ROL_2009-02-05_16k.timecode
[00:00.000 --> 00:06.920] Palestinian President Mahmoud Abbas told the European Parliament at least 90,000 Palestinians
[00:06.920 --> 00:11.920] have lost their homes as a result of Israel's war on Gaza.
[00:11.920 --> 00:17.640] Palestinian Prime Minister Salam Fayyad Wednesday announced a $600 million rebuilding program
[00:17.640 --> 00:20.600] financed by donors.
[00:20.600 --> 00:25.040] Protectionism is rapidly emerging in the wake of the global economic slump.
[00:25.040 --> 00:29.140] India has banned all toy imports from China for six months.
[00:29.140 --> 00:33.800] Europe and Canada have warned the US about its determination to get consumers to buy
[00:33.800 --> 00:40.720] American goods, and wildcat strikes have erupted in the UK over the use of foreign workers.
[00:40.720 --> 00:46.240] Barack Obama signed a bill Wednesday extending health coverage to four million uninsured
[00:46.240 --> 00:47.240] children.
[00:47.240 --> 00:51.880] Top of the hour news brought to you by INN World Report.
[00:51.880 --> 00:57.840] Isaac Ben Israel, an Israeli legislator and weapons expert, said Wednesday Israel has
[00:57.840 --> 01:03.200] a year in which to attack Iran's nuclear facilities preemptively.
[01:03.200 --> 01:08.560] Ben Israel said Israeli forces could pull off successful strikes independently, though
[01:08.560 --> 01:13.320] these would only delay Iran's progress towards atomic weaponry.
[01:13.320 --> 01:18.320] Echoing Israeli government assessments that Iran is about a year away from acquiring enough
[01:18.320 --> 01:24.760] enriched uranium for a warhead, Ben Israel, a retired general and former defense ministry
[01:24.760 --> 01:29.280] official, said a window for last-ditch military action was closing.
[01:29.280 --> 01:34.200] Iran says its atomic program is peaceful, but Western nations suspect it could be used
[01:34.200 --> 01:35.360] to make bombs.
[01:35.360 --> 01:41.160] However, Mohamed El Baradi, director general of the UN International Atomic Energy Agency,
[01:41.160 --> 01:46.600] said this week Iran would face technical and political hurdles if it sought to build nuclear
[01:46.600 --> 01:56.440] arms, and there was ample time to deal with the issue.
[01:56.440 --> 02:01.280] Aid group Doctors Without Borders Wednesday accused UN peacekeepers of failing to protect
[02:01.280 --> 02:07.160] more than 900 people who have been killed by Ugandan rebels in northeastern Congo since
[02:07.160 --> 02:08.160] Christmas.
[02:08.160 --> 02:13.800] Doctors Without Borders field coordinator Hakeem Choukam said attacks by the Lord's
[02:13.800 --> 02:19.680] Resistance Army were so brutal that workers had only found 17 survivors.
[02:19.680 --> 02:25.320] They included a four-year-old girl whose attackers had attempted to twist off her head.
[02:25.320 --> 02:29.720] The Lord's Resistance Army has been waging an insurgency in northern Uganda for more
[02:29.720 --> 02:34.280] than 20 years, and the conflict has spilled into Sudan and Congo.
[02:34.280 --> 02:39.520] A combined military operation by forces from the three countries began in December, but
[02:39.520 --> 02:44.880] aid groups say the rebels have massacred hundreds of civilians in retaliation.
[02:44.880 --> 02:51.120] Choukam criticised the UN peacekeeping force in Congo, known as Monoc, for not doing more
[02:51.120 --> 03:19.680] to protect civilians before the operation.
[03:22.120 --> 03:49.680] Choukam criticised the UN peacekeeping force in Congo, known as Monoc, for not doing more
[03:49.680 --> 04:07.760] to protect civilians before the operation.
[04:07.760 --> 04:34.320] Choukam criticised the UN peacekeeping force in Congo, known as Monoc, for not doing more
[04:34.320 --> 05:01.200] to protect civilians before the operation.
[05:01.200 --> 05:26.160] Choukam criticised the UN peacekeeping force in Congo, known as Monoc, for not doing more
[05:26.160 --> 05:34.320] to protect civilians before the operation.
[05:34.320 --> 06:03.680] Choukam criticised the UN peacekeeping force in Congo, known as Monoc, for not doing more
[06:03.680 --> 06:23.600] to protect civilians before the operation.
[06:23.600 --> 06:44.240] Choukam criticised the UN peacekeeping force in Congo, known as Monoc, for not doing more
[06:44.240 --> 07:07.920] to protect civilians before the operation.
[07:14.240 --> 07:18.800] First off, recognize that I'm not an attorney and what I'm trying to provide you, I'm a
[07:18.800 --> 07:26.880] legal researcher and have been participating with the state legislature in collecting information
[07:26.880 --> 07:31.840] about how the process works, or in some cases, how it doesn't work.
[07:31.840 --> 07:37.680] Let's for the moment assume that the system is a level playing field, just for the point
[07:37.680 --> 07:44.200] of understanding if I'm presenting this information on court procedure as if we were in a law
[07:44.200 --> 07:51.040] school class and you just walked in and sat down in the lecture hall and we started the
[07:51.040 --> 07:52.040] process.
[07:52.040 --> 07:58.480] First thing you have to recognise is that you have to identify whatever court proceeding
[07:58.480 --> 08:02.040] or procedure you're involved in, is where is that court?
[08:02.040 --> 08:03.040] What is that court?
[08:03.040 --> 08:05.080] What's the nature of that court?
[08:05.080 --> 08:12.360] And obviously without listing all of the different possibilities of courts, there's the federal,
[08:12.360 --> 08:18.040] leave that off to its own by itself for the moment, then there's the various state courts
[08:18.040 --> 08:20.600] and then there's subdivisions of the state court.
[08:20.600 --> 08:29.560] State courts almost always start at the bottom level, most states have some sort of non-recorded
[08:29.560 --> 08:34.440] court, meaning it's off the record, there's no stenographer, they're not taking any notes
[08:34.440 --> 08:39.800] or anything and essentially it's not recorded.
[08:39.800 --> 08:44.560] There's no transcript on appeal, generally appeals from these kind of courts are considered
[08:44.560 --> 08:56.400] de novo and you start the process over as if the first trial never took place.
[08:56.400 --> 08:59.000] But I'm getting ahead of myself on appeals.
[08:59.000 --> 09:04.920] And the next step is the first level of civil courts, we're going to talk about civil for
[09:04.920 --> 09:05.920] the moment.
[09:05.920 --> 09:12.600] The civil courts, there's the county courts and then there's the district courts and these
[09:12.600 --> 09:15.160] are the two levels of courts in Texas.
[09:15.160 --> 09:18.480] Other systems may call them something differently.
[09:18.480 --> 09:22.880] Now there may be various, depending on the population of a particular county where these
[09:22.880 --> 09:28.960] courts are arranged, the state may allow them to subdivide the courts even further, indicating
[09:28.960 --> 09:34.760] that in some counties the county court as well as the district courts handle both civil
[09:34.760 --> 09:37.880] and criminal cases.
[09:37.880 --> 09:43.280] In other counties they may be more specialized, which means they'll have criminal county courts,
[09:43.280 --> 09:48.720] criminal district courts, then they'll have the civil district courts and civil county
[09:48.720 --> 09:49.720] courts.
[09:49.720 --> 09:56.000] They may even further go in and subdivide them into probate, probate being another specialized
[09:56.000 --> 09:59.000] civil court.
[09:59.000 --> 10:02.600] Some states in the union might even specialize this even further and we're not going to get
[10:02.600 --> 10:07.320] into those details, but the first thing that everybody that gets involved in any kind of
[10:07.320 --> 10:12.080] potential litigation, whether you're the plaintiff or the defendant, is you have to know where
[10:12.080 --> 10:16.520] you're supposed to be to get a copy of the rule book.
[10:16.520 --> 10:24.640] The rule book is the rules that either the legislature has codified as statutes on how
[10:24.640 --> 10:31.840] the court must proceed, the rules that have to be followed, or the state supreme court
[10:31.840 --> 10:36.080] or some other rule-making body creates the rules of court.
[10:36.080 --> 10:40.480] There may be additionally local rules.
[10:40.480 --> 10:45.080] Local rules are those rules that the local judges put into place to help streamline their
[10:45.080 --> 10:46.080] docket.
[10:46.080 --> 10:49.480] Okay, Ken, let me just interrupt you for a second.
[10:49.480 --> 10:54.480] Just from a layman's point of view, because that's the role I play on the show, where
[10:54.480 --> 10:58.560] would someone go to get the rule book?
[10:58.560 --> 11:07.120] Okay, in Texas, thank goodness for the internet, because at this point in time, I'm unaware
[11:07.120 --> 11:14.960] of any state which you cannot find someplace out there on the internet, either in the state's
[11:14.960 --> 11:19.000] various agencies of the state, either the state supreme court or the state legislative
[11:19.000 --> 11:22.000] page, where the statutes are listed.
[11:22.000 --> 11:27.120] Now, we're going to get into whether or not these are annotated or not, annotated being
[11:27.120 --> 11:32.320] that there's cases listed as precedent, but we're getting ahead of ourselves there.
[11:32.320 --> 11:42.080] Okay, so Ken, are the rules set forth by the legislature, or are they just capriciously,
[11:42.080 --> 11:48.600] whimsically, discretionally, whatever, set forth by the judiciary?
[11:48.600 --> 11:50.600] Yes and no.
[11:50.600 --> 11:53.880] The problem is, it depends on what court you're looking at.
[11:53.880 --> 12:00.760] In Texas, the Code of Criminal Procedure dictates how the criminal court process shall work.
[12:00.760 --> 12:03.120] It's a requirement.
[12:03.120 --> 12:09.440] The legislature decreed it, they passed the various elements of the code, and the court
[12:09.440 --> 12:14.440] really has no discretion but to follow the code as laid down by the legislature.
[12:14.440 --> 12:20.600] However, in Texas, the civil process, or what we call the rules of civil procedure, were
[12:20.600 --> 12:23.840] promulgated by the state supreme court.
[12:23.840 --> 12:30.720] Sometimes the legislature goes in there and tinkers around with those by enacting a specific
[12:30.720 --> 12:36.640] code that might address those rules under either the government code or some other subdivision
[12:36.640 --> 12:41.440] of legislation that affects the court process.
[12:41.440 --> 12:46.880] But most of the code in Texas that applies to criminal, that's all statute, whereas the
[12:46.880 --> 12:51.320] rules of civil procedure are promulgated rules by the supreme court.
[12:51.320 --> 12:55.440] Can they be capricious and arbitrary?
[12:55.440 --> 13:03.120] I would say that, just asking an opinion of me, 85% of them are pretty good shaped if
[13:03.120 --> 13:05.680] they follow them as they're written.
[13:05.680 --> 13:15.920] When we get into trouble is where they're twisted or turned upside down in order to
[13:15.920 --> 13:19.680] impact an outcome which was not intended by the rule.
[13:19.680 --> 13:21.480] So that gets into another aspect.
[13:21.480 --> 13:27.800] We're going to do several of these discussions about processes and procedure.
[13:27.800 --> 13:32.720] We're going to get into the details of paperwork and filings and motions and all of this, and
[13:32.720 --> 13:38.480] then the strategies of what happens, what if, what to look for as a contingency, and
[13:38.480 --> 13:42.560] we'll address those issues then.
[13:42.560 --> 13:51.160] The other source where you can get these is there's a company out there, I hate to do
[13:51.160 --> 13:56.560] a commercial for them, but unfortunately they're one of the few sources for self-help books
[13:56.560 --> 14:01.320] in the legal profession, and that's Nolo Press out of California.
[14:01.320 --> 14:05.120] The reason they're so well-known in Texas is the Bar Association tried to get their
[14:05.120 --> 14:09.400] books banned here, and they went all the way to the supreme court.
[14:09.400 --> 14:16.080] Supreme court said no, they couldn't do that, so Nolo Press books are indeed sold in Texas.
[14:16.080 --> 14:24.560] Now, there's another source, and again, my endorsement is based on the fact that it provides
[14:24.560 --> 14:30.280] information and everybody needs to still review it and double-check their facts and figures
[14:30.280 --> 14:34.560] and information before they utilize anything they find in any of these books.
[14:34.560 --> 14:41.440] There's a series by Jones and McClure in Texas called O'Connor's.
[14:41.440 --> 14:45.240] O'Connor was an appellate judge.
[14:45.240 --> 14:48.920] I don't believe she's on the bench any longer.
[14:48.920 --> 14:51.520] I could be mistaken, but in any event...
[14:51.520 --> 14:55.720] She was at one time a supreme court judge, but no, she's not on the bench anymore.
[14:55.720 --> 14:58.880] No, not that O'Connor.
[14:58.880 --> 14:59.880] We call it.
[14:59.880 --> 15:01.880] State, state Texas.
[15:01.880 --> 15:05.400] Yes, yes, Supreme Court of Texas.
[15:05.400 --> 15:07.400] She was on the state supreme court.
[15:07.400 --> 15:14.600] In any event, she came out with a large set of books that she lent her name to, which
[15:14.600 --> 15:20.960] are heavily annotated and have black practice and pleading guides in the front.
[15:20.960 --> 15:25.360] And as far as I can tell you right now, this is the closest you can get to cookbook law
[15:25.360 --> 15:26.960] there is.
[15:26.960 --> 15:33.640] What the ingredients are, it talks about the issues on both sides of pro and con on a particular
[15:33.640 --> 15:43.640] motion or relevant fact before today, and it tells you exactly what you need to do to
[15:43.640 --> 15:48.560] prove your point, how the best method of doing it to provide you with all the case law that
[15:48.560 --> 15:49.560] supports those arguments.
[15:49.560 --> 15:55.040] But we'll get into more of that later on.
[15:55.040 --> 15:59.360] One of the things I think I'm going to introduce here, which is absolutely essential to almost
[15:59.360 --> 16:05.480] all of this, is my four rules, ten four rules.
[16:05.480 --> 16:08.120] First one is perception is everything.
[16:08.120 --> 16:11.560] That's how you perceive the world around you and the world perceives you.
[16:11.560 --> 16:17.440] The reason we need to touch upon this is despite the fact that you may be involved in a court
[16:17.440 --> 16:24.000] proceeding in which you perceive the courthouse and the clerks and the various employees at
[16:24.000 --> 16:29.560] the courthouse as potentially hostile to you, you can't assume that they're going to be
[16:29.560 --> 16:30.560] hostile to you.
[16:30.560 --> 16:35.040] If you walk into the courthouse with a chip on your shoulder and you perceive them as
[16:35.040 --> 16:38.720] being hostile, you'll get the same thing back.
[16:38.720 --> 16:41.000] Okay, Ken, hold that thought.
[16:41.000 --> 16:47.360] We're going to continue on the other side with Ken's four rules and his explanation
[16:47.360 --> 16:51.080] of court procedure and how to navigate through the court system.
[16:51.080 --> 16:54.280] Nuts and bolts, we'll be right back.
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[18:15.600 --> 18:44.160] Thank you very much.
[18:44.160 --> 19:06.560] We are here with a very special guest, Mr. Ken Magnuson, specialist on court procedure.
[19:06.560 --> 19:15.440] Okay, so Ken, you were about to tell us of the four rules and listeners, by the way,
[19:15.440 --> 19:23.280] we are going to do multiple shows on this, so this is a course, a class, so to speak.
[19:23.280 --> 19:29.160] Ken will be on again, so if you miss something, go back and listen to the archives and he
[19:29.160 --> 19:30.160] will be on again.
[19:30.160 --> 19:32.080] So Ken, the four rules.
[19:32.080 --> 19:37.440] Okay, so we were at perception is everything, how the world perceives you and how you perceive
[19:37.440 --> 19:40.360] the world is how it is.
[19:40.360 --> 19:44.000] Sometimes the truth enters into that, sometimes it doesn't.
[19:44.000 --> 19:51.200] But when you perceive the courthouse, which is germane to this subject, as being hostile
[19:51.200 --> 19:55.480] and you treat them with hostility, all you're going to get back is more hostility.
[19:55.480 --> 20:02.760] So I tell people right away, if you're involved in the legal process, be professional and
[20:02.760 --> 20:03.760] that goes in language.
[20:03.760 --> 20:05.600] I'm very careful about language.
[20:05.600 --> 20:12.080] Never use a four-letter word and always treat everybody like you were on the other side
[20:12.080 --> 20:13.080] of that table.
[20:13.080 --> 20:14.080] Yes.
[20:14.080 --> 20:18.960] Educate them on what they're doing wrong, ask to speak to the supervisor, any of these
[20:18.960 --> 20:19.960] kinds of things.
[20:19.960 --> 20:24.880] And when you get into an impasse, you can even turn the tables on them and just say,
[20:24.880 --> 20:28.080] look, if you were in my position, what would you do?
[20:28.080 --> 20:32.320] Trying to get them to give you some consideration for the situation you may be in.
[20:32.320 --> 20:36.520] But we'll get into some of that later, but I'm just saying that I've seen a lot of stuff
[20:36.520 --> 20:43.480] out there in the courts filed by people that don't have representation and it's hostile
[20:43.480 --> 20:47.520] and you don't get anything there except hostility in return.
[20:47.520 --> 20:51.120] Ken, second rule is everything is negotiable.
[20:51.120 --> 20:57.400] Now this is one I think everybody from third grade on recognizes quickly that you can negotiate
[20:57.400 --> 21:02.240] for a bigger dessert if you eat more vegetables, et cetera.
[21:02.240 --> 21:04.200] We won't dwell on that.
[21:04.200 --> 21:09.800] The third rule, one of the most important rules with regards to court processes and
[21:09.800 --> 21:13.520] procedures, is document everything.
[21:13.520 --> 21:18.200] What I mean by that is if you don't have a written document describing when, where, how,
[21:18.200 --> 21:23.080] who, what, and all of the parameters around it, it didn't happen.
[21:23.080 --> 21:29.840] I know there's a tendency in the community that's not represented by counsel to record
[21:29.840 --> 21:30.840] things.
[21:30.840 --> 21:36.040] That's great for basic information, but you still have to create transcripts or you have
[21:36.040 --> 21:41.680] to create a written document that somebody has a duty to respond to.
[21:41.680 --> 21:43.680] This is absolutely essential.
[21:43.680 --> 21:47.920] If you look at anything you're doing and say, what if they deny that we ever had that conversation,
[21:47.920 --> 21:53.200] and your realization is, oops, I'm in a lot of trouble because I can't prove that I did
[21:53.200 --> 21:58.560] something that I really needed to do, then you need to create documents.
[21:58.560 --> 22:04.080] That's what the whole issue of sending faxes and sending certified letters is all about.
