 02 Mar 2008 07:45:12 -0500, bonomi@host122.r-bonomi.com
(Robert Bonomi) wrote:
In article <26gis35dtkdl2cfrg9d0dgu9a7mpfodsin@4ax.com>,
Barry <barry@polisource.com> wrote:
Yes, it can.
Wrong. Read and understand the actual language in Rule 11.
Too bad. The court is _not_ operated for your convenience. *grin*
With mail being _days_ (plural) in each direction, it is 'multiple kinds of
dumb' to insist on mail for 'minor matters' that can be dealt with in a
30-second phone call.
. . . .
My (rare) experience with the federal court in Oregon includes a large
number of notices nd orders sent by e-mail. That was before
electronic filing was instituted.
Daniel Reitman
|
| |
| |
On Mar 2, 7:45=A0am, Mike Jacobs <mjacobs...@gmail.com> wrote:
On Mar 1, 6:41 am, Barry <ba...@polisource.com> wrote:
No, it applies to _everything_ filed in the court. =A0 That's why it
says "_Every_ pleading, written motion, _and_other_ paper."
If you have a problem reading and interpreting something as simple as
the name and address requirement of Rule 11, how on earth do you think
you're going to do when you have to deal with more complicated rules,
or with statutes or caselaw? =A0Does this in any way indicate to you
that you might be better off with a lawyer representing you?
Calm down. Applying to complaints doesn't preclude applying to
everything else filed in the court as well.
Rule 11, Federal Rules of Civil Procedure:
I don't follow your logic. =A0 What does the rule excerpt you quote have
to do with whether you do everything by mail?
My point was that by providing an email address and phone number, I
might actually receive email and phone calls, which I don't want. I
understand Robert Bonomi's point about convenience, but I'd rather
wait days for postal mail than risk being annoyed at the whim of my
opponent in a way that's more difficult to document. Phone calls favor
the caller and the one with more experience and preparation regarding
what's discussed, and that probably wouldn't be me. Letters and courts
are more fair.
Even if you are permitted to file by mail, you still should put your
name, address, e-mail address, and telephone number on every paper (or
electronic document) you file.
I decided to do that after all, but I still don't like it. The good
thing about it is that if the agency I'm suing doesn't provide the
same, I'll be complaining about it.
Good luck. =A0 If you're representing yourself in Federal Court, you'll
need it. =A0 You really ought to get a lawyer.
A lawyer isn't out of the question, but I prefer to write the
complaint myself even if I just use it to show the lawyer what I want
and the legal grounds and that I expect at least the level of quality
that's in the complaint I wrote in any work the lawyer does for me.
Also, if I'm able to get free council appointed by the court, I'd
probably get an attorney who already agrees to fight for what I put in
my complaint, bypassing the whole hunt for someone willing to take the
case.
If anyone wants to critique the claim section of my complaint (I
haven't started the remedy section yet), I posted a redacted version
at http://www.polisource.com/images/complaint-image-redacted.gif . I'm
hoping to be finished and file it by tomorrow, but I doubt I will.
|
| |
| |
In article <rkons3lbv0elhlelipucojifvs6ip5pcka@4ax.com>, barry@polisource.com
(Barry) writes:
| My point was that by providing an email address and phone number, I
| might actually receive email and phone calls, which I don't want. I
| understand Robert Bonomi's point about convenience, but I'd rather
| wait days for postal mail than risk being annoyed at the whim of my
| opponent in a way that's more difficult to document. Phone calls favor
| the caller and the one with more experience and preparation regarding
| what's discussed, and that probably wouldn't be me. Letters and courts
| are more fair.
This is a valid concern, but I think the underlying problem is more
that you don't have anyone to act as an impotent buffer for you. As
a sole proprietor I've observed that in interactions with companies
anything I say is taken to be fully binding on me while anything the
company representative says is merely idle conversation that must be
vetted by higher level personnel. (The same is often true in non-
business settings.) It may well be worth the expense to have a lawyer
to act as a buffer even if you do not believe that you need his legal
advise. If nothing else he will know the appropriate magic words
to put on letters and such to keep them from becoming evidence.
