Is a memo to Judge a good thing?

AL

I have a complicated small claims case. The Defendant has an attorny and I am representing myself.

Due to the complexity, and my fear that I will overlook something and mess up procedurally, is it advisable/smart to submit a concise memo to the court?

In it I would refer to actual case law and how my claims meet the legal requirements.

I could then use this as a reference guide/outline when actually in court.

Thanks in advance for any advice.

Is it advisable/smart to submit a concise memo to the court?

I read that as asking if it is advisable to submit beforehand. If that is the question, the answer is that it is neither advisable nor smart. It would be what is called an ex parte communication, even if in the form of a legal brief, and it is proscribed. The attorney that you may be facing would be expected to know that and could face problems with the court, is he/she did it.

If the case is that complex and your concern that great, have a copy of what you might submit with you and offer it to the court at the conclusion of your summation, after you’ve recited the facts, the law that supports a favorable ruling and the case authority interpreting that law. Let the court decide if it wants to take the case under submission (consider it further and issue a written ruling later) to review your brief. Don’t do it in advance. The court may be more lenient because you’re a pro se but will still be unhappy and, if it was inadvertently read, may feel that it’s appropriate to transfer the case to another judge, who has not seen it.

To dcatz

Thank you for the advice. I will not send a memo, but will submit everything after my in court statements. Thanks again.

No, that is not how small claims work .

Half the time the Judge doesn't even look at the evidence .

They just ask if you have proof with you and you hold it up and say right here .

BL – I respect your opinion, and I’m not clear on what part of what prior posting you disagree. Also, AL is not my state. But, in my experience, it is both inaccurate and a disservice to the bench officer to say evidence is not reviewed and considered. Your final statement implies for me that litigants could hold up a handful of yesterday’s junk mail, say that they have evidence supporting their position and that statement would suffice. I hope that I’m drawing an incorrect inference of what is meant.

dcatz said:

BL – I respect your opinion, and I’m not clear on what part of what prior posting you disagree. Also, AL is not my state. But, in my experience, it is both inaccurate and a disservice to the bench officer to say evidence is not reviewed and considered. Your final statement implies for me that litigants could hold up a handful of yesterday’s junk mail, say that they have evidence supporting their position and that statement would suffice. I hope that I’m drawing an incorrect inference of what is meant.

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I wasn't disagreeing . I was stating no , the small claims usually won't take evidence prior to the hearing anyways .

I don't mean to imply to a court wouldn't take the evidence to look at .

And I'm not in that State either .

Small claims are for the most part informal , and heard then and there when scheduled .

In my experience of trying to get evidence in prior to the hearing date wasn't allowed .

Believe it or not , I have been in small claims a few times , where the judge ask if I had the supporting documents in front of me , but when offered copies , the court did not want to see them .

So , in your analogy , yes I could have had junk mail . Amazing isn't it ?

A few I won , a few I lost , one or two I filed for trial de novo .

Believe me , I thought it strange the court didn't want my documents to review .

Just my experience .

I didn't intend for the poster , and readers to imply that evidence wouldn't be reviewed .

As one Judge put it to me , this is how I run things here .

That's one of the cases I refiled on .

As one Judge put it to me , this is how I run things here .

That's one of the cases I refiled on .

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And I don’t blame you.
I don’t retract what I said as a general proposition, but that judge did the disservice – to himself and to his court. I’m sorry that you had that experience.
SC is called “the Peoples’ Court” and for good reason. Sometimes, it is the first and only time that a layperson will participate in the judicial process. Win or lose, they should feel that they had the benefit of the process.
SC doesn’t accept evidence or pleadings like briefs or Points and Authorities in advance. It’s not designed to operate that way.
Courts don’t like to receive evidence that can’t be quickly reviewed and returned during the hearing, because there is seldom a mechanism for retaining and returning later.
And some litigants just bring too much “stuff” that’s not necessary to make a ruling.
All that said, litigants should never have the feeling that what they believe is relevant is ignored. In my opinion, if a bench officer is going to decline evidence, it should only be when he/she is prepared to make a ruling, and the announcement of the ruling should make it clear why further evidence was not required or was superfluous.

