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Discovery We are seeing a percentage of folks looking for help dealing with court issues and tonight I would

like to cover the use of the discovery process in court. It has been said that a case is won or lost before you ever get to trial, and without putting too fine of a point on that statement, I would like to explain why. He who has the most evidence for his perspective normally has the benefit of convincing a jury. When you can get your opponent to provide and give answers that defend your position, then wouldn't that stand to reason he/or she is actually weakening their own position? Also, we are seeing that proper discovery is causing some attorney to withdraw their cases, knowing that by answering our discovery, they have just completely revealed how fraudulent in nature their claims where. Lets recap on how a case gets started. First there must be a summons & complaint served on the defendant. Most complaints list a series of statements used to frame or describe the case of action, and frequently these are numbered so that the answering party can refer to the same numbers when answering the complaint. As an example in a Credit Card Case, a complaint may look similar to this. Now comes Citigroup Bank by and through its attorney's Dewey Cheatum and Howe and files this action against Benjamin Robbed for breach of contract involving revolving credit card account # 12345678. 1. On or about July 1 of 1999 Benjamin Robbed signed a credit application with Citigroup Bank 2. Benjamin Robbed has made regular monthly payments against said account, but has failed to make a payment since May 20th, 2002. 3. The account has an outstanding amount due and owing of $2,467.38 plus accrual of interest and fees, and the additional of any costs. Wherefore plaintiff prays for just relief in the amount of $2,878.44 plus costs. Signed Loise Dewey Attorney for Plaintiff Most folks either fail to respond at this point or do not rebut the attorney's misconceptions. I am going to present this as if everyone understands the money game that banks play, and that they never loaned anything of value. At this point if you do not respond, or if you fail to state a valid defense then the attorney waits the mandatory time and files a motion for summary disposition. He shows up in court and gets the judge to sign a judgment against you. There was no controversy for the judge to hear, you did not raise any defense. I have seen some people send to the court a demand for verification of debt. The court will not recognize these, and will step right over it, just like it wasn't there. Perhaps some folks have had success with this, but in my experience it doesn't work reliably to be recommended. Lets say that we sent in our answer to the attorney's misconceptions, and state that you do not owe, that the bank is acting in bad faith, you have asked for Assurance of due performance and they have defaulted in their duty to respond. Now the judge sees a controversy that needs to be heard. He will schedule a hearing in which both parties are to appear, unfortunately the attorney's

gets special treatment, and oftentimes gets to do this by phone. This initial meeting is also important to give the judge Jurisdiction to show that there are parties plural to the action and the controversy still exist. At this hearing they will normally state very little, ask a few questions, and normally take just a few minutes. Sometimes the court will issue a pre-trial schedule which will outline due dates for the filing of motions, completion of discovery, depositions, and the filing of briefs. Take special notice of these pre-trial schedules as the court operates within these and they are supplemental or sometimes supercede the court rules of your state. At this point it is proper procedure to initiate discovery. Now lets look at the four major forms of discovery, first there is Admissions, next is Interrogatories, then Demand for Production, and lastly Deposition or sometimes called Oral Examination. Admissions is the sneakiest way of getting evidence on the other party, and I say that, as Admissions is the making of statements of fact, and unless the other parties denies or objects to the statement, after a period of time normally 21 to 30 days depending on your States court rules, it is an undisputed stipulated fact of the case. There are certain elements for denial and objection. If the other party denies, then they must make a statement in direct contradiction to the statement and make this statement under penalty of perjury. If they object, the must give very specific reason why they cannot answer. By the way, the answering party cannot use lack of information or knowledge to deny an admission. So in essence, you can really put the hurt on your opposing party or the banksters attorney using admissions. (D) Effect of Admission. (1) A matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of an admission. For good cause the court may allow a party to amend or withdraw an admission. The court may condition amendment or withdrawal of the admission on terms that are just. (2) An admission made by a party under this rule is for the purpose of the pending action only and is not an admission for another purpose, nor may it be used against the party in another proceeding. (F) Filing With Court. Requests and responses under this rule must be filed with the court either before service or within a reasonable time thereafter. Next we go to Interrogatories. Interrogatories are questions or a series of questions, served on the opposing party who will have 21- 30 days to answer. Questions can be about nearly any subject matter, and answers are mandatory, unless it fall within the scope of not be case related. The courts generally adopt rather wide latitude in discovery proceedings. All answers to interrogatories must be made under penalty of perjury. Check your states rules, but interrogatories questions must be restated immediately before a response. I'll share with you some applicable sections on discovery found in the court rules, and I'll read directly from the rules: (B) Answers and Objections.