[...]
| I decided to do that after all, but I still don't like it. The good
| thing about it is that if the agency I'm suing doesn't provide the
| same, I'll be complaining about it.
I'll bet that they will provide a contact, but that contact will
have absolutely no authority to act in any matter relating to your
case (well, other than forwarding messages).
Dan Lanciani
ddl@danlan.*com
|
| |
| |
On Mon, 03 Mar 2008 06:39:41 -0500, Barry <barry@polisource.com>
wrote:
On Mar 2, 7:45=A0am, Mike Jacobs <mjacobs...@gmail.com> wrote:
Calm down. Applying to complaints doesn't preclude applying to
everything else filed in the court as well.
No, son, you need to calm down. You're unnecessarily agitated over
the court rule. Either comply, like everyone else, or suffer the
consequences. Even inmates comply, to the best of their ability, so
why should you be any different?
Rule 11, Federal Rules of Civil Procedure:
My point was that by providing an email address and phone number, I
might actually receive email and phone calls, which I don't want.
Too bad. The court requires it so they can contact you, as well as
ensuring that your counterpart has your contact information as well,
should they need to contact you. You don't like it - don't use
Federal Court.
I
understand Robert Bonomi's point about convenience, but I'd rather
wait days for postal mail than risk being annoyed at the whim of my
opponent in a way that's more difficult to document. Phone calls favor
the caller and the one with more experience and preparation regarding
what's discussed, and that probably wouldn't be me. Letters and courts
are more fair.
???????????????
I decided to do that after all, but I still don't like it. The good
thing about it is that if the agency I'm suing doesn't provide the
same, I'll be complaining about it.
Oh, believe me, they will be in compliance. I'm sure they have much
more experience in Federal Court than you do, and actually know what
the Rules are for.
Good luck. =A0 If you're representing yourself in Federal Court, you'll
need it. =A0 You really ought to get a lawyer.
A lawyer isn't out of the question, but I prefer to write the
complaint myself even if I just use it to show the lawyer what I want
and the legal grounds and that I expect at least the level of quality
that's in the complaint I wrote in any work the lawyer does for me.
That's an entirely asinine statement. The lawyer is going to craft
the complaint better than you could hope to.
And, as lawyers write for a living, it's a rare lawyer who can't write
well.
Also, if I'm able to get free council appointed by the court, I'd
probably get an attorney who already agrees to fight for what I put in
my complaint, bypassing the whole hunt for someone willing to take the
case.
What is this idea that you can get "free council (sic)" appointed by
the court? Not in a civil case, unless you're a pro se inmate and
your're coming up on trial......
If anyone wants to critique the claim section of my complaint (I
haven't started the remedy section yet), I posted a redacted version
at http://www.polisource.com/images/complaint-image-redacted.gif . I'm
hoping to be finished and file it by tomorrow, but I doubt I will.
I read it. With the redactions, it's hard to follow. I predict that,
based on the fact you're suing on fees for a FOIA, you're going to
lose.
Tarkus
|
| |
| |
ODERATOR: MY SECOND ATTEMPT TO POST THIS.
On Mar 3, 6:39 am, Barry <ba...@polisource.com> wrote:
On Mar 2, 7:45=A0am, Mike Jacobs <mjacobs...@gmail.com> wrote:
Calm down. Applying to complaints doesn't preclude applying to
everything else filed in the court as well.
I'm calm already. Changing the subject by (1) claiming your
respondent was being emotional and (2) saying in effect "I already
knew that" is in itself an emotional response and is a way of
deflecting any real consideration by you of a subject you are not
emotionally prepared to digest. But I'll try again. Do you disagree
with me that if you have trouble interpreting a straightforward "put
your name and contact info on _every_ paper" requirement at the
beginning, things are only going to get more complicated than that
from here on? Just trying to warn you what you're getting into. I'm
being blunt, and not sugarcoating what I think, but that doesn't mean
I'm not calm.
