Throughout this semester, I have been on the Defendant's side--the one receiving a Complaint from the Plaintiff and must now go to Court. The lawyer I worked with is mainly a Defense Attorney, but he does work the other side too.
Recently I have become the Plaintiff in a case. I won't go into detail about exactly what it is since I have not had my hearing yet, but I will give an overview of what is going on and what I have had to do.
Being the Plaintiff means that you are the one who filled out a Complaint for something against the Defendant. The Plaintiff is the one who takes the other side to Court to resolve an issue. The first step is filling out a Complaint form. In this form, you write your name, address and phone number under the Plaintiff, and you write the person's information who you are taking to Court under the title of Defendant.
Then, you write exactly why you are taking the Defendant to Court. You must be specific in this part because if you are not and you go to Court and lose, then you won't get what you wanted. For example, if you are taking someone to Court for a replacement of a security deposit, you must specifically write that in the Complaint. Once you go to Court, if you lose and you realize that you went to Court for the wrong thing, you have to start all over again.
Once you have filled out the Complaint or "Civil Summons," as it is also known as, you have the option of filling out a form to waive all fees. You can do this if you don't have enough money to pay for Court costs or anything else. I did this because I'm a student and have no source of income; therefore, I filled out a form to waive all fees. So, now going to Court won't cost me anything whether I win or lose.
Now that I have done this, I wait for a hearing date to be scheduled. All conversation or new information about my case is first sent to my lawyer. Even if someone wants to talk to me about the case, they must talk to my lawyer first. I've gathered all the information I need in order to win this case. This means anything related to my case--i.e. documents, video recordings, photos etc.--I have kept to bring to Court so that I have evidence that can back up my side of the story and, hopefully win the case.
It's frusterating not knowing exactly what is going on with my case, since I am not working with my lawyer anymore. You only know what you know until your lawyer contacts you with new information. Until then you must wait.
Thursday, April 29, 2010
Monday, April 26, 2010
Writing an Order
Orders are the documents written after a hearing ends and a conclusion has been made. At the end of a hearing, the Judge or Jury will decide what the outcome should be. When they have made their decision they will tell the Court what they have decided will happen. When they have said the conclusion, the Judge appoints one of the sides (usually the winner) to write the Order.
It's important that both lawyers take notes throughout the hearing so that they know what to write on the Order if they are assigned to do it. At the end the Judge will say, "this is what's going to happen...your client will be charged with A and C, but not B...therefore, your client needs to do X, Y, and Z." When the Judge says this, both lawyers write done the outcome. The Judge will then say for example, "Counsel for the Defendant, you'll write the Order." That lawyer will then have to type up the Order.
An Order first starts with a title. So, for example this is what one may look like:
It's important that both lawyers take notes throughout the hearing so that they know what to write on the Order if they are assigned to do it. At the end the Judge will say, "this is what's going to happen...your client will be charged with A and C, but not B...therefore, your client needs to do X, Y, and Z." When the Judge says this, both lawyers write done the outcome. The Judge will then say for example, "Counsel for the Defendant, you'll write the Order." That lawyer will then have to type up the Order.
An Order first starts with a title. So, for example this is what one may look like:
WEST VIRGINIA MARION COUNTY CIRCUIT COURT
DIVISION II
STATE OF WEST VIRGINIA,
PLAINTIFF,
VS. CASE NO. XX-X-XXX
JOHN SMITH,
DEFENDANT.
FINAL HEARING ORDER
Once the title is completed, we must then write everyone who was present during this hearing. We must write that the Defendant was present, represented by their lawyer, John Smith. The Plaintiff was present, represented by their lawyer, Jane Smith. We must also state everyone else who present during the hearing.
Then we go on to write what happend prior to the conclusions that were made. For example, we may write that the Court told the Defendant what they were being charged with and the Defendant understood their rights and what was going on.
When we are finished writing what happened prior to the conclusion, we then state that the Court accepted A, B, and C and now ORDERS that X, Y, and Z must occur. For example, if someone had a DUI and the Court accepted to expunge this charge within a year, but only if the Defendant went to class and did six months probation and community service, this is what the Court may ORDER:
The Court ACCEPTS the DUI of the Defendant, John Smith, and further ORDERS the following. It is ORDERED that the Defendant must remain on six months probation. It is further
ORDERED that the Defendant must attend Alcoholics Anonymous and show reports for these meetings. It is further
ORDERED that the Defendant complete one hundred hours of community service and report it to his probation officer. It is further
ORDERED that a true copy of this Order shall be sent to the Defendant, the Prosecutor, and the Judge to be filed into the Court system.
