Playing With Sharks Part 10 - And That Is How You Do That

"To Defeat The Enemy At Trial Without Fighting At Trial Is The Acme of Skill" - Sun Tzu, Esq  (attributed, probably).

Got to the courthouse all prepared and ready to rock.

Client was there, the two pro per parties appeared soon afterward.  Always good to be the first in the courtroom.

Gave the opposing parties a copy of my trial exhibits binder, and they gave me theirs so at least they knew to have that ready.  Many a tree had lost its life for both sides' exhibits. I had 36; Pro Per Plaintiff had 91; and Pro Per Third party Defendant had 24.

The clerk asked if we were ready, and I said we had some preliminary matters to get through before trial but otherwise we were good to go.

Preliminary matter 1:  Needed to get the order entered barring Pro Per plaintiff Spouse, who was Pro per third-party Defendant from testifying to everything she refused to testify to at her deposition.  They had been holding this up with a frivolous objection.

I won that argument handily, as in epic happy-smackdown. No testifying by her on anything she refused to testify to in her deposition. Point one to me.

Then Plaintiff stated his doctor might be available after all by phone at 9:30 or 11:00.  

I stated I had no objection to his doctor being called out of order if necessary to accommodate his schedule. But, I noted Plaintiff's subpoena of his own doctor said live testimony, the Court had ordered all witnesses to be live to give testimony, and I had concerns about being able to effectively cross-examine him if this was going to be by phone.

The Judge noted that was a very good point.  

Point two to me.  Trial Pinata Mode was well and truly getting started.

The judge then offered all sides to meet with his staff attorney to discuss possible settlement. Note that the offer, while stated as an offer, was clearly conveyed as an order.

And so we met with the Judge's attorney separately in the jury room. The attorney, like the judge, is a very smart individual.

I stated my client really didn't want to settle as the medical records all showed Pro Per Plaintiff couldn't prove his damages, that it was highly questionable if he even had any damages.  I also noted he had a key problem as he actually did not have any admissible evidence that there even was the alleged mold at the premises. On top of that, he seemed unable to actually get his experts in to testify.

Judge's attorney asked if I could get my client to pay any money to settle and I stated I didn't think so as the evidence was so strongly against the Pro Per Plaintiff and she's had to pay too much already to defend the case and she was a semi-retired person without buckets of money.  

He noted my demand for attorneys fees against Third Party Plaintiff, if we succeeded and dismissed Pro Plaintiff's claim, was risky.  I agreed as it's somewhat atypical and normally each side pays for their own fees. But, I did have legal grounds to make the argument but it was obviously not a slam dunk and indeed was a reach, but a carefully argued and legally persuasive reach.

He then talked with them.

He then came back and I followed him back to the jury room alone.

"They've agreed to drop their claims completely if you drop going after her for attorney's fees from the case."

And just like that, it was over.

We went on the record and they dismissed with prejudice any claims either of them could have had against my client from the beginning of time to today, and my client dismissed any claim against them from the beginning of time to today.

I had won the trial without even having to go to trial.

Playing With Sharks Part 9 - No, That's Really Not How That Works

Trail in the ongoing case of the pro-per Plaintiff is set for tomorrow and I am busy preparing accordingly as it may in fact actually go tomorrow.

Mr. Pro Per Plaintiff send over two new exhibits this Saturday.

That's a trifle late as discovery ended in June 2022.

Even better, one is an affidavit from his Medical Expert (He has two an internist and an allergist) in lieu of his (the allergist) testifying tomorrow.

That is very much not how this works.

Indeed, the affidavit isn't admissible as evidence as it is hearsay, and if his expert doesn't show up, I daresay he's gonna be sunk as the Internist likely can't testify as an expert as to his alleged allergy that he claims was caused by my client (But, the medical evidence actually says - No, no, it's not).

While he can get his medical records admitted as an exception to the hearsay evidence rule, he can't analyze them as he's not a doctor so this could be much fun.

The second exhibit is a printout from the CDC website regarding mold after hurricanes and floods.  

Since neither hurricanes nor floods were recorded anywhere in the entire state of Michigan, on the alleged day of the incident, I daresay that one is out for that alone, not to mention being, you know, unsupported hearsay of dubious probative value.