I'm not trying to imply you're a dummy -- au contraire, I wouldn't
have wasted my bandwidth answering you unless I assumed you were
intelligent, indeed smart enough to step back and realize that your
own question indicates you're getting in over your head, so you would
go ask for help, not just from this newsgroup but on a long-term,
ongoing basis by getting a lawyer to represent you, if you want your
claim to have any real chance of success.
<snip>
I don't follow your logic. What does the rule excerpt you quote have
to do with whether you do everything by mail?
My point was that by providing an email address and phone number, I
might actually receive email and phone calls, which I don't want.
Yes, you might! In fact, you probably will. You can't help how
other parties, and the Court, choose to communicate with _you_. You
are not going to make the judge happy if he has to occupy his staff,
and resources, with printing, folding, inserting his order into an
envelope, applying postage, and taking it to the mailbox to get it to
you, instead of just pushing the "send" button. And sometimes things
happen too fast to notify you by mail, and they (the court, and the
opponent) need to be able to contact you by telephone or else you will
simply be left out of the decision loop -- they may take steps that
adversely affect your interests in your absence. Due process only
requires you to be given an OPPORTUNITY to be heard, not necessarily
that you be heard; and if you throw that opportunity away by not
providing a telephone number or email address, it may be to your
loss.
I understand Robert Bonomi's point about convenience, but I'd rather
wait days for postal mail than risk being annoyed at the whim of my
opponent in a way that's more difficult to document.
It's not hard to document. You make notes of each phone conversation
and keep them in your file. Or, you record every conversation you
participate in (with the other party's permission, if you are in a 2-
party state).
Phone calls favor
the caller and the one with more experience and preparation regarding
what's discussed, and that probably wouldn't be me.
It's a start, that you recognize that much. Query, what are you
going to do in think-on-your-feet terms when your case finally gets to
a live court hearing, and you have to stand up and talk to the judge
and the other party in open court? How are your skills at doing that
going to be any better than your telephone skills?
Letters and courts are more fair.
I have no idea how to parse that sentence.
If you mean that letters give you more time to think about what you're
going to say before you say it than real-time interaction does, I
agree. But that same advantage applies to email unless you're
assuming you have to compulsively reply to every message as soon as it
comes in and without either taking time for reflection before drafting
your answer, or letting your draft answer sit for a bit while you
revise it. If you're someone who always hits "send" as soon as you
finish typing, that's your habit to break, not a fault of email.
Some people have the same problem with snailmail -- write out
something in an emotional rush, stick it in the mail without thinking
about it, and regret it later.
If you mean that a court decision based solely on written submissions
and not requiring an oral hearing is more fair, I disagree. There
are nuances about almost any non-trivial issue that would benefit from
being fleshed out and explored in a real-time, back-and-forth
conversation, and since you as the plaintiff are the party with the
burden of proof, it would be foolish to throw away that opportunity to
convince the court you are in the right. If the judge can't decide
between the brief you submit and the agency's brief which is right,
wouldn't you like to be able to provide more information in response
to his questions? If it's a toss-up, the defendant agency wins.
Even if you are permitted to file by mail, you still should put your
name, address, e-mail address, and telephone number on every paper (or
electronic document) you file.
I decided to do that after all, but I still don't like it.
Something strikes me about the way you are saying these things that
makes me think you are trying to preserve your privacy as something
more important to you than the success of your claim. You may not
realize that is not a realistic position in litigation especially when
_you_ are the one initiating the process, especially with something as
basic as providing your contact information. Suing someone means
everybody's dirty laundry gets aired, in public. If you don't like
having that done to you, don't sue (and don't do anything that would
get you sued).
OTOH if you _did_ already realize that (you needn't reply just to tell
me "I already knew that"), IMO you ought to re-examine your priorities
and pursue them in order of their true importance to you.
