This, right here. This is exactly the reason one should not, even a qualified attorney–which you aren’t, attempt to represent herself in court. It doesn’t matter what you know or think you know about law; it doesn’t matter how familiar you are with legal procedures and protocols; it doesn’t even matter if technically the facts are on your side. If you can’t contain yourself and distance yourself emotionally from the outcome then your chances of prevailing are not good. And most people, including yourself as you’ve most aptly demonstrated, are not capable of remaining dispassionate when their own security is at stake.
It seems to me that if one attorney asks another for advice, the requester must submit to questioning from his or her would-be advisor. The fact that you are asking for advice shows that you are ignorant (no shame in that) and you should be skeptical of your ability to decide which facts are relevant and important; and which facts are insignificant.
My opinion only.
Except that when attorneys bounce ideas off of each other, usually they are in the same firm and are familiar with the case, or the attorney on the case gives a brief synopsis of the case to the attorney he is discussing the case with. If I am asking another attorney who is not familiar with my case, I will either ask specifically about the procedure or area of law I am interested in, such as how often are motions heard in a specific county and how long will something take to be heard, or if I want broader advice, I will fill them in on the background and procedurally what is happening or what I want to do. Most likely there will be questions, as certain facts may change what you want done.
For me, often times what led to the case is very relevant in that it helps to determine what the other side’s motivation is and what may lead to settlement. Oftentimes, litigating a case isn’t worth it. You may win the case, but have spent more than the other side wanted initially. Additionally, litigation can be extremely draining on the client. I’ve told clients upfront, that they may expect to spend 30,000.00 pursuing their claim and that it will be an emotionally draining process. Oftentimes, the reason to settle is that you may not like how the court will resolve the issues.
Sure. The ultimate/conclusory/probative facts distinction is important in code pleading states, of which there are, I think, fewer than ten now. The Feds and most of the other states went to notice pleading some time ago. In a notice pleading state, this distinction is used primarily to torture the unwary for kicks and giggles, mostly during depositions when it is certain to get a rise out of somebody and there is no judge around to tell you to quit being clever.
My recollection from some years ago (when I had to learn the distinction and promptly forgot it as it was not useful to me in practice) is that the distinction serves pretty often as an excuse to support a result oriented analysis. Which is ironic since that was exactly what code pleading was supposed to prevent. Academic considerations aside, as a practical matter my best guess is that you can find cases which are good law to support nearly any proposition you care to put forward in this area. The downside is, so can the other side.
This is of course only a guess as thank all the dark gods I do not ever have to worry about that distinction again. I think the analysis you have quoted in your OP is generally a good one and I don´t understand what more you want to go into.
Findings on the other hand are, in my understanding, not related to the above distinction as they are what judges or juries do, not what lawyers do. Lawyers plead facts, and sometimes discover facts. Judges and juries find facts. Somebody has to find all the ultimate facts or else somebody else is going to get nonsuited, is that what you mean?
DISCLAIMER: I am a lawyer, but not your lawyer, nor am I licensed in California (yet); I’m *not *giving legal advice, but rather writing advice. It just happens to be for a legal document. I’ll echo what others have said: get a lawyer. Also, I’ve only been a lawyer since October; I have very little experience yet (and what I do have is in criminal law and professional malpractice), so I’m definitely not a good lawyer…yet.
I’ve written about a dozen appellate briefs (but not in California, only in Indiana, and only as a paralegal; I don’t take the California bar exam until this summer), and I can certainly offer some general advice for briefing (I’ve yet to do an oral argument knock on wood, as they’re optional and a matter of discretion in my state). And the one piece of advice that I think is going to help you more than anything else is that you need to have someone else write your statement of facts (or whatever it’s called in California; I haven’t started studying civ. pro. yet). They told me in law school that one should “slant the facts in their favor.” That is WRONG. I’ve seen many opinions where lawyers are chastised in footnotes for that. Keep the facts devoid of arguments; lay it out straightly and plainly and simply. Scalia and Garner’s book is very clear on that point, and rightly so. You want the appellate court to understand the facts of the case without obscuring them with argument, and you certainly don’t want the appellee to mention unfavorable facts you didn’t think to put in the brief. If that happens, you’ll look like a disingenuous idiot.
