Dirty Tricks
Besides their legal knowledge, attorneys have a full arsenal of dirty tricks they can use to harass an in pro per litigant.
A “Marvin” plaintiff benefits by wearing you down. If she can separate you from your house, your job, your money, and your time before the matter ever goes to trial, you will be at a tremendous disadvantage.
This is a list of some of the dirty tricks attorneys play. Since these tricks are not meant to reflect on any particular attorney, judge or other person, the examples herein (that's attorney language for "here") use Malicious Marvin as a fictitious attorney and Slutty Susan as his fictitious client and Commissioner Corrupt as their favorite court commissioner.
1. Canceled Appointments
Facts
There are many out of court meetings that you may be forced to attend. You can be commanded to give a deposition; make your house, car, or other things available for inspection; and “meet and confer”.
The Trick Works Like This
Malicious Marvin sends you an official type document telling you that you must attend a deposition at 10:00 am Tuesday at his office. Early enough to keep you from going to work first, but late enough to ensure the whole morning is blown. You show up. Slutty Susan does not – Malicious Marvin told her not to bother. You sit at Malicious Marvin’s office and wait. You wait some more. When you become too impatient, the receptionist tells you that there seems to be a mix up and the court reporter can’t come until 1:30. Soon enough that you can’t go back to work, so you take an early lunch and wait.
Its 1:30 and you’re back at Malicious Marvin’s. 2:00 and you are still waiting. “Isn’t the court reporter here?” you ask. Yes, the court reporter is available, but Malicious Marvin was trailed in court (see Dirty Trick #12, “Can You Trail Me?”). You sit and wait. At 3:00, the receptionist tells you that the deposition is canceled.
Playing The Trick Again
Malicious Marvin sends you another official type document telling you that you must attend a deposition. This time he cc’s the court reporter and Slutty Susan. It looks like a go, right? Wrong. A week before the deposition, Malicious Marvin mails cancellation notices to Slutty Susan and the court reporter.
His secretary calls the court reporter to confirm the cancellation. Marvin calls Slutty Susan and tells her he has a new way to conduct an “oral deposition” and to meet him at the Motel 69 to discuss her bill.
The day before the deposition Marvin mails you the cancellation notice (See Dirty Trick #3, “Postage Meter and Service by Mail”). The day of the deposition comes and again you are again the only one in attendance.
Your Defense
First, verify and document everything. Write down the date and time you receive every document and every phone call. When you get the deposition notice, write a letter back verifying that a court reporter has been scheduled, Slutty Susan has been notified, Malicious Marvin has no conflicts in his schedule, and a room is available. Request 48-hour notice by certified mail and by telephone if there are any changes in the schedule. Stress that the only person they are to talk to on the phone is you. That way, Malicious Marvin can’t say “I left a message with some lady who answered your phone at work… Jill? Robin? Mary? Sheri? Sorry, I don’t remember. Didn’t you get the message?”
Second, schedule your own deposition at a time and place convenient for you, but as inconvenient as possible for Malicious Marvin and Slutty Susan. As soon as the first deposition is canceled, send a letter something like this:
Dear Malicious Marvin:
I appeared at the date and time indicated on your deposition notice, but you failed to take my deposition and you failed to give me notice that the deposition was canceled.
If you still intend to take my deposition, I will make myself available at the Elm Street Library at 6:00 pm on Friday, August 5; 8:00 am on Saturday, August 6; or at 8:00 pm on Thursday, August 11.
Please, inform me in writing, by certified mail, at which time you wish to take my deposition.
Sincerely,
Me
The location you choose should be as far from Malicious Marvin’s office as possible, but still in the same city. Give three different times on three different days of the week at least two weeks away. Make none of the times during Malicious Marvin’s regular business hours – he already scheduled a deposition at his convenience. Schedule this one at your convenience. The different times are so he can’t argue “I always have prayer meeting at 6:00 pm” and the different days are so he can’t argue “My witch coven always meets on Fridays”. You have given him ample choice of days and times. If he doesn’t want to take your deposition, he doesn’t have to.
Facts
If “good cause is shown” a judge can authorize documents to be served on you without the statutorily required notice. Good cause can be that the person requesting the Order Shortening Time is a drinking buddy with the judge or just that the judge doesn’t like you.
The Trick Works Like This
Malicious Marvin signs a declaration that explains the court simply must issue orders to have your property immediately inspected, but there simply is not enough time to give you proper service. Marvin then attaches the declaration to a request for Order Shortening Time, waits ‘til Friday, and then walks in to see a judge or commissioner. The conversation goes something like this…
Malicious Marvin Hi, Carry, how’s the family?
Commissioner Corrupt Great Marvin, what can I do for you?
Malicious Marvin Remember that Marvin case I’ve been working on?
Commissioner Corrupt Oh, yeah. How’s that going.
Malicious Marvin Poor Slutty Susan is just terrorized. It is appalling that that man (you!) isn’t in jail. I’m afraid he will eventually kill Slutty Susan. (see also Dirty Trick #10 – Ex Parte Communications)
Commissioner Corrupt Is there anything I can do to help?
Malicious Marvin Well, we really need to inspect his property, but we know he’ll try to hide it, so we were hoping to have a hearing on Monday morning and inspect the property Monday afternoon.
