"A" feels that he or she has not been treated fairly by "B," and isn't going to be, so...
"A" investigates and discovers there is a statute (law)...federal, state, municipal , common law, or even a case ruled on by a higher court...federal or state, that covers their situation; and so files a form (a complaint) asking for a trial on the grounds of whatever legal thing it may be; and which really ought to result in some kind of benefit that rights the wrong that has been done to them (usually, but not always, by awarding them money.)
Once the papers have been filed and served, the actual "DUE PROCESS" of an American trial begins—provided, of course, that you know what it is, both generally and specifically for that particular court, in that particular state, and can participate in it.
If you don't "know what it is," then "DUE PROCESS" will float silently by you because the judge can't, by law, tell you what options are available to you at any given time (the judge is supposed to be impartial;) and the other side's attorney isn't interested in telling you (and isn't supposed to anyway;) and that leaves only you. If you do have a lawyer, even he or she may not be interested in telling you because it's simply not in their best interest to show you the ropes—if they did, you wouldn't need them anymore, would you?
In a nutshell, "DUE PROCESS" goes something like this:
The main idea of this "DUE PROCESS" is actually to open a door for the two parties to have a way to hash out nearly every little thing so that by the time it goes to court, there are just no surprises and so...theoretically...justice will easily prevail.
During the pre-trial period, both sides have an equal right to ask for, see and talk to the judge about, and have the court rule on a plethora of "pre-trial motions."
Here's an example: Suppose you want a clear statement of what the other side is asking because their language is unclear or vague in the original papers.
Solution: You file a "Motion For a More Definite Statement." You file one copy with the court, mail one copy to the other party by certified mail and you keep one copy for yourself.
Here's another example: You think their claim is so ridiculous that there isn't even any law that says there is a claim for them to make, or you have complied with whatever is required and the judge should just throw the whole thing out and rule in your favor right away.
Solution: You file a form...a "Motion For a Judgment On the Pleadings", which they must answer in the same way as above. You file copies with the court and everybody else involved. The court assigns you a hearing or "motion date." You show up and present your facts and research to the judge and the judge decides. You can conceivably win right there or at worst, just move ahead or to the next step.
During this "pre-trial" period both parties can file "objections," "counterclaims," and "new matters" which must all be answered, filed with the court and decided in front of a judge.
There is "DISCOVERY."
That's when one party asks the other party in a deposition, to reveal facts they may know that are pertinent to the case. One party can ask the other to party to "admit" to certain undisputed facts through a "Request For Admissions." You can file a "Motion To Take Deposition" to uncover facts you may want to get onto the table. You can file a "Motion For Written Interrogatories" which compels them to answer in writing. You can file a "Motion To Produce Documents and Evidence" which forces them to reveal all the written documentation they have to substantiate their position.
The trial is next and you know what happens there.
Then there is the post-trial and the appeal period.
Finally there is "EXECUTION."
Execution is collecting on your judgment and that's my favorite part of the whole process. "Execution" means you can go after your money. You can attack personal property like cars, boats, planes and RV's. These are easy to "discover" and lien because they have a title registered with the state and you can file a "Request For Vehicle Information." You can certainly levy and execute against personal property like gold, silver, gems, jewelry, collectibles and household items but don't get your hopes up too high because these items are simply too portable and easy to hide. You can go after equipment like computers and FAX machines but this stuff offers the same challenge. You can attack money market accounts and other paper instruments, but in order to do any good, you have to first know that they exist and then where they are. You can easily execute against real estate through process we're all familiar with. It's called "Foreclosure." Most real estate is permanent and interests in real estate are usually, prominently recorded at the hall of records in every county nationwide. The fact is, you can attack any asset you either know about or you "discover." It's all fair game, if you know the rules.
Aha, knowing the rules. So what are they? Each state has something called "The Rules of Civil Procedure" which governs this whole process step for step for step. Literally, word for word.
You want to know my philosophy about rules? I wouldn't care if there were only ten rules in a game you and I were playing and you have nine of them in your favor. I have one. As long as I know what it is and were I stand from the very beginning, I'd still play. (I guess that's why I chose Entrepreneurship as a lifelong journey.) What I don't like, is when someone, in the game, like, oh, let's say ...the government, changes the rules because they think Big Brother knows best. That, I don't like.
Finally, I want to say that all this has an ominous almost frightening undertone and it is this: If some smart lawyer (or some acrimonious-information-sponge-try-everything-Entrepreneur like me) comes after you with all this, you are in for the hassle of your life. You will lose on some front. Time. Legal Fees. Anxiety. Something—And listen: You gotta play. You literally have to. If you ignore any step I have written herein, or if you refuse certified mail or duck a process server too many times, you will lose by default. That means the other guy will get a default judgment; s/he will still come after your stuff in spite of you, a nd then, only then will you truly understand why Lewis Laughlin cautions: You Can't Buy Life Insurance After You Die!!! Here is my advice. Get Your Assets Protected…Now!
© MMI By Ray Como. All Rights Reserved
Ray Como has created, produced, copyrighted and self-published 15 audio cassette programs and lots of other forms and tools for business, real estate, corporations, selling, marketing, finance, management and Entrepreneurship.
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