Once the lawyer has written the Order, they must send a copy of it to the Judge, the Prosecutor, and their client. The Judge and Prosecutor have five days from the time they receive the Order to either accept it or reject it. If they accept it, then they must sign their name at the bottom. If they don't accept it, then they must call the lawyer who wrote it and tell them why. The lawyer will then re-write the Order and send it again. However, if neither the Judge nor the Prosecutor say anything about the Order after five days of receiving it, the Judge may automatically enter it into the Court system.
Coming up with questions for a case
When I wrote about going to court, I mentioned that I had to come up with questions to ask the client as well as the opposing side. I will use my own case to describe the processes I went through when coming up with questions.
In my case with my apartment, I was being taken to court for a security deposit. The apartment's claim was that because I had taken in an abandoned kitten, I had to forfeit my security deposit. To my knowledge, they wanted my deposit because of possible damage that the kitten could have made to the apartment. My lawyer asked me to come up with questions to ask me and to ask the opposing side when we were in court.
I didn't know where to start or what kind of questions I should ask. When I asked Harry, he told me that I wanted to ask questions that would benifit my side. He said since the apartment is saying that they want the security deposit for possible damages that occur, I should ask questions of where the damage was.
For example, these are some of the questions I came up with to ask the apartment:
Was there damage done to the apartment?
Was the carpet damaged in the living room, the three bedrooms, and the hallway?
Was there damage done to the tile in the kitchen and the bathroom?
Was there damage done to the walls in the apartment?
Who came to check the damage?
Is there any evidence of the "damage" (i.e. pictures, video, etc.)?
Are there any scratch marks done to the walls or the carpet or the tile in any of the rooms?
Are there any urine stains on the carpet?
These questions may seem a bit repetitive, but it is done so for a reason. We wanted to prove that the apartment had no such damage done to it and if there was damage, there was no hard evidence of it. There were no photos or video taken, and the only person who came by to check was a maintenance guy who said he couldn't tell there was any animal in the apartment.
These questions are used so that the apartment has to answer them honestly and after they answer "no," then the Court would see that a forfeited security deposit was not necessary.
When coming up with questions to ask me, they were questions that would show the Court that I am a responsible tenant who was trying to do the right thing.
For example, these are some of the questions I came up with to ask me:
Do you live at this (insert address) apartment?
How long have you lived there?
Have you paid all your rent and bills on time?
Why did you take in this abandoned kitten?
Were you planning on keeping it as a pet?
Did you do everything you could to find it a home?
How long did you have it before you found a home for it?
Was there any damage done to the apartment because of it?
Did anyone come by to check the apartment?
These kinds of questions would help the Court see that I was in fact a good tenant and that I had only taken in the kitten because I was trying to save it. By showing that I had no intention of ever keeping it, the Court sees that I was not trying to go against the landlord, but instead help a kitten that had nowhere to go.
When coming up with these questions, it's important to remember that you always want to ask questions that will benefit your client. You want questions that will force the opposing side to admit their wrong-doings and prove that the client was right in their decisions and that they should not have to comply to the opposing side.
In my case with my apartment, I was being taken to court for a security deposit. The apartment's claim was that because I had taken in an abandoned kitten, I had to forfeit my security deposit. To my knowledge, they wanted my deposit because of possible damage that the kitten could have made to the apartment. My lawyer asked me to come up with questions to ask me and to ask the opposing side when we were in court.
I didn't know where to start or what kind of questions I should ask. When I asked Harry, he told me that I wanted to ask questions that would benifit my side. He said since the apartment is saying that they want the security deposit for possible damages that occur, I should ask questions of where the damage was.
For example, these are some of the questions I came up with to ask the apartment:
Was there damage done to the apartment?
Was the carpet damaged in the living room, the three bedrooms, and the hallway?
Was there damage done to the tile in the kitchen and the bathroom?
Was there damage done to the walls in the apartment?
Who came to check the damage?
Is there any evidence of the "damage" (i.e. pictures, video, etc.)?
Are there any scratch marks done to the walls or the carpet or the tile in any of the rooms?
Are there any urine stains on the carpet?