Now, I suggest you should get someone else to write the facts portion of the brief because you are obviously highly invested and passionate about the case; it’s going to be hard for you to be dispassionate about the facts, in both drafting and editing. Call in favor from a lawyer/paralegal friend and have them do it for you. Let them borrow all the files they need, and have them do the facts while you’re doing the rest of the brief (which you shouldn’t be doing anyway, but whatever) to better manage your time limit for briefing. (30 days, probably; I dont’ know. I’m a hoosier not a…Californian…yet).
A secondary concern is your first lawyer. You seem, shall we say, dissatisfied with his performance. The appropriate solution is not to carry your case on your own shoulders to “seek justice” or whatever, but rather to hire a second lawyer to sue the first. At least talk to a lawyer to see if what the first one did was malpractice.
Also, seriously, try to get a lawyer. Talk to legal aid societies and law school clinics; there’s got to be someone who would be willing to help you.
Well, good luck; try to not get hit for sanctions.
Stoid, the lawyers here may be more inclined to help you if you demonstrate you are not one of those nutso pro se litigants everyone hears about. Just insisting you aren’t a nutso doesn’t work–you need to demonstrate it.
Here’s how I think you could demonstrate it: write a post that outlines the salient facts of the case, why you lost in the lower court, the grounds for appeal, and why you believe you should win on appeal.
Here’s the most important part: **Your response should be no more than 250 words. **
You of course have no obligation to do this, and if you don’t want to then that’s fine, but I think it would go a long way toward showing you aren’t one of the nutso pro se litigants we all hear about (and have read stories about in this very thread).
To add to this, would it be possible to link to/post somehow the trial judge’s written reasons?
I haven’t fully looked at everything that was written after my last post, I’ve merely glanced…
But here’s what I’m going to do, because I am tired of being dragged into defending what I clearly and specifically indicated I was not interested in defending.
I’m going to ignore all further attempts to convince me that that I’m wrong to be representing myself.
For the final time:
-I do not have any other options, I do not need to convince you why I am correct in knowing that I have no other options.
- I did not ask for your opinion about my status. In fact, I was very clear about the fact that I did not want such opinions. And still, I was aggressively ignored.
This tells me a great deal about your ability to see what the point is, and as a result, I don’t need to engage you.
For those who thought they might being helpful by ignoring my clear request that they not do that and are offended by being ignored, thank you but no thank you, (and maybe you should think about why you did that).
I am also going to say this one more time, then not pay any attention to people who choose to ignore it: Please read the OP. ** I did not seek legal advice.** :smack: I am not seeking legal advice.
Advice is a recommendation about a future action.
Every communication on the subject of the law, or even the subject of the law in regards to a particular case, ** is not a request for advice**.
I am educating myself about the law. I happen to be doing so because I am engaged in a legal struggle, but that is not the issue. Especially since I know exactly what I am going to do. I am just trying to make sure I am as effective as possible in doing it.
So I am asking for information about what legally educated people understand about certain legal ideas.
For those of you who understand this distinction and choose to participate, I thank you very much, I look forward to your posts and I appreciate your time.
And one final note: perhaps some of you are exactly the same no matter where you are, who you are with, or what you are doing. Me, not so much. I range all over the place, and I have the not all that unusual ability to adjust all sorts of things about myself to the situation. Looking at this thread and saying: See? You can’t handle your own case! is silly.
the appeals court granted my consolidation! WOO HOO!
Thank god.
My brief was due last Monday. Friday a week ago was the 15th day after the motion was filed, I was anticipating an answer on Monday. They made me wait a week and I’ve been sweating it. If they had denied me and sent a default notice instead…oy.
WOO HOO.
OK. However, understanding “legal ideas” won’t get you even halfway to where you need to be. You need to understand which legal ideas are important and which aren’t in your particular situation and you need to correctly apply the correct legal ideas to the relevant facts (NB that the relevant facts is a subset of all the facts).
Therefore, any discussion of “legal ideas” may do you more harm than good (NB I said “may” and not “will”).
Are you kidding me? Why ar eyou talking like I woke up yesterday and said to myself :“I think I’ll file an appeal!” came to this board, and posted my question as my starting place?