(1) Each interrogatory must be answered separately and fully in writing under oath. The answers must include such information as is available to the party served or that the party could obtain from his or her employees, agents, representatives, sureties, or indemnitors. If the answering party objects to an interrogatory, the reasons for the objection must be stated in lieu of an answer. (2) The answering party shall repeat each interrogatory or subquestion immediately before the answer to it. (3) The answers must be signed by the person making them and the objections signed by the attorney or an unrepresented party making them. (4) The party on whom the interrogatories are served must serve the answers and objections, if any, on all other parties within 28 days after the interrogatories are served, except that a defendant may serve answers within 42 days after being served with the summons and complaint. The court may allow a longer or shorter time and, for good cause shown, may excuse service on parties other than the party who served the interrogatories. (D) Scope; Use at Trial. (2) An interrogatory otherwise improper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the court may order that an interrogatory need not be answered until after designated discovery has been completed or until a pretrial conference or other later time. (3) The answer to an interrogatory may be used to the extent permitted by the rules of evidence. If the opposing party refuses to answer your interrogatories or makes partial or evasive answer it might actually be necessary to file an objection into the court record that the opposing party has failed to comply with discovery, and request the court to compel the party to answer or permit completion of discovery. At that point, the judge at the hearing will inform the opposing party that under threat of contempt of court the must answer the interrogatories or comply with a production of documents. We all know that failure to obey a court order can land you up to 30 days in jail without bond. When applied to a attorney, they normally will not sit in jail on behalf of their client, and are forced to either reach a settlement or withdraw their case. (C) Motion to Compel Answers. The party submitting the interrogatories may move for an order under MCR 2.313(A) with respect to an objection to or other failure to answer an interrogatory. If the motion is based on the failure to serve answers, proof of service of the interrogatories must be filed with the motion. Rule 2.313 Failure To Provide or To Permit Discovery; Sanctions (A) Motion for Order Compelling Discovery. A party, on reasonable notice to other parties and all persons affected, may apply for an order compelling discovery as follows:

(2)(c) a party fails to answer an interrogatory submitted under MCR 2.309, (4) Evasive or Incomplete Answer. For purposes of this subrule an evasive or incomplete answer is to be treated as a failure to answer. (5) Award of Expenses of Motion. (a) If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct, or both, to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. Next lets look at Demand for Production. A Demand for production is similar in nature to interrogatories, except you are demanding from the opposing party certain documents or to permit the inspection of certain items in their possession. One example of how this may apply to a banking matter, would be to ask to see the Original Unaltered promissory note or loan agreement with your signature on it. Carefully constructing a list of items to ask for, may prove to be one of the best ways to destroy your opponents case against you. In a banking example some of the other things that might prove of interest to ask for would be; a copy of the agreement allowing the attorney to represent the bank, all correspondence between the attorney and the bank, a list of witnesses with addresses they intend on calling in their case, a list of names of all bank employees who have first hand knowledge of the loan transaction, any documents showing assignment of the debt including the amount of consideration given for exchange, or even any document that was relied upon to establish holder in due course status. Now that is not an all inclusive list, but you get the idea of the types of things you can ask for, and should ask for. A quick check back to the Court rules we see under Rule 2.310 Requests for Production of Documents and Other Things; Entry on Land for Inspection and Other Purposes (A) Definitions. For the purpose of this rule, (1) "Documents" includes writings, drawings, graphs, charts, photographs, phone records, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form. ( B) Scope. (1) A party may serve on another party a request (a) to produce and permit the requesting party, or someone acting for that party, (i) to inspect and copy designated documents or