[22:04.080 --> 22:10.920] The fourth rule, which impacts all of the other three, is everything is political.
[22:10.920 --> 22:19.960] I don't necessarily mean Republican, Democrat, Whig, Tory, liberal versus communist, communist
[22:19.960 --> 22:22.080] versus fascist.
[22:22.080 --> 22:28.440] Even though some of that comes into play, I'm talking about the politics of small groups.
[22:28.440 --> 22:31.560] Lawyer, not a lawyer.
[22:31.560 --> 22:35.240] Judge, not a judge.
[22:35.240 --> 22:38.320] Member of the courthouse, not a member of the courthouse.
[22:38.320 --> 22:44.200] Member of a corporation or an employee of a corporation, not a member or an employee
[22:44.200 --> 22:45.200] of a corporation.
[22:45.200 --> 22:46.720] These are the small groups.
[22:46.720 --> 22:50.360] I did a lecture one time for a high school group.
[22:50.360 --> 22:54.640] One of the ways that I explained this politics to them is I'd ask them whether or not their
[22:54.640 --> 22:55.640] parents are still married.
[22:55.640 --> 22:56.640] They'd say yes.
[22:56.640 --> 22:58.640] I'd say, they live in the same house together.
[22:58.640 --> 22:59.640] Yes.
[22:59.640 --> 23:04.160] I'd say, go home and ask your parents if marriage isn't political.
[23:04.160 --> 23:06.720] That usually got a good roar of laughter.
[23:06.720 --> 23:10.600] But the issue is it's about the politics of how decisions are made.
[23:10.600 --> 23:16.280] When two or three people get together and decide to go eat lunch, choosing the restaurant
[23:16.280 --> 23:18.800] is a political process.
[23:18.800 --> 23:24.680] That gives you an example as to what's going to happen in the courthouse with the procedures
[23:24.680 --> 23:29.360] and the paperwork, the documents, the court hearings, everything that you do in order
[23:29.360 --> 23:36.640] to either prosecute a case or defend yourself against somebody else prosecuting a case against
[23:36.640 --> 23:37.640] you.
[23:37.640 --> 23:42.640] So those four rules are very important and at some point in time, I'm going to write
[23:42.640 --> 23:44.480] an entire book on those.
[23:44.480 --> 23:45.480] Okay.
[23:45.480 --> 23:46.480] Ken.
[23:46.480 --> 23:47.480] Ken, I want to ask you something.
[23:47.480 --> 23:52.400] I may be jumping ahead here, but just something for you to think about if it doesn't fit
[23:52.400 --> 23:54.560] in right now.
[23:54.560 --> 23:57.600] You're talking about everything is political and I agree.
[23:57.600 --> 24:06.120] So what does a person do knowing that everything is political regarding the relationship between
[24:06.120 --> 24:14.480] the prosecutor and the judge and the defense attorney and the clerk of the records of the
[24:14.480 --> 24:21.400] court and all these things, knowing that everything is political yet it's not supposed to be according
[24:21.400 --> 24:29.080] to law and constitution, how does one deal with that situation?
[24:29.080 --> 24:30.080] Okay.
[24:30.080 --> 24:32.760] We're going to get into that in a later program.
[24:32.760 --> 24:33.760] Okay.
[24:33.760 --> 24:35.000] That goes into strategy.
[24:35.000 --> 24:40.680] You have to, and most of this information is recognizing and acknowledging that the
[24:40.680 --> 24:47.080] system is imperfect and recognizing that when you write something in a pleading, you can
[24:47.080 --> 24:52.760] say it in a nice way or you can say it in a very aggressive or abrasive way and that
[24:52.760 --> 24:55.880] has to do with the strategy of how you write.
[24:55.880 --> 25:02.000] And sometimes you may want to write a little aggressively in order to get the other party
[25:02.000 --> 25:05.680] to do something that you want them to react badly to it.
[25:05.680 --> 25:11.480] You want them to do something stupid and usually a person that's angry at you will do something
[25:11.480 --> 25:12.480] stupid.
[25:12.480 --> 25:15.760] But that gets into strategy of writing tactics later.
[25:15.760 --> 25:19.200] But that's why you have to understand these politics.
[25:19.200 --> 25:23.120] Also when you get to the appellate court, the end game, when you're starting in the
[25:23.120 --> 25:27.960] process of the rules, we've just been talking about getting the rule books and understanding
[25:27.960 --> 25:32.880] the rules, you need to read through the entire rule book on that particular court process
[25:32.880 --> 25:35.440] all the way to the end, including the appeal process.
[25:35.440 --> 25:38.540] You need to know the time deadlines and all of that.
[25:38.540 --> 25:44.440] When you get to the appeal process, politics becomes very important.
[25:44.440 --> 25:51.040] One gentleman I was helping do some research with is in a case in which the judge that
[25:51.040 --> 25:58.040] has been failing to follow the rules in his trial court case is of party A and all of
[25:58.040 --> 26:05.920] the appellate judges are of party B. So based on that, that's what I call the perfect storm
[26:05.920 --> 26:06.920] for appeal.
[26:06.920 --> 26:12.600] It's a good probability that they're going to be inclined or at least not resistant to
[26:12.600 --> 26:19.080] the idea of saying that the judge abused his discretion in failing to follow the rule.
[26:19.080 --> 26:24.120] One that you have when you're in an appeal and the party, the judges of party A and all
[26:24.120 --> 26:35.920] of the appellate judges are also of party A, you know, in a position there, to create
[26:35.920 --> 26:51.280] an appeal of things in life for them to have to do with it, if you need later.
[26:51.280 --> 26:58.280] So once you get the book or find that online, you find the rules out online, like the rules
[26:58.280 --> 27:01.920] of civil procedure in Texas, they're out on the Texas Supreme Court page.
[27:01.920 --> 27:07.040] They're not annotated out there.
[27:07.040 --> 27:11.200] Most good law libraries will have an annotated version and you can go down and look up all
[27:11.200 --> 27:13.960] the case law on each one of those rules.
[27:13.960 --> 27:19.120] If you have a rule that's particularly important, there's always the rule, what's written in
[27:19.120 --> 27:24.800] the book that says, you know, a particular example is that the court has to do something.
[27:24.800 --> 27:28.360] And then you have to look up all the cases that go with that rule and we'll give some
[27:28.360 --> 27:36.200] examples in probably the next hour that we do.
[27:36.200 --> 27:41.840] But the idea is that there's case law that says where the boundary lines are, how much
[27:41.840 --> 27:47.560] the person has to do or not do and the case law essentially explains where the limits
[27:47.560 --> 27:50.520] are on the responsibility of the court.
[27:50.520 --> 27:56.320] Sometimes the case law will actually turn the rule upside down and that's usually because
[27:56.320 --> 28:02.800] we've gotten into a situation where the court has essentially written itself into a corner
[28:02.800 --> 28:08.320] and can't get out except by having the appellate court make some sort of really off the wall
[28:08.320 --> 28:10.360] decision.
[28:10.360 --> 28:13.120] Even the attorneys out there are well aware that that happened.
[28:13.120 --> 28:17.400] So the issue is that we'll get to that again later.
[28:17.400 --> 28:22.040] But having the case law and understanding the case law is one of the things that I run
[28:22.040 --> 28:30.440] across the layperson who thinks they understand what's going on frequently will cite something
[28:30.440 --> 28:32.320] out of context.
[28:32.320 --> 28:37.240] I tell people all the time, if you're going to cite a particular case, download the entire
[28:37.240 --> 28:38.240] case.
[28:38.240 --> 28:43.720] Find the case, go to a law library, download the entire case, read the entire case so you
[28:43.720 --> 28:50.600] clearly understand the length, breadth, and width of the decision, understand the language
[28:50.600 --> 28:56.320] of it, and make sure you understand the context of the quote that was cited someplace that
[28:56.320 --> 28:57.600] sounds good.
[28:57.600 --> 29:03.440] I have been in argument with certain people for a long time over some case law in which
[29:03.440 --> 29:09.760] they have taken a segment of that case out of context and say, here, there it is, there's
[29:09.760 --> 29:12.760] the precedent, and they're absolutely wrong.
[29:12.760 --> 29:18.880] So you have to make sure you read the entire case and understand the context of the case
[29:18.880 --> 29:23.720] and not try to manipulate the case to mean something that it doesn't.
[29:23.720 --> 29:27.640] The case either supports your argument or it doesn't.
[29:27.640 --> 29:31.920] And when you look at it, and if it doesn't support your argument, don't cite it then.
[29:31.920 --> 29:33.680] Be aware of it, but don't cite it.
[29:33.680 --> 29:34.680] All right.
[29:34.680 --> 29:35.680] Excellent.
[29:35.680 --> 29:36.680] We're going to break.
[29:36.680 --> 29:43.760] We're here with Ken Magnuson talking about court procedure and case law.
[29:43.760 --> 29:55.160] We'll be right back.
[29:55.160 --> 29:59.160] Gold prices are at historic highs, and with the recent pullback, this is a great time
[29:59.160 --> 30:00.160] to buy.
[30:00.160 --> 30:04.640] With the value of the dollar, risks of inflation, geopolitical uncertainties, and instability
[30:04.640 --> 30:08.160] in world financial systems, I see gold going up much higher.
[30:08.160 --> 30:11.480] Hi, I'm Tim Fry at Roberts and Roberts Brokerage.
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[30:32.280 --> 30:36.640] Also, Roberts and Roberts Brokerage values your privacy and will always advise you in
[30:36.640 --> 30:40.040] the event that we would be required to report any transaction.
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[30:48.920 --> 31:16.320] We are Roberts and Roberts Brokerage, 800-874-9760.
[32:18.920 --> 32:38.600] The rule of law?
[32:38.600 --> 32:42.840] Randy Kelton and Deborah Stevens.
[32:42.840 --> 32:45.100] Julie is well, Guli.
[32:45.100 --> 32:51.520] She only wants helicopter Bernanke because he prints up the money and gives it to she
[32:51.520 --> 32:54.200] so she can spend it everywhere you see.
[32:54.200 --> 32:55.200] Okay.
[32:55.200 --> 32:59.920] A little fiction story that Patterson and I wrote.
[32:59.920 --> 33:00.920] Okay.
[33:00.920 --> 33:04.920] We are speaking, we have a caller on the line, Travis, we'll get to you in just one moment.
[33:04.920 --> 33:06.460] We're speaking with Ken.
[33:06.460 --> 33:14.840] And so Ken, basically it sounds to me like there's some strategy that needs to be implemented,
[33:14.840 --> 33:18.600] but you have to know the rules of the game first, kind of like chess.
[33:18.600 --> 33:23.960] You need to know how the pieces move, what are the rules, you know, a bishop, bishops
[33:23.960 --> 33:28.760] move diagonally, rooks move, you know, horizontally, vertically.
[33:28.760 --> 33:34.920] You know, you have to know how the rules apply to the specific pieces before you can implement
[33:34.920 --> 33:36.120] the strategy.
[33:36.120 --> 33:39.080] So please continue.
[33:39.080 --> 33:42.040] The chess analogy is absolutely perfect.
[33:42.040 --> 33:49.000] Chess is exactly what it is, it's move and counter move and poise and advantages and
[33:49.000 --> 33:53.400] disadvantages of each move you may make and then deciding what moves to make.
[33:53.400 --> 33:57.800] Now the first thing is before you start the game, you have to know what those are and
[33:57.800 --> 34:00.200] how to set them forward.
[34:00.200 --> 34:02.360] That's what we've been talking about.
[34:02.360 --> 34:07.120] Findings out there that apply to your board sure that you want to understand.
[34:07.120 --> 34:15.600] And I recognize from us all are all encompassing, meaning that they make in different types
[34:15.600 --> 34:21.760] of litigation actions that might take place in that, but in your circumstance only a small
[34:21.760 --> 34:25.920] segment of rules actually apply at any one moment in time.
[34:25.920 --> 34:32.880] So when you're going to rules and probate actions, something about probate, we could
[34:32.880 --> 34:35.400] probably skip that rule for the moment.
[34:35.400 --> 34:39.720] Wait, wait, wait, wait, Ken, Ken, we're going to need to, we need, we're going to need to
[34:39.720 --> 34:46.120] call you back because your, your line is, is, is kind of cutting out.
[34:46.120 --> 34:47.120] Okay.
[34:47.120 --> 34:52.640] Let me change channels on it because I'm, you there?
[34:52.640 --> 34:53.640] Yeah.
[34:53.640 --> 34:54.640] Okay.
[34:54.640 --> 34:55.640] Yeah.
[34:55.640 --> 34:56.640] Go, go ahead.
[34:56.640 --> 34:57.640] I think that's better.
[34:57.640 --> 34:58.640] Okay.
[34:58.640 --> 34:59.640] Let me change the channel real quick.
[34:59.640 --> 35:00.640] Okay.
[35:00.640 --> 35:01.640] You there?
[35:01.640 --> 35:04.640] Yes, that's, that's much better.
[35:04.640 --> 35:05.640] Okay.
[35:05.640 --> 35:08.560] I'll try not to drift around the room.
[35:08.560 --> 35:09.560] Okay.
[35:09.560 --> 35:10.560] Okay.
[35:10.560 --> 35:11.560] That's better.
[35:11.560 --> 35:12.560] Okay.
[35:12.560 --> 35:17.520] So in any event, the, the issue of the particular rules that apply to your case, you can kind
[35:17.520 --> 35:22.480] of skim read through the rules first, just to get an idea of the language and what rules
[35:22.480 --> 35:23.480] are there.
[35:23.480 --> 35:25.480] There's rules about service.
[35:25.480 --> 35:27.600] There's rules about discovery.
[35:27.600 --> 35:30.280] There's rules about motions, how to file motions.
[35:30.280 --> 35:34.720] There's rules about the actual pre-trial hearings.
[35:34.720 --> 35:37.680] There's rules about the actual trial.
[35:37.680 --> 35:43.400] Then there's rules about what happened after the trial, various types of preparation for
[35:43.400 --> 35:45.000] motions for new trial.
[35:45.000 --> 35:47.760] And then there's rules about the appellate process.
[35:47.760 --> 35:49.440] And you should be familiar with all of these.
[35:49.440 --> 35:54.320] You should always be aware that the end game is a possibility.
[35:54.320 --> 36:00.240] And there's two basic, there's, there's first thing in organizing your case, depending on
[36:00.240 --> 36:04.840] whether you're a plaintiff or defendant, let's just for the sake of argument for the moment,
[36:04.840 --> 36:08.920] there's two different strategies with regards to whether you're a plaintiff or defendant
[36:08.920 --> 36:11.360] in a civil action.
[36:11.360 --> 36:16.600] If you're the plaintiff, first off, you have the advantage of time and preparation, meaning
[36:16.600 --> 36:18.520] you know that you have a cause of action.
[36:18.520 --> 36:23.800] You have to go and find the statute, common law, the case law that supports whatever kind
[36:23.800 --> 36:25.960] of harm that's been done to you.
[36:25.960 --> 36:33.080] Put them up, be aware of the statute of limitations or any prerequisites you need to do notice
[36:33.080 --> 36:39.160] to the other side that has to be done within a timely process or you waive your right.
[36:39.160 --> 36:40.760] But you can prepare your case.
[36:40.760 --> 36:46.520] Now when I say preparing a case as a plaintiff, I don't mean just writing your original pleading.
[36:46.520 --> 36:52.720] I mean the entire strategy of every motion you might have to write and then turning the
[36:52.720 --> 36:58.520] case with some friends upside down and looking from the other person's perspective.
[36:58.520 --> 37:03.640] What are they going to do to counteract your action?
[37:03.640 --> 37:12.240] Be aware that those counteractions are going to rear you to object to your motion in a
[37:12.240 --> 37:13.800] certain manner.
[37:13.800 --> 37:19.300] And when you understand the rules, you will anticipate the other side's move and have
[37:19.300 --> 37:21.440] those documents prepared.
[37:21.440 --> 37:27.600] All you have to do is fill in the dates, not places, pull out a pair, insert, or denoting
[37:27.600 --> 37:31.800] what they put in.
[37:31.800 --> 37:36.800] If you don't prepare your case like that coming up front and all you do is go through the
[37:36.800 --> 37:43.440] book from front to back one time, they're going to catch you off guard, not prepared
[37:43.440 --> 37:47.360] for a particular motion and not recognizing what the rules are.
[37:47.360 --> 37:49.880] So that's one of the things that I tell people all the time.
[37:49.880 --> 37:54.600] I talk to them about if you're going to do a cause of action, you need to have your case.
[37:54.600 --> 37:58.880] And the analogy I use is the movie analogy of having it in the can.
[37:58.880 --> 38:00.560] That means it's ready to go.
[38:00.560 --> 38:07.200] You've anticipated the reaction, as many of the actions of your opponent that you can,
[38:07.200 --> 38:08.200] and you're prepared.
[38:08.200 --> 38:12.160] You fully understand all of the options available.
[38:12.160 --> 38:13.160] Then you file your case.
[38:13.160 --> 38:14.160] Okay.
[38:14.160 --> 38:21.320] Ken, I know that there's hundreds of rules, thousands probably, hundreds of thousands
[38:21.320 --> 38:22.620] of permutations.
[38:22.620 --> 38:31.160] Can you give our listeners, please, just a few examples of the main things to look out
[38:31.160 --> 38:36.080] for, the main rules to follow because, I mean, obviously...
[38:36.080 --> 38:37.080] We're not there yet.
[38:37.080 --> 38:38.080] Okay.
[38:38.080 --> 38:41.720] This is like an encyclopedia here.
[38:41.720 --> 38:44.680] The next thing you have to do is organize your case.
[38:44.680 --> 38:48.940] And the thing that I have seen most people fail to do is organize their case.
[38:48.940 --> 38:52.240] They have file folders full of documents everywhere.
[38:52.240 --> 38:56.080] Most of the people that I've talked to in lectures and seminars that I've done, when
[38:56.080 --> 38:59.800] I ask them about if they got the rules, nobody has the rule book.
[38:59.800 --> 39:04.880] And then I ask if anybody's actually seen their file in the courthouse.
[39:04.880 --> 39:09.240] Every case that's in the courthouse has a file associated with it and has what's called
[39:09.240 --> 39:10.680] a docket sheet in the front.
[39:10.680 --> 39:16.720] The docket sheet is just a chronological order of things that were filed with the court and
[39:16.720 --> 39:18.280] done in the court.
[39:18.280 --> 39:22.960] The court maintains the docket sheet, even though there might be a special docket sheet
[39:22.960 --> 39:24.960] kept by the judge.
[39:24.960 --> 39:29.120] But everything that gets filed in the case, everything that's done to the case, every
[39:29.120 --> 39:33.760] hearing that's set, everything that goes on is listed in that docket sheet.
[39:33.760 --> 39:38.320] Those documents should be, they're not always there.
