appealing my case, qs about the trial and decision.

[appealsQ.]

I am appealing my small claims decision, filed in NYC, and have questions regarding my trial and would like to know if potentially any laws were broken or if proper protocol was denied me in anyway.

1. The defendant did not show up to the first court date, which his lawyer requested postponement for. At the postponement, after waiting nearly 3 hours (I was the last case reviewed that evening), although his office was 20 blocks from the courthouse and he owned an office phone and a cellphone, he had not shown up and his lawyer claimed that his own cellphone was dead and so he could not reach his client. Citing "extenuating circumstances", he requested another postponement. I, who was pro se, was asked on the spot to decided whether or not we should proceed with the case.

2. Once trial had begun, the defendant's lawyer claimed he had not had the opportunity to speak with me. (Although he never approached me once during the three hour wait, or called, emailed, mailed me before the court dates) He said he did not have cause of action and so we were both asked to go to a side area and discuss it with each other before resuming the trial. I thought it was peculiar bc he acted as if he did not know anything about the case and therefore insisted I answer his general question of "what happened" asking me to recount my side of the events and my whole case. He did not discuss cause of action and ignored my questions, particularly the one about whether or not he had discussed the case with his own client. At this time, I did not know what 'cause of action' meant.

I thought both of these situations were very weird, but I went along with them as I did not know anything and the judge had directed both situations. Were they normal or was my chance at full parameters of justice hindered? Was I put in a situation where I undermined myself?

3. Finally, I would like to know if I have a case in appealing my judge's decision itself. She felt that emotional distress was caused but inappropriate by not "extreme and outrageous conduct". However, not only do I feel I have proof that my situation involved "extreme and outrageous conduct", I also feel these definitions are irrelevant as the defendant should be held liable for injury caused. On the suggestion of a social worker, a counseling center reviewed my case surrounding my experiences with the defendant and assigned me a psychotherapist. I sued for damages due to emotional distress and was hoping to cover my co-pay. IF it had not been for my therapist, I would not have been able to cope at a time I did not feel I could speak to anyone about my experiences.

Do I have a case to appeal the judge's decision? And if so, where should I start?

 

[quincy]

... if so, where should I start?

You should start by providing us with the name of your U.S. state.

 

[Zigner]

I am appealing my small claims decision and have questions regarding my trial and would like to know if potentially any laws were broken or if proper protocol was denied me in anyway.

1. The defendant did not show up to the first court date, which his lawyer requested postponement for. At the postponement, after waiting nearly 3 hours (I was the last case reviewed that evening), although his office was 20 blocks from the courthouse and he owned an office phone and a cellphone, he had not shown up yet and his lawyer claimed that his own cellphone was dead and so he could not reach his client. Citing these extenuating circumstances, he requested another postponement. I, who was pro se, was asked on the spot to decided whether or not I proceed with the case. The defendant did not show up at all.

2. Once trial had begun, the defendant's lawyer claimed he had not had the opportunity to speak with me. (Although he never approached me once during the three hour wait, or called, emailed, mailed me before the court dates) He said he did not have cause of action and so we were both asked to go to a side area and discuss it with each other before resuming the trial. I thought it was peculiar bc he acted as if he did not know anything about the case and therefore insisted I answer his general question of "what happened" asking me to recount my side of the events and my whole case. He did not discuss cause of action and ignored my questions, particularly the one about whether or not he had discussed the case with his own client.

I thought both of these situations were very weird, but I went along with them as I did not know anything and the judge had directed both situations. Were they normal or was my chance at full parameters of justice hindered? Was I put in a situation where I undermined myself?

3. Finally, I would like to know if I have a case in appealing my judge's decision itself. She felt that emotional distress was caused by inappropriate by not "extreme and outrageous conduct". However, not only do I feel I have proof that my situation involved "extreme and outrageous conduct", I also feel these definitions are irrelevant as the defendant should be held liable for injury caused. On the suggestion of a social worker, a counseling center reviewed my case surrounding my experiences with the defendant and assigned me a psychotherapist. I sued for damages due to emotional distress and was hopingn to cover my co-pay. IF it had not been for my therapist, I would not have been able to cope, at a time I did not feel I could speak to anyone about my experiences.

Do I have a case to appeal the judge's decision? And if so, where should I start?

