NJSBA Family Law Section

Looking for any help with the following...

I am in the middle of an FRO hearing. I represent the defendant and the
plaintiff's case is a weak harassment case. The hearing is entering its
third day of the plaintiff's case. The reason it has continued this long
is because the plaintiff's attorney is repeating his evidence, questions,
and attempts to introduce irrelevant evidence. A large portion of his
direct examination has consisted of leading questions and part of his
evidence is either unauthenticated or lacks foundation. A major problem is
that despite my objections and the attorney's errors, the court is
instructing him on the proper way to present his case and providing him
with every opportunity to correct himself (to the detriment of my client.)
For these reasons alone the hearing is now going into its third day. In
addition, at the start of the hearing, plaintiff's attorney declared he had
no witnesses. Now, however, for the third day of the hearing, he suddenly
wants to introduce a witnesses. As this is a summary judgment case,
there's been no discovery and for two afternoons my three witness have
wasted their time and have not been heard.

Any thoughts or help on this are appreciated.

--
William N. Sosis, Esq.
Sosis Law, LLC
200 Passaic Street, Suite 3
Hackensack, NJ 07601
Web: www.sosislaw.com
E-mail: [email protected]
Tel: 201-755-1355
Fax: 201-781-7855

My thought is that your adversary may be on this listserve.

Robert E. Goldstein, Esq.
Drescher & Cheslow, P.A.
(732) 972-1600
[email protected]

Visit my website: www.mydivorcelawyernj.com


Original Message------

Looking for any help with the following...

I am in the middle of an FRO hearing. I represent the defendant and the
plaintiff's case is a weak harassment case. The hearing is entering its
third day of the plaintiff's case. The reason it has continued this long
is because the plaintiff's attorney is repeating his evidence, questions,
and attempts to introduce irrelevant evidence. A large portion of his
direct examination has consisted of leading questions and part of his
evidence is either unauthenticated or lacks foundation. A major problem is
that despite my objections and the attorney's errors, the court is
instructing him on the proper way to present his case and providing him
with every opportunity to correct himself (to the detriment of my client.)
For these reasons alone the hearing is now going into its third day. In
addition, at the start of the hearing, plaintiff's attorney declared he had
no witnesses. Now, however, for the third day of the hearing, he suddenly
wants to introduce a witnesses. As this is a summary judgment case,
there's been no discovery and for two afternoons my three witness have
wasted their time and have not been heard.

Any thoughts or help on this are appreciated.

--
William N. Sosis, Esq.
Sosis Law, LLC
200 Passaic Street, Suite 3
Hackensack, NJ 07601
Web: www.sosislaw.com
E-mail: [email protected]
Tel: 201-755-1355
Fax: 201-781-7855

William,



I don't think you mean a "summary judgment" case.



Not sure what to tell you. If the Judge is coaching the other lawyer, which does happen, that can be a legitimate exercise of the judicial function – to make sure that justice is done – and that the other lawyer's sins are not visited upon the client.



It can be frustrating, but I don't see much choice for you. You can make your record, just be careful not to get aggressive about it or signal your impatience to the Judge.



As a Judge's chambers told me recently, "The Judge has more power than you do." I couldn't really argue that assertion, so I didn't.



I don't see much that's objectionable about late notice of a possible witness in an FRO case. Just deal with it on cross and then call a defense witness to counter if you have one.



Good luck.



Hanan Isaacs


Original Message------

Looking for any help with the following...

I am in the middle of an FRO hearing. I represent the defendant and the
plaintiff's case is a weak harassment case. The hearing is entering its
third day of the plaintiff's case. The reason it has continued this long
is because the plaintiff's attorney is repeating his evidence, questions,
and attempts to introduce irrelevant evidence. A large portion of his
direct examination has consisted of leading questions and part of his
evidence is either unauthenticated or lacks foundation. A major problem is
that despite my objections and the attorney's errors, the court is
instructing him on the proper way to present his case and providing him
with every opportunity to correct himself (to the detriment of my client.)
For these reasons alone the hearing is now going into its third day. In
addition, at the start of the hearing, plaintiff's attorney declared he had
no witnesses. Now, however, for the third day of the hearing, he suddenly
wants to introduce a witnesses. As this is a summary judgment case,
there's been no discovery and for two afternoons my three witness have
wasted their time and have not been heard.

Any thoughts or help on this are appreciated.

--
William N. Sosis, Esq.
Sosis Law, LLC
200 Passaic Street, Suite 3
Hackensack, NJ 07601
Web: www.sosislaw.com
E-mail: [email protected]
Tel: 201-755-1355
Fax: 201-781-7855

Correction. I meant to say the hearing is a summary proceeding (not summary judgment) as defined in R 5:5-1. Thanks.

------------------------------
William Sosis Esq.
Midland Park NJ
(201)755-1355
------------------------------

Original Message:
Sent: 07-19-2015 17:27
From: Hanan Isaacs
Subject: FRO Domestic Violence Hearing

William,



I don't think you mean a "summary judgment" case.



Not sure what to tell you. If the Judge is coaching the other lawyer, which does happen, that can be a legitimate exercise of the judicial function – to make sure that justice is done – and that the other lawyer's sins are not visited upon the client.



It can be frustrating, but I don't see much choice for you. You can make your record, just be careful not to get aggressive about it or signal your impatience to the Judge.



As a Judge's chambers told me recently, "The Judge has more power than you do." I couldn't really argue that assertion, so I didn't.



I don't see much that's objectionable about late notice of a possible witness in an FRO case. Just deal with it on cross and then call a defense witness to counter if you have one.



Good luck.



Hanan Isaacs

William -
        I agree with Hanan.
        A couple other points -- just because the judge is guiding the other side or seems to be favoring the other side doesn't mean they're going to prevail. The judge could be just making sure the record is adequate. You may have noticed that a lot of judges do this when giving their decisions - they seem to be going one way, then "switch."  They're not messing with you... what they're doing is preventing the other side from going to the App Div and saying "look - the judge didn't consider X, Y, and Z points that were in my favor." If the court has reviewed the other side's case and then explained why it didn't carry the day, they can't be appealed on that basis.  (Plus, it lets the other side know that "it was heard" and listened to, so even someone who doesn't prevail doesn't feel like it was because the court wasn't paying attention or wasn't listening). So, it could be that the judge has already decided he/she is going to rule with you.  First time I "got this" was during a DV hearing where the judge stopped my cross and wasn't permitting a lot of questions. I thought to myself "this is reversible error to not let me go into this".... and then... light bulb(!).... it's not reversible if there's no way I'm going to be appealing the decision. Not always the case, but don't assume a judge is against you just because they "seem to be favoring the other side."

        The remedy for the unexpected evidence or witnesses (especially after saying there would be none) is to ask for an adjournment so you can get rebuttal witnesses / evidence.  Make sure you get that on the record so it's preserved for appeal if you need it. Yes, it's a summary proceeding, but there's a limit to what amount of surprise is fair, especially when you can rebut it if given time to get other witnesses or evidence.

        And if the complaint is weak harassment -- read the predicate act closely. If it (not the prior history ... the act complained of) doesn't constitute DV, then before you call your client to testify, make a motion to dismiss on that basis.  I can give you some recent successful notes / prep on that issue if you'd like.

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David Perry Davis, Esq.
112 West Franklin Avenue
Pennington, NJ 08534
www.FamilyLawNJ.pro
Voice: 609-737-2222
Fax: 609-737-3222
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