[39:38.320 --> 39:42.240] But they should be in that docket, in that file.
[39:42.240 --> 39:48.040] Anybody getting involved in litigation needs to start the identical file at home.
[39:48.040 --> 39:52.760] With everything that the court has, you should have received a copy of it as well.
[39:52.760 --> 39:56.240] Whether you originate it or the other party originates it, you get a copy.
[39:56.240 --> 40:02.760] Punch a hole in it, log it into your docket sheet, keep the docket sheet on your computer,
[40:02.760 --> 40:07.220] and you can keep a more detailed docket sheet than maybe you'll see down at the courthouse.
[40:07.220 --> 40:13.120] But occasionally you need to go down to the courthouse and ask to see the file.
[40:13.120 --> 40:16.960] Unimportant documents, like once you get into litigation, the service document that came
[40:16.960 --> 40:20.280] up front in a civil case is unimportant.
[40:20.280 --> 40:25.040] You're already past that, so that's not going to be an important document anymore.
[40:25.040 --> 40:29.480] But the issue is that every document that's in that file, you should have a copy of it
[40:29.480 --> 40:31.720] at home.
[40:31.720 --> 40:39.080] Documents that are important are documents that argue and present or proffer testimony
[40:39.080 --> 40:45.120] or evidence, affidavits, exhibits, things of this nature.
[40:45.120 --> 40:48.120] Those are the documents you need to make sure.
[40:48.120 --> 40:53.920] One of the things that I have seen that happens in cases that are very contentious is that
[40:53.920 --> 41:00.480] some of the salient documents and exhibits, affidavits, will go missing.
[41:00.480 --> 41:02.160] And that's something to be aware of.
[41:02.160 --> 41:07.200] Sometimes it's for by nefarious purposes, other times it's just a clerical error.
[41:07.200 --> 41:11.880] Don't assume just because it's gone that somebody reached in and took it out deliberately, but
[41:11.880 --> 41:14.720] always be aware that that can happen.
[41:14.720 --> 41:17.960] And that's why you have to go through and look at the file to make sure the documents
[41:17.960 --> 41:18.960] are there.
[41:18.960 --> 41:22.600] When you discover a document is missing, you have to write a letter to the clerk of the
[41:22.600 --> 41:24.920] court, substitute the document.
[41:24.920 --> 41:29.800] You got a copy of it or whatever, got to send a copy to the other side, but that gets into
[41:29.800 --> 41:33.320] more of the practices and proceedings.
[41:33.320 --> 41:37.200] Keeping records on your computer.
[41:37.200 --> 41:46.160] I've seen a tendency for people to write down notes on sticky pads and stuff and stick them
[41:46.160 --> 41:47.280] on their monitor.
[41:47.280 --> 41:48.640] It doesn't work.
[41:48.640 --> 41:53.000] You're going to lose them, the cat's going to eat them, the dog's going to eat them,
[41:53.000 --> 41:54.000] whatever.
[41:54.000 --> 41:57.280] You need to keep files organized.
[41:57.280 --> 42:01.400] You need to make sure that you have, and this gets into more like my background, which is
[42:01.400 --> 42:07.480] actually systems analysis, which is you have to name your file something that's unique
[42:07.480 --> 42:11.440] enough to identify it from any other case.
[42:11.440 --> 42:16.720] Some of the abbreviations, and we'll get into this later, naming conventions and so forth.
[42:16.720 --> 42:20.760] Everything's a motion in the court pretty much.
[42:20.760 --> 42:23.840] And don't use spaces in the file names.
[42:23.840 --> 42:29.320] Yeah, don't use spaces, but if I make a motion, motion might be abbreviated as just a big
[42:29.320 --> 42:37.120] capital M. But you want a date, you want what it is, an abbreviation that's used by O'Connor's
[42:37.120 --> 42:42.600] like motion for new trial is MNT, motion new trial.
[42:42.600 --> 42:45.400] And then you just need a date to specify which it is.
[42:45.400 --> 42:49.920] And then if you're writing documents and you have various versions of these documents,
[42:49.920 --> 42:55.000] I usually put a V and then put my initials after it, and then a number of some sort.
[42:55.000 --> 42:59.400] V KM1, KM2, KM3.
[42:59.400 --> 43:04.560] So I know that I've been modifying this document, and I can always go back to a previous version
[43:04.560 --> 43:05.760] if I need to.
[43:05.760 --> 43:11.520] Now Word has provisions for doing various versions of a document, but that's up to the
[43:11.520 --> 43:14.760] individual user if they want to utilize that process.
[43:14.760 --> 43:18.480] The other thing is in the process of doing court proceedings, you're going to always
[43:18.480 --> 43:22.320] have to make phone calls to collect information.
[43:22.320 --> 43:26.360] Almost all the court proceedings that I'm familiar with require, if you file a motion,
[43:26.360 --> 43:31.400] you have to call the opposing party and see if they object to the motion.
[43:31.400 --> 43:37.200] You need to keep a running log of conversations about your case to principles in the case
[43:37.200 --> 43:38.200] or the court.
[43:38.200 --> 43:43.480] When I'm meaning like that, most people aren't aware of it, the people that are computer
[43:43.480 --> 43:45.000] geeks will recognize it.
[43:45.000 --> 43:50.280] There's a little program out in Windows called Notepad that does what's just called a plain
[43:50.280 --> 43:51.280] ASCII text file.
[43:51.280 --> 43:54.320] There's no formatting, it's just text.
[43:54.320 --> 43:59.920] I keep a text file in each sub-director for any case that I'm helping somebody work on,
[43:59.920 --> 44:05.480] and I keep notes in there, date, time, phone call place, what we discussed, what they're
[44:05.480 --> 44:08.160] going to do, what I need to do for them.
[44:08.160 --> 44:14.560] It's informal, but it at least keeps me on track of where I am in that particular discussion.
[44:14.560 --> 44:20.360] And, Ken, let me ask you and Randy, too, because I believe this is the way it is.
[44:20.360 --> 44:29.040] In Texas, as long as one of the two or multiple parties involved in the discussion or conversation
[44:29.040 --> 44:37.200] has knowledge of recording, then it is lawful, legal, however you want to phrase it, to record.
[44:37.200 --> 44:40.040] And Skype is free.
[44:40.040 --> 44:45.960] I believe you have to subscribe to something in order to make phone calls to actual phone
[44:45.960 --> 44:52.360] numbers, but you can get a plug-in to record the conversation, so do you think that it
[44:52.360 --> 44:55.880] would be advisable to record these conversations?
[44:55.880 --> 44:59.160] There are certain conversations that might be good to record.
[44:59.160 --> 45:03.120] However, I hear people recording them all the time, and the recordings are worthless
[45:03.120 --> 45:05.800] until they're rendered into a transcript.
[45:05.800 --> 45:10.560] As long as they sit around on a tape, they're worthless.
[45:10.560 --> 45:17.000] And if you transcribe them and do an affidavit on the transcribed tape, but you do the transcription
[45:17.000 --> 45:22.400] six months later, there may be some questions as to whether or not the tape was altered.
[45:22.400 --> 45:27.880] So the question is, if you're going to tape an important conversation, you make sure you
[45:27.880 --> 45:33.320] transcribe it immediately and do an affidavit that says, this is the content of a conversation
[45:33.320 --> 45:34.320] that happened.
[45:34.320 --> 45:39.760] If you even refer to the tape, you just indicate that this is the conversation.
[45:39.760 --> 45:44.400] You use the tape as a rebuttal if the person purges themselves and says they never had
[45:44.400 --> 45:45.400] that conversation.
[45:45.400 --> 45:48.080] That's a later strategy.
[45:48.080 --> 45:54.080] But I, you know, when I told you rule number three, document everything, there's rare cases
[45:54.080 --> 45:56.480] in which you can't document the thing.
[45:56.480 --> 46:02.040] I knew one of the gentlemen I work with on occasion had a situation where they had a
[46:02.040 --> 46:08.680] policy in practice of not sending orders from the court, which are prescribed by the Texas
[46:08.680 --> 46:13.160] Rules of Procedure, meaning that a judge, when he finally signs an order, has to send
[46:13.160 --> 46:17.000] a copy, a notice to all the parties saying an order was signed.
[46:17.000 --> 46:23.880] Well, they had a policy in place in violation of the rule that said we don't mail them.
[46:23.880 --> 46:27.000] And you couldn't get anybody to admit that over the phone, so he went down there and
[46:27.000 --> 46:30.640] talked to them wired with a tape recorder and recorded it.
[46:30.640 --> 46:35.040] And as soon as he got home, he transcribed the tape and filled out an affidavit.
[46:35.040 --> 46:42.240] And then when they denied it, in a hearing at a later date, he played the tape.
[46:42.240 --> 46:44.840] So that's how that's done.
[46:44.840 --> 46:48.440] I say stay away from tapes at all possible.
[46:48.440 --> 46:50.440] It's just better to do everything in writing.
[46:50.440 --> 46:53.680] And this even comes, let's do a little side issue here.
[46:53.680 --> 46:58.000] One of the biggest problems that everybody runs into is actually having worked with an
[46:58.000 --> 47:01.160] attorney for a period of time.
[47:01.160 --> 47:06.000] And the attorney says, yeah, I'll do this, or I'll do that, and you have phone conversations,
[47:06.000 --> 47:10.760] and then the attorney doesn't do it, doesn't get back to you, doesn't return your call.
[47:10.760 --> 47:15.160] The easiest way to handle that with the log that I was talking about, keeping track of
[47:15.160 --> 47:20.240] dates, times, places, and when you place the call, or when you receive a call from them,
[47:20.240 --> 47:21.480] is right behind the call.
[47:21.480 --> 47:27.280] You know, let's say I talk to Attorney Jones, and Attorney Jones tells me, well, I'm going
[47:27.280 --> 47:29.320] to go ahead and prepare that motion.
[47:29.320 --> 47:31.920] Okay, so number one, he's preparing the motion.
[47:31.920 --> 47:36.320] Attorney Jones says, I'll file it on Wednesday, so you have a particular date.
[47:36.320 --> 47:38.920] And number three, he says, I'll send you a copy.
[47:38.920 --> 47:44.560] Well, right after the phone conversation is over, you type up a letter to Attorney Jones
[47:44.560 --> 47:48.680] discussing the elements of the conversation, and the last sentence in that letter should
[47:48.680 --> 47:54.280] say something to the effect of, if I've misunderstood any of the conversation we had, please correct
[47:54.280 --> 47:56.280] me as soon as possible.
[47:56.280 --> 48:00.760] You know, Mr. Smith, or Ms. Smith.
[48:00.760 --> 48:02.880] And you send that to the attorney.
[48:02.880 --> 48:06.280] Now, you don't have to send it by certified mail initially.
[48:06.280 --> 48:10.440] You just make sure you call their pair of legal, get somebody to acknowledge that they
[48:10.440 --> 48:11.800] received it.
[48:11.800 --> 48:18.000] If they start showing a predilection for pretending they didn't get documents that you send by
[48:18.000 --> 48:23.040] regular mail, that should be a red warning flag that you need to get rid of that attorney
[48:23.040 --> 48:28.240] in some way, shape, or form, that they're not out for your best interest.
[48:28.240 --> 48:33.480] And if they're doing it and it's not malicious, boy, they're really incompetent.
[48:33.480 --> 48:37.120] So that should be one of the warning signs that you need to do something else.
[48:37.120 --> 48:41.840] There are certain types of letters that you need to send to an attorney, and you need
[48:41.840 --> 48:43.320] to send them certified.
[48:43.320 --> 48:50.560] If they contain drafts of evidence or exhibits, things that you know are timely, that are
[48:50.560 --> 48:55.520] time-sensitive, they have to get to the attorney in a certain period of time in order for that
[48:55.520 --> 48:59.800] attorney to present them in court, and you don't want him or her to have an excuse to
[48:59.800 --> 49:00.800] say he didn't get it.
[49:00.800 --> 49:02.800] You want to have proof that he did get it.
[49:02.800 --> 49:08.640] And this is in preparation, obviously, behind the scenes of recognizing the politics of
[49:08.640 --> 49:14.080] attorneys, and what you're doing is you're setting up the evidence for the later bar
[49:14.080 --> 49:15.080] grievance.
[49:15.080 --> 49:19.320] That's why you do everything in documents.
[49:19.320 --> 49:25.800] So once you have the docket sheet set up and you keep logs of whoever you talk to, interviewing
[49:25.800 --> 49:29.840] if you're going to interview witnesses or whatever, you've got witnesses that you want
[49:29.840 --> 49:34.200] to talk to or whatever, say it's a car accident case and you're suing somebody, you can't
[49:34.200 --> 49:42.480] get an attorney to handle the case, like we have too few ambulance chasers in the state.
[49:42.480 --> 49:47.560] The issue here is that you have to make sure that if you have a witness, that you sit down
[49:47.560 --> 49:54.200] with that witness and you type up the form for them of what they told you over the phone
[49:54.200 --> 50:00.080] they saw, then you take that form to them as an affidavit and you get them to sign it.
[50:00.080 --> 50:02.520] You get them to sign it in front of a notary public.
[50:02.520 --> 50:07.200] Do all of the legwork you can yourself, but once you've got that affidavit, that'll go
[50:07.200 --> 50:09.280] a long way to proving your case.
[50:09.280 --> 50:14.020] If you just trust that this witness is going to be available at some time down the road,
[50:14.020 --> 50:16.560] you may have assumed things that might not have happened.
[50:16.560 --> 50:24.040] If that witness suddenly leaves town or changes their mind or something else happens, you
[50:24.040 --> 50:27.040] suddenly now lose your witness to the car accident.
[50:27.040 --> 50:31.360] So that's an example of why you want to get all the documentation.
[50:31.360 --> 50:36.360] Okay, Ken, Ken, I just want to stop you here one second.
[50:36.360 --> 50:44.440] Just for the sake of presenting to our listeners some remedies, solutions of how to handle
[50:44.440 --> 50:53.800] these situations, I'm getting the impression from you that it is extremely, extremely important
[50:53.800 --> 51:04.400] to document everything and file your documentation as an affidavit.
[51:04.400 --> 51:06.960] Is that correct?
[51:06.960 --> 51:10.960] When necessary, yes.
[51:10.960 --> 51:14.160] Let's give you a couple sets of circumstances.
[51:14.160 --> 51:19.080] There's one thing that attorneys are prevalent to, and the Texas Rules of Civil Procedure,
[51:19.080 --> 51:20.080] there's Rule 11.
[51:20.080 --> 51:22.280] Rule 11 is about agreement.
[51:22.280 --> 51:28.800] That means attorney A may agree with attorney B to circumvent certain formal processes that
[51:28.800 --> 51:29.800] are in the rule.
[51:29.800 --> 51:32.960] They're allowed to do that as long as everybody agrees to it.
[51:32.960 --> 51:37.960] However, the court can't enforce any of those agreements unless it's done in writing.
[51:37.960 --> 51:42.040] Now I've met attorneys throughout the state and met people who have talked to attorneys
[51:42.040 --> 51:47.200] who have said, oh, I'll agree to do this, and they'll say, oh yeah, you got my agreement,
[51:47.200 --> 51:50.800] and yet when it comes down to actually signing a written agreement, which is required by
[51:50.800 --> 51:53.240] the rule, they won't do it.
[51:53.240 --> 51:58.160] So what they're trying to do is lull you into false sense of security by saying I agree
[51:58.160 --> 52:01.720] to that without signing a Rule 11 agreement.
[52:01.720 --> 52:06.800] That's one where sending the Rule 11 agreement to the attorney and getting the Rule 11 agreement,
[52:06.800 --> 52:11.240] getting it signed by both parties and then filing it in the court so that the court is
[52:11.240 --> 52:16.200] aware of that agreement is an important aspect of it.
[52:16.200 --> 52:20.000] Facts, let's just talk about affidavits for a minute.
[52:20.000 --> 52:25.280] For everybody that understands what an affidavit is, an affidavit is a sworn instrument by
[52:25.280 --> 52:28.160] a person who knows facts.
[52:28.160 --> 52:34.320] If everybody remembers the old dragnet series with Jack Webb, just the facts, ma'am.
[52:34.320 --> 52:38.480] All it is is about who, what, where, when, why, how.
[52:38.480 --> 52:44.920] Not what you think, it's what you saw, it's what you know, not what you dreamed about.
[52:44.920 --> 52:50.000] What you think happened or might have happened or why it might have happened, if you don't
[52:50.000 --> 52:53.400] know it as a fact, you can't put it in an affidavit.
[52:53.400 --> 53:00.200] Now, affidavits, we'll go back to that example of a car accident, affidavit for a car accident
[53:00.200 --> 53:10.160] might go something like, you know, I, Joe Smith, was driving at such and such intersection
[53:10.160 --> 53:14.720] at such and such date and time, you have to establish the date and time where the accident
[53:14.720 --> 53:15.720] took place.
[53:15.720 --> 53:22.560] I noticed a red Corvette run the light going northbound on Main Street and strike a vehicle
[53:22.560 --> 53:30.440] driven by later a man identified as Mr. Jones.
[53:30.440 --> 53:32.360] You know, that's facts.
[53:32.360 --> 53:34.360] That person saw those facts.
[53:34.360 --> 53:40.680] Now, affidavit formats are different for almost every state, but they contain usually the
[53:40.680 --> 53:45.400] same basic elements, is that you're old enough to do the affidavit, which in most states
[53:45.400 --> 53:52.280] is 18, you are a sound mind, and that you have personal information or knowledge of
[53:52.280 --> 53:53.280] the event.
[53:53.280 --> 54:01.040] Then it indicates that you've either subscribed, sworn, or acknowledged that these events have
[54:01.040 --> 54:03.720] occurred and they're true when you sign it in front of a notary.
[54:03.720 --> 54:04.720] You don't have to put sworn.
[54:04.720 --> 54:09.680] If you don't like sworn, you can use acknowledge or subscribe.
[54:09.680 --> 54:15.240] In some states, they allow the word subscribe, but the idea is to look for a format, and
[54:15.240 --> 54:17.040] we can get into some of those formats later.
[54:17.040 --> 54:21.000] Hopefully, maybe I'll get you some examples, we'll put them out on your website.
[54:21.000 --> 54:23.440] I know Mr. Kelton has a number of them.
[54:23.440 --> 54:24.440] Yes.
[54:24.440 --> 54:27.000] In any event, that's what an affidavit is.
[54:27.000 --> 54:30.080] It sets up a statement of fact.
[54:30.080 --> 54:37.280] Those facts, as far as an affidavit, are only filed as a supportive exhibit to a particular
[54:37.280 --> 54:38.280] motion.
[54:38.280 --> 54:42.520] Now, you may have affidavits in an original pleading.
[54:42.520 --> 54:43.520] That might be your answer.