The good
thing about it is that if the agency I'm suing doesn't provide the
same, I'll be complaining about it.
Sure, sauce for the goose and all that. But of course they will, so
don't get your hopes up about having a "gotcha" moment.
Good luck. If you're representing yourself in Federal Court, you'll
need it. You really ought to get a lawyer.
A lawyer isn't out of the question, but I prefer to write the
complaint myself even if I just use it to show the lawyer what I want
and the legal grounds and that I expect at least the level of quality
that's in the complaint I wrote in any work the lawyer does for me.
Any decently competent litigation lawyer is going to quickly show you
to the door if you walk in with that attitude. Lis
|
| |
| |
In article <psdqs3housor79rlakq2k2k41gdl0p9km9@4ax.com>,
Tarkus <Tarkus@homeland.security.net> wrote:
That's an entirely asinine statement. The lawyer is going to craft
the complaint better than you could hope to.
And, as lawyers write for a living, it's a rare lawyer who can't write
well.
There are a lot of rare lawyers around.
Seth
|
| |
| |
In article <rkons3lbv0elhlelipucojifvs6ip5pcka@4ax.com>,
Barry <barry@polisource.com> wrote:
On Mar 2, 7:45=A0am, Mike Jacobs <mjacobs...@gmail.com> wrote:
Calm down. Applying to complaints doesn't preclude applying to
everything else filed in the court as well.
Mike was _entirely_ correct in his assessment. There is absolutely
*NO*JUSTIFICATION*, other than your own 'wishful thinking', to _your_
expressed interpretation of limited applicability of RCP 11.
My point was that by providing an email address and phone number, I
might actually receive email and phone calls, which I don't want. I
understand Robert Bonomi's point about convenience, but I'd rather
wait days for postal mail than risk being annoyed at the whim of my
opponent in a way that's more difficult to document.
"Too bad" applies. What you 'want' carries no weight with the court.
The court's job is to operate as *efficiently* as practical.
That means bit-streams from the court, sent to your e-mail, instead of
the court sending paper copies in snail-mail, for example.
Phone calls favor
the caller and the one with more experience and preparation regarding
what's discussed, and that probably wouldn't be me.
"So what?" applies.
If you don't know how to deal with a phone call about something you
"don't want to talk about on the phone", you have absolutely *zero*
chance of successfully dealing with the prosecution of an actual civil-
court case.
Letters and courts
are more fair.
'Fairness' has _nothing_ to do with court proceedings, sorry.
You are _voluntarily_ *choosing* to enter into an arena where the big dogs
play. It's their ball, ball-game, _AND_ playing field. You either "play by
their rules" (in *ALL* respects) or you _don't_ play. If you're going to
try to assert _your_ interpretation of 'fairness' on to the process, they
=will= send you home with your tail between your legs. If you're not willing
to "fight by their rules, on their home court", you are strongly advised to
_hire_ some one who *is* comfortable doing so. Failing that your best course
of action is to 'give up while you're ahead'.
[[.. snip ..]]
A lawyer isn't out of the question, but I prefer to write the
complaint myself even if I just use it to show the lawyer what I want
and the legal grounds and that I expect at least the level of quality
that's in the complaint I wrote in any work the lawyer does for me.
*giggle*
Also, if I'm able to get free council appointed by the court,
If you manage to produce a pleading which succeeds at -THAT-, you have
absolutely no need of said counsil [sic]. <grin>
|
| |
| |
On Mar 1, 6:41=A0am, Barry <ba...@polisource.com> wrote:
Rule 11, Federal Rules of Civil Procedure:
"Every pleading, written motion, and other paper...must state the
signer's address, e-mail address, and telephone number."
What happens when a pleader lacks any of these? (In the most obvious
case, a homeless person, but there are certainly people without email,
and probably some without telephones. [I'll assume that everybody can
get a piece of paper and borrow a pen from the court clerk or a
librarian.])
When was e-mail address added? (I doubt a majority of people had e-
mail addresses 10 years ago.)