The idiot actually asked if I would stipulate to those exhibits.

I was disinclined to acquiesce to his request.

This trial is going to be so much fun.

Playing With Sharks Part 8 - No, That's Not How That Works Bucko

So our valiant Pro Pers persist in stupidity.

First, they screwed up how they filed their objections, as we talked about in Part 7, so those couldn't be heard today. This is annoying as again, the Court doth bend over backwards for pro pers and it will have to be set for another date.

But in the meantime, Plaintiff filed two motions last Wednesday.

One was to adjourn the trial so he could add a third expert witness and add medical records material he has never produced before, and indeed we only saw a part of it attached to his motion.  Did I mention he was required to produce that before?

The other motion was to exclude my expert witness because it took forever for the health system to release the records to me due to Plaintiff's failure to sign a release of those records.

Anyone notice the cognitive dissonance in those two motions?

I sure did, and so did the court.

Plaintiff claimed he was surprised by the report, because it points out he's BSing and his claim really doesn't work medically, so per his point of view the report should be excluded and my expert shouldn't be allowed to testify.

I pointed out that:

1.  I listed the expert on my expert list back in May 2022.

2. The expert examined Plaintiff in person on June 6, 2022 so Plaintiff actually met him and clearly knew of him.

3. Plaintiff, by failing to sign the medical release he was required to sign at the time of the appointment, caused the delay.  I had no idea he hadn't signed it and it took until November for the medical system to finally tell me why they refused to produce it, and then took days for him to sign a release and the medical records were finally produced in December - and, for all I know, Plaintiff already had them and was sitting on them as they were less than complimentary to his claims.

4.  To top it all off, hilariously, Plaintiff had listed my expert on his expert list in May 2022.

As such, I noted Plaintiff really couldn't claim he was surprised that my expert was involved. I also noted he really can't add a third expert now long after the May expert cut off, nor keep producing medical records that he had held back and not produced to me, nor anyone else, until a snippet appeared last week in his motion.

The court agreed and denied both his motions.  Sadly, yet again, no sanctions for this nonsense. 

This trial will indeed be lit.

Playing With Sharks Part 7 - And The Number Of Days Of Thy Counting Shall Be 7, 13 Is Right Out

Welcome to yet another installment of the pro per case that never ends,

As related in part 6, I won a major tactical victory by excluding the testimony of the Plaintiff's girlfriend after she refused to testify.

The problem now lies in getting the order entered.

Courts speak through their written orders and this Court instead of simply taking in an order a the end of the hearing or issuing one itself, requires that either the parties jointly submit the order after a hearing, or that it is entered under the 7 day rule, where a party may object within 7 days if they don't like the order.

Therein lies the rub.

Since they weren't even present at the hearing they can't really object to the order.

They do so anyways, and claim the hearing never actually occurred.

Of course they do so wrongly and not in conformance with the court rules and I do a response pointing out it is defective, and there was indeed a hearing, and they were not just served with it and the notice of hearing but even responded to it and just failed to show up and their objections should be rejected forthwith.

Of course it is now the holidays and the courts are in slow mode.

So what does Plaintiff and his girlfriend do?

They file new objections last night,  kinda sorta fixing the errors I pointed out (but making some new ones too) but still claiming the hearing was never held.

They file this 13 days after the order was submitted.

13 is greater than 7.

So I need to do a response and will be asking for sanctions as this is beyond ridiculous.

Playing With Sharks Part 6 - Sometimes, The Rules Actually Apply To Pro Per Parties

 T'was a good day in court this morning.

In the never-ending case of the Pro-Per Plaintiff and Pro-Per Third-Party Defendant against my client, I made a significant tactical victory.

You see the Pro Per Third-Party Defendant, girlfriend -- and now wife -- of the pro-per plaintiff who we pulled into the case basically on the theory that if the Plaintiff gets anything against my client, she is liable to indemnify my client for any loss.

When I took Pro Per Third-Party Defendant's Deposition, she decided to get cute and refuse to answer a number of questions, claiming privilege because they are now married.

