NOTE: The following post was originally scheduled to be published at a future date. Due to Ward’s passing, it has been published immediately for viewing until hosting for this site expires.
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Guest blog by Donie Vanitzian (LA Times columnist)
QUESTION: I’m representing myself in a contentious litigation with my homeowners association. The board has a powerful, well-known law firm representing them. They know all the dirty legal procedural tricks to use against me and are a machine burying me in paper — I can’t keep up. Last week they held yet another ex parte hearing with the judge. I was NOT served or given any notice of that hearing last week and therefore did not appear.
The association’s law firm told the judge that they called me several times and that they also called an attorney I employed over a decade ago who handled my divorce, an unrelated matter to the present litigation. That divorce lawyer no longer represents me on any matters. I learned that the association lawyers asked my old divorce attorney to notify me of this ex parte hearing saying that that communication constituted due notice to ME. On speaking with the divorce attorney he said he got the call late and was unable to contact me until the day after the ex parte hearing had occurred. Association lawyers also have a process server who verifies that notice of the ex parte hearing was “timely” served on me when in fact they DID NOT serve me at all! What options do I have?
ANSWER: Because you’re up against attorneys who have considerable experience and resources and do this all day, representing yourself means this becomes a full-time job. More often than not, in complex and protracted litigation, you need an attorney to represent your interests. Or, in the alternative, try looking for an attorney willing to assist with research and strategy without filing an appearance in your case. In addition to their expertise in the subject matter you require, the attorney(s) must know procedural law.
Success in litigation is based on legal knowledge, resources, organization and a nose for honing-in on strategy. Deadlines can entail an often complicated mix of filing formulas for compliance and these deadlines arise frequently, necessitating quick and timely responses. Even WITH an attorney:
• You are responsible for monitoring what the other side is doing and filing.
• You must understand how electronic filing works and monitor closely ALL electronic filings pertinent to your litigation. If filings are ONLY done electronically in your jurisdiction, make a motion to the court that you ALSO want to receive paper copies of all filings with proof of service for those filings to an address you provide. There’s just too much hanky-panky associated with electronic filing and manipulation of service dates. Also, your attorney may be a sole practitioner one-person office with too many clients making it is easy to miss a filing.
• You MUST regularly check the court’s online docket but ALSO go to the courthouse and physically review court files at the filing window. Some filings take more than a week to show up online, a risk you can’t take.
• You must know all applicable deadlines for your case and how to calendar them. You have to keep your own up-to-date calendar showing what items have been filed and on what dates — AND — what needs to be filed and the deadline for those filings.
• You need to calendar every hearing and appearance date whether you appear or not BUT be prepared to appear on your own. It does happen that attorneys don’t show up for a variety of reasons. It is better to show up and tell the judge you want to preserve your rights and ask for a continuance for the purpose of having an attorney present — this may help you avoid sanctions for a failure to appear. It also may prevent the other side bending the judge’s ear as a captive audience to their side of the case.
• You cannot be afraid to remind your attorney of an upcoming filing date and ask to see a copy of the item that will be filed. People make mistakes. Two sets of eyes are better than one. Sometimes proof-reading doesn’t always happen.
• You should have hard copies of ALL filed briefs/documents that your attorney has. If your attorney won’t provide these, you will have to go to the courthouse and get the copies on your own.
• You can’t risk not having a court reporter present to document and transcribe what goes on in that courtroom. Not all courtrooms provide court reporters or recordings for transcripts. Some of the best evidence you may get, may be in that transcript! Without that transcript it’s a he-said she-said situation and some courts won’t let you file an Appeal without a transcript. A court reporter should be ordered in advance – and – that reporter should be at that scheduled appearance or hearing EVEN IF you and/or your attorney do not show up! It is shocking to read a transcript that lays bare the informal banter that occurred between the judge and opposing counsel BEFORE you got there.
Just because a process server says you were served, doesn’t mean you were. The same goes for statements made by the other party’s attorneys. If a judge makes a ruling at an ex parte hearing based on false information, you can ask the judge to vacate that ruling and/or even seek sanctions from the individuals that lied to the court. However, if a ruling has been made, you need to get started immediately. There are strict deadlines for granting the type of relief you need to fight these improper actions. Reserving hearing dates and filing motions either to vacate a ruling or reconsider a ruling are a good place to start.
Compile as much evidence as possible showing you were not given actual notice. Obtain a declaration from your previous attorney stating your representation had ended before the association’s purported notice was served. Then show you were not where a process server claims you were. California Code of Civil Procedure Section 128.7 allows you to request sanctions against an attorney who files a motion or makes a request for an improper purpose or based on knowingly false information. A process server that prepares or signs false proofs of service is subject to sanctions and liability for abuse of process. If this process server is registered they may have their registration either suspended or revoked in connection with these proceedings.
Once an attorney has completed the task he or she was hired for, put them on notice they no longer represent you and file a Substitution of Attorney with the court. That way, there’s no question that he or she cannot accept service on your behalf. You’re always free to re-hire that attorney, but at least you prevent situations like this from occurring. The key is to act with lightening speed.