These questions may seem a bit repetitive, but it is done so for a reason. We wanted to prove that the apartment had no such damage done to it and if there was damage, there was no hard evidence of it. There were no photos or video taken, and the only person who came by to check was a maintenance guy who said he couldn't tell there was any animal in the apartment.
These questions are used so that the apartment has to answer them honestly and after they answer "no," then the Court would see that a forfeited security deposit was not necessary.
When coming up with questions to ask me, they were questions that would show the Court that I am a responsible tenant who was trying to do the right thing.
For example, these are some of the questions I came up with to ask me:
Do you live at this (insert address) apartment?
How long have you lived there?
Have you paid all your rent and bills on time?
Why did you take in this abandoned kitten?
Were you planning on keeping it as a pet?
Did you do everything you could to find it a home?
How long did you have it before you found a home for it?
Was there any damage done to the apartment because of it?
Did anyone come by to check the apartment?
These kinds of questions would help the Court see that I was in fact a good tenant and that I had only taken in the kitten because I was trying to save it. By showing that I had no intention of ever keeping it, the Court sees that I was not trying to go against the landlord, but instead help a kitten that had nowhere to go.
When coming up with these questions, it's important to remember that you always want to ask questions that will benefit your client. You want questions that will force the opposing side to admit their wrong-doings and prove that the client was right in their decisions and that they should not have to comply to the opposing side.
Wednesday, April 21, 2010
Going to Court
Today I was able to go to court to see an outcome of a murder case my lawyer has been working on. This case has been going on for about two years now. When it first began it was in the summer of 2008. The parents of a child were arrested for the murder of an infant. Once they were arrested, the process of finding them either innocent or guilty began. My lawyer was appointed this case when he replaced the previous defense attorney and represented the father as his defense lawyer.
Since I have been working on this case, it had been almost two years since it began. I researched the case to become familiar with it. I reviewed all the witnesses' files in order to put the whole story together. I had a basic understanding of what happened, but after going through these files and trying to put all the pieces together, I found it to be more difficult than I originally thought. People had different stories which didn't match up, but while going through files you could tell who was lying and who was telling the truth. I could tell that some people lied because their stories would change along the course of the case. One month they would say one thing, and the next month something in their story changed.
When I got into court today, it wasn't to see if the client was innocent or guilty. This hearing was done on April 12th. However, the court failed to tell the defendant what his rights were after the conviction. He was found guilty during the original hearing. So even though I wasn't able to attend that hearing, I was able to attend this one. When we arrived at the court house, we waited outside the court room until the client arrived and until the hearing began.
Once the defendant came, he was escorted by two police officers and had his hands and feet shackled together. It was a different feeling seeing the defendant face-to-face instead of just in a photograph. This person had no emotion and had a blank stare. It was as if it wasn't a person, but just a body walking into the court room. When we went into the court room, I sat in the back, while the defendant and my lawyer and his co-counsel went to sit on the left side of the court. The prosecutor sat on the right. The two police officers stood behind the defendant. There were a few other people in the room (the person who records everything that is said during the hearing, the bailiff, and a few other people sitting where I was).
When the judge came in, we were advised to stand and then to be seated. When it began, the judge introduced who was present and why they were having this hearing. He apologized for the court not telling the defendant what his rights were after the conviction. Prior to the judge coming in, my lawyer told the defendant what his rights were and made sure he understood. The judge retold the defendant what his rights were and that if he had any questions he could ask his lawyers. All this only took about fifteen minutes and then they were done.
Once the hearing was over, the defendant was escorted back to his holding cell. He had something to give to his lawyer, so we followed him and his escorting officers back to the holding cell. As we walked, we had to go outside to go to the next building over. When we went out, the sides were lined up with officers standing by just in case something were to happen. It surprised me how much security there was for one man, but at the same time it made sense. We didn't actually go into his cell because what he wanted to give us was at the entrance of the jail. After we grabbed that, we left.
I've been to court to witness domestic violence cases, and I've also been to court for myself, but going to court for a murder case with a convicted criminal is completely different. The court house was much bigger. The defendant was escorted by police officers. When the judge came into the room, it was more formal, where we had to stand before he told us we could sit. There was someone who recorded everything that was said. It was a good experience to be able to go see a hearing in that kind of a court room with a murder case, but it would have been interesting to see the actual hearing that decided if the defendant was either innocent or guilty.
Thursday, April 8, 2010
Writing a Complaint
I had to write a complaint during work one time. My lawyer was representing a young woman who was filing a complaint to her landlord. In this case, she was the Plaintiff. Her landlord was the Defendant.