[54:43.520 --> 54:47.240] You know, if you're being sued and you weren't the guy driving the red Corvette, yet they
[54:47.240 --> 54:51.680] think it was your red Corvette that was involved in the accident and they got the wrong person,
[54:51.680 --> 54:56.200] you would file an affidavit that says, no, I was never at that Main Street on that date
[54:56.200 --> 54:59.200] and time, and my red Corvette was never in an accident.
[54:59.200 --> 55:03.600] You would file that in your answer against the lawsuit, and that's an exhibit that would
[55:03.600 --> 55:06.960] be attached to your answer.
[55:06.960 --> 55:09.840] That's one of the strategies about affidavits.
[55:09.840 --> 55:16.800] I've seen people now, the side document to an affidavit is what they call verified motion,
[55:16.800 --> 55:18.360] or verified pleading.
[55:18.360 --> 55:24.880] What verified pleadings are is turning the entire pleading or motion into an affidavit.
[55:24.880 --> 55:28.800] Now, you're not verifying the arguments in there.
[55:28.800 --> 55:32.840] All you're doing is verifying the facts that you've related them are true and correct and
[55:32.840 --> 55:35.480] of your own personal knowledge.
[55:35.480 --> 55:37.560] Only the principal can do that.
[55:37.560 --> 55:42.400] You can't do it for a third party, but you can say, these are the facts, and you can
[55:42.400 --> 55:46.640] verify it by putting what's called a jurat at the end of the pleadings and say that the
[55:46.640 --> 55:49.720] document is verified.
[55:49.720 --> 55:55.240] Verified documents are important in some types of cases, depending on what the statute says
[55:55.240 --> 55:56.240] about that.
[55:56.240 --> 56:00.020] One example is cases involving debt.
[56:00.020 --> 56:05.760] When you have reneged or somebody accuses you of reneging on a loan or a debt, they
[56:05.760 --> 56:11.320] have to have an affidavit which contains the accounting of what's left owed on the debt,
[56:11.320 --> 56:16.000] how it's been paid, what's been paid so far, and what's now owed.
[56:16.000 --> 56:20.880] It has to be attached as a verified pleading or an affidavit as an exhibit.
[56:20.880 --> 56:25.440] Without the affidavit, the pleadings are worthless for collection of a debt.
[56:25.440 --> 56:26.440] Right.
[56:26.440 --> 56:32.440] So, Ken, basically what you're saying, and this is what Randy and I have been saying
[56:32.440 --> 56:40.560] for a while as well regarding affidavits, they are statements of fact supporting a pleading
[56:40.560 --> 56:42.440] or a motion.
[56:42.440 --> 56:46.800] You can't get anywhere in court just by filing affidavits and nothing else.
[56:46.800 --> 56:47.800] Correct.
[56:47.800 --> 56:49.080] It does not move.
[56:49.080 --> 56:54.560] They're a document that supports a particular position, and you use them as a supportive
[56:54.560 --> 57:01.440] document to some sort of motion or pleading before the court, and this stands as an exhibit
[57:01.440 --> 57:13.480] to bolster your knowledge, the truthfulness of what you're saying.
[57:13.480 --> 57:20.680] The affidavits then stand as what's called faith evidence.
[57:20.680 --> 57:26.200] The only way an affidavit can be overcome in court is in a proceeding if somebody has
[57:26.200 --> 57:28.600] to controvert the affidavit.
[57:28.600 --> 57:34.800] Now everybody writes this stuff, and you recognize there are ways of writing things that don't
[57:34.800 --> 57:39.680] really say what... They leave a hole in the document, and the other person could come
[57:39.680 --> 57:41.360] in and say, well, you're mistaken.
[57:41.360 --> 57:45.560] I recognize you can do an affidavit, and the person could write an affidavit saying, I
[57:45.560 --> 57:50.240] saw the red Corvette, da-da-da-da-da, and the person could be mistaken, meaning he read
[57:50.240 --> 57:52.920] the license plate number of the Corvette wrong.
[57:52.920 --> 57:53.920] Okay.
[57:53.920 --> 57:56.960] And it turns out they got the wrong red Corvette driver.
[57:56.960 --> 57:57.960] Okay.
[57:57.960 --> 58:05.000] So an affidavit by the red Corvette driver now stating, no, I wasn't there, is a contraversion
[58:05.000 --> 58:09.440] to the affidavit filed by the plaintiff in that case.
[58:09.440 --> 58:14.240] So now the only way to resolve the issue is in open court where there can be testimony
[58:14.240 --> 58:16.680] and cross-examination.
[58:16.680 --> 58:24.120] Testimony in open court always trumps an affidavit.
[58:24.120 --> 58:28.120] Testimony in open court always trumps an affidavit.
[58:28.120 --> 58:29.280] It's best evidence.
[58:29.280 --> 58:34.440] That goes under the rules of evidence, which is another thing we'll have to get into.
[58:34.440 --> 58:41.680] So the issue is that pleadings in cases can be entirely won by affidavits without having
[58:41.680 --> 58:47.080] to go to trial, but the issue is that if they're controverted, there needs to be some sort
[58:47.080 --> 58:51.840] of hearing to essentially acquire the truth.
[58:51.840 --> 58:57.720] And that's the process by which the judge does it or full blown trial, a jury may participate.
[58:57.720 --> 58:58.720] So okay.
[58:58.720 --> 58:59.720] Okay.
[58:59.720 --> 59:01.960] Listen, Ken, we're going to break.
[59:01.960 --> 59:02.960] So hold that thought.
[59:02.960 --> 59:09.280] When we get back on the other side, I want to talk about how we can apply these principles.
[59:09.280 --> 59:15.880] And I know this is like a two-year course here, but we'll be right back.
[59:15.880 --> 59:17.800] Tell me coming back is style.
[59:17.800 --> 59:18.800] Okay.
[59:18.800 --> 59:20.840] We'll be right back on the other side.
[59:20.840 --> 59:26.400] All right, Ken Magnuson, our special guest, Randy Kelton, Deborah Stevens, the rule of
[59:26.400 --> 59:27.400] law.
[59:27.400 --> 59:50.960] We'll be right back.
[59:50.960 --> 59:54.160] Are you the plaintiff or defendant in a lawsuit?
[59:54.160 --> 01:00:00.920] Win your case without an attorney with Jurisdictionary, the affordable, easy to understand, 4-CD course
[01:00:00.920 --> 01:00:04.760] that will show you how in 24 hours, step by step.
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[01:00:29.080 --> 01:00:33.360] principles and practices that control our American courts.
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[01:00:54.840 --> 01:01:22.000] If you have a lawyer, know what your lawyer should be doing.
[01:01:22.000 --> 01:01:26.000] They had plenty of money, just enough to get spun
[01:01:28.000 --> 01:01:31.000] They came from the Congo, they came from the Nile
[01:01:31.000 --> 01:01:34.000] Sometimes forced to check the cultures and the style
[01:01:34.000 --> 01:01:36.000] On the roots of trade
[01:01:36.000 --> 01:01:39.000] Working on the roots of trade
[01:01:39.000 --> 01:01:42.000] Working on the roots of trade
[01:01:42.000 --> 01:01:45.000] Working on the roots of trade
[01:01:45.000 --> 01:01:48.000] I'm talking to the young, I'm talking to the old
[01:01:48.000 --> 01:01:51.000] I'm talking to the one running around hardcore
[01:01:51.000 --> 01:01:54.000] Some of them, I tell you man, I see them fisty and bold
[01:01:54.000 --> 01:01:56.000] But I know, see Jar Jar either
[01:01:56.000 --> 01:01:59.000] Cause I love, I love one another
[01:01:59.000 --> 01:02:01.000] People that we love one another
[01:02:03.000 --> 01:02:05.000] We love one another
[01:02:05.000 --> 01:02:08.000] I tell you like, we love one another
[01:02:08.000 --> 01:02:12.000] Came from Harvard, they came from Yale
[01:02:14.000 --> 01:02:18.000] Came from the mental health center and the county jail
[01:02:18.000 --> 01:02:23.000] They've been to Vietnam, they've been to Canada
[01:02:25.000 --> 01:02:29.000] Been to the Persian Gulf, and they've been down to Grenada
[01:02:31.000 --> 01:02:34.000] If not for the war, they might have been anywhere
[01:02:34.000 --> 01:02:36.000] Still into ashes to ashes
[01:02:36.000 --> 01:02:39.000] And quite took life out on the roots of trade
[01:02:39.000 --> 01:02:42.000] Working on the roots of trade
[01:02:42.000 --> 01:02:45.000] Working on the roots of trade
[01:02:45.000 --> 01:02:48.000] Working on the roots of trade
[01:02:48.000 --> 01:02:49.000] I need to love one another
[01:02:49.000 --> 01:02:52.000] Stop with the voicing, stop with the fighting
[01:02:52.000 --> 01:02:55.000] Let's try a little love and some caressing
[01:02:55.000 --> 01:02:58.000] And you say stop with the voicing, stop with the fighting
[01:02:58.000 --> 01:03:01.000] Let's try a little love and some uniting
[01:03:01.000 --> 01:03:03.000] I need to love one another
[01:03:03.000 --> 01:03:06.000] People I need to love one another
[01:03:06.000 --> 01:03:09.000] Love one another
[01:03:09.000 --> 01:03:12.000] I tell you like, we love one another
[01:03:12.000 --> 01:03:16.000] Came from the same place we all know
[01:03:18.000 --> 01:03:22.000] Came from the land of the heart and the country of the soul
[01:03:24.000 --> 01:03:25.000] The skin got every color
[01:03:25.000 --> 01:03:28.000] They've been dancing to a different drum
[01:03:29.000 --> 01:03:31.000] They've been fighting when cornered
[01:03:31.000 --> 01:03:34.000] And they all been on the love song
[01:03:35.000 --> 01:03:36.000] I got something you need
[01:03:36.000 --> 01:03:38.000] You got something I can use
[01:03:38.000 --> 01:03:40.000] We got the whole world again
[01:03:40.000 --> 01:03:42.000] Not much to lose out on the roots of trade
[01:03:42.000 --> 01:03:43.000] I said love one another
[01:03:44.000 --> 01:03:45.000] We're working on the roots of trade
[01:03:45.000 --> 01:03:47.000] So let's love one another
[01:03:47.000 --> 01:03:48.000] Working on the roots of trade
[01:03:48.000 --> 01:03:49.000] Love one another
[01:03:50.000 --> 01:03:52.000] Working on the roots of trade
[01:03:52.000 --> 01:03:54.000] Working on the roots of trade
[01:03:55.000 --> 01:03:59.000] We working on the roots of trade
[01:03:59.000 --> 01:04:02.000] Working on the roots of trade
[01:04:02.000 --> 01:04:22.320] The rule of law, Randy Kelton and Debra Stevens.
[01:04:22.320 --> 01:04:29.960] We are here with Professor Ken Magnuson, I'll call him professor, that's okay, he's teaching.
[01:04:29.960 --> 01:04:32.960] Teach one, teach one, okay?
[01:04:32.960 --> 01:04:33.960] Okay?
[01:04:33.960 --> 01:04:41.640] So, so Ken, okay, alright, basically, alright, remember, I'm a layman now, okay?
[01:04:41.640 --> 01:04:47.400] I got into this whole legal, okay, I got into this whole legal thing because, you know,
[01:04:47.400 --> 01:04:51.200] wanting to take 9-11 to the courts and everything, alright, I'm a mathematician, I'm a scientist
[01:04:51.200 --> 01:04:55.840] as far as law, I'm a layman, alright, and basically the impression I'm getting from
[01:04:55.840 --> 01:05:05.000] you is that we have to do our homework as far as organizing the papers, getting copies
[01:05:05.000 --> 01:05:11.240] of everything that's been filed with the courts, and writing everything down, Randy's always
[01:05:11.240 --> 01:05:18.760] saying write a narrative, write a narrative, I mean, you're taking it like 100 steps further,
[01:05:18.760 --> 01:05:28.960] you're saying document everything and affidavit's rule, okay, so let's get into a little, I know
[01:05:28.960 --> 01:05:33.120] you're Mr. Encyclopedia and everything, let's just get into a little bit of remedy, okay,
[01:05:33.120 --> 01:05:34.120] as far as like...
[01:05:34.120 --> 01:05:38.840] When I say document everything, the test thing that should go through your mind is if I don't
[01:05:38.840 --> 01:05:44.600] document this event, how could it come back to bite me in the butt later?
[01:05:44.600 --> 01:05:47.840] That's the best way to decide whether it's important to document it.
[01:05:47.840 --> 01:05:54.800] Well if you don't document it, somebody else will, and if you don't want their side of
[01:05:54.800 --> 01:06:01.720] the story to go down in history as law, then you better document it yourself, right?
[01:06:01.720 --> 01:06:06.840] Right, right, but the issue is that there are some, you know, you call somebody just
[01:06:06.840 --> 01:06:10.600] to get a phone number or something, you don't have to actually document the fact that you
[01:06:10.600 --> 01:06:14.120] called them to get a phone number, because the phone number and the phone call was more
[01:06:14.120 --> 01:06:18.960] important than calling to get the phone number, that's just an example of one of those things
[01:06:18.960 --> 01:06:24.360] you do as a background, as investigating, that you don't have to document that.
[01:06:24.360 --> 01:06:29.520] What it is, it's always, will I ever need what just happened as an exhibit in a court
[01:06:29.520 --> 01:06:30.520] proceeding?
[01:06:30.520 --> 01:06:34.520] If it's about attorneys, you want to document everything that they did, everything that
[01:06:34.520 --> 01:06:39.020] they didn't do, everything that they say they're going to do, because it might come down to
[01:06:39.020 --> 01:06:43.840] a bar grievance at a later date, and you want to be able to have evidence, documents are
[01:06:43.840 --> 01:06:50.640] evidence, no documents, no evidence, that's what it comes down to as far as documents.
[01:06:50.640 --> 01:06:56.680] Now, when we get into filing, the other thing I want everybody to do is start reading everything
[01:06:56.680 --> 01:07:01.080] that they get from the court and sit down and make sure they understand what they're
[01:07:01.080 --> 01:07:02.560] getting notices on.
[01:07:02.560 --> 01:07:04.680] Point well taken.
[01:07:04.680 --> 01:07:10.960] I see a lot of people that just miss things, recognize time deadlines and so forth, also
[01:07:10.960 --> 01:07:17.360] recognize sometimes strategy, let me tell you, for people who are not lawyers, recognize
[01:07:17.360 --> 01:07:22.400] that lawyers are taught the entire school of law of all the different processes, and
[01:07:22.400 --> 01:07:26.840] then a lawyer will pick out the stuff that he or she is most comfortable with and practice
[01:07:26.840 --> 01:07:28.240] in that area.
[01:07:28.240 --> 01:07:34.880] But the layperson that gets sucked into this process usually has one issue to worry about.
[01:07:34.880 --> 01:07:35.880] Maybe it's a divorce case.
[01:07:35.880 --> 01:07:42.080] And I'm going to tell you the honest to God truth, divorce in Texas, there isn't that
[01:07:42.080 --> 01:07:43.080] much law on it.
[01:07:43.080 --> 01:07:49.480] The only time it gets really nasty is if you have children, and if the children have had
[01:07:49.480 --> 01:07:53.480] problems, behavioral problems, or there's been any kind of abuse, then it starts to
[01:07:53.480 --> 01:07:55.280] get pretty complicated.
[01:07:55.280 --> 01:07:59.160] But if it's just a simple divorce, divorce really isn't that bad.
[01:07:59.160 --> 01:08:05.080] There's a series of rules you follow, there's a process to go through, and that's it.
[01:08:05.080 --> 01:08:10.800] Somebody sitting down could become very well versed in this in six months without much
[01:08:10.800 --> 01:08:11.800] effort.
[01:08:11.800 --> 01:08:19.480] Know all the case law the attorneys do, even if you're in a situation where you're contemplating
[01:08:19.480 --> 01:08:24.280] a particular legal action, including divorce or whatever, you can go down to the courthouse
[01:08:24.280 --> 01:08:25.880] and grab somebody else's case file.
[01:08:25.880 --> 01:08:28.440] Those case files are public documents.
[01:08:28.440 --> 01:08:30.440] Look at somebody else's cases.
[01:08:30.440 --> 01:08:34.880] The case you'll learn the most from when you go down to a courthouse is to ask the clerk
[01:08:34.880 --> 01:08:40.840] to pick me one of those case files out that's real sick, because a real sick case file indicates
[01:08:40.840 --> 01:08:45.680] that both parties, the attorney and the two opposing attorneys, have filed a lot of motions
[01:08:45.680 --> 01:08:46.680] back and forth.
[01:08:46.680 --> 01:08:47.680] That means they're arguing.
[01:08:47.680 --> 01:08:48.680] They're fencing.
[01:08:48.680 --> 01:08:49.680] Wait a minute.
[01:08:49.680 --> 01:08:50.680] Wait, wait, wait.
[01:08:50.680 --> 01:08:51.680] Okay, okay.
[01:08:51.680 --> 01:08:52.680] Hold on.
[01:08:52.680 --> 01:08:53.680] Are you suggesting that we plagiarize?
[01:08:53.680 --> 01:08:54.680] Wait a minute.
[01:08:54.680 --> 01:08:55.680] Absolutely.
[01:08:55.680 --> 01:08:56.680] Hold on.
[01:08:56.680 --> 01:09:00.120] This isn't just plagiarization.
[01:09:00.120 --> 01:09:02.680] This is getting into strategy here, which I wanted to.
[01:09:02.680 --> 01:09:03.680] Absolutely.
[01:09:03.680 --> 01:09:14.560] How in the world would an arbitrary neutral clerk of the court know which cases were ugly
[01:09:14.560 --> 01:09:18.520] or juicy or whatever?
[01:09:18.520 --> 01:09:22.120] Okay, so- They put them in the shelf.
[01:09:22.120 --> 01:09:26.200] The cases that are currently being worked that haven't been resolved yet, that are still
[01:09:26.200 --> 01:09:29.080] in court, are up there on the shelf.
[01:09:29.080 --> 01:09:33.120] They know because they had to put three file folders up there on the shelf.
[01:09:33.120 --> 01:09:39.560] They know that Smith versus Smith is a really contentious divorce case because there's three
[01:09:39.560 --> 01:09:40.560] file folders.
[01:09:40.560 --> 01:09:42.400] They almost never put three file folders.
[01:09:42.400 --> 01:09:43.400] Okay.
[01:09:43.400 --> 01:09:44.400] So, Ken, wait a minute.
[01:09:44.400 --> 01:09:45.400] Hold on.
[01:09:45.400 --> 01:09:46.400] Hold on.
[01:09:46.400 --> 01:09:47.400] You can also... There's another way to do this.