What state are you in?

 

[quincy]

What state are you in?

Is my post invisible?

 

[TigerD]

Is my post invisible?

What post?

DC

 

[appealsQ.]

You should start by providing us with the name of your U.S. state.

good point. My state is New York. The case was filed in NYC.

 

[sandyclaus]

I am appealing my small claims decision, filed in NYC, and have questions regarding my trial and would like to know if potentially any laws were broken or if proper protocol was denied me in anyway.

1. The defendant did not show up to the first court date, which his lawyer requested postponement for. At the postponement, after waiting nearly 3 hours (I was the last case reviewed that evening), although his office was 20 blocks from the courthouse and he owned an office phone and a cellphone, he had not shown up and his lawyer claimed that his own cellphone was dead and so he could not reach his client. Citing "extenuating circumstances", he requested another postponement. I, who was pro se, was asked on the spot to decided whether or not we should proceed with the case.

2. Once trial had begun, the defendant's lawyer claimed he had not had the opportunity to speak with me. (Although he never approached me once during the three hour wait, or called, emailed, mailed me before the court dates) He said he did not have cause of action and so we were both asked to go to a side area and discuss it with each other before resuming the trial. I thought it was peculiar bc he acted as if he did not know anything about the case and therefore insisted I answer his general question of "what happened" asking me to recount my side of the events and my whole case. He did not discuss cause of action and ignored my questions, particularly the one about whether or not he had discussed the case with his own client. At this time, I did not know what 'cause of action' meant.

I thought both of these situations were very weird, but I went along with them as I did not know anything and the judge had directed both situations. Were they normal or was my chance at full parameters of justice hindered? Was I put in a situation where I undermined myself?

3. Finally, I would like to know if I have a case in appealing my judge's decision itself. She felt that emotional distress was caused but inappropriate by not "extreme and outrageous conduct". However, not only do I feel I have proof that my situation involved "extreme and outrageous conduct", I also feel these definitions are irrelevant as the defendant should be held liable for injury caused. On the suggestion of a social worker, a counseling center reviewed my case surrounding my experiences with the defendant and assigned me a psychotherapist. I sued for damages due to emotional distress and was hoping to cover my co-pay. IF it had not been for my therapist, I would not have been able to cope at a time I did not feel I could speak to anyone about my experiences.

Do I have a case to appeal the judge's decision? And if so, where should I start?

An appeal is NOT an opportunity to re-present your case with different evidence in the hopes that the judge will find in your favor. In most cases, you can appeal if there is an error in how the law was applied/interpreted in your case. As you describe it above, that isn't the case. You were just displeased with how the attorney for the other party conducted himself, which isn't in itself improper. Judges expect the two sides to talk to each other, exchange evidence, discuss their side of the case, and attempt a resolution before bringing the case before the court to make the decision for you.

Whether or not the other attorney was informed by his own client as to the subject matter and merits of his case before he got there is unclear, but there doesn't seem to be anything unusual or improper about what he did or how he conducted himself prior to the actual hearing. It honestly sounds like you weren't able to clearly convince the court that you had a cause of action that required the judge to order the defendant to pay you damages.

If I'm not mistaken, I believe that as you are the plaintiff, you do not get to appeal if you aren't satisfied with the decision that the judge has made. The defendant can, if it doesn't go their way, but I don't think YOU can.

 

[FlyingRon]

As Sandy points out, Appeals from NY small claims are not DE NOVO retryings. You obtain the transcript of the original trial and show where there was some procedural error on it.

Continuances are routinely granted and frankly, if you don't want them, you have to protest them at the time they were made. You don't get to bring that up now (unless you were denied your objection and you wish to show that there was some prejudicial error made to your case).

Your ignorance of trial procedure is also not grounds for an appeal. This is the risk when you go pro per. Conferences between the parties is not uncommon nor improper. Frankly, civil trials are not "surprise" events. You are obliged to disclose your case to the other side either through pretrial discoveries or during the trial itself. Most likely the disclosures you made in conference did not affect your case. They are not grounds for appeal anyhow.

Your opinion on the emotional distress law is INCORRECT. This is again what happens when you do not research or have counsel prior to trial. Small claims rarely awards emotional distress claims. You have to show four points to win this in NY:

Defendant acted intentionally or recklessly; and
Defendant’s conduct was extreme and outrageous; and
Defendant’s act is the cause of the distress; and
Plaintiff suffers severe emotional distress as a result of defendant’s conduct​

Note the word AND joining each of these clauses.