I did note then that that is not how it works as they weren't married at the time, and I wasn't even asking about communications but even observations of his claimed health status. I did ask about communications as well, and got blocked there too.

No that's not how the privilege works, but fine, go ahead and not answer then.

So I did a motion that argued per the court rules she can't change her  ind and now talk about that stuff at trial:

A party who claims a privilege at a deposition may not at the trial offer the testimony of the deponent pertaining to the evidence objected to at the deposition.

So, since she refused to answer at the deposition, I file the motion and argue she can't testify at trial to everything she refused to testify to at deposition and attach the pages of the deposition transcript showing her refusing to answer and claiming privilege. 

She then files a reply claiming I'm lying and she didn't refuse to answer, and she didn't really understand what she was doing by raising privilege, and who is the court gonna believe: Her or the Court's own lyin' eyes reading the transcript?

For those who are interested, the legal version of "Bitch, please" is "The Third-Party Defendant is being rather disingenuous".

 As in "Third-Party Defendant is being rather disingenuous when she now claims in her response that she did not raise privilege and refuse to answer when the transcript of her deposition clearly shows her refusing to answer and stating on multiple occasions "I'm refusing, also privilege" (Ex A p.#); "I'm not waiving privilege"Ex A p.#); and "I'm not going to answer, privilege" (Ex A p.#).

The Court decided to side with my argument, the law, and it's own eyes over the Pro-Pers, about time.

So, the Court actually held one of the Pro-Pers to the rules and now you can't testify to anything she refused to answer during the deposition. This really puts a hole in their case as they don't have much in the way of witnesses to testify to his alleged condition, and it pretty much knocks her out as a witness for him, but keeps her in nicely for our claim against her. Going to be a lot harder for him to present his case as a result.

This trial is gonna be lit.

Playing With Sharks Part 5 - Gotta Love Pro Per Parties

Remember Pro Pers are not proper.

The fun case where the plaintiff is representing himself and his girlfriend - now wife - is being sued by my client the Defendant , that I've blogged about before may be coming to a trial, maybe.

Catching up, her latest motion for Summary dispoisiton of my claims were dismissed completely as being without basis.

My motion against her was granted in part and it's now  established that she did in fact breach the lease by having her boyfriend the Plaintiff stay with her at the Condo, but the Court days damages my client has and will suffer as a result of this case being brought by said boyfriend are an issue of fact and need to go to trial.

We were scheduled for Trial on November 15, but just found out that the case may get pushed due to a criminal case taking precedence.  

 This is annoying as the lack of certainty really messes things up time-wise - especially so when just two weeks ago they told me it was going forward for sure.

So today, in a hilarious, if undecipherable fashion,  the Third-Party Defendant former girlfriend emails me to see if I will concur, which I will not and then the girlfriend files a Motion in Limine that my client's damages are "subjective".

Blink.

That she wishes to establish that my client's damages are subjective doesn't have any legal meaning, nor much in the way of plain English either.

Not what a motion in limine is for, nor is it in a proper format and it lacks a brief or notice of hearing and I'm really not sure what she's getting at. Reasonably sure the Court will not understand what she is trying to do either.

A motion in limine is to handle likely evidentiary objections at trial, not to do some weird attempt to dismiss a claim long after the time for dispositive motions is over.

So I get to waste time doing a reply and asking for sanctions for yet another frivolous motion that the court may not even hear.

If You Want To Play With The Sharks Part 4 - Well, Don't Tick off The Judge!

So I appeared on Zoom ready to defend against the Third Party Defendant's whacky motion for Summary Disposition.  Ready to go and well-prepped to argue this baby.

I and the pro per Third Party Defendant show up, but for some reason the pro per Plaintiff does not which is interesting.

Judge has us put our appearances on the record.

Then things get interesting.

He starts off by asking her:"Miss Third Party Defendant, did you write and submit this motion all by yourself ,and not get help from anyone else?"

She says yes, yes she did.

Then it gets more interesting.

The Judge goes "I highly doubt that.  I see the font, which is not usually a font submitted to this court, is the exact same as the one used by the Plaintiff in his prior motions."

Oh, that's Interesting.

"I see the style is also the same in terms of word choice and underlining and overall format."

