I’ve been looking everywhere and I have a question that sort of falls in the line of this forum. I’ve been going through a custody battle for my three year old son, an the opposing parties lawyer has been very trying to deal with to say in the least. I did not have a lawyer up until recently and he’s still playing catch up at the moment. There was a hearing on May 12th, and I missed this hearing because I had no idea it even existed. The sheriff department says that I was served on May 6th. Which I was never served, I was not home and had not signed anything. On May 11th, I was served about visitation matters but the document never stayed anything about the hearing whatsoever I did not even find about the hearing until May 14, when I was sent results from the hearing. Imagine my surprise to find out there even was one, what can I do? My lawyer still has to set a hearing to tell the judge he is my lawyer and I just feel like I should be doing something about it myself. Tia.
If you have a good reason for not, despite being “normally” available, the lawyer can move to set aside anything done as “default”.
SEE LAWYER - I AM NOT ONE!
I have, however, been sued and can tell you this:
NEVER, EVER try to dodge a server.
A whole bunch of people seem to think that they can stop a proceeding by not accepting a piece of paper.
This is up there with “fringe on the flag” thinking.
First: Only a few kinds of cases require personal service. An eviction notice, for instance, can be tacked on your door.
Mail is common.
Mail to last known address is common.
Then there is “Service by Publication”. If you see a “legal newspaper” (a paper whose only business is fulfilling the legal requirements for “Public Notice”), you may see:
Attention John Quincy Johnson
You are being sued
Plantiff: Big Bad Bank
Court: Superior Court of New York
Case Number 27-89756
That is “Service by Publication” once it is printed and distributed, you have been served.
It is much easier to just take the paper and then deal with it, because if you don’t, you WILL have a default judgement entered.
The OP was made to an old thread in GQ. I have moved it to its own thread in IMHO.
Colibri
General Questions Moderator
You’re paying the lawyer to handle your case; let him do so. Keep yourself informed about what’s going on - the lawyer should update you every month or two, and you should call or e-mail if you don’t hear anything. But don’t do anything unless the lawyer tells you to. Oh, and try to avoid posting about your case in a public forum like this one (though non-specific posts like yours are probably okay.)
Disclaimer: IANAL, I just work for one. You shouldn’t construe any of what I am about to tell you as legal advice. You have a lawyer for that.
Having said that… [cracks his knuckles]
I don’t know what state you’re in (I’m a lazy SOB and I don’t want to look up your profile) but the Code of Civil Procedure in my state says that paperwork showing a hearing date has to be served upon the party (or their attorney) a minimum of 21 days prior. Getting served on May 6 (assuming that’s when the sheriffs came by) for a May 12 hearing is not proper service. Your attorney should be able to make some hay out of that. That said, the process server is not required to have you “sign anything.” He just has to reasonably ascertain that you are there and you are the intended subject to serve. There is a such a thing as “substitute service” where the papers can be handed off to, say, a roommate, as long as the process server gets the name of the individual. (My boss HATES substitute service)
Now, if there was some sort of emergency, then you should have been notified of an ex parte hearing the next day. Doesn’t sound like that’s what happened.
Just about any Motion, Order to Show Cause or Request for Order should have SOME kind of hearing date, especially as it would have to have been filed with the court and endorsed with the clerk’s stamp. Depending upon the court/county/state, the lawyer does not get to choose the date of the hearing; the clerk fills that in (ostensibly giving the lawyer ample time to get it served… YMMV).
By “results from the hearing” do you mean an actual ruling or Minute Order from the court, or the proposed Order After Hearing prepared by the opposing attorney? If it’s the latter, then that doesn’t necessary mean anything is set in stone – the OAH has to be signed by the judge in order to be considered a court order. It has to be reviewed against the minutes of the proceeding (possibly by a court reporter, or just the court clerk).
Again, depending upon the state…your lawyer should be or should have already filed a Substitution of Attorney, stating that you are no longer pro per but are now represented by counsel. Your lawyer should also be preparing a Motion/Order to Show Cause/Request for Order, possibly stating those fact that were either omitting or grossly misrepresented at the previous hearing.
You can work on the declaration that will be attached to such a document, and the lawyer (or more likely his staff, paralegals and such) will help you, but for right now, let him do his job.
Why the hell not?
That should be the first thing he does, and it’s a pretty simple matter of 5 minutes filling out a standard form & filing it with the court.
Ask him why this wasn’t done. and if he doesn’t have a pretty good answer, look for a different lawyer.