--
- David Chesler <chesler@post.harvard.edu>
Free Cory Maye
|
| |
| |
sethb@panix.com (Seth) wrote:
Tarkus <Tarkus@homeland.security.net> wrote:
There are a lot of rare lawyers around.
I'll certainly agree with that. But drafting a complaint,
particularly in federal court, is more about technical competence
than literary. There are certain things that must be said and many
things that are irrelevant. The things that must be said have to
have the right emphasis or the complaint will be deemed deficient.
Judges often throw out complaints drafted by lawyers on technical
grounds. I'd think a non-lawyer would have a much harder time.
I volunteered as a small claims judge for many years. One thing that
continually stuck me was that the litigants had, for the most part,
little or no sense of what was legally relevant or irrelevant. They
would insist on talking about things that had no legal bearing, but
would be bewildered that I would ask questions about things that
were, to me, important.
If OP wants to write his own complaint because he thinks he can
express the facts in a particularly compelling way, he's probably
wasting his time. He may come up with a literary masterpiece, but
will very likely stumble badly on the technicalities. Not only that
but a complaint is only a framework for the case. It is very rarely
looked at, except by the other side.
Stu
|
| |
| |
On Mar 7, 7:02=A0am, Mike Jacobs <mjacobs...@gmail.com> wrote:
Do you disagree
with me that if you have trouble interpreting a straightforward "put
your name and contact info on _every_ paper" requirement at the
beginning, things are only going to get more complicated than that
from here on?
It's not necessarily straightforward. Sometimes you have to consider
the intention of the law, the discretion of the judge, whether the
possible downside of being told to correct something or of the case
being dismissed without prejudice is worth the risk, etc. I bet if I
omitted my email address, the pro se clerk wouldn't say anything. I've
seen other complaints with a phone number but no email address.
The court isn't even consistent with its own instructions. Local Civil
Rule 11.1. at http://www.nyed.uscourts.gov/localrules.pdf says "Every
pleading, written motion, and other paper must...have the name of each
person signing it clearly printed or typed directly below the
signature" but it doesn't mention that in the instructions or the
complaint template at http://www.nyed.uscourts.gov/General_Information/Court=
_Forms/generalcmp.pdf
=2E
It's not hard to document. =A0You make notes of each phone conversation
and keep them in your file. =A0Or, you record every conversation you
participate in (with the other party's permission, if you are in a 2-
party state).
Those suction cup microphones don't stick well and the good recorders
are kind of expensive. I'd have to worry about yet another law and
about whether they'll be an audible click. I don't think I'll record
anything, but I'll be quick to say "I'll have to think about it and
send you a written response."
Query, what are you
going to do in think-on-your-feet terms when your case finally gets to
a live court hearing, and you have to stand up and talk to the judge
and the other party in open court? =A0How are your skills at doing that
going to be any better than your telephone skills?
Parties to a case are given time for some of the hard questions that
could get you by surprise (the agency I'm suing will have 60 days to
respond to my complaint), and other times the judge is there to
supervise. That's better than the phone.
I decided to do that after all, but I still don't like it.
Something strikes me about the way you are saying these things that
makes me think you are trying to preserve your privacy as something
more important to you than the success of your claim...
OTOH if you _did_ already realize that (you needn't reply just to tell
me "I already knew that"), IMO you ought to re-examine your priorities
and pursue them in order of their true importance to you.
My priority is winning and I tried explaining that I think receiving
phone calls would be a bad thing for my case...but whatever...I filed
the complaint today with my phone number and email address. The pro se
clerk or whatever he is took a minute or two to look at the four pages
and nodded his head after each one which gave me some extra
confidence. I added stuff to the complaint that's not in the complaint
I posted and some important decisions could come of this if it goes to
court.
I'm not looking forward to having to do even more research in an
actual law library instead of plol.org, but I don't really want to
settle for anything less than a judge's decision either. Winning what
I asked for would be good, but to get the judges opinion, if he
chooses to write one, on some of the points I raised in my claim,
would be good too. I didn't want to ask for declaratory judgements,
but I'm thinking his decision might include some of the same type
judgements that I would have asked for.