The first thing we had to do is file a complaint. A complaint plainly states why the Plaintiff is filing a "Civil Summons." The complaint includes the parties involved with their addresses.
Then, it states where the issue took place and under what law or rule it goes against in that state. After this section, the general allegations are listed. These are what the Plaintiff is charging the Defendant for.
After the allegations, the course of action that had to be taken because of them are listed. The last part of the complaint is the prayer relief, where the Plaintiff states what they want the outcome to be of this complaint.
It's a simple document that is filed by the court which states what the Plaintiff is charging for, what actions they had to take because of what they're charging for, and what they think the outcomes should be. It has to be extremely detailed because you need to be precise about what you are charging the Defendant for.
The first thing we had to do is file a complaint. A complaint plainly states why the Plaintiff is filing a "Civil Summons." The complaint includes the parties involved with their addresses.
Then, it states where the issue took place and under what law or rule it goes against in that state. After this section, the general allegations are listed. These are what the Plaintiff is charging the Defendant for.
After the allegations, the course of action that had to be taken because of them are listed. The last part of the complaint is the prayer relief, where the Plaintiff states what they want the outcome to be of this complaint.
It's a simple document that is filed by the court which states what the Plaintiff is charging for, what actions they had to take because of what they're charging for, and what they think the outcomes should be. It has to be extremely detailed because you need to be precise about what you are charging the Defendant for.
Being the Client
During my internship I was able to be on both sides--the lawyer and the client. I had to go to court this semester for something and I was on the side of the client. My supervisor decided he would represent me. During this time I was able to see what the lawyer needs to go through, as well as what the client needs to do.
The first thing that happens is that the client receives a "Civil Summons." This is the court informing the client that someone is taking you to court. In this document, the Plaintiff (the one taking the Defendant to court), states the complaint. Once the client receives this, they can file and "Answer."
In my case, my lawyer filed an "Answer" to the court and to the Plaintiff. In this document are the reasons why the Defendant is innocent and should not be charged. I had a total of nineteen defenses as to why I was not in the wrong.
Once this is sent in, the court sends out a hearing date to both the Plaintiff and the Defendant. Once the date is set, both parties wait until the hearing. If either side has a conflict with the date and time given, they may ask for a continuance--also known as a "Motion to Continue."
Since neither party filed a "Motion to Continue," we waited until the hearing. A few days before the hearing, my lawyer had me come up with questions he could ask both sides. The questions asked for the Plaintiff are direct, simple and to the point. The questions for the Defendant, his client, are ones that show that they are a good person and did not do anything wrong.
The day of the hearing, we went over what the game plan was and what the outcomes could be. We arrived fifteen minutes before the hearing was supposed to start. Thirty minutes after the hearing was supposed to start, the Plaintiff never appeared. Because of this, the case was dismissed by the Judge.
Once this is decided, a week later, the client, the attorney, and the other party receive an Order stating the outcome of the hearing. In this Order, it states "After considerin evidence and authorities, the court jury finds, and the court enters a judgment as follows:
PLAINTIFF FAILED TO APPEAR; DISMISSED"
He then signs the paper and sends it to be filed in the Court Clerk's Office. He also sends it to the parties who were involved.
Once the Order has been sent out and filed, the case is over. In my case, I won and didn't have to pay any of the charges.
The first thing that happens is that the client receives a "Civil Summons." This is the court informing the client that someone is taking you to court. In this document, the Plaintiff (the one taking the Defendant to court), states the complaint. Once the client receives this, they can file and "Answer."
In my case, my lawyer filed an "Answer" to the court and to the Plaintiff. In this document are the reasons why the Defendant is innocent and should not be charged. I had a total of nineteen defenses as to why I was not in the wrong.
Once this is sent in, the court sends out a hearing date to both the Plaintiff and the Defendant. Once the date is set, both parties wait until the hearing. If either side has a conflict with the date and time given, they may ask for a continuance--also known as a "Motion to Continue."
Since neither party filed a "Motion to Continue," we waited until the hearing. A few days before the hearing, my lawyer had me come up with questions he could ask both sides. The questions asked for the Plaintiff are direct, simple and to the point. The questions for the Defendant, his client, are ones that show that they are a good person and did not do anything wrong.