I am 89% of the way to where I need to be.
And I do. Which is why I’m looking at the legal concepts I’m looking at and seeking a deeper understanding.
Please stop now, ok? Please? Thanks.
Interestingly enough, it is actually that more than anything else that prompted this post. I asked for a statement of decision, and she refused for reasons having to do with timing. In any case, it was research on the nature of the judge’s findings and reasons and so forth that led me here in the first place.
Bravo, and congrats. What effect does this have on the timing of the hearing of your appeal proper?
Stoid is clearly an intelligent and motivated person. S/he is also a typical example of why a slight familiarity with the law is a dangerous thing. I have been studying law and/or working for ten years and I still don’t know vast swathes of it. Stoid is acting a bit like a first year law student; after their introduction to foundation law subjects, they think (I know I and my fellow students did). they feel they are able to offer opinions on complex areas of law.OTH when you graduate and actually enter practice, you will find that they hesitate. Case in point; I was terrified when the time came in practice to give my first professional advice, on what was a fairly simple contractual dispute (and I was being guided by a senior barrister).
From some of your posts, I can see some very basic errors that you have been making.
And congrats on winning your application!
What AK84 said: I knew a lot more about the law when I started law school than I did when I finished. Much like this thread, except I never really had any idea what the OP was asking for.
Stoid, if you’re looking for advice on appellate advocacy, Rand Rover’s advice may be the best suggestion in the thread. If you’re going to write a good brief, you should be able to lay out the key points of your appeal and why you have should prevail in a few short paragraphs. Obviously the body of your brief will lay out the factual background and legal points in full detail. However, (consistent with the court rules for brief format) you should have a preliminary statement of no more than a page or two as early in your brief as possible which should give a clear outline of why you should win.
Though this is important in priming the court for your argument, it may even be more important in allowing you to focus your brief on the key issues and avoid wasting time and space on irrelevancies. When I have something to brief, the first thing I will usually do (sometimes even before the legal research and detailed fact review of the case) is write up a preliminary statement and outline of my proposed brief point headings. I ask myself what do I have to show to win this motion or appeal, and write a few paragraphs explaining why I can show that to the court. Frequently this introduction will change several times over the course of my brief writing, but surprisingly often I will just leave it to the end and realize that I have to make very few touch-ups based on how the argument actually played out.
An additional benefit of starting work with a short summary of the argument is it enables you to explain to other lawyers and lay people what you’re working on and why it is worthwhile. If you can lay out what your case is about in a few short points, you can get and keep peoples attention and often get quite good insight about what you need to show to convince the court.
Anyway, congrats on winning the motion, Stoid and best of luck on the appeal. Let us know how it comes out.
You seem to think I was attacking you, which was not my intention.
For Advocacy; get this
For case preparation; get this
These are meant for Bar Students in the UK, but the principals are the same, they are written in a simple style and will at least give you an inkling of what to expect.
Exhibit 1 of the mistakes you have been making!
Everycase is different, the marriage of the facts and law plays out differently! It is true that the judge is bound by the decision of higher authoritys, but she can always distinguish the case on the facts. And in anycase there can be a number of reasons for not following authorities in a particular case including but not limited to
-The authorities are in conflict
-The leading authority has been weakened, perhaps by subsequent cases,
-The leading authority has been critisised, perhaps in a journal
-The leading authority is old, was based upon a policy which is not longer extant
When researching, DON"T find something and say “aha, gotcha you establishment freaks, you have to grant me relief”. Check on its subsequent history, see how many cases it has been cited in, where it was not followed, where it was distinguihsed, what journal articles supported it etc. You can usually do this fairly easily on Lexis Nexis and Westlaw (by clicking “Case Analysis” on Westlaw and “Related Cases” on Lexis Nexis). Then decide, is it likely to be useful in my situation.
From the above it seems you also bombarded the Judge with case law. Thats one thing you should avoid, the judge deals with perhaps hundreds of case like your every year and knows the law solid, what they don’t need is a lecture on the law. Stick to the facts and why they merit the relief you are seeking. Bring in the law, only when necessary
And , please try not to annoy the judge.
And most important
GET A LAWYER!