It's really annoying that I can't find a decent explanation of the
divisions of legal documents, particularly the U.S. Code, on the
internet. I think they're title, section, subsection, paragraph,
subparagraph, clause, subclause, item, and subitem, and I think I
pieced together what characters are used to indicate each, but this is
basic stuff that you shouldn't need something like ALWD for. And I
don't know how to say a citation out loud yet. "Yes, your honor,
you'll find it in title 1 of the U.S. Code, section 2, subsection 3,
paragraph 4...." probably is too wordy.
|
| |
| |
Robert Bonomi wrote:
The court's job is to operate as *efficiently* as practical.
Since when? JUST kidding but it is a government entity and it does seem
like "government" and "efficiency" don't always go together. :)
|
| |
| |
n Mar 8, 8:58 am, Barry <ba...@polisource.com> wrote:
On Mar 7, 7:02=A0am, Mike Jacobs <mjacobs...@gmail.com> wrote:
It's not necessarily straightforward. Sometimes you have to consider
the intention of the law,
The intention is to provide all the ways that someone who needs to do
so can contact you.
the discretion of the judge,
Since the rule says "SHALL" and "MUST" rather than "should" the judge
doesn't have any discretion here. This is a "mandatory" not a
"discretionary" requirement.
whether the
possible downside of being told to correct something or of the case
being dismissed without prejudice is worth the risk, etc.
Sure. But why take such a big chance over something so silly as
refusing to provide complete contact info?
I bet if I
omitted my email address, the pro se clerk wouldn't say anything.
Maybe. As I mentioned in an earlier post, the rules for pro se do
allow an exception to the electronic filing requirement and so pro se
plaintiffs may not be required to provide an email address. But as I
also mentioned earlier, you may miss out on being notified of matters
with a short fuse, if you don't provide _some_ way they can contact
you immediately. What if the other side files an "emergency" motion
and requests an immediate hearing, and you don't hear about it until 3
days later because the only way they could contact you is by
snailmail? That would be your fault, not anyone else's, and you
couldn't legitimately complain of any "due process" violation.
I've
seen other complaints with a phone number but no email address.
The email address requirement is a new one. As late as 2007, the
Rule 11(a) signature requirement read in pertinent part, "Every
pleading, written motion, or other paper shall be signed by at least
one attorney of record ... or, if the party is not represented by an
attorney, shall be signed by the party. Every paper shall state the
signer's address and telephone number, _if_any_."
The court isn't even consistent with its own instructions. Local Civil
Rule 11.1. athttp://www.nyed.uscourts.gov/localrules.pdfsays "Every
pleading, written motion, and other paper must...have the name of each
person signing it clearly printed or typed directly below the
signature" but it doesn't mention that in the instructions or the
complaint template at http://www.nyed.uscourts.gov/General_Information/Court=
_Forms/generalcmp.pdf
The complaint template shows you how to format a complaint. Why would
you expect it to also give you guidance on how to format your
signature block, something that applies to all kinds of papers, not
just complaints? The rule and the template are not inconsistent with
each other, they address different things, and there is no reason you
cannot comply with the requirements of both.
It's not hard to document. =A0You make notes of each phone conversation
and keep them in your file. =A0Or, you record every conversation you
participate in (with the other party's permission, if you are in a 2-
party state).
Those suction cup microphones don't stick well and the good recorders
are kind of expensive. I'd have to worry about yet another law and
about whether they'll be an audible click. I don't think I'll record
anything, but I'll be quick to say "I'll have to think about it and
send you a written response."
Sure, you can do that too. Or you can let your answering machine
screen all the calls for you (by making a recording which the other
side will know is a recording before they begin to talk) and use your
own discretion about whether or not to respond orally or only in
writing. If an immediate answer is needed and you don't want to give
out an email address (assuming the clerk allows pro se parties to do
this) and don't want to communicate orally, you can fax them a written
reply to their phone message.