[01:09:47.400 --> 01:09:48.400] Wait, wait, wait.
[01:09:48.400 --> 01:09:49.400] No, no, no.
[01:09:49.400 --> 01:09:50.400] Hold on.
[01:09:50.400 --> 01:09:58.600] What kind of offering would you give to the clerk to reward you with the juicy cases?
[01:09:58.600 --> 01:09:59.600] Okay.
[01:09:59.600 --> 01:10:01.240] They won't know whether it's a juicy case.
[01:10:01.240 --> 01:10:03.240] It's a juicy case by the number of documents.
[01:10:03.240 --> 01:10:05.120] But how are you going to- The clerk won't know.
[01:10:05.120 --> 01:10:09.840] But how are you going to get the clerk to say, okay, I got this one case.
[01:10:09.840 --> 01:10:13.000] There's like six folders, you want to check it out?
[01:10:13.000 --> 01:10:16.600] What's going to make the clerk want to do that for you?
[01:10:16.600 --> 01:10:18.600] Because you just asked.
[01:10:18.600 --> 01:10:19.600] We're nice to them.
[01:10:19.600 --> 01:10:20.600] Yeah.
[01:10:20.600 --> 01:10:21.600] Because you bat your eyelashes?
[01:10:21.600 --> 01:10:25.240] Well, the issue is these are public documents too.
[01:10:25.240 --> 01:10:31.040] The other way to find them is to look on the computer terminals at every courthouse and
[01:10:31.040 --> 01:10:32.640] look up divorce cases.
[01:10:32.640 --> 01:10:36.080] Divorce cases are easy to determine when you're looking through a list of cases because it
[01:10:36.080 --> 01:10:38.280] has the same two names.
[01:10:38.280 --> 01:10:41.720] Beth v. Smith, Johnson v. Johnson, Jones v. Jones.
[01:10:41.720 --> 01:10:43.280] Those are always divorce cases.
[01:10:43.280 --> 01:10:44.560] They are almost always.
[01:10:44.560 --> 01:10:50.320] But the issue is to look for a case that's still on the docket that has hearings today
[01:10:50.320 --> 01:10:56.720] in 2009, but the divorce started in 2004.
[01:10:56.720 --> 01:10:58.880] That means there's a lot of activity.
[01:10:58.880 --> 01:11:02.960] It's been five years they've been fighting this thing.
[01:11:02.960 --> 01:11:06.880] And you can look by the list of documents that have been filed on the docket sheet,
[01:11:06.880 --> 01:11:09.640] you can see all the motions.
[01:11:09.640 --> 01:11:11.080] The idea is to pick one of those up.
[01:11:11.080 --> 01:11:13.360] You don't have to get the biggest case that's there.
[01:11:13.360 --> 01:11:20.040] You just have to get a residential, a good example case that has a lot of motions filed
[01:11:20.040 --> 01:11:21.040] in it.
[01:11:21.040 --> 01:11:24.160] And if you're lucky, it's a high profile public official.
[01:11:24.160 --> 01:11:27.200] Well, you can always look them up.
[01:11:27.200 --> 01:11:32.040] The district attorney in Wise County came into the district clerk's office, and I was
[01:11:32.040 --> 01:11:35.000] looking at this file and I closed it right away.
[01:11:35.000 --> 01:11:37.960] Mr. Kelton, what do you have there?
[01:11:37.960 --> 01:11:41.160] It was the sheriff's divorce file.
[01:11:41.160 --> 01:11:43.920] He said, you should be ashamed.
[01:11:43.920 --> 01:11:49.760] I know, but look at this, let me see that.
[01:11:49.760 --> 01:11:53.920] And he went through the whole file of chump.
[01:11:53.920 --> 01:12:00.120] There was a fairly contentious divorce by one of the well-known car accident attorneys
[01:12:00.120 --> 01:12:02.520] here in Dallas.
[01:12:02.520 --> 01:12:11.240] And he actually went to the appellate court pleading insanity that his attorney was incompetent.
[01:12:11.240 --> 01:12:12.240] He was his own attorney.
[01:12:12.240 --> 01:12:13.240] Okay, okay, okay.
[01:12:13.240 --> 01:12:14.240] So, okay, Kim.
[01:12:14.240 --> 01:12:15.240] Okay, wait, wait, wait.
[01:12:15.240 --> 01:12:16.240] That's a great case for that.
[01:12:16.240 --> 01:12:17.240] Okay.
[01:12:17.240 --> 01:12:18.240] But anyway.
[01:12:18.240 --> 01:12:19.240] Okay.
[01:12:19.240 --> 01:12:26.280] So, okay, assuming someone has the groundwork, the rules, they know the rules.
[01:12:26.280 --> 01:12:27.280] Okay.
[01:12:27.280 --> 01:12:28.280] Okay.
[01:12:28.280 --> 01:12:32.840] Give us a few examples of, just a little bit, I know that this is like a four-year college
[01:12:32.840 --> 01:12:33.840] degree or whatever.
[01:12:33.840 --> 01:12:34.840] No, no, it's not.
[01:12:34.840 --> 01:12:35.840] It's not that long.
[01:12:35.840 --> 01:12:38.560] I don't want to give people the impression that it takes them four years.
[01:12:38.560 --> 01:12:42.840] It takes you four years to know all of the different topics and everything.
[01:12:42.840 --> 01:12:47.680] It's taken me pretty much 18 years to learn all of what I've learned in the details.
[01:12:47.680 --> 01:12:53.680] But on any individual kind of case that a person would normally be involved in, not
[01:12:53.680 --> 01:12:58.200] involved in legal research like me or helping the state legislature write new laws and rules
[01:12:58.200 --> 01:13:01.080] on this, you won't see that much variety.
[01:13:01.080 --> 01:13:04.200] So, you don't need four years of law, you know, this.
[01:13:04.200 --> 01:13:08.560] You just need to sit down and do some careful reading and then discussing this with some
[01:13:08.560 --> 01:13:13.520] sort of mentor or find a group to have open discussions with and listen to shows like
[01:13:13.520 --> 01:13:15.680] this and you'll get tidbits out of it.
[01:13:15.680 --> 01:13:19.960] But once you get the idea of what's going on in a case, here's some strategy, basic
[01:13:19.960 --> 01:13:20.960] strategy.
[01:13:20.960 --> 01:13:23.840] Since we're going to use the pro-say word.
[01:13:23.840 --> 01:13:28.360] I don't like using the pro-say or the pro-per word because when you put it on your pleadings,
[01:13:28.360 --> 01:13:31.200] it's like putting a target on your back.
[01:13:31.200 --> 01:13:35.520] If you leave it off, they're not sure if maybe you're an attorney or not.
[01:13:35.520 --> 01:13:40.360] But if you put pro-say or pro-per, they automatically know it's like open season.
[01:13:40.360 --> 01:13:43.160] You know, it's like, you know, let's get the gun.
[01:13:43.160 --> 01:13:49.320] So, but anyway, the pro-say, the person without an attorney that comes into the court proceeding
[01:13:49.320 --> 01:13:54.840] is number one, at a tremendous disadvantage in learning, trying to learn what's going
[01:13:54.840 --> 01:13:55.840] on.
[01:13:55.840 --> 01:13:59.880] Especially if you've been yanked into the system as a defendant.
[01:13:59.880 --> 01:14:03.000] They're going to try to rush you to make decisions.
[01:14:03.000 --> 01:14:08.360] That's what the entire goal of the legal profession on the other side is.
[01:14:08.360 --> 01:14:15.880] So, what you need to do as a defendant is always play stall.
[01:14:15.880 --> 01:14:22.280] The stall strategy, when somebody sits down and they said, well, you know, when the judge
[01:14:22.280 --> 01:14:25.360] says, well, we're going to have another hearing, da-da-da-da-da, and you're up there at the
[01:14:25.360 --> 01:14:29.400] bench with the other attorney, then the attorney first says, well, I can't do it next week,
[01:14:29.400 --> 01:14:30.400] Your Honor.
[01:14:30.400 --> 01:14:31.760] I got a trial and da-da-da-da-da.
[01:14:31.760 --> 01:14:34.560] You don't volunteer, well, I can do it the following week.
[01:14:34.560 --> 01:14:37.520] You say, oh no, the following week's not good for me, Your Honor.
[01:14:37.520 --> 01:14:41.680] I need, well, I need at least 30 days to prepare for this.
[01:14:41.680 --> 01:14:47.600] Anytime you can play for more time to study the craft, and when I say study the craft,
[01:14:47.600 --> 01:14:53.560] that also means going up to the courthouse and watching attorneys argue a similar process.
[01:14:53.560 --> 01:14:59.460] If it's a divorce process and it's a temporary orders hearing, look through the docket sheets
[01:14:59.460 --> 01:15:04.000] up at the courthouse and find when one is set for a hearing and go watch them.
[01:15:04.000 --> 01:15:07.480] If it's a criminal case, go watch that.
[01:15:07.480 --> 01:15:11.280] The idea is I meet so many people that have never walked into a courtroom and watched
[01:15:11.280 --> 01:15:14.240] anything except the only time they're walking into the courtroom is when they're there for
[01:15:14.240 --> 01:15:16.080] their own hearing.
[01:15:16.080 --> 01:15:18.320] You can learn so much by watching other people's hearings.
[01:15:18.320 --> 01:15:21.840] I've done this on many occasions.
[01:15:21.840 --> 01:15:26.240] One of the things that when you're playing for time is to recognize, I'm going to tell
[01:15:26.240 --> 01:15:29.960] a little story of playing for time.
[01:15:29.960 --> 01:15:34.640] I was helping a woman out with, say, she was going through a horrible divorce and a horrible
[01:15:34.640 --> 01:15:41.960] bankruptcy now because of the divorce, and the courts were pretty unfavorable to her.
[01:15:41.960 --> 01:15:45.780] There was a lot of, let's look for the sake of argument, let's just say there was a lot
[01:15:45.780 --> 01:15:53.520] of attorney shenanigans going on, and she was about to lose in a big way.
[01:15:53.520 --> 01:15:58.520] Well, her bankruptcy court that she'd appeared in all the way up to this point in time for
[01:15:58.520 --> 01:16:01.200] the last two years had been in Plano, Texas.
[01:16:01.200 --> 01:16:04.960] She lived up in North Texas.
[01:16:04.960 --> 01:16:07.360] Plano, Texas is like 30 minutes away.
[01:16:07.360 --> 01:16:12.320] Well, she got a notice for the next hearing, and since the federal bankruptcy court is
[01:16:12.320 --> 01:16:18.400] out of the Eastern District of Texas, Northeastern District of Texas, the actual home court for
[01:16:18.400 --> 01:16:20.640] the Eastern District of Texas is in Tyler.
[01:16:20.640 --> 01:16:26.840] Well, the clerk sent her a notice to go to Tyler for the next hearing 30 days out, and
[01:16:26.840 --> 01:16:29.440] she said, well, I'm going to call the court and fix this.
[01:16:29.440 --> 01:16:32.760] We're all going to be in Plano, and I said, wait a second.
[01:16:32.760 --> 01:16:37.040] You want to play for time because you're trying to negotiate with your mortgage company to
[01:16:37.040 --> 01:16:40.040] fix the mortgage problem so you won't lose the house.
[01:16:40.040 --> 01:16:41.560] You need to play for time.
[01:16:41.560 --> 01:16:44.840] I said, so you got this notice.
[01:16:44.840 --> 01:16:47.360] Let's assume that the notice is correct.
[01:16:47.360 --> 01:16:49.360] What does it cost for you to go to Tyler?
[01:16:49.360 --> 01:16:52.920] Well, just a couple hours of drive time, and I said, fine.
[01:16:52.920 --> 01:16:56.920] We go to Tyler, where's everybody else going to probably be?
[01:16:56.920 --> 01:17:02.520] She says, oh, they'll be in Plano, and I said, and the downside?
[01:17:02.520 --> 01:17:06.080] So we did that, and we showed up in Tyler, had the notice.
[01:17:06.080 --> 01:17:08.120] I mean, correct it.
[01:17:08.120 --> 01:17:09.540] We didn't have the actual notice.
[01:17:09.540 --> 01:17:11.040] We had a copy of the notice.
[01:17:11.040 --> 01:17:13.160] That's one of the strategy points.
[01:17:13.160 --> 01:17:18.680] I tell people, never bring your original documents to the courthouse.
[01:17:18.680 --> 01:17:23.840] If something nefarious goes on, and they decide they're going to arrest you or whatever, they're
[01:17:23.840 --> 01:17:27.240] going to confiscate all your paperwork, and you know what?
[01:17:27.240 --> 01:17:29.680] If they're original documents, they're going to disappear.
[01:17:29.680 --> 01:17:31.480] Yeah, and you know what?
[01:17:31.480 --> 01:17:33.280] You might disappear too.
[01:17:33.280 --> 01:17:36.720] Well, that's why you always want to come with friends to the courthouse.
[01:17:36.720 --> 01:17:41.240] You just really want to have somebody there in your corner to watch what's going on.
[01:17:41.240 --> 01:17:45.320] But the issue here is, clearly, make sure that you don't bring original documents to
[01:17:45.320 --> 01:17:46.480] the courthouse.
[01:17:46.480 --> 01:17:50.600] That's why I always scan these documents and keep them on the computer, or I can recreate
[01:17:50.600 --> 01:17:53.840] any of the documents, and they look just as good as the original.
[01:17:53.840 --> 01:17:57.120] They can't tell the original from the ones that I print.
[01:17:57.120 --> 01:18:04.160] And Ken, don't you always say, as well, when you sign documents to sign with a blue pen
[01:18:04.160 --> 01:18:09.480] rather than a black pen so that it can be discernible that it's the original document?
[01:18:09.480 --> 01:18:13.600] It's the original document, right.
[01:18:13.600 --> 01:18:18.520] And the other thing along the idea of signatures, since we're on that topic for the moment,
[01:18:18.520 --> 01:18:22.960] never, ever sign a document without reading it.
[01:18:22.960 --> 01:18:28.640] Your signature has a value, and if you have an attorney, or you have a CPA, or you have
[01:18:28.640 --> 01:18:33.160] anybody that wants to sign a document, make sure you understand what you get for your
[01:18:33.160 --> 01:18:34.160] signature.
[01:18:34.160 --> 01:18:35.160] Your signature has a value.
[01:18:35.160 --> 01:18:39.520] If they want your signature badly, that means they're getting something of value for you
[01:18:39.520 --> 01:18:40.520] signing it.
[01:18:40.520 --> 01:18:45.400] Make sure you understand what you're getting in return for that signature.
[01:18:45.400 --> 01:18:51.040] I've met more people who've signed agreements with lawyers and signed papers shoved in front
[01:18:51.040 --> 01:18:54.640] of them by lawyers and never read the documents, and they're hosed.
[01:18:54.640 --> 01:18:59.640] I'm going to tell you right now, that never gets fixed, because they didn't read the documents.
[01:18:59.640 --> 01:19:01.280] That's just too bad.
[01:19:01.280 --> 01:19:04.160] So I said that, that's a big strategy issue.
[01:19:04.160 --> 01:19:09.760] In any event, we showed up down at the Tyler Court with a copy of the notice from the court
[01:19:09.760 --> 01:19:14.960] to be in Tyler, and they said, well, this case is in Plano, and I said, yeah, but we've
[01:19:14.960 --> 01:19:21.160] got a notice to be here in Tyler, and the clerk calls up the Plano court clerk, and
[01:19:21.160 --> 01:19:26.400] everybody's there waiting, and the judge hears the notice and looks in the docket sheet and
[01:19:26.400 --> 01:19:29.160] sure enough finds that the notice says to appear in Tyler.
[01:19:29.160 --> 01:19:33.360] So they had to continue it and reschedule this hearing, which they were going to do
[01:19:33.360 --> 01:19:35.920] the coup d'etat and throw out her bankruptcy case.
[01:19:35.920 --> 01:19:38.480] They were going to take her out.
[01:19:38.480 --> 01:19:41.800] And you got another 90 days because of that.
[01:19:41.800 --> 01:19:46.080] That's by paying attention to the strategy of the documents.
[01:19:46.080 --> 01:19:50.880] You know, if there's a mistake made like that, let's say it was on the other foot.
[01:19:50.880 --> 01:19:54.880] You had some kind of false bankruptcy going on and you wanted to force them into court.
[01:19:54.880 --> 01:19:59.400] You want to make sure the notices to everybody brings them to the proper court.
[01:19:59.400 --> 01:20:01.880] You look at them and make sure they're going to the proper court.
[01:20:01.880 --> 01:20:07.480] If the foot had been on the other foot, you would have sent a notice to the court saying,
[01:20:07.480 --> 01:20:08.480] we were told to go to Tyler.
[01:20:08.480 --> 01:20:09.480] This is a mistake.
[01:20:09.480 --> 01:20:10.760] Let's fix it.
[01:20:10.760 --> 01:20:11.760] We need to go to Plano.
[01:20:11.760 --> 01:20:12.760] Okay.
[01:20:12.760 --> 01:20:17.880] So, Ken, what happens if they just hold the hearing at the wrong court anyway?
[01:20:17.880 --> 01:20:18.880] What do you do then?
[01:20:18.880 --> 01:20:22.200] If they sent you the wrong notice, they sent you the wrong notice.
[01:20:22.200 --> 01:20:27.240] There's no way they can fix that except have a hearing later date.
[01:20:27.240 --> 01:20:28.240] You got the notice.
[01:20:28.240 --> 01:20:29.320] You're entitled to be there.
[01:20:29.320 --> 01:20:32.240] That's fundamental constitutional due process.
[01:20:32.240 --> 01:20:36.520] Now we're getting off into when the courts are horribly, horribly corrupt.
[01:20:36.520 --> 01:20:39.480] Well, we can't address that here.
[01:20:39.480 --> 01:20:43.680] In most cases, the courts are not going to bend the rules to the point where you got
[01:20:43.680 --> 01:20:47.480] a notice to go to a different court and showed up there on time.
[01:20:47.480 --> 01:20:48.720] And that's why I was there that day.
[01:20:48.720 --> 01:20:53.800] I was her witness to show that she had the notice and that she did appear in Tyler.
[01:20:53.800 --> 01:21:00.720] You know, because if she just appeared by herself, how was she going to prove that she
[01:21:00.720 --> 01:21:01.720] was there?
[01:21:01.720 --> 01:21:03.800] The clerk wasn't going to say it, right?
[01:21:03.800 --> 01:21:09.040] If the clerk was told by the judge for nefarious purposes, you don't sign anything.
[01:21:09.040 --> 01:21:13.560] You don't say anything at all, right?
[01:21:13.560 --> 01:21:18.360] So I was her witness so that I could sign an affidavit if they didn't continue the hearing
[01:21:18.360 --> 01:21:25.280] that she appeared at the time of the notice, at the place of the notice.
