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Soliciting reader help in litigation my wife and I are in

Posted by John T. Reed on

A lawsuit has been filed against my wife as executrix of her brother’s death is complicated, albeit small in damage amount. My wife is acting as her own attorney—because the legal fees would surely far exceed the amount in dispute.

I need a framework for analysis to manage the complexity. Here is a to-do list that I need to arrange into a manageable format. I may be missing some steps: I assume there are some formats out there created by experienced litigators. I hope some readers can help. 

Facebook friend Chris Gavin recently did a great job of finding a semi-published case decision that three lawyers who mentioned it at their web sites could not or would not tell me where to find. And from looking at Chris’s “about,” it appears he is NOT a lawyer!

We have filed a motion to dismiss for too-little money at stake. That has not been decided by the court, but I need to assume it will NOT be granted because once it is decided, we only have ten days to file our answer, defenses, affirmative defenses, and counterclaims.

The case is about alleged damage done to a rental house by my late brother-in-law who was a tenant there. 

There are two causes of action against my dead brother-in-law: negligence (property damage) and breach of contract.

To-do list:

• answer (admit, deny, or don’t know) each paragraph of the complaint
• state defenses against the two claims
• state affirmative defenses against the two claims, e.g., fraud in the inducement
• state counter-claims (counter suits against the landlord)
• file motions to eliminate parts of the case that can be decided by the judge and do not need a jury to find facts
• each cause of action by the landlord has essential elements to it. For example, to sue for breach of contract, you must prove that a contract existed to begin with and that it was breached. To have a contract, you must have competent parties, legal purpose, consideration, mutuality, meeting of the minds, offer and acceptance. We can win by proving one of those is absent.
• disprove facts of the complaint allegations
• each counterclaim also has essential elements as well as statutes of limitation
• so we have to disprove one or more of the landlord’s factual allegations and/or show that he has not proven the essential elements he needs to prove
• we can also win by proving the essential elements of our affirmative defenses and/or counterclaims
• proving anything in court requires evidence, i.e., either witness testimony, physical evidence, or pertinent documents and many types of documents and all types of physical evidence need to be authenticated meaning someone has to vouch that they are what they are claimed to be
• the list of landlord claims, our counterclaims and affirmative defenses is long and each has its own sublist of essential elements that must be proved and each element has another sublist of forms of evidence (witness, document, document authenticator where necessary) to be used to prove them
• all of this has to be fed into the court by way of motions, answers, and counterclaims which have procedural rules including “speak now or forever hold your peace” deadlines, voir dire of the jury, and trial testimony, examination, cross examination and summary arguments.
• you can gather evidence without discovery, but discovery is one of the best ways to gather evidence. We will do each as zealously as if the other method did not exist.
• discovery is interrogatories, depositions, requests for the production of documents, requests for admissions, subpoenas to third parties like banks for documents, subpoenas to third-party witnesses
• evidence is also my being an amateur but very experienced private investigator and professional investigative journalist and finding every public piece of paper on earth with the landlord’s name on it, talking to every person who may know pertinent information about the case—some of you who are familiar with my doing exactly that in a lawsuit real estate guru Russ Whitney filed against me know that I am not exaggerating.

So again, is there some standard or widely used way or organizing all these to-do items and the various procedures and deadlines? I suspect there is, but as with the decision Garvin found, you can’t just google trial lawyer’s case organizing format. The trick is figuring out what it was called when put in the Net or elsewhere. Also, I would be interested in lawyers’ opinions of which product or approach is actually the best because I see ads for Microsoft OneNote and other case organizers, but I know from real estate and other fields that there are typically one or two very popular, very useful products and many others that are useless or close to it.

We already subscribed to a year’s worth of MA statutes and cases with Westlaw.

Thanks in advance.

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