Even more interesting.

"My staff sees from reviewing the history of the electronic filing system that this motion and your reply was not filed with the court by you, but by Plaintiff, and you were even served by him with a copy of the filing via the electronic system."

Ruh Roh Shaggy. This is getting good.

"Plaintiff cannot assist or represent you Miss Third Party Defendant, as that's the unauthorized practice of law, he can't write things for you or file things for you and you have to be truthful to the court about such matters. I as a judge have a duty to prevent such things as it is both unethical and improper for that to occur."

She then tries to interrupt, which really annoys the judge.   Quick tip - Never, ever, try to speak over a judge in their courtroom.  It never works out well for you.

The judge: "You may not interrupt me, I gave you an opportunity to explain at the start of this and instead you told me you wrote this all by yourself."

Then the hammer falls:

"I am striking this motion as a result. I want both Plaintiff and you Miss Third Party Defendant to appear in my courtroom in 21 days via Zoom to show cause why you both should not be held in civil or criminal contempt for the unauthorized practice of law and why you misled the court about this filing, and to explain the circumstances of this filing."

Kaboom.

"Mr. Aaron __, since they are both in pro per, please draft the show cause order and submit it with my court today."

"Yes, Your Honor."

"This motion is stricken and dismissed, sorry to waste your time Mr. Aaron __".

About time he got tired of their nonsense. 

Still, she can apparently refile this once she gets past the show cause, and might fix some of the major errors with it, causing me to work a bit more to answer it, but we will see how it goes.

If You Want To Play With The Sharks Part 3

In which our self-representing pro per dynamic duo catch yet another break from the Court.

Our pro-per Third Party Defendant, per the Court's Order after she filed her ridiculous motion for Summary Disposition  was required to file both a Notice of Hearing for the motion and a E-Praecipe.

Of Course she did neither.   Penalty for not filing those is the motion is an automatic dismissal of the motion, says so right in the motion.

But since they're pro-per the court is yet again bending over backwards.

Court Clerk just emailed, them copying me, asking if they were proceeding with the motion as scheduled on February 2 as they hadn't filed the notice as they should have done a long time ago and they're now technically past the due date to even file it.

They replied yes and the Court instead of telling them they screwed up and the motion is dismissed, replied "Well, ok then on we go".

No attorney would get such a break, not a chance.

On the upside, I now get to argue against this hilarious and frivolous motion.

If You Want To Play With The Sharks Part 2

So our pro-per third party defendant manages to file a reply brief. She still hasn't figured out she has to file a notice of hearing and praecipe.

Of course she titles it: "BRIEF DISPUTING THIRD‐PARTY PLANTIFF/DEFENDANT’S RESPONSE TO THIRD‐PARTY DEFENDANT’S MOTION FOR SUMMARY DISPOSITION"

Which isn't exactly correct it should be a reply brief, and she spelled Plaintiff wrong, but anyways.

The words she then uses and stuff she cites to really does not mean what she thinks it means.

She states that since the rule says fall actual allegations in our complaint against her are taken as true", shes argues since our allegations in t he complaint against her are in her opinion false they cant be factual. Not what that means nor how that works at all.


She claims because the judge denied our motion over the email that it means all her proffered her evidence now has precedential value. Yes, she underlined it. No, those words do not mean what she thinks they mean.

She also tries to get around the MCR 2.116(c)(8) standard she filed the motion under that she can't add exhibits and it just doesn't work she claims she has to file the exhibits as required by law (underlined and in bold, natch). The law cleanly states instead you can't attach exhibits to this kind of pleading,

She even starts citing to other filings shes made that have been rejected. Then of course she accuses us of being "perjurious" (underlined and in bold, natch) which apparently means we're alleging and raising facts she doesn't like, and then goes off on some really cool unrelated tangents into never-never land. She never gets around to claiming our complaint counts aren't legally cognizable, because they are in fact effective.

In short, no lawyer would file such a document because its garbage and pretty much malpractice to even do so, but pro pers keep getting away with it.

Might be the meds talking, but her brief is just hilarious and I almost hope the court lets us argue it even without her filing the notice of hearing and praecipe. Given I'm on meds I'm not going to do any actual legal work today, but reading that nonsense gave me some well enjoyed laughs.