[01:21:25.280 --> 01:21:26.280] They were hosed.
[01:21:26.280 --> 01:21:27.280] They knew it.
[01:21:27.280 --> 01:21:31.280] So, Ken, would this affidavit be filed in the case?
[01:21:31.280 --> 01:21:33.720] It would be only filed if they went forward.
[01:21:33.720 --> 01:21:38.720] It would only be filed in a motion to rehear if they had gone forward with the hearing
[01:21:38.720 --> 01:21:39.720] and plaintiff.
[01:21:39.720 --> 01:21:40.720] Okay.
[01:21:40.720 --> 01:21:43.040] So it's basically a backup.
[01:21:43.040 --> 01:21:44.040] It was a backup.
[01:21:44.040 --> 01:21:46.640] It's a contingency plan.
[01:21:46.640 --> 01:21:49.480] The whole game here is always contingency plan.
[01:21:49.480 --> 01:21:51.280] How bad can it go?
[01:21:51.280 --> 01:21:55.040] What method will they use to pervert the system?
[01:21:55.040 --> 01:21:58.280] And what can you do to motivate them not to?
[01:21:58.280 --> 01:22:01.200] And then if they do, how can you catch them doing it?
[01:22:01.200 --> 01:22:08.720] So you don't always have to utilize everything that you've prepared and done, but just the
[01:22:08.720 --> 01:22:15.200] fact that you have all the groundwork laid and it's prepared and it's at your fingertips,
[01:22:15.200 --> 01:22:20.600] if they try to pull anything, it's like, well, hey, I got this.
[01:22:20.600 --> 01:22:21.600] Is that correct?
[01:22:21.600 --> 01:22:22.600] That's right.
[01:22:22.600 --> 01:22:26.560] That's the contingency plan.
[01:22:26.560 --> 01:22:33.240] Because it seems like you wouldn't necessarily want to just like file everything and let
[01:22:33.240 --> 01:22:34.240] them...
[01:22:34.240 --> 01:22:35.240] No, no, no, no.
[01:22:35.240 --> 01:22:36.240] You don't file everything.
[01:22:36.240 --> 01:22:38.800] You only file motions in court.
[01:22:38.800 --> 01:22:40.760] You file motions in pleading.
[01:22:40.760 --> 01:22:46.440] That means you want to, or objection, if you file an original pleading in a case, the other
[01:22:46.440 --> 01:22:51.760] side files an answer, then you file motions or discovery instruments, which will be the
[01:22:51.760 --> 01:22:57.840] next big discussion we have next week.
[01:22:57.840 --> 01:23:02.720] In other words, holding your cards close to your chest, know what the rules of the game
[01:23:02.720 --> 01:23:09.080] are, and not letting everyone know what's in your cards, but you have your homework
[01:23:09.080 --> 01:23:12.120] done in case they try to pull something out.
[01:23:12.120 --> 01:23:14.160] That's the main strategy, correct?
[01:23:14.160 --> 01:23:15.160] Absolutely.
[01:23:15.160 --> 01:23:19.360] That's one of the various aspects of the strategy.
[01:23:19.360 --> 01:23:23.560] When you only file the documents when you have to, when in the other party files a motion
[01:23:23.560 --> 01:23:27.800] to compel you to do something, and you think that that rule or that motion that they're
[01:23:27.800 --> 01:23:34.280] trying to invoke exceeds its capacity within the description of the rules, you object to
[01:23:34.280 --> 01:23:35.280] it.
[01:23:35.280 --> 01:23:39.400] You file motions and you file objections with the court, and that's essentially, these are
[01:23:39.400 --> 01:23:41.600] all under the guise of pleading.
[01:23:41.600 --> 01:23:43.440] Pleading before the court are all of this.
[01:23:43.440 --> 01:23:45.960] It doesn't have to be...
[01:23:45.960 --> 01:23:48.440] Pleading for any written document filed with the court.
[01:23:48.440 --> 01:23:53.080] Especially with filed with courts or motions.
[01:23:53.080 --> 01:23:54.080] And objections.
[01:23:54.080 --> 01:23:56.440] You might object to the other person's motion.
[01:23:56.440 --> 01:24:03.080] So you're not only scrutinizing your own documents, but you're scrutinizing theirs too.
[01:24:03.080 --> 01:24:05.760] Make sure they comply to the rules.
[01:24:05.760 --> 01:24:06.760] Awesome.
[01:24:06.760 --> 01:24:10.600] Not just the rules, but also to the case law.
[01:24:10.600 --> 01:24:14.200] Make sure they don't exceed their capacity.
[01:24:14.200 --> 01:24:17.440] Make sure that they don't try to give you busy work, and that's one of the strategies
[01:24:17.440 --> 01:24:21.080] that attorneys will do to you, is try to bury you in busy work.
[01:24:21.080 --> 01:24:26.800] Also, always pay attention to the details of certain types of hearings.
[01:24:26.800 --> 01:24:33.120] Maybe I'll throw this in for...at this point in time, one of the most dangerous motions
[01:24:33.120 --> 01:24:39.080] filed by the defense counsel when there's an attorney on the other side, and the party
[01:24:39.080 --> 01:24:44.360] that filed the original lawsuit is unrepresented by counsel, the other side will file a motion
[01:24:44.360 --> 01:24:47.680] for summary judgment.
[01:24:47.680 --> 01:24:51.840] Philosophically, I don't like the idea of summary judgment.
[01:24:51.840 --> 01:24:55.720] They've been abused to no end.
[01:24:55.720 --> 01:25:01.080] What they do is they circumvent the trial process, they circumvent evidence and testimony,
[01:25:01.080 --> 01:25:06.040] they circumvent the jury, and they allow judges to make capricious and arbitrary decisions
[01:25:06.040 --> 01:25:11.040] without any facts, and the appellate courts to back it up for political reasons.
[01:25:11.040 --> 01:25:14.800] It's a bad, bad process, okay?
[01:25:14.800 --> 01:25:21.080] Having said that, summary judgments are...they set a hearing date, but the hearing date isn't
[01:25:21.080 --> 01:25:22.080] a hearing, really.
[01:25:22.080 --> 01:25:26.560] It's just a date, because there are certain parts of the rules that have to be complied
[01:25:26.560 --> 01:25:27.560] with.
[01:25:27.560 --> 01:25:34.600] If a summary judgment motion is filed on you, there has to be at least 21 days that you
[01:25:34.600 --> 01:25:37.400] have before the hearing date.
[01:25:37.400 --> 01:25:43.120] Then you have to have an answer or a response in 10 days before that hearing date, if I'm
[01:25:43.120 --> 01:25:44.120] correct.
[01:25:44.120 --> 01:25:48.520] I haven't looked at that rule in a little while, but I seem to recall it as 10 days.
[01:25:48.520 --> 01:25:51.880] What that means is it's not that you're going to argue that in open court.
[01:25:51.880 --> 01:25:54.520] Everybody gets all geared up for the argument.
[01:25:54.520 --> 01:26:00.640] That date is only set on the calendar as a placeholder to say, we set it out 21 days,
[01:26:00.640 --> 01:26:06.600] and it sets the date in which your responses do 10 days before that, or what would that
[01:26:06.600 --> 01:26:11.920] be, 11 days out, and that's what happens.
[01:26:11.920 --> 01:26:15.480] Summary judgments don't even have to be argued.
[01:26:15.480 --> 01:26:18.000] You can set a hearing, and the judge doesn't have to hear it.
[01:26:18.000 --> 01:26:22.240] There doesn't have to be any open arguments in summary judgment hearings in some states,
[01:26:22.240 --> 01:26:23.240] in Texas.
[01:26:23.240 --> 01:26:24.240] That's the way it is.
[01:26:24.240 --> 01:26:29.080] So the idea is the summary judgment has to be defeated by evidence and facts and arguments
[01:26:29.080 --> 01:26:34.040] in case law in the pleadings before the court filed within the time deadline.
[01:26:34.040 --> 01:26:39.160] Now obviously there's motions for continuances or extensions of time you can do to get your
[01:26:39.160 --> 01:26:47.360] more time to do that, and people would avail yourself of that possibility if you need the
[01:26:47.360 --> 01:26:50.280] time to do it.
[01:26:50.280 --> 01:26:53.560] But summary judgments are one of those where people tell me, well, we went to the hearing
[01:26:53.560 --> 01:26:55.600] and the other side wasn't even there.
[01:26:55.600 --> 01:26:56.720] Well they don't have to be there.
[01:26:56.720 --> 01:26:57.720] There's no real hearing.
[01:26:57.720 --> 01:26:59.100] There's no real argument.
[01:26:59.100 --> 01:27:02.520] You can't proffer testimony at a summary judgment hearing.
[01:27:02.520 --> 01:27:04.360] It's really in the hearing.
[01:27:04.360 --> 01:27:08.960] They just don't know what else to call it.
[01:27:08.960 --> 01:27:13.200] Everything in a summary judgment is in the documentation.
[01:27:13.200 --> 01:27:18.480] If it's not in the documents, you lose.
[01:27:18.480 --> 01:27:28.200] So Ken, it seems to me that you look for ways to use the rules to your advantage.
[01:27:28.200 --> 01:27:32.220] That's exactly what the attorneys are doing.
[01:27:32.220 --> 01:27:35.920] They understand these rules, too, and we'll get into some of the really sharp practices
[01:27:35.920 --> 01:27:43.240] that can be done based on service and various types of indications about rules.
[01:27:43.240 --> 01:27:50.920] As a matter of fact, one of the areas in Texas that's bad is there really isn't a definitive
[01:27:50.920 --> 01:27:54.160] point in time in which an objection has to be filed.
[01:27:54.160 --> 01:27:58.600] An attorney will frequently, if you file a motion to do something and you set it for
[01:27:58.600 --> 01:28:05.520] hearing, on the day of the hearing the attorney will file his objection in open court to file
[01:28:05.520 --> 01:28:08.240] it with the judge right then and there on the spot.
[01:28:08.240 --> 01:28:11.080] But you've never had a chance to review it.
[01:28:11.080 --> 01:28:16.960] Well technically that's trial by ambush, and you could object to it and say, look, I filed
[01:28:16.960 --> 01:28:18.880] my motion 10 days ago.
[01:28:18.880 --> 01:28:24.880] He had plenty of time to participate and tell me how can I defend against the document that
[01:28:24.880 --> 01:28:26.800] I've just received now.
[01:28:26.800 --> 01:28:31.200] Now one of the techniques that is used to do that is it'll get a continuance usually.
[01:28:31.200 --> 01:28:37.200] As soon as you argue that you need to read the document, the court will reset the hearing.
[01:28:37.200 --> 01:28:39.240] You know, that's the best you can hope for.
[01:28:39.240 --> 01:28:46.440] In some cases you can object to it, and on a few occasions I've had those situations
[01:28:46.440 --> 01:28:50.160] in which the judge has upheld it and said, no, counselor, you needed to file this with
[01:28:50.160 --> 01:28:51.880] three days notice.
[01:28:51.880 --> 01:28:54.880] But there's no hard and fast rule for that.
[01:28:54.880 --> 01:28:58.840] That's one of the rules that's missing is that an objection needs to be filed timely,
[01:28:58.840 --> 01:29:04.040] and if it's not, they need not waste the time of the participant.
[01:29:04.040 --> 01:29:07.440] So you have to be on top of what the other side is doing.
[01:29:07.440 --> 01:29:08.440] Or might do.
[01:29:08.440 --> 01:29:09.440] Or might do.
[01:29:09.440 --> 01:29:13.400] There's no way you're going to know that the other side is going to object except for the
[01:29:13.400 --> 01:29:17.960] fact that what you need to do is when you file your motion is to turn the case around
[01:29:17.960 --> 01:29:22.080] and say, if I received this motion in the mail and I was on the other side and I was
[01:29:22.080 --> 01:29:25.040] their counsel, what would I answer back?
[01:29:25.040 --> 01:29:27.760] What's my argument against this?
[01:29:27.760 --> 01:29:32.440] And Ken, when we get back on the other side of the break, that was exactly what I was
[01:29:32.440 --> 01:29:39.880] just about to ask you, is how to prepare for what the other side may do and how they may
[01:29:39.880 --> 01:29:42.760] use the rules against you as well.
[01:29:42.760 --> 01:29:44.000] All right.
[01:29:44.000 --> 01:29:45.000] We'll be right back.
[01:29:45.000 --> 01:29:50.520] Rule of law, Randy Kelton, Deborah Stevens, and Professor Ken Magnuson, we'll be right
[01:29:50.520 --> 01:29:55.960] back.
[01:29:55.960 --> 01:29:59.960] Gold prices are at historic highs, and with the recent pullback, this is a great time
[01:29:59.960 --> 01:30:00.960] to buy.
[01:30:00.960 --> 01:30:05.440] With the value of the dollar, risks of inflation, geopolitical uncertainties, and instability
[01:30:05.440 --> 01:30:08.960] in world financial systems, I see gold going up much higher.
[01:30:08.960 --> 01:30:12.280] Hi, I'm Tim Fry at Roberts and Roberts Brokerage.
[01:30:12.280 --> 01:30:16.000] Everybody should have some of their assets in investment grade precious metals.
[01:30:16.000 --> 01:30:19.960] At Roberts and Roberts Brokerage, you can buy gold, silver, and platinum with confidence
[01:30:19.960 --> 01:30:24.960] from a brokerage that's specialized in the precious metals market since 1977.
[01:30:24.960 --> 01:30:28.720] If you are new to precious metals, we will happily provide you with the information you
[01:30:28.720 --> 01:30:33.120] need to make an informed decision whether or not you choose to purchase from us.
[01:30:33.120 --> 01:30:37.440] Also, Roberts and Roberts Brokerage values your privacy and will always advise you in
[01:30:37.440 --> 01:30:40.860] the event that we would be required to report any transaction.
[01:30:40.860 --> 01:30:44.960] If you have gold, silver, or platinum you'd like to sell, we can convert it for immediate
[01:30:44.960 --> 01:30:45.960] payment.
[01:30:45.960 --> 01:30:49.720] Call us at 800-874-9760.
[01:30:49.720 --> 01:30:55.040] We are Roberts and Roberts Brokerage, 800-874-9760.
[01:31:19.720 --> 01:31:48.040] Okay, Ken, right before we went to the break, we were just about to talk about how the other
[01:31:48.040 --> 01:31:55.600] side may use the rules against you and how to prepare for that.
[01:31:55.600 --> 01:32:01.080] And before you answer my question, I just want to explain to the listeners and just
[01:32:01.080 --> 01:32:06.600] make a comment that I'm really impressed and encouraged with the information you're laying
[01:32:06.600 --> 01:32:13.720] out here because it just comes across to me as a layperson that a lot of what you're saying
[01:32:13.720 --> 01:32:16.880] doesn't really have anything to do with the law at all.
[01:32:16.880 --> 01:32:24.320] It just has to do with preparedness and doing your homework and being thorough and meticulous
[01:32:24.320 --> 01:32:27.600] in documentation.
[01:32:27.600 --> 01:32:34.520] And that goes a long way, really, really a long way, a lot further than I thought it
[01:32:34.520 --> 01:32:35.520] would.
[01:32:35.520 --> 01:32:43.360] So I just want to encourage our listeners here that you don't have to be a legal expert.
[01:32:43.360 --> 01:32:47.840] You just have to do your homework, you know, go to the court.
[01:32:47.840 --> 01:32:54.280] I mean, listen, okay, I have had people email me, want me to help them and stuff like this.
[01:32:54.280 --> 01:32:57.140] And I've told them over and over again, where's your file?
[01:32:57.140 --> 01:32:58.320] Have you gone to the court?
[01:32:58.320 --> 01:32:59.320] Have you gotten your file?
[01:32:59.320 --> 01:33:01.000] No, no, no.
[01:33:01.000 --> 01:33:05.140] Months and months and months go by, they still haven't gone and gotten a copy of the file.
[01:33:05.140 --> 01:33:11.400] How do you expect me or Randy or Ken to help you if you haven't gone to the courthouse
[01:33:11.400 --> 01:33:13.320] and gotten a copy of your file?
[01:33:13.320 --> 01:33:19.320] Come on, people, or written at least a basic narrative of what has happened.
[01:33:19.320 --> 01:33:21.920] So I mean, let's start with the basics here.
[01:33:21.920 --> 01:33:23.920] Okay, so go ahead, Ken.
[01:33:23.920 --> 01:33:25.880] Let's talk about the narrative for a minute.
[01:33:25.880 --> 01:33:31.920] A narrative about any case is basically what I say is the reader's digest version, okay?
[01:33:31.920 --> 01:33:34.600] Almost everybody's familiar with reader's digest.
[01:33:34.600 --> 01:33:39.260] The biggest thing with a narrative, a legal narrative about a process is that number one,
[01:33:39.260 --> 01:33:42.840] you're going to write it a little bit differently than you would write a story about your favorite
[01:33:42.840 --> 01:33:45.320] dog or cat or something, okay?
[01:33:45.320 --> 01:33:51.000] You're going to have to use proper nouns more frequently than you're comfortable doing.
[01:33:51.000 --> 01:33:55.240] But it's important to identify the parties involved in the case.
[01:33:55.240 --> 01:33:59.460] You know, indicate attorney Smith.
[01:33:59.460 --> 01:34:05.680] You may have to put in parent, prosecuting attorney for Dallas County, or in order so
[01:34:05.680 --> 01:34:07.800] everybody knows who the playbook is.
[01:34:07.800 --> 01:34:12.600] This is almost like writing a play where there's a cast of characters, and everybody needs
[01:34:12.600 --> 01:34:17.400] to know who that cast of characters are by their proper name.
[01:34:17.400 --> 01:34:23.880] If you start using he, she, it, they, them, you lose it.
[01:34:23.880 --> 01:34:27.360] Nobody knows who you're talking about anymore after the second paragraph.
[01:34:27.360 --> 01:34:29.920] You got to stay away from pronouns.
[01:34:29.920 --> 01:34:30.920] But the key is...
[01:34:30.920 --> 01:34:31.920] Wait a minute.
[01:34:31.920 --> 01:34:35.680] This guy came down there and he did that to the other fellow over there, and everything
[01:34:35.680 --> 01:34:37.480] was okay in the end, right?
[01:34:37.480 --> 01:34:43.160] Then Barney would just say, we got a nipdip in the bud.
[01:34:43.160 --> 01:34:44.160] But it's nothing.
[01:34:44.160 --> 01:34:45.160] It's just jibber-jabby.
[01:34:45.160 --> 01:34:50.280] You know, it's nothing, because it doesn't have the proper identification of who, what,
[01:34:50.280 --> 01:34:52.880] where, when, and how, and why.
[01:34:52.880 --> 01:34:56.240] And recognize you only answer those if you know.