The definitions are not irrelevant, they ARE THE LAW. In your original case you have to show EACH one of these to prevail. If you didn't make those points in the trial, you again can NOT bring them up in appeal.

The only grounds you have for appeal is if you did make these points, and the judge incorrectly disregarded one. You'd have to again by the transcript show the judge made an error in the application of the law to your presented evidence.

 

[Zigner]

Is my post invisible?

I was on my laptop with an itty-bitty screen

 

[BL]

An appeal is NOT an opportunity to re-present your case with different evidence in the hopes that the judge will find in your favor. In most cases, you can appeal if there is an error in how the law was applied/interpreted in your case. As you describe it above, that isn't the case. You were just displeased with how the attorney for the other party conducted himself, which isn't in itself improper. Judges expect the two sides to talk to each other, exchange evidence, discuss their side of the case, and attempt a resolution before bringing the case before the court to make the decision for you.

Whether or not the other attorney was informed by his own client as to the subject matter and merits of his case before he got there is unclear, but there doesn't seem to be anything unusual or improper about what he did or how he conducted himself prior to the actual hearing. It honestly sounds like you weren't able to clearly convince the court that you had a cause of action that required the judge to order the defendant to pay you damages.

If I'm not mistaken, I believe that as you are the plaintiff, you do not get to appeal if you aren't satisfied with the decision that the judge has made. The defendant can, if it doesn't go their way, but I don't think YOU can.

Not sure how NYC works , but outside of NYC , either party can if heard by a Judge.

Also there are different kind of appeals , one of which is a Trial De Novo ( means a brand new trial ).

Ask the clerk of the court.

Most always costing money and the same outcome.

http://www.nycourts.gov/courts/6jd/madison/oneida/civil/scappeal.shtml

 

[appealsQ.]

And what is defined as 'intentionally and recklessly' and 'extreme and outrageous'? Is this up to the judge's discretion? where can i find out more about this?

As Sandy points out, Appeals from NY small claims are not DE NOVO retryings. You obtain the transcript of the original trial and show where there was some procedural error on it.

Continuances are routinely granted and frankly, if you don't want them, you have to protest them at the time they were made. You don't get to bring that up now (unless you were denied your objection and you wish to show that there was some prejudicial error made to your case).

Your ignorance of trial procedure is also not grounds for an appeal. This is the risk when you go pro per. Conferences between the parties is not uncommon nor improper. Frankly, civil trials are not "surprise" events. You are obliged to disclose your case to the other side either through pretrial discoveries or during the trial itself. Most likely the disclosures you made in conference did not affect your case. They are not grounds for appeal anyhow.

Your opinion on the emotional distress law is INCORRECT. This is again what happens when you do not research or have counsel prior to trial. Small claims rarely awards emotional distress claims. You have to show four points to win this in NY:

Defendant acted intentionally or recklessly; and
Defendant’s conduct was extreme and outrageous; and
Defendant’s act is the cause of the distress; and
Plaintiff suffers severe emotional distress as a result of defendant’s conduct​

Note the word AND joining each of these clauses.

The definitions are not irrelevant, they ARE THE LAW. In your original case you have to show EACH one of these to prevail. If you didn't make those points in the trial, you again can NOT bring them up in appeal.

The only grounds you have for appeal is if you did make these points, and the judge incorrectly disregarded one. You'd have to again by the transcript show the judge made an error in the application of the law to your presented evidence.

 

[sandyclaus]

And what is defined as 'intentionally and recklessly' and 'extreme and outrageous'? Is this up to the judge's discretion? where can i find out more about this?

I found these definitions of "intentionally" and "recklessly" here http://ypdcrime.com/penal.law/article15.htm:

"Intentionally." A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.

"Recklessly." A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto.

Although case law does not provide us with a precise definition of "extreme and outrageous," the test adopted by many courts for actionable conduct is that the conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."

 

[BL]

A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto.

Just to comment on that ,the supreme court has refused to hear cases of intoxication ,where the lawyers argue there clients did not know what they were doing, therefor aren't guilty of the crimes that lower courts upheld their convictions.