If You Want To Play With The Sharks, At Least Learn To Swim First

Having a fun case at the moment.

A quick summary: My client is a landlord that moved out of state 9 years ago.  She rented it to Tenant with a Lease that is overall ok, but could be better because of course she didn't have a lawyer draw it up so it has some important gaps. But, the Lease does specifically say that only Tenant, her mom, and son may live at the condo.

Tenant signs Lease in 2013.  In 2014, without asking the client or getting permission, her boyfriend moves in.

Fast forward to December 2020.   Lease is ending.  In December, Tenant tells Client there is a leak at the sink in the basement and water keeps dripping from the faucet.

Tenant and boyfriend move out in December 2020. Boyfriend was never on the Lease and my client didn't know he lived there. Boyfriend has never communicated to Landlord ever. Cleverly in 2017, they listed him as a resident in a single email, but had him as an emergency contact only in 2016 and again as an emergency contact only in 2018, and nothing sent later than that.

Boyfriend then sues after they move out, claiming mold from the leak in the sink makes him now unable to work.

Plaintiff is representing himself, and he doth have a fool for a client as a result. 

Likely because no lawyer wouldn't take his case as it stinks to high heaven.  The sink seems to have never been cleaned ever as there's no way that much grime and mold accumulated so quickly.  Plus, when repaired it looked like it had been leaking long before December 2020. 

So I bring the Tenant into the case as a Third-Party Defendant, for breach of contract, indemnification, and contribution, saying any damage Plaintiff gets from my client, the Tenant has to pay as it's her fault for him being there in the first place.

Tenant really does not like that and she represents herself as well, likely with her boyfriends "help".

Tenant filed a motion to dismiss and it gets dismissed almost out of hand due to it being a hot mess and without any basis and non-conforming.

Sadly, we then get a very new judge assigned to the case.  He's new and a nice guy, but unfortunately the court  (and sadly all courts tend to do this) tends to bend over backwards for people representing themselves.

Court denied my motion to dismiss Plaintiff's complaint on the grounds that he was a trespasser there without permission, stating the single 2017 email may have put my client on notice that Plaintiff was living there. Annoying.

Tenant then files a ridiculous motion to compel discovery when she hasn't even asked for discovery yet.    Doesn't work that way.  She also didn't know how to file it properly so it also is denied without even a hearing.

Tenant then files a bunch of subpoenas that are filled out completely wrong, including one she probably meant to be sent to my client but the "To:" area is completely blank so we ignore it, especially as she was asking for stuff we already gave her. 

She then files another ridiculous motion to compel, again misfiles it, and it is denied again.

She now files a Motion for Summary Disposition to try and dismiss our claims against her and attaches 185 pages of exhibits. The motion is a complete word salad, everything is a partial sentence, not properly formatted, and complete with underlining, bold, and italics thrown in everywhere, etc.

The court should have rejected it, and would have if an attorney had filed this garbage, but this judge lets it go and accepts it and then gives an order setting dates for me to respond and that she should file a notice of hearing with the date in February.

The 185 pages of exhibits are nuts and in most cases have nothing to do with the case against her but are her trying to fight the Plaintiff's case and lots of things that have nothing to do with the case at all.

Her problem, she filed under her motion the MCR 2.116(C)(8) standard, that our complaint failed to state a claim that could be granted as a matter of law.

But, under the MCR 2.116(C)(8) standard, the court looks only at the complaint itself to see if the claims in it are legally cognizable. The Court doesn't and cannot look at any other evidence and doesn't care.

I then file a response on time yesterday, asking for all her exhibits to be struck as a result and provide a response showing our claims against her are indeed legally justifiable, and for fun I ask for sanctions as this is her 4th frivolous motion to date. Likely, I won't get sanctions, because again, the court lets people representing themselves keep doing this stuff, but it never hurts to ask.

We will see if she files a reply, and if she actually files a notice of hearing to get the motion heard per the court's order about the motion.  She still hasn't done that. So we will see if the Court hears this on the date set, even if she doesn't file the notice as she is supposed to do.

Should be fun.