Well things certainly got quiet.
I’d like to thank Fotheringay-Phipps (fabulous handle, by the way) for his many fine contributions to this thread and his clear understanding of my position.
I had actually stopped reading it after my last post (too hard to resist the desire to respond, which is too time consuming, not to mention the lack of pleasure to be found in the exercise). Since it seemed to have taken on a life of its own in spite of my absence I checked back in jsut after Kimmy posted “you win.”
So, if anyone is interested in something other than telling me that I’m crazy and I should get a lawyer…
In a general way, about the law, this is absolutely true, which would be why I seek to get a bit of the knowledge the lawyer has.
But the law is truly vast, and any honest lawyer will have no problem admitting that they have areas of expertise and areas of complete ignorance and areas that fall all along the spectrum in between.
It is certain that there are lots of lawyers who are experts in the areas of law that pertain to my case, and know vastly more than I do about those areas of the law, no matter how many hours I spend in the library.
It is equally certain that no lawyer knows more than I do about the facts of my case. And, as it happens, now that the statement of decision has been produced, no one knows more than I do about how the findings that the judge made in the case are error, because they do not follow the evidence.
Which takes me back to my first thread and the conversation about the law itself that I was trying to have. Harking back to the examples I offered in the previous thread, the opposing evidence was one thing only: the Plaintiff’s testimony.
So let’s turn this into a personal injury suit. (By the way, the reason I don’t barf up all the details of my actual case is because this is a public message board. If the reason that that matters is not immediately clear to you, you can stop reading now.)
The genuine facts: P (plaintiff) was doing handstands in the driveway and, while I was sitting in the driver’s seat with the key in the ignition but without starting the car or moving it, P screwed up and landed on the hood of the car and hurt himself. Then P sues me and in the complaint claims I was driving drunk and hit him.
But, on the stand, under cross, The Plaintiff testifies that I did not actually drink any alcohol and that I did not actually drive. That was the “evidentiary fact”.
Then the judge rules that I was drunk and that I drove (a finding of ultimate fact), and came to the “legal conclusion” that I broke the law in doing so.
But wait… how can it be possible that the judge found something that was the opposite of the evidence? Because the **Plaintiff’s attorney **repeatedly asserted that the Plaintiff’s testimony was that he saw me drink and drive.
The rulings were 100% wrong. Not, as I’m sure is usually the case, because the judge believed the plaintiff over the defendant…wrong because the judge believed the plaintiff’s attorney over the plaintiff. Which, of course, is seriously fucked up. And kinda shocking. And kinda hard to believe. But it is true.
And it gets worse.
Having made the wrong findings of fact and conclusions of law, the judge went on to misapply the law to the false facts.
Keeping with our example, let’s say there’s a statute that, if her findings are true, requires that I lose my license for 6 months. But the P’s attorney says: “Oh, the law is just a suggestion. A better punishment would be for you to put her in jail for two years and give my client her car.” And the judge agrees.
So…(still sticking with our example) I go to a lawyer and I say: “Have you ever heard of a judge ignoring the 6 month suspension of license, locking a drunk driver up for two years, and giving the driver’s car to the P?”
What invariably happens is that the lawyer does what so many lawyers did in this thread: the lawyer considers two things, that I’m self-represented, and that what I’m describing is fucking crazy. Then the lawyer concludes that I must be the fucking crazy one and I didn’t understand what the judge did to begin with and I probably have a persecution complex. Then they tell me they can’t give advice OR they start to ask me questions about my case.
If, in my desperate attempt to find out if someone with experience has ever seen this happen in the history of the world so I can go research what happened to determine if there are ways to fight it that someone else already thought of I answer questions, what happens is just as predictable:
The lawyer latches onto the first thing that is familiar to them, interrupts me, and starts feeding me ADVICE. They become absolutely convinced they know what REALLY happened and try to steer me where they think I SHOULD be going because they are so sure that I have it wrong and they have it right.
Which seriously undermines the credibility of the claim that they cannot give advice, as you might imagine, and frustrates the shit out of me.
(And it reminds me of something that happens to me remarkably often. I have a highly unusual first name in real life. Not unique, but in my entire lifetime I have never met anyone who has personally known anyone with my first name except me, that’s how unusual it is. But it’s a little similar to more familiar names. Let’s say my name is Hane. When people hear it, 9 times out of 10 they will get it wrong when they say it, they will say Jane or Jean or Hayley. What is remarkable is that some people will first meet me in writing only. They will see exactly how it is written in my email, several times. And when they respond, they will type back Jane or Hayley anyway. My theory is that people have habits of thinking and find it very uncomfortable and difficult to accept things which are very unfamiliar. So, completely unconsciously and unintentionally, they turn what makes no sense to them into something that does, no matter how unreasonable it is for them to do so. And that’s what happens with lawyers. What I’m saying is so whacked, they don’t accept that it’s true and try to convince me that something more likely and familiar IS true and I just didn’t understand. To which I reply: MY NAME IS HANE.)
