Rights during motion hearing

[rvidair]

What is the name of your state (only U.S. law)? Florida
I have filed a pro-se motion for dismissal based on an exception to the dangerous instrumentality doctrine. I stated cases to support my position, which the opposing attorney has had time to review prior to the hearing. I fully expect him to state other cases to support his position, which of course I will have no time to review. Can I ask the judge for a continuance to study his cases before I respond, or do I have any rights or other solutions? I will have subpoenaed witnesses already there that cannot return.

 

[quincy]

What is the name of your state (only U.S. law)? Florida
I have filed a pro-se motion for dismissal based on an exception to the dangerous instrumentality doctrine. I stated cases to support my position, which the opposing attorney has had time to review prior to the hearing. I fully expect him to state other cases to support his position, which of course I will have no time to review. Can I ask the judge for a continuance to study his cases before I respond, or do I have any rights or other solutions? I will have subpoenaed witnesses already there that cannot return.

Does this have to do with the arbitration hearing? (https://forum.freeadvice.com/civil-litigation-46/non-binding-arbitration-hearing-623972.html)

 

[tranquility]

What is the name of your state (only U.S. law)? Florida
I have filed a pro-se motion for dismissal based on an exception to the dangerous instrumentality doctrine. I stated cases to support my position, which the opposing attorney has had time to review prior to the hearing. I fully expect him to state other cases to support his position, which of course I will have no time to review. Can I ask the judge for a continuance to study his cases before I respond, or do I have any rights or other solutions? I will have subpoenaed witnesses already there that cannot return.

To be fair, you should already know his "cases". If you don't know his exact argument and which cases he will use (In general. There are always outliers that can help.), then you have no reason to expect or hope to win as a matter of law.

While I have no idea of your issue or timeline or why you are making legal arguments in court (At least the other side.), I have no way to guess as to more.

No competent attorney has ever made a brief (motion in this case), without knowing most of the law the other side will cite. Not all attorneys are competent, agreed. And, there are issues about the level of the issue that is being discussed. Some issues need nothing more than a general citation. Others require more. There could certainly be a mismatch between the level of legal argument that can surprise a litigant. But, if you think the other side will pull up a case that will destroy you in oral argument and you are going to need some time to retort, I suggest hoping to win as a pro-se is nothing more than a dream. Better to hold out a hat by the side of the highway for donations.

The ONLY advantage a pro-se has is the fact he is obsessively focused on the particular legal issues and will do extensive research to fit the facts into the law. Sometimes the minor, minor law. "Hey, I found this series of cases from the 1900's that support my position and my position is not specifically overruled by any of the bazillions of cases I've read on this particular matter. I should win." is the pro-se's hope in law. The other side has books and things that point out the cases that make law. To be a pro-se and win as a matter of law requires you to know the law on your particular issue in debate far better than your adversary.

I would not hope for more time. You might get it, but I would not hope for it.

 

[quincy]

... While I have no idea of your issue or timeline or why you are making legal arguments in court (At least the other side.), I have no way to guess as to more ...

I'd be willing to guess that the "other side" is Geico (representing a party injured by a car titled to rividair) ... and that the Geico attorney is well aware of the doctrine of dangerous instrumentality and the case law that imposes strict vicarious liability upon the owner of a motor vehicle involved in an accident.

I'd also be willing to guess that rividair is counting on Palmer v. R.S. Evans, Jacksonville, Inc., 81 So. 2d 635, 637 (Fla. 1955) to support his legal argument that he is not liable for his wife's (ex-wife's) accident.

Just guesses, though.

rividair was advised before his May arbitration hearing to get an attorney. I personally think he should have followed that advice.

 

[latigo]

What is the name of your state (only U.S. law)? Florida
I have filed a pro-se motion for dismissal based on an exception to the dangerous instrumentality doctrine. I stated cases to support my position, which the opposing attorney has had time to review prior to the hearing. I fully expect him to state other cases to support his position, which of course I will have no time to review. Can I ask the judge for a continuance to study his cases before I respond, or do I have any rights or other solutions? I will have subpoenaed witnesses already there that cannot return.

I don't know what "exception" to Florida's "Dangerous Instrumentality Doctrine" you have in mind. Nor do I believe there is any such thing as an exception to the doctrine. The elements required for its application either exist or they don't exist.

One of those essential elements is "entrustment" - from the transitive verb "entrust" or "intrust".