As I stated earlier, the requirement is there to provide all the
various ways the other side, and the court, can contact YOU. Nothing
in the rule requires that you communicate with THEM by all those
means.
Query, what are you
going to do in think-on-your-feet terms when your case finally gets to
a live court hearing, and you have to stand up and talk to the judge
and the other party in open court? =A0How are your skills at doing that
going to be any better than your telephone skills?
Parties to a case are given time for some of the hard questions that
could get you by surprise (the agency I'm suing will have 60 days to
respond to my complaint),
Answering the complaint with a written answer is not one of those
"hard questions." An answer is basically pro forma so long as there
is a good faith basis for any denials or affirmative defenses asserted
therein, and the time requirement for an answer is an initial one, to
let the party select counsel and to let counsel get up to speed with
his own client's file materials and witnesses so he can make sure
there _is_ a good faith basis for the assertions stated in the written
answer.
No, I was talking about how you would respond, without significant
time for reflection, when one of those _really_ "hard questions" is
asked of you orally, either at a deposition (there is no judge
present), or in open court. The only thing the judge will do, even
there, is sustain an objection to an improper question, assuming you
can even recognize what _is_ an improper question and make a timely
objection before you give an answer. If you continually raise
frivolous and legally groundless objections to perfectly proper but
probing questions, you are in a fantasy world if you think the judge
will somehow step in and help you out. If anything, your baseless
objections will tilt him _against_ you in assessing your credibility,
making you look like an evasive weasel who just doesn't want to answer
the hard questions. Not good for your side.
and other times the judge is there to
supervise. That's better than the phone.
See above.
I decided to do that after all, but I still don't like it.
I do lots of things I don't like, because I have to. Eat your
spinach. Love your enemies. Pay your taxes.
Something strikes me about the way you are saying these things that
makes me think you are trying to preserve your privacy as something
more important to you than the success of your claim...
OTOH if you _did_ already realize that (you needn't reply just to tell
me "I already knew that"), IMO you ought to re-examine your priorities
and pursue them in order of their true importance to you.
My priority is winning and I tried explaining that I think receiving
phone calls would be a bad thing for my case.
Receiving them isn't the problem. There is no such thing as too
much information from the other side. What ISTM you are worried
about is what YOU might say in those conversations in which, without
sufficient time for reflection and careful drafting, you may misspeak
yourself and stick your foot in your mouth. That could be a
legitimate concern, since you know your own abilities or lack of them
better than we do, but that should still not prevent you from
_receiving_ phone calls ab
|
| |
| |
On Mar 10, 7:48=A0am, Mike Jacobs <mjacobs...@gmail.com> wrote:
The intention is to provide all the ways that someone who needs to do
so can contact you.
The precise intention is important and I think you typoed there.
the discretion of the judge,
Since the rule says "SHALL" and "MUST" rather than "should" the judge
doesn't have any discretion here. =A0This is a "mandatory" not a
"discretionary" requirement.
Ever see those contracts (practically every one) that give you no
rights and even say you have to defend the company if they screw up,
then on the bottom basically says "if any of this isn't legal, never
mind"? Laws are like that too - not that anything will be illegal, but
in that there could be legal exceptions in other parts of the law. You
can't pull a single sentence out of the law and be sure you know
exactly what it means. Search for the word "notwithstanding" in the
U.S.C. and you'll probably find an example.
Maybe. =A0As I mentioned in an earlier post, the rules for pro se do
allow an exception to the electronic filing requirement and so pro se
plaintiffs may not be required to provide an email address.
=2E..
No, I was talking about how you would respond, without significant
time for reflection, when one of those _really_ "hard questions" is
asked of you orally, either at a deposition (there is no judge
present), or in open court. The only thing the judge will do, even
there, is sustain an objection to an improper question...