[01:34:56.240 --> 01:35:01.400] Don't, you know, offer suggested reasons until you get into an argument section.
[01:35:01.400 --> 01:35:05.280] But when you're doing a narrative, you want what the facts are.
[01:35:05.280 --> 01:35:11.640] The day, the time, the place, the people involved if you know who they are.
[01:35:11.640 --> 01:35:16.160] And if you can't, you've got to give them a description, sheriff, deputy, badge number
[01:35:16.160 --> 01:35:17.160] 463.
[01:35:17.160 --> 01:35:18.160] Okay?
[01:35:18.160 --> 01:35:21.760] At least we know who that person is now.
[01:35:21.760 --> 01:35:27.400] You know, and one of the descriptions might be, and when he was asked to present his identification
[01:35:27.400 --> 01:35:29.880] and his name, he refused.
[01:35:29.880 --> 01:35:34.840] Now we know badge 463, he's potentially a bad actor in this thing, all right?
[01:35:34.840 --> 01:35:39.920] We're focused on that because we know who he is, not he failed to identify himself.
[01:35:39.920 --> 01:35:40.920] He who?
[01:35:40.920 --> 01:35:41.920] Who?
[01:35:41.920 --> 01:35:42.920] He?
[01:35:42.920 --> 01:35:43.920] The guy in the street corner?
[01:35:43.920 --> 01:35:44.920] The guy selling the hot dogs at the vending stand?
[01:35:44.920 --> 01:35:45.920] Who's he?
[01:35:45.920 --> 01:35:49.200] So specifics have to be in the narrative.
[01:35:49.200 --> 01:35:50.560] Another issue is...
[01:35:50.560 --> 01:35:53.960] Just one interjection.
[01:35:53.960 --> 01:36:01.720] Write it as though the person on the other side is going to do everything he can to misconstrue
[01:36:01.720 --> 01:36:03.920] everything you say.
[01:36:03.920 --> 01:36:06.000] Will protect you from a lot of the pronouns.
[01:36:06.000 --> 01:36:07.000] Yes.
[01:36:07.000 --> 01:36:10.720] You've got to make it absolutely crystal clear as to what happened.
[01:36:10.720 --> 01:36:18.600] Yes, which leads into what we were going into before the break, which is strategy regarding
[01:36:18.600 --> 01:36:23.720] assuming the other person on the other side, your adversary, knows all these rules and
[01:36:23.720 --> 01:36:30.160] is going to use them against you the same way or perhaps even better than how you're
[01:36:30.160 --> 01:36:32.640] going to use them to your advantage.
[01:36:32.640 --> 01:36:39.640] So to watch out for little tricks and setups and things like this.
[01:36:39.640 --> 01:36:43.680] So Ken, give us some examples of what the common...
[01:36:43.680 --> 01:36:47.040] We can't get into those until we start going through the rules.
[01:36:47.040 --> 01:36:48.040] We can't really get into it.
[01:36:48.040 --> 01:36:49.040] Okay.
[01:36:49.040 --> 01:36:50.800] But one of the things that...
[01:36:50.800 --> 01:36:55.160] Recognize that what the other party can do when you file a certain type of motion is
[01:36:55.160 --> 01:36:57.760] limited by the flavor of the motion.
[01:36:57.760 --> 01:37:01.840] Let's bring up for an example, motion for continuing, okay?
[01:37:01.840 --> 01:37:05.480] Let's say you have a doctor's appointment that day and it's already been scheduled.
[01:37:05.480 --> 01:37:09.920] You've waited three months for that appointment and you need a continuance and you file a
[01:37:09.920 --> 01:37:15.240] motion for continuance and you put an affidavit which is required by the motion for continuance.
[01:37:15.240 --> 01:37:21.920] The opposing council only has a limited repertoire of things that they can legitimately object
[01:37:21.920 --> 01:37:22.920] to.
[01:37:22.920 --> 01:37:26.840] Now, I was just thinking about this idea of objections anyway.
[01:37:26.840 --> 01:37:30.960] One of the things you can do is you can ask them in advance when you call whether or not
[01:37:30.960 --> 01:37:32.680] the local rules require it.
[01:37:32.680 --> 01:37:33.680] Some local courts require it.
[01:37:33.680 --> 01:37:37.840] If I'm going to file a motion for continuance, I have to call opposing council and see if
[01:37:37.840 --> 01:37:40.480] they're going to object to the motion.
[01:37:40.480 --> 01:37:41.480] And in the...
[01:37:41.480 --> 01:37:46.280] On my certificate of conference, I say that I talked to opposing council and they objected
[01:37:46.280 --> 01:37:47.280] to the motion.
[01:37:47.280 --> 01:37:52.120] Well, the fact that they're going to object, you know, one of the things you might ask
[01:37:52.120 --> 01:37:56.680] them when you're on the phone is under what basis are you going to object?
[01:37:56.680 --> 01:37:58.920] See what they say.
[01:37:58.920 --> 01:38:01.920] You know, they may not say, well, we're not going to tell you.
[01:38:01.920 --> 01:38:06.520] You can always put in your motion that that conversation occurred and they weren't going
[01:38:06.520 --> 01:38:08.320] to tell you how they were going to object.
[01:38:08.320 --> 01:38:13.520] But if you look at the case law with regards to denial of a motion for continuance, if
[01:38:13.520 --> 01:38:16.960] you've got an affidavit in there and it's the first time you've asked for a motion for
[01:38:16.960 --> 01:38:22.360] continuance, the court really abuses its discretion if it doesn't give it to you.
[01:38:22.360 --> 01:38:26.800] But count on them periodically not doing it because they don't follow the rule.
[01:38:26.800 --> 01:38:28.480] But I don't want to get into that now.
[01:38:28.480 --> 01:38:33.480] The only thing you can do is the best you can.
[01:38:33.480 --> 01:38:38.560] But the issue is that the other party is going to object saying it's frivolous or whatever.
[01:38:38.560 --> 01:38:42.240] That's what most attorneys always do when they object, oh, it's a frivolous motion.
[01:38:42.240 --> 01:38:44.560] That's the first thing that they throw out there.
[01:38:44.560 --> 01:38:45.560] It's frivolous.
[01:38:45.560 --> 01:38:50.360] Well, you know, when you come into court, be aware to discuss the issue of frivolous.
[01:38:50.360 --> 01:38:55.200] If they bring up frivolous, you have an argument based on frivolous pleadings and say, look,
[01:38:55.200 --> 01:38:56.440] he brought up it's frivolous.
[01:38:56.440 --> 01:38:58.160] How can he say it's frivolous?
[01:38:58.160 --> 01:38:59.160] I have an affidavit.
[01:38:59.160 --> 01:39:00.160] I have a real need.
[01:39:00.160 --> 01:39:01.480] I have an appointment.
[01:39:01.480 --> 01:39:03.240] I don't want to be here on that date.
[01:39:03.240 --> 01:39:05.760] I want to reschedule a court hearing for another day.
[01:39:05.760 --> 01:39:07.760] How can that be frivolous?
[01:39:07.760 --> 01:39:12.960] But now you're prepared for the argument based on them raising the issue of frivolous.
[01:39:12.960 --> 01:39:17.520] Well, especially if you're the defendant in a civil case or if you're the defendant in
[01:39:17.520 --> 01:39:21.040] a criminal case, how could anything you file be frivolous?
[01:39:21.040 --> 01:39:22.520] I mean, you're on the defense.
[01:39:22.520 --> 01:39:23.520] Right.
[01:39:23.520 --> 01:39:24.520] If you file...
[01:39:24.520 --> 01:39:27.200] Except it's whether or not the argument is frivolous.
[01:39:27.200 --> 01:39:28.200] Okay.
[01:39:28.200 --> 01:39:32.280] If you ask a question, they're going to just say that, you know, but that's the standard
[01:39:32.280 --> 01:39:33.280] repertoire.
[01:39:33.280 --> 01:39:34.280] There's not much that...
[01:39:34.280 --> 01:39:39.560] As a matter of fact, in all the cases that I've seen, generally speaking, the objections
[01:39:39.560 --> 01:39:44.840] that are upheld for continuances are generally done by judges who just don't give continuances
[01:39:44.840 --> 01:39:51.280] to people not represented by counsel, and that should be a big red flag.
[01:39:51.280 --> 01:39:55.920] If you file your first motion for continuance and you were filed it according to the rule
[01:39:55.920 --> 01:39:59.280] and you cited the motion and you followed all the rules and you go down there to have
[01:39:59.280 --> 01:40:03.800] the hearing and the judge won't give you the continuance, you're probably not going to
[01:40:03.800 --> 01:40:06.360] get any consideration by that judge.
[01:40:06.360 --> 01:40:10.480] That should be the warning sign that you need to contemplate how to get out of that court,
[01:40:10.480 --> 01:40:11.640] get through another judge.
[01:40:11.640 --> 01:40:13.680] And how would you do that?
[01:40:13.680 --> 01:40:20.160] That's a whole different discussion that'll be one on it, an entire two hour series on
[01:40:20.160 --> 01:40:21.160] how to do that.
[01:40:21.160 --> 01:40:25.640] And that can only be done to some degree of success based on where we are with the system
[01:40:25.640 --> 01:40:27.520] as it exists now.
[01:40:27.520 --> 01:40:31.080] That's more or less an entire strategy of its own.
[01:40:31.080 --> 01:40:36.600] But that doesn't have to happen if you go through the process of not having to file
[01:40:36.600 --> 01:40:39.520] a motion for continuance.
[01:40:39.520 --> 01:40:42.640] The issue is that that's just one of the examples that I brought up.
[01:40:42.640 --> 01:40:46.320] That's one of the things that can happen, that they can just deny it.
[01:40:46.320 --> 01:40:52.040] Recognize that denial of a motion for continuance based on a proper affidavit is considered
[01:40:52.040 --> 01:40:58.120] abuse of discretion, but whether the appellate court will uphold it or not is another question
[01:40:58.120 --> 01:40:59.120] entirely.
[01:40:59.120 --> 01:41:02.160] And you want to avoid having to bring anything to the appellate court.
[01:41:02.160 --> 01:41:07.960] You want to resolve the issue in the trial court because that's where the case is won.
[01:41:07.960 --> 01:41:12.360] And you want to do everything you can to stay there until you get the way you want it.
[01:41:12.360 --> 01:41:14.720] Or you can negotiate a settlement with the opposing party.
[01:41:14.720 --> 01:41:19.200] And I'm going to tell everybody right now, if you've got a big lawsuit against somebody
[01:41:19.200 --> 01:41:23.680] and you want a million dollars and they come back and say, we're going to give you $300,000,
[01:41:23.680 --> 01:41:27.040] I'd seriously think about taking the $300,000 and running.
[01:41:27.040 --> 01:41:32.240] You know, burden a hand versus the million in the bush.
[01:41:32.240 --> 01:41:36.880] So if one of those where the court system is such a crapshoot that there's no sense
[01:41:36.880 --> 01:41:40.920] in taking the chance, if you walk away with something as opposed to nada, it's better
[01:41:40.920 --> 01:41:42.800] than the latter.
[01:41:42.800 --> 01:41:52.000] Well, even the Bible says to resolve your difficulties with your adversary out of court
[01:41:52.000 --> 01:41:58.840] before you reach the judge because the judge or the jury may just rule against you.
[01:41:58.840 --> 01:42:03.920] Unfortunately, the entire process of what we're talking about in the rules and what
[01:42:03.920 --> 01:42:08.120] you have to do to prepare is when no resolution is at hand.
[01:42:08.120 --> 01:42:09.480] This is the last resort.
[01:42:09.480 --> 01:42:11.800] The issue is that it's the only game in town.
[01:42:11.800 --> 01:42:15.840] It's the only place we're allowed to go and make arguments.
[01:42:15.840 --> 01:42:20.480] And my experience has been that despite a lot of the talk about the corruption in the
[01:42:20.480 --> 01:42:26.000] courts, there are judges out there that if you do your homework and you are articulate
[01:42:26.000 --> 01:42:31.680] and you practice and you don't put a chip on your shoulder, you act as a professional.
[01:42:31.680 --> 01:42:39.040] So the judge will lose the idea that you're a pro se litigant, you dress the part.
[01:42:39.040 --> 01:42:42.120] People that have seen me in court think I'm an attorney.
[01:42:42.120 --> 01:42:44.000] Reason why is because I dress the part.
[01:42:44.000 --> 01:42:47.080] That's part of the strategy of all of this as well.
[01:42:47.080 --> 01:42:51.440] There was one case where the opposing counsel kept mentioning the word pro se in one of
[01:42:51.440 --> 01:42:53.600] the cases I was involved in.
[01:42:53.600 --> 01:42:57.760] And after he did it about seven times, I objected and said, Your Honor, he keeps calling me
[01:42:57.760 --> 01:42:58.760] a pro se.
[01:42:58.760 --> 01:42:59.760] We're standing here.
[01:42:59.760 --> 01:43:00.760] I'm going to suit and tie.
[01:43:00.760 --> 01:43:04.720] I said, if we had people come in from the hall, you can't tell us apart.
[01:43:04.720 --> 01:43:09.360] Why does he keep doing that unless he's trying to curry favor with the court and have the
[01:43:09.360 --> 01:43:13.800] court act differently towards me than to him?
[01:43:13.800 --> 01:43:18.600] And the judge says, looked at the attorney and said, stop it.
[01:43:18.600 --> 01:43:21.960] You do it again, I'll hold you in contempt.
[01:43:21.960 --> 01:43:26.600] That's one way to test the court, to see if the court is willing to be neutral.
[01:43:26.600 --> 01:43:31.880] Doesn't mean you're going to win, but if the court acts out and lashes out against you,
[01:43:31.880 --> 01:43:34.120] there's a good chance that that's the writing on the wall.
[01:43:34.120 --> 01:43:41.160] It says, this court is not favorable for pro se litigants.
[01:43:41.160 --> 01:43:46.120] But everything comes down to the strategy of the rules, and we'll get into the rules
[01:43:46.120 --> 01:43:47.120] the next time around.
[01:43:47.120 --> 01:43:52.040] We'll start going through the rules of civil procedure, but we're back to still the overall
[01:43:52.040 --> 01:43:53.040] process here.
[01:43:53.040 --> 01:43:58.400] When we get into actually talking about writing pleadings, one of the things that I want everybody
[01:43:58.400 --> 01:44:05.160] to recognize is that this is not the Declaration of Independence, and this is not Philadelphia
[01:44:05.160 --> 01:44:06.160] 1776.
[01:44:06.160 --> 01:44:11.360] You want your pleadings to look just like every other attorney's pleadings out there.
[01:44:11.360 --> 01:44:15.360] As a matter of fact, the thing before you turn in any pleadings should be, would Perry
[01:44:15.360 --> 01:44:20.280] Mason turn this in, or any other attorney that you have respect for.
[01:44:20.280 --> 01:44:23.000] The idea is it should look like everybody else's pleading.
[01:44:23.000 --> 01:44:26.420] It should be the same format, the same style.
[01:44:26.420 --> 01:44:30.600] One of the things that we've brought up about style before that there's been some debate
[01:44:30.600 --> 01:44:34.080] about, and I'm going to tell you right now in Texas, it's never been an issue.
[01:44:34.080 --> 01:44:36.940] We'll leave it for the moment framed in Texas.
[01:44:36.940 --> 01:44:40.680] They had a rule that talked about pleading as a corporation.
[01:44:40.680 --> 01:44:44.880] But to plead a party as a corporation, you actually have to in the section in the pleading
[01:44:44.880 --> 01:44:50.280] in the original petition or the original answer, you have to say party, and then you turn around
[01:44:50.280 --> 01:44:56.160] and you say, let's say we're talking about two brothers, Bill and Bob Smith.
[01:44:56.160 --> 01:44:58.040] But they own Smith Incorporated.
[01:44:58.040 --> 01:45:02.560] Maybe they make cough drops, right, Smith Brothers?
[01:45:02.560 --> 01:45:09.560] But anyway, if we're talking about Bob or Bill, we would talk about them in upper and
[01:45:09.560 --> 01:45:12.960] lower case because they are individuals.
[01:45:12.960 --> 01:45:17.360] But if we talk about Smith Incorporated, we talk about Smith in all upper case.
[01:45:17.360 --> 01:45:18.360] Why?
[01:45:18.360 --> 01:45:20.200] It makes it easier to read the document.
[01:45:20.200 --> 01:45:27.200] Because Smith Incorporated has to be pled in the section on party, and it says Smith,
[01:45:27.200 --> 01:45:32.640] comma, Incorporated, a Texas corporation or a Delaware corporation or whatever.
[01:45:32.640 --> 01:45:38.400] Just by putting the word Smith in a document, upper case, doesn't convey corporation on
[01:45:38.400 --> 01:45:39.400] it.
[01:45:39.400 --> 01:45:42.720] That's been a misnomer that's been out there forever.
[01:45:42.720 --> 01:45:47.560] And there was a pleading style at the top, and I'm going to tell you why.
[01:45:47.560 --> 01:45:52.120] Back to being a systems analyst, when they first started coming out with computers and
[01:45:52.120 --> 01:45:59.800] automatic printing device, the first teletype, even today, weather warnings by the department
[01:45:59.800 --> 01:46:05.640] of, by NOAA, National Oceanic Atmospheric Administration, sends out weather warnings
[01:46:05.640 --> 01:46:08.200] on a teletype machine.
[01:46:08.200 --> 01:46:09.560] They're all in upper case.
[01:46:09.560 --> 01:46:10.560] Why?
[01:46:10.560 --> 01:46:14.880] The printers that they use don't have lower case letters on them, period.
[01:46:14.880 --> 01:46:21.920] You can't misspell Smith any other way but one way, if you spell it in upper case letters.
[01:46:21.920 --> 01:46:27.440] When they first started computerizing court records, the printers only printed in upper
[01:46:27.440 --> 01:46:33.560] case, and they used the titles at the top of the pleadings, Smith versus Smith, in upper
[01:46:33.560 --> 01:46:36.720] case, because that's what they would put in the computer.
[01:46:36.720 --> 01:46:40.880] Well, of course, computers have gone on, and now we've got upper case, lower case, we've
[01:46:40.880 --> 01:46:46.840] got ding-bats, we've got every other kind of font and character you'd ever want.
[01:46:46.840 --> 01:46:52.120] But they've never changed the style process at the computer point, because there's only
[01:46:52.120 --> 01:46:53.840] one way to type it.
[01:46:53.840 --> 01:46:58.600] I have entered documents in upper and lower case, and nobody has ever complained.
[01:46:58.600 --> 01:47:01.880] I have entered them all in upper case, and nobody's ever complained.
[01:47:01.880 --> 01:47:08.440] It does not convey some sort of secret corporation on them, unless you plead that the person
[01:47:08.440 --> 01:47:12.080] or the entity is a corporation.