At the same time, in fairness, I should add that some judges learn by bad experiences inviting evidentiary offerings. Some litigants are not smart about what they consider relevant.
I could tell you stories – like the litigant who sued the landlord for breaches of warranties of “fitness for purpose” and “quiet enjoyment”, when insect extermination was ineffective. To prove his point, he up-ended a Quaker Oats box of live roaches, which then scattered about the courtroom, with inevitable results. Or the one who complained about neighbors’ noisy weekend parties and turned on a briefcase tape recorder at a volume that damaged eardrums
With that kind of evidence, you wouldn’t want to hear stories about “doggie nuisance” and “doggie trespass” claims and what litigants consider relevant. Use your imagination.
In a time of ubiquitous camcorders and video cell phones – litigants who want to show videos are always refused, and properly so, in my opinion.
But most documentary evidence is (almost always) different.

dcatz said:

... litigants who want to show videos are always refused, and properly so, in my opinion.

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Why is video evidence refused?

Would a tape recording of a telephone conversation be refused also?

Why is video evidence refused?
Would a tape recording of a telephone conversation be refused also?

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There are many reasons, ranging from the practical and pragmatic to the legal. That’s an inadequate answer, but the list is long, and it would also change by state.

Among the top 3:
1) SC is generally swift and informal. It isn’t funded to operate like higher courts. Video equipment, overhead projectors etc. don’t exist. Bring your own? Hearings are designed to start and finish in 10-20 minutes. Giving you 30 minutes to set-up and 15 minutes to screen and then starting the case isn’t going to happen.
2) Evidence is not generally admitted beforehand. Therefore, nobody, including the court, knows what it’s going to see. It could be inflammatory, improperly prejudicial or some porno tape that your kid substituted for a joke. No.
3) SC is informal, but the rules of evidence aren’t thrown out the window. The bench officer is expected to self-monitor, rather than deal with motions in limine and the objections that attorneys might raise to evidentiary introduction. When you add to that the fact that advance discovery is not permitted in many, if not most states, you recognize that there is no means such as exists in higher courts to verify and authenticate evidence. You could cobble together bits and pieces of anything from anywhere and, if you’re skilled, come up with a fake that simulates the real thing. The risks outweigh the benefits.

The list could go on and get more detailed, but I trust that you get the idea. Rules of evidence have a sound, logical basis to ensure the integrity of the proceeding. Practically and costs aside, those protections don’t exist in SC. That facilitates the operation of SC; satisfying the needs that you pose is inconsistent and counterintuitive.

A state such as FL has a SC rule permitting the court, at its discretion, to make a general procedural rule a part of the SC proceeding. I’m not FL. I suppose such a SC rule holds the potential for making a proceeding the functional equivalent of a trial in a higher court, with all of the limits and protections re-instated. I don’t know for a fact, but I suspect that discretion is cautiously exercised and applied. Otherwise SC disappears for practical purposes.

I have filed and won two Small Claims cases in NH, and have lost one. The one that I lost, I was able to appeal directly to the New Hampshire Supreme Court. The Supreme Court vacated the ruling against me and allowed me to refile it in Superior Court.

The point of this reply is this: Without a complete record, including all the evidence presented in the Small Claims venue, the Supreme Court would have not even considered the case. And yes... at least in this state, you can appeal a Small Claims case directly to the state Supreme Court.

I would suggest that all the facts and law concerning your claims should be presented to the Small Claims Court in writing at the BEGINNING of your testimony. Along with the facts and law, include all the evidence in an appendix. Refer to the appendix, by page number, in your written facts and law.

In this state you must hand a copy to the opposing side at the time of handing it to the court.

It would not hurt to have the facts and law notarized, as sometimes it must be presented as an affidavid.

I'm not a lawyer...