I am painfully, acutely, desperately aware of precisely how the genuine facts of my situation are so over-the-top they are nearly impossible to believe and lead straight to an assumption that I’m a nutjob with a persecution complex. I am also painfully, acutely, desperately aware that I’m not, because the few attorneys that have looked closer have confirmed that I’m not. And I’m painfully, acutely, desperately aware of how much information will be needed before the lawyer finally realizes that I’m really not, and how much time that takes and how that won’t be happening in an unpaid conversation, or likely even in a paid one that isn’t a couple of hours long.
But I still want to know, need to know, if anyone with experience has actually ever encountered a judge giving the car to the plaintiff. I do not want to know if they think my judge was right or wrong, I don’t want to know if believe I should fight my judge’s ruling, if I’ll win, or anything else about my situation, because I know how little they know about MY actual situation and therefore how very little value their ADVICE (vs. their KNOWLEDGE) would be to me. I know how long would take them to get up to speed on the facts and how they aren’t going to take that time and I can’t pay them for that time and how likely it is, based on my experience so far, that if they did take that time they’d end up saying “Damn, you’re right. This is fucked up. I really have no idea what to tell you, though.”
Then there’s the rest of it: my decisions about what I’m willing to fight for. Easiest example: my house. We’re upside down…seriously so. Have not got a dime of equity. Given the status of the economy and the housing market and various other factors, logic suggests that there will not be any equity in the house for years.
Again, skipping unnecessary and private details that don’t bear, suffice it to say that most people in the situation I’m facing would walk away. Most people would reduce it to a dollars & cents equation. (I’m referring specifically to the house, not the whole case and every aspect) I understand perfectly what the economic realities are, I understand perfectly what most people would do and why, and I don’t disagree. I don’t need any schooling on it, I’m not delusional or confused or mistaken about what the fiscal facts are, not at all.
But I wouldn’t make the same decision and I’m not making the same decision and I have lots of reasons why my decision is different. People who know me well and understand all aspects of my situation understand and support my decision.
Because I’ve decided to fight, and how and on what grounds, I’m trying to understand certain aspects of the law better. Again, my situation is quite possibly unique, it certainly appears to be as far as case law is concerned. So I am hoping to discuss the law with people who are experienced in it, in the search for INFORMATION.
What happens is that I tell the lawyer “I want to keep my house, so I’m going to fight, here’s the problem, and that raises a question. I want to know what the law’s answer to that question has been in the past, and I can’t seem to find anywhere in case law that this question has ever come up before. Maybe it’s a failure of my research. Have you ever known the question to come up before?”
The response is either the advice thing, (whatever) OR: why would you want to keep the house? You’re upside down, you should just walk away. (Please note the very advicey “should” – just about guaranteed)
Yes, I know that’s your opinion. I know that my decision is not what you would advise me to do, which is why it’s a good thing you aren’t advising me. Now that we’ve established that, would it be possible to find out if you’ve ever seen or heard about anyone besides me making this decision before, this decision you would advise me not to make, and this question arising out of the person making that decision that you would advise me not to make if you were advising me, and the result? And the response is something like: “But… don’t you realize that you’re spending money on something you have no equity in and you will probably not see any equity for years and ….”
And it’s about then I really want to punch them in the face.
So, out of desperation, I thought that the Dope, seeing as how it’s brimming with lawyers who love to show off their knowledge, would be an excellent resource for getting some information. I was operating on a sort of instinctual understanding of what it has taken 8 pages of derision and browbeating and FP’s calm wisdom to confirm: being a public message board, where people don’t even know each other’s names, it’s about as safe a forum as possible for lawyers to share a little without having any risk of exposure. And seeing as how there’s also no reason for a lawyer on a public message board to want or expect that if he or she withholds that information they will be paid to give it instead, there’s a good chance that some of them might actually end up being helpful and engage in the conversation about these legal topics.
So there you have it.
Should anyone care to show off their knowledge now that they realize they are not at any risk for doing so…I’m thrilled and delighted. Today’s question is about the theories underlying abuse of discretion, hearsay, and bench vs. jury trials…