(ii) to inspect and copy, test, or sample other tangible things that constitute or contain matters within the scope of MCR 2.302(B) and that are in the possession, custody, or control of the party on whom the request is served; or (b) to permit entry on land. (2) A party may serve on a nonparty a request (a) to produce and permit the requesting party or someone acting for that party to inspect and test or sample tangible things that constitute or contain matters within the scope of MCR 2.302(B) and that are in the possession, custody, or control of the person on whom the request is served; or (b) to permit entry on land. Lastly, I would like to talk about Depositions. You may use you demand for Production of documents to get a list of potential witnesses against you. Once you have this list, then you can have the court issue subpoenas force potential witnesses to attend a deposition to answer questions, permit the inspection of documents or for copying them . At this deposition you can ask questions of the witness for up to 7 hours in one day. Frequently, opposing witnesses may have the their attorney with them, to advise them how to answer, or to if and when to withhold information. If they withhold information, there is other methods to compel discovery, including the filing of an objection and motion to compel. Any question that their attorney would not let them answer can be handled by direct interrogatory and may need to be under compelled answer. Remember to have all your answers written and indexed prior to the deposition, and never proceed to the next question until you are satisfied that the witness has completely answered. It is sometimes possible that you will have to pay the expenses of a witness to get them to the deposition, and we look again at our court rules: Rule 2.305 Subpoena for Taking Deposition (2) In an action pending in Michigan, the court may order a nonresident plaintiff or an officer or managing agent of the plaintiff to appear for a deposition at a designated place in Michigan or elsewhere on terms and conditions that are just, including payment by the defendant of the reasonable expenses of travel, meals, and lodging incurred by the deponent in attending. OR (D) Petition to Courts Outside Michigan To Compel Testimony. When the place of examination is in another state, territory, or country, the party desiring to take the deposition may petition a court of that state, territory, or country for a subpoena or equivalent process to require the deponent to attend the examination. Keep in mind that depositions must be taken in front of person who is qualified to administer oaths, and it is highly recommended that you hire a court recorder to type the deposition so it is in readily useable format for evidence. Most court will not allow depositions to be in any form other than typed by the recorder. Ok now, is everybody ready to run out and sue someone? Just kidding, I encourage every listener tonight to get on the West Group Website and order your States Court Rules. Most States can be

had for under $75 with some even being a cheap as $45. www.westgroup.com and do a search with your states name followed by court rules. You must have these rules if you expect to do the dance in court. Another legal maxim to remember is a court is moved by court rules. Think of court as a chess game, and the only way to move your pieces is by using and citing court rules. An attorney has many, many cases to deal with, and you have one. You have the upper hand advantage, you can spend weeks doing legal study on one particular issue, and if you know the court rules, you are going to stomp the attorney. I think it is fair to say that the patriot community has done a great job educating ourselves as to what our rights are. But none of us have been taught how to enforce them or where to get remedy. Because we have such a hard time getting remedy, we automatically assume we live in a despot country that is trying to subvert us. I will admit that there are several corrupt judges, but most realize that if you don't have rights, then neither do they. There are many fine judges in our country, and when you show up in their court using their rules, using their procedures, it has to impress them that someone would invest that kind of time to defend themselves. Our country is founded on rooting for the underdog. Befriend the judge by being polite and courteous, and when making remarks that are abrasive, begin by saying, "with all due respect your honor", or "Pardon me Sir, but aren't those discovery questions, your not conjoining with the plaintiff are you?" Sometimes a judge needs to be put back in his place, but do it gently and politely. You loose the advantage if the judge thinks you are combative, and threatening. Addendum Federal Discovery Methods Federal Rules of Civil Procedure Rule 27 Depositions Before Action Any person who needs testimony regarding any matter that could be a cause of action in any court of the United States can file a verified petition in the United States district court. This petition must be in the district of the residence of the expected adverse party. When you do this your petition must show the following 5 facts 1. That you expect to be a party to an action in a court of the United States 2. The subject matter of the expected action and your interest in the action 3. The facts which you would like to establish by the proposed testimony and the reasons why you need this information 4. The names of the folks you expect will be adverse parties in your future action and their addresses. 5. The names and addresses of the people you want to examine and the substance of the testimony which you hope to obtain each. You do this by asking for an order authorizing you to take the depositions of the persons to be examined named in your petition. Obviously there are summons that must be served, and most of the normal court process apply. Not only will you give a heads up that you mean business, but

think of the Physiological effect your going to have on you opponent when they get summoned to Federal Court for a deposition. I don't care who you are, this has got to give you butterflies. According to the rules contained within this, you can hold a person for 1 day up to 7 hours for questioning. Make sure you have all of your questions written prior, and always make sure you have a complete answer, before going on to the next question. Rule 34 Production of Documents Anyone may serve on another party a request to produce or allow the inspection and copying of any documents or to, test, or sample certain tangible things that are in the another persons possession, custody or control. You also have the ability to have someone make these inspections on your behalf. One example that instantly comes to mind is allowing your CPA expert witness to inspect the original promissory note you have given to a bank, with the intent of looking for endorsements, or evidence that the note was used to fund a loan back to you. To learn more go to http://www.law.cornell.edu