And if you don't understand its implications to the lawsuit you are attempting to defend, and how it figures in the above mentioned "doctrine" as announced in the Florida case of Anderson v. Southern Cotton Oil Co., 73 Fla. 432, 74 So. 975 (1917) and how you might present it in argument in support of your motion to dismiss, then you have no business defending the action in proper person. Not unless you can afford to lose it.

And by the way, where does the ex wife stand in this lawsuit. If a co-defendant, have you cross-claimed against her for a judgment over? If not a named defendant, have you impleaded her into the action and asked for a judgment over?

 

[quincy]

I have a suspicion that rvidair is hoping to show that, although he held title to the vehicle at the time of the accident caused by his wife/ex-wife and it was registered in his name and he was still paying on the vehicle, he did not have beneficial ownership.

That a title holder does not exercise any control over a vehicle despite holding title can be considered by courts in Florida an exception to the dangerous instrumentality doctrine of strict vicarious liability.

See the Supreme Court of Florida decision in Aurbach v. Gallina and its discussion of "bare legal title versus beneficial ownership," (February 3, 2000):

http://caselaw.findlaw.com/fl-supreme-court/1366072.html

I provided a link to rvidair's earlier thread because it described his position as co-defendant in the Geico action (with his ex-wife the other defendant).

I am curious about the arbitration hearing and if there has been a motion for trial filed after the arbitration decision (if there has been a decision made in arbitration yet).

 

[Paul84]

What is the name of your state (only U.S. law)? Florida
I have filed a pro-se motion for dismissal based on an exception to the dangerous instrumentality doctrine. I stated cases to support my position, which the opposing attorney has had time to review prior to the hearing. I fully expect him to state other cases to support his position, which of course I will have no time to review. Can I ask the judge for a continuance to study his cases before I respond, or do I have any rights or other solutions? I will have subpoenaed witnesses already there that cannot return.

Rvidair,
I am also a pro-se (plaintiff). Here's my experience from federal court in New York with regard to motion hearings: the U.S. district judge handling my case requires the making of any motion via (single-spaced) letter not to exceed three pages; the party opposing the motion submits a letter under the same requirements; and each letter contains the cases supporting the respective positions. No reply (third letter) is allowed without the court's permission. In other words, you should have an opportunity to see what your opponent is hanging his hat on. And with regard to tranquility's points, no, I never knew in advance what (inapposite) cases the other side would throw up until I saw their responding or initiating letter for a hearing. And no, I have not lost the lawsuit nor do I expect to.

At one point, however, with regard to a third oral hearing (by phone), I did mention in one of my letters that I would prefer the judge to decide the motion(s) without an oral hearing because, as you recognise, a pro-se faces several disadvantages: (a) the opposing lawyer has access to paid case-law databases such as WestLaw that you won't probably have; (b) if a big law firm, the lawyer will also have sophisticated software that can track down cases rapidly, even while on the phone (or in court); and (c) anything said in an oral (telephonic) hearing will require a subsequent and expensive transcript for the pro-se to buy if he wants to appeal the decision later on. I made these (a) through (c) arguments, and the judge seemed to agree because he then cancelled a scheduled oral hearing on cross motions for summary judgment. Instead, as I asked, he is deciding just on the papers submitted.

With regard to your hearing, there should be sufficient time between the other side's submission and the hearing date for you to research the published cases on Google Scholar. In federal court, the other side must provide non-published (WestLaw) cases to a pro-se opponent so that you can see what their points are. If the judge has granted ample time between submissions and hearing date, but your own schedule is inconvenient, ask for a continuance, or even request an "adjournment sine die" (cancellation) by making the same (a) through (c) arguments above. As for witnesses you want to attend, what about just getting their declarations, signed under penalty of perjury, attesting to whatever facts you ask them about? I'm sure they would prefer that to going to court.

 

[quincy]

A lot depends on whether this is still the arbitration hearing (which was scheduled for May 9).

It would be nice if rvidair would return to say if a decision was made in arbitration and, if so, what the decision was. The decision would have been delivered to the parties no later than 10 days after the arbitration's completion.

If a motion was made for a trial after arbitration, the motion needed to be filed within 20 days of service of the decision. If it is rvidair who is seeking a dismissal (on whatever grounds), it would appear to be Geico that filed the motion for trial (which would mean the arbitration decision was in rvidair's favor).

At any rate, clarification would be nice.