It's recommended that pro se parties receive special treatment. See
Proposed Best Practices for Cases Involving Self-Represented
Litigants:
http://www.ajs.org/prose/South%20Central%20Notebook%20Contents/Tab%202/Best%=
20practices.pdf
This quote from:
http://www.usdoj.gov/crt/ada/briefs/badillbr.pdf
applies to complaints:
"Further,
pro se complaints must be liberally construed and should not be
held to the same high standard as formal complaints filed by
attorneys. Estelle v. Gamble, 429 U.S. 97, 105, 97 S. Ct. 285, 291
(1976); Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 595
(1972); Ferranti v. Moran, 618 F.2d 888, 889 (1st Cir. 1980)."
And see the article at:
http://www.nelsonmullins.com/news/nelson-mullins-articles-speeches-detail.cf=
m?id=3D81
The complaint template shows you how to format a complaint. =A0Why would
you expect it to also give you guidance on how to format your
signature block,
Because it provides fields for the signature block. There's no
indication of the need to type your name, maybe because it's hard for
some prisoners to get access to a typewriter. The address of the
template doesn't appear right in Google Groups, so maybe you didn't
visit the page. I'll try again. The template is at:
http://www.nyed.uscourts.gov/General_Information/Court_Forms/generalcmp.pdf
It's really annoying that I can't find a decent explanation of the
divisions of legal documents, particularly the U.S. Code, on the
internet. I think they're title, section, subsection, paragraph,
subparagraph, clause, subclause, item, and subitem, and I think I
pieced together what characters are used to indicate each, but this is
basic stuff that you shouldn't need something like ALWD for.
Geez, first you can't figure out the name and address requirement, now
you can't figure out the outline numbering system? =A0There is a very
nice "bluebook" showing you the proper way to cite a statute or rule,
published in paper form by Harvard University's law review annually,
and you can find a similar source published by the Cornell law review
on the Web athttp://www.law.cornell.edu/citation/
I've had that link on my website for years, at:
http://www.polisource.com/government-publications-legal-documents.shtml
I'm not a fan of that cornell page, and I don't think it gives the
names of the sections (title, section, subsection, paragraph,
subparagraph, clause, subclause, item, and subitem). Those names and
the the symbols used for the numbering of each is all I wanted. I
searched that Cornell page through Google for a few of those section
names and didn't find them mentioned on the same page as each other.
|
| |
| |
Barry <barry@polisource.com> wrote:
Mike Jacobs <mjacobs...@gmail.com> wrote:
The precise intention is important and I think you typoed there.
The precise intention of the law is clear. Courts follow rules of
statutory construction, which say that if a statute is clear, they
must enforce it by its terms, irrespective of whether it is good or
bad public policy. The only exception is if the provision is
unconstitutional.
Since the rule says "SHALL" and "MUST" rather than "should" the
judge doesn't have any discretion here. =A0This is a "mandatory"
not a "discretionary" requirement.
Ever see those contracts (practically every one) that give you no
rights and even say you have to defend the company if they screw
up, then on the bottom basically says "if any of this isn't legal,
never mind"? Laws are like that too - not that anything will be
illegal, but in that there could be legal exceptions in other
parts of the law. You can't pull a single sentence out of the law
and be sure you know exactly what it means. Search for the word
"notwithstanding" in the U.S.C. and you'll probably find an
example.
If there is another part of the law that conflicts, then the two
provisions must be reconciled. In this case there is no specific
conflict. So unless you can point to a provision in the Constitution
that says you can represent yourself even if you are unwilling to
give you phone number and email address, you'll be out of luck.
"Further,
pro se complaints must be liberally construed and should not be
held to the same high standard as formal complaints filed by
attorneys."
They are talking about technical requirements there, not practical
ones. Anyone, whether or not a lawyer, can easily give out a phone
number and email address. So that kind of thing will have no
bearing.
You are unlikely to believe this, but with an attitude like yours,
the opposition is going to eat you alive - and the court is going to
let them.
Stu
|
| |
| |
|