[01:47:12.080 --> 01:47:18.800] How you plead that is you say, this entity is a corporation, incorporated in this state.
[01:47:18.800 --> 01:47:22.920] And that's how that's done.
[01:47:22.920 --> 01:47:24.480] So as far as the upper...
[01:47:24.480 --> 01:47:28.360] Yeah, I appreciate you making that distinction.
[01:47:28.360 --> 01:47:31.760] Because you're talking about the upper lower case, I just wanted to bring up this one caller
[01:47:31.760 --> 01:47:37.640] quickly, we're running out of time, because he has something to say about the upper lower
[01:47:37.640 --> 01:47:38.640] case.
[01:47:38.640 --> 01:47:44.400] Travis from Minnesota, Travis, quickly, you've had some success in the courts, dealing with
[01:47:44.400 --> 01:47:47.040] the upper lower case issue, quickly.
[01:47:47.040 --> 01:47:52.600] Well, it doesn't seem necessarily like it would affect the outcome.
[01:47:52.600 --> 01:48:00.760] I asked that my name be, I don't want to say name, but the representation for me be depicted
[01:48:00.760 --> 01:48:04.600] with the upper and lower case.
[01:48:04.600 --> 01:48:10.640] And they went ahead and did it, so that we could go on with the procedures, you know,
[01:48:10.640 --> 01:48:15.000] so maybe it isn't quite, you know, just like...
[01:48:15.000 --> 01:48:18.000] What kind of court was this in?
[01:48:18.000 --> 01:48:19.000] Federal?
[01:48:19.000 --> 01:48:20.000] State?
[01:48:20.000 --> 01:48:23.760] State, district, criminal, GW.
[01:48:23.760 --> 01:48:24.760] Okay.
[01:48:24.760 --> 01:48:30.920] And in Minnesota, do they have pleading practices that make you use all upper case at the top
[01:48:30.920 --> 01:48:31.920] of the proceedings?
[01:48:31.920 --> 01:48:39.440] That's the style, that's what you're saying, is they styled your name in all upper case.
[01:48:39.440 --> 01:48:45.640] But when I asked them to change it, I told the prosecutor that I liked that change, and
[01:48:45.640 --> 01:48:47.560] it was changed when I went back.
[01:48:47.560 --> 01:48:48.560] Wow.
[01:48:48.560 --> 01:48:52.160] Okay, see, there's an example of exactly what I was talking about.
[01:48:52.160 --> 01:48:59.000] But a judge slipped an order that I couldn't possess a firearm, it's something that was
[01:48:59.000 --> 01:49:02.480] unrelated, a condition of release that I could trade.
[01:49:02.480 --> 01:49:10.520] If I just paid a bond, then I wouldn't have to bother with the condition.
[01:49:10.520 --> 01:49:19.280] And the judge slipped something in saying, no weapons, so if I want a firearm in my house,
[01:49:19.280 --> 01:49:25.680] that might pose me a problem, a risk, so I sent the public defender back, and I didn't
[01:49:25.680 --> 01:49:26.680] cross the bar.
[01:49:26.680 --> 01:49:33.200] And standing in the audience area, the other defender answered and kind of interrupted
[01:49:33.200 --> 01:49:34.440] the in-between cases.
[01:49:34.440 --> 01:49:40.880] The judge asked the public defender, told the judge something, he didn't give the information
[01:49:40.880 --> 01:49:44.120] I wanted him to give, and the judge denied.
[01:49:44.120 --> 01:49:46.400] I wanted the order amended, so I could...
[01:49:46.400 --> 01:49:53.240] Well, the problem is, this is too much detail, there's almost no way we can address this
[01:49:53.240 --> 01:49:57.200] at this point in time, because we don't have any of the specifics.
[01:49:57.200 --> 01:50:01.520] Yeah, there's only 10 minutes left, but the reason I brought Travis up was just to make
[01:50:01.520 --> 01:50:05.040] the point to go along with what you were saying, Ken.
[01:50:05.040 --> 01:50:06.040] About the upper and lower case.
[01:50:06.040 --> 01:50:07.680] About the upper and lower case.
[01:50:07.680 --> 01:50:14.160] It's not just about whether they print uppercase or all uppercase or all uppercase or all lower
[01:50:14.160 --> 01:50:15.600] case or whatever.
[01:50:15.600 --> 01:50:22.800] It's about what the intent is and how it's documented on the motion, whether it's a corporation
[01:50:22.800 --> 01:50:23.800] or not.
[01:50:23.800 --> 01:50:24.800] Is that correct?
[01:50:24.800 --> 01:50:25.800] Right.
[01:50:25.800 --> 01:50:28.440] And it can't be done surreptitiously.
[01:50:28.440 --> 01:50:33.800] You can't just come into a pleading and kind of shoe-worn in the idea that a person is
[01:50:33.800 --> 01:50:34.800] a corporation.
[01:50:34.800 --> 01:50:39.200] If it's not pled that they're a corporation, they're not a corporation, period.
[01:50:39.200 --> 01:50:40.240] You know, the upper...
[01:50:40.240 --> 01:50:45.520] And that rule 52 that, in Texas, I keep hearing people complain about it, they got rid of
[01:50:45.520 --> 01:50:47.720] it back in 2005.
[01:50:47.720 --> 01:50:52.520] It's not even there in Texas any longer.
[01:50:52.520 --> 01:50:54.960] We hear?
[01:50:54.960 --> 01:51:03.080] Yeah, well, maybe the courts are starting to get hit because, you know, people are objecting
[01:51:03.080 --> 01:51:06.960] to it and they're like, well, hey, write my name in...
[01:51:06.960 --> 01:51:07.960] They're doing abatements.
[01:51:07.960 --> 01:51:12.200] Write my name in uppercase, lowercase, and sometimes they are, sometimes they're not.
[01:51:12.200 --> 01:51:16.160] And they're doing that upper, lowercase stuff now because the computers have upper and lower
[01:51:16.160 --> 01:51:18.000] case and the clerks don't know any difference.
[01:51:18.000 --> 01:51:19.640] They don't know where it came from.
[01:51:19.640 --> 01:51:24.720] The original conversation that I had heard about this as related to driver's license,
[01:51:24.720 --> 01:51:28.840] same thing with driver's license, the original computers that were doing driver's license
[01:51:28.840 --> 01:51:36.040] only had uppercase, and the idea was you can only spell Smith one way if you got uppercase
[01:51:36.040 --> 01:51:37.040] letters.
[01:51:37.040 --> 01:51:41.080] But since you introduced lowercase letters, now you create a number of permutations of
[01:51:41.080 --> 01:51:42.080] misspelling.
[01:51:42.080 --> 01:51:45.040] So, they kept it to uppercase.
[01:51:45.040 --> 01:51:47.800] It doesn't mean that they've conveyed corporation on you.
[01:51:47.800 --> 01:51:48.800] They can't do that.
[01:51:48.800 --> 01:51:51.840] They can't do it secretly or surreptitiously.
[01:51:51.840 --> 01:51:56.440] This has all been a red herring, and I'm not going to mention the guy that introduced it.
[01:51:56.440 --> 01:51:59.000] If he's hearing this, he knows who he is.
[01:51:59.000 --> 01:52:02.800] I should have been a little bit more boisterous when he introduced this idea.
[01:52:02.800 --> 01:52:08.520] I was when we had dinner afterwards, but the issue is that this is all...
[01:52:08.520 --> 01:52:10.080] It's a rabbit trail off to the side.
[01:52:10.080 --> 01:52:16.600] It doesn't address the issue of proper procedure, proper research, proper documentation, proper
[01:52:16.600 --> 01:52:21.040] planning and preparation, which is absolutely a must.
[01:52:21.040 --> 01:52:29.880] Well, I don't see how anyone can argue with that.
[01:52:29.880 --> 01:52:34.040] The only thing I can say is that when you get down to the actual legal argument, the
[01:52:34.040 --> 01:52:38.520] legal arguments that are in almost every case come down to the cause of action.
[01:52:38.520 --> 01:52:41.000] How can they bring a cause of action?
[01:52:41.000 --> 01:52:42.400] What is the cause of action?
[01:52:42.400 --> 01:52:48.800] What's the salient issue or the gravamen of the particular case?
[01:52:48.800 --> 01:52:51.760] What is the case law that pertains to that?
[01:52:51.760 --> 01:52:53.000] That's what everything comes down to.
[01:52:53.000 --> 01:52:57.880] Then the question is, once you make the allegations against somebody, can you prove it with actual
[01:52:57.880 --> 01:52:58.880] evidence?
[01:52:58.880 --> 01:53:00.440] That's what it comes down to.
[01:53:00.440 --> 01:53:05.480] Now, if the court's a level playing field, and I want to tell you right now that I first
[01:53:05.480 --> 01:53:11.440] walked into a courtroom on my own defense back in the early 1980s and found the courts
[01:53:11.440 --> 01:53:20.240] to be very friendly and open and even somewhat amused by a person that is there without counsel,
[01:53:20.240 --> 01:53:21.800] and I was very successful.
[01:53:21.800 --> 01:53:27.000] I won almost all the cases and even got some praise and adulation by the judge saying that,
[01:53:27.000 --> 01:53:31.760] hey, you did a good job, you were prepared.
[01:53:31.760 --> 01:53:36.120] My experience was totally different once I came into the 1990s and started seeing what
[01:53:36.120 --> 01:53:46.760] was happening after the change in a political party out there in the state of Texas.
[01:53:46.760 --> 01:53:56.760] So Ken, is it your opinion that if you're well-prepared and know the court rules and
[01:53:56.760 --> 01:54:07.000] procedures and you don't make any fundamental strategy mistakes, it prevails?
[01:54:07.000 --> 01:54:08.000] Can we actually win?
[01:54:08.000 --> 01:54:09.000] I mean...
[01:54:09.000 --> 01:54:10.000] Yes.
[01:54:10.000 --> 01:54:11.000] Yes.
[01:54:11.000 --> 01:54:14.640] It's just a question of where and when and what the issues are, but then we'll get into
[01:54:14.640 --> 01:54:15.640] the politics later.
[01:54:15.640 --> 01:54:23.840] As long as there's no big players in the case, the court isn't necessarily opposed to the
[01:54:23.840 --> 01:54:24.840] idea of justice.
[01:54:24.840 --> 01:54:31.520] Okay, just quickly, and this may be a whole other show, but just say, for example, you're
[01:54:31.520 --> 01:54:36.600] totally prepared, you have all your ducks in a row, you've got everything filed, the
[01:54:36.600 --> 01:54:42.320] affidavits, you've got copies of everything, and let's just say you're in some small-time
[01:54:42.320 --> 01:54:48.440] jurisdiction or even a big-time jurisdiction, some major metropolitan area, whatever, where
[01:54:48.440 --> 01:54:54.920] the judge and the prosecutor or the judge and the opposing counsel are in cahoots, and
[01:54:54.920 --> 01:54:58.680] it just doesn't matter that you are in the right.
[01:54:58.680 --> 01:54:59.680] What do you do?
[01:54:59.680 --> 01:55:03.440] Do you file writs of mandamus to a higher court or what?
[01:55:03.440 --> 01:55:04.920] Whoa, whoa, whoa, whoa, whoa.
[01:55:04.920 --> 01:55:08.320] We've gone way past the point of understanding it.
[01:55:08.320 --> 01:55:12.600] First off, the corrupt system is usually...
[01:55:12.600 --> 01:55:16.620] Remember those little tell-tale signs I was telling you about red flags?
[01:55:16.620 --> 01:55:21.520] When the judges and the prosecutors are ganging up on you and they seem in league together,
[01:55:21.520 --> 01:55:26.400] you'll have some tell-tale indications way before you get to the day of trial.
[01:55:26.400 --> 01:55:30.720] There's going to be a lot of arm-twisting in a criminal prosecution, there's going to
[01:55:30.720 --> 01:55:33.480] be a lot of arm-twisting to plead guilty.
[01:55:33.480 --> 01:55:37.160] They're going to inconvenience the hell out of you to bring you down to the courthouse
[01:55:37.160 --> 01:55:42.240] as many times as they can and make you look at the horrible things that happen to people
[01:55:42.240 --> 01:55:44.160] who don't make the deal.
[01:55:44.160 --> 01:55:46.480] The deal is a horrible way to go.
[01:55:46.480 --> 01:55:48.840] Randall Kelton is an expert about the deal.
[01:55:48.840 --> 01:55:53.360] I've learned a lot about the criminal processes and procedures, which augmented the knowledge
[01:55:53.360 --> 01:55:56.160] I already had from Randall Kelton.
[01:55:56.160 --> 01:56:02.480] Now, the issue with a trial is you always have the ability to walk into court and try
[01:56:02.480 --> 01:56:04.120] it in front of a jury.
[01:56:04.120 --> 01:56:08.440] I've actually seen a couple of jury trials where the fix was in and the judge and the
[01:56:08.440 --> 01:56:14.200] prosecutor were so chummy in the trial that even though they didn't like the defendant,
[01:56:14.200 --> 01:56:20.400] the jury smelled a rat and they found him not guilty.
[01:56:20.400 --> 01:56:26.280] So a jury trial is always your best avail to talking to the members of the jury.
[01:56:26.280 --> 01:56:29.760] The biggest thing is then is how do you argue for a jury trial?
[01:56:29.760 --> 01:56:36.520] I'm going to tell you right now, one of the best things that I ever read on this is how
[01:56:36.520 --> 01:56:38.760] to argue and win every time by Jerry Spence.
[01:56:38.760 --> 01:56:39.760] By who?
[01:56:39.760 --> 01:56:40.760] Say that again.
[01:56:40.760 --> 01:56:44.560] How to argue and win every time by Jerry Spence.
[01:56:44.560 --> 01:56:47.320] Jerry Spence is a long-time civil attorney.
[01:56:47.320 --> 01:56:53.080] He won the Karen Silkwood case, which at the time against Kermadee was the largest jury
[01:56:53.080 --> 01:56:54.840] verdict ever in the United States.
[01:56:54.840 --> 01:56:57.840] Spence, is that S-P-E-N-C-E?
[01:56:57.840 --> 01:57:00.960] Yes, I believe so.
[01:57:00.960 --> 01:57:02.680] And he's got it as a book on tape.
[01:57:02.680 --> 01:57:08.440] You can get it either on a CD or a cassette and listen to it in your car.
[01:57:08.440 --> 01:57:13.880] And he talks about selecting a jury, and we're getting way ahead of ourselves, but for the
[01:57:13.880 --> 01:57:18.320] ending of the show I'll go ahead and leave off with that, but he talks about not being
[01:57:18.320 --> 01:57:19.320] angry.
[01:57:19.320 --> 01:57:25.440] You know, righteous indignation is great in the movies, but it doesn't play well in front
[01:57:25.440 --> 01:57:26.760] of the jury.
[01:57:26.760 --> 01:57:31.600] What you want the jury to see, the cases are won and lost with the jury based on what's
[01:57:31.600 --> 01:57:33.920] called the voir dire.
[01:57:33.920 --> 01:57:38.680] The voir dire in Texas, it's pronounced voir dire, it's not voir dire, the voir dire is
[01:57:38.680 --> 01:57:42.320] where you select the jury members, and you've got to make sure the jury members know you're
[01:57:42.320 --> 01:57:43.320] a person.
[01:57:43.320 --> 01:57:46.880] You've got to thank them for their service and say that if you were in a similar situation,
[01:57:46.880 --> 01:57:49.920] I would be here giving you a fair trial too.
[01:57:49.920 --> 01:57:51.680] Make them like you.
[01:57:51.680 --> 01:57:55.080] Make them understand that the other side has made a mistake.
[01:57:55.080 --> 01:57:59.520] What they're here to do is hear the evidence and recognize the mistake.
[01:57:59.520 --> 01:58:04.080] In the case that I last did in front of a jury, I even told the jury, I said, you know
[01:58:04.080 --> 01:58:05.080] what?
[01:58:05.080 --> 01:58:06.080] These guys are good guys.
[01:58:06.080 --> 01:58:08.360] They're out there on the road tolling the highway.
[01:58:08.360 --> 01:58:13.560] They made a mistake, and the sad fact about the mistake, they don't even know they made
[01:58:13.560 --> 01:58:14.560] it.
[01:58:14.560 --> 01:58:15.560] All right.
[01:58:15.560 --> 01:58:16.560] Okay.
[01:58:16.560 --> 01:58:17.560] Yeah.
[01:58:17.560 --> 01:58:20.800] Okay, look, we're at the end of the show.
[01:58:20.800 --> 01:58:21.800] I'm sorry, Ken.
[01:58:21.800 --> 01:58:22.800] All right.
[01:58:22.800 --> 01:58:23.960] We have faith in the juries.
[01:58:23.960 --> 01:58:29.760] I believe in that as well, and don't demonize the other side.
[01:58:29.760 --> 01:58:31.800] They just don't know what they're doing.
[01:58:31.800 --> 01:58:32.800] Yeah.
[01:58:32.800 --> 01:58:33.800] That generally works.
[01:58:33.800 --> 01:58:34.800] Know your rules.
[01:58:34.800 --> 01:58:35.800] Do your homework.
[01:58:35.800 --> 01:58:36.800] It goes a long way.
[01:58:36.800 --> 01:58:37.800] You don't have to know anything about law.
[01:58:37.800 --> 01:58:38.800] Just...
[01:58:38.800 --> 01:58:39.800] Not totally true, but...
[01:58:39.800 --> 01:58:48.800] Not totally true, but I mean, what you're saying is that you just do your homework and
[01:58:48.800 --> 01:58:49.800] get a copy.
[01:58:49.800 --> 01:58:52.360] I mean, getting a copy of your own file.
[01:58:52.360 --> 01:58:54.320] I mean, that goes a long way.
[01:58:54.320 --> 01:58:55.320] Not just once.
[01:58:55.320 --> 01:58:56.320] Not just once.
[01:58:56.320 --> 01:58:59.480] You have to go there and make sure the documents don't go missing.
[01:58:59.480 --> 01:59:00.480] All right.
[01:59:00.480 --> 01:59:01.480] Excellent.
[01:59:01.480 --> 01:59:02.480] Okay.
[01:59:02.480 --> 01:59:03.480] Listen, we got to go.
[01:59:03.480 --> 01:59:04.480] We'll be back tomorrow night.
[01:59:04.480 --> 01:59:08.360] Professor Ken Magnuson, we will have you on again soon.
[01:59:08.360 --> 01:59:09.360] Okay.
[01:59:09.360 --> 01:59:11.360] This is a rule of law.
[01:59:11.360 --> 01:59:30.360] Lady Kelton, Deborah Stevens, and Ken Magnuson.
[01:59:30.360 --> 01:59:57.320] Enjoy the race.