The day of the hearing, we went over what the game plan was and what the outcomes could be. We arrived fifteen minutes before the hearing was supposed to start. Thirty minutes after the hearing was supposed to start, the Plaintiff never appeared. Because of this, the case was dismissed by the Judge.
Once this is decided, a week later, the client, the attorney, and the other party receive an Order stating the outcome of the hearing. In this Order, it states "After considerin evidence and authorities, the court jury finds, and the court enters a judgment as follows:
PLAINTIFF FAILED TO APPEAR; DISMISSED"
He then signs the paper and sends it to be filed in the Court Clerk's Office. He also sends it to the parties who were involved.
Once the Order has been sent out and filed, the case is over. In my case, I won and didn't have to pay any of the charges.
Sunday, March 7, 2010
Steps Being Taken for a Long-Term Project
I have been working on a long-term project to create a basic layout of what to expect when defending someone in a domestic violence case. This "what to expect" information is geared towards probono lawyers who, domestic violence may not be their strong point. Because of the lack of understanding of domestic violence cases, I understand that I must cover a wide variety of information to include, without it being overwhelming.
The first step I took to tackle this project was to talk with both my boss and the woman who I am doing this for. Both told me basic things that should be included: frequently asked questions, what to expect before, during, and after court, questions to ask the defendant, etc.
Second, I began to brainstorm ideas of what should be included. I looked at it from a couple of different perspectives: someone who has no idea about domestic violence laws, someone who has worked with these cases a time or two, and those who are very familiar with domestic violence. I had to include a broad range of information so that it was not overwhelming, but gave a lot of information.
Third, I had to get a basic knowledge of the subject before I could really know what I wanted to look for. I received a couple brochures and handouts from RDVIC (Rape and Domestic Violence Information Center), and I also talked to my boss about where he goes to find information on subjects he's not sure of. He directed me to the West Virignia Benchbook website where I could find all the laws on domestic violence for West Virginia, which was a huge help.
I researched the West Virginia Benchbook for a couple of days to get all the information I could on the laws about domestic violence. After I had gathered all the information I thought was most important, I sorted through it all and grabbed what the most important and relevant information was. I decided what to pull from the conversations I have had with my boss and what he thought was helpful when he started doing probono work for domestic violence cases.
I decided to pull the most basic but relevant information for these cases. I pulled what the exact definition of domestic violence was and what circumstances it has. I also pulled the information on the difference between domestic violence and battery. I decided to include information about what to do after a hearing (i.e. getting an appeal).
After I pulled what I thought was most important to include, I emailed the woman I am working with to give her an idea of what direction I am going in and what she thought about it. While waiting for a response, I have begun creating different possible layouts that could be used to portray the information. Up until this point, I have done what I can until I receive some feedback. Once I have more direction, I will be able to complete this project successfully.
The first step I took to tackle this project was to talk with both my boss and the woman who I am doing this for. Both told me basic things that should be included: frequently asked questions, what to expect before, during, and after court, questions to ask the defendant, etc.
Second, I began to brainstorm ideas of what should be included. I looked at it from a couple of different perspectives: someone who has no idea about domestic violence laws, someone who has worked with these cases a time or two, and those who are very familiar with domestic violence. I had to include a broad range of information so that it was not overwhelming, but gave a lot of information.
Third, I had to get a basic knowledge of the subject before I could really know what I wanted to look for. I received a couple brochures and handouts from RDVIC (Rape and Domestic Violence Information Center), and I also talked to my boss about where he goes to find information on subjects he's not sure of. He directed me to the West Virignia Benchbook website where I could find all the laws on domestic violence for West Virginia, which was a huge help.
I researched the West Virginia Benchbook for a couple of days to get all the information I could on the laws about domestic violence. After I had gathered all the information I thought was most important, I sorted through it all and grabbed what the most important and relevant information was. I decided what to pull from the conversations I have had with my boss and what he thought was helpful when he started doing probono work for domestic violence cases.
I decided to pull the most basic but relevant information for these cases. I pulled what the exact definition of domestic violence was and what circumstances it has. I also pulled the information on the difference between domestic violence and battery. I decided to include information about what to do after a hearing (i.e. getting an appeal).
After I pulled what I thought was most important to include, I emailed the woman I am working with to give her an idea of what direction I am going in and what she thought about it. While waiting for a response, I have begun creating different possible layouts that could be used to portray the information. Up until this point, I have done what I can until I receive some feedback. Once I have more direction, I will be able to complete this project successfully.
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