Commissioner Corrupt No problem, let me sign the order. By the way, will you be coming to my fund raiser for Judge John’s re-election – only $200 a plate.
Malicious Marvin My whole office is coming, let me cut you a check for $1,200 for six tickets.
Commissioner Corrupt Oh, your family doesn’t want to attend?
Malicious Marvin I’m sure they would like to attend. Say, ten tickets?
Commissioner Corrupt I thought you had a very BIG family.
Malicious Marvin Oh, yes, I’m sure the in-laws would like to attend too. Perhaps, 20 tickets would be better.
Commissioner Corrupt And I’m sure you’ll want to sponsor a dessert?
Malicious Corrupt Yes, of course, will $5,000 cover it?
Commissioner Corrupt That would be fine. Here’s your Order Shortening Time.
Marvin goes back to his office and drops the Order Shortening Time in the mail along with the motion to inspect your property. Maybe you receive it Saturday, maybe Monday after the hearing. Either way, there is no time to file Opposition and come Monday afternoon Malicious Marvin’s cronies show up at your house to “inspect the property”.
Your Defense
Check local
rules. Each jurisdiction has its own
special rules for handling Orders Shortening Time and other ex parte
orders. The local rules are designed to
ensure fairness, but unless you In Kern County, the local rules (Uniform Rules of Court, Kern County Coordinated Trial
Courts) state:
"In
no event will time be shortened to allow any pleading to be filed later
than three (3) court days prior to the hearing..." (Rule 324(d)(2))
"Twenty-four (24) hour notice to opposing counsel and/or parties or affidavit in support of waiver..." (Rule 342)
“The court will strictly interpret the requirement that good cause be shown why the motion could not have been filed earlier and why such motion should be allowed to be filed on short notice.” (Rule 342)
Your jurisdiction probably has similar rules, look them up. Check the “Web” chapter for links to local court rules. If the rules have not been followed, object and request that the illegal order be stricken. The counter clerks or the law librarians should be able to help you find the appropriate rules. The clerks in Kern County were extremely helpful and the law librarians here are nothing short of angels.
If the Order Shortening Time was done correctly, but you are unable to file proper Opposition and fully prepare for the hearing, object anyway and request a continuance. Argue that the Malicious Marvin failed to show good cause for the Order Shortening Time and that it causes you undue prejudice. End your argument with, “If the court denies my request for a continuance, I respectfully request a written statement of decision on my objections, on the Order Shortening Time, and on the request for a continuance.” In most jurisdictions, the court must make a finding that the granting of the motion causes you no prejudice. The judge is not required to issue a written statement of decision and may simply issue a statement from the bench, but either way the judge has been put on notice that you might appeal any orders he issues if the continuance is denied.
Facts
Most attorneys have a postage meter. Since the postage meter puts the date on the envelope, the post office doesn’t. According to the Code of Civil Procedures, a document is considered served when it is mailed. An attorney can use this to great advantage.
The Trick Works Like This
Friday, May 1 Malicious Marvin strolls up to the judge and asks him to sign Order Shortening Time so that Marvin can file a Motion to be heard on May, 11, with eleven days notice to you. The judge readily agrees - he and Marvin are buddies. Marvin puts the Notice of Motion in an envelope, runs it through his postage meter and puts it in his desk drawer. You have officially been served, the service date is clearly printed on the envelope, and the clock is running on your time to file Opposition. tic tock tic tock.
Monday, May 4 After a long weekend of visiting prostitutes (client and otherwise) Malicious Marvin comes back to work, looks at the letter, laughs, and puts it back in his desk. You still don't know about the hearing, but the time for you to file your Opposition still running. tic tock tic tock.
Wednesday, May 6 Marvin tosses the letter in the mail and heads off for a nooner with Slutty Susan.
Thursday, May 7 You come home after a hard day at work and (if you are lucky) find the motion in your mail box. The hearing is Monday! You need to file Opposition!
Friday, May 8 You spend the morning at the law library working on the Opposition, but when you try to file it, you learn that an Order Shortening Time is required. You prepare the order for the judge's signature, but, unlike Marvin, you can't just walk up and ask the judge to sign it. You submit it to the clerk and wait. At 3:59 the clerk starts locking up. You ask about your order and she explains that the judge has already left for the weekend, so you'll have to get the order Monday.
Monday, May 11 The hearing on Malicious Marvin's motion begins. Marvin explains to the court that he served you a proper motion, but you have chosen not to oppose it, so he is entitled to a judgement on the pleadings. You try to explain to the judge that you just received the motion, but your only proof (the envelope) shows that you were properly served. Marvin expresses righteous indignation and the judge grants his motion.
First, use a different address. Send a letter to the court and to opposing counsel giving them a different address for service of process. Use your work address, you parent's house, or anywhere else where someone other than you can verify receipt. Buy a "date received" stamp and have the person who receives the mail stamp it and the envelope and sign both under the stamp. When the hearing comes up, show both the envelope and motion to the judge and request a continuance.
Second, pray. Every once in a while, the post office will accidentally drop a piece of metered mail into the stamped mail pile. When this happens, the metered mail gets date stamped. If you are fortunate enough to get a piece of mail with two different dates on it, raise hell. Send a copy of the envelope and the Proof of Service to the judge (always cc the attorney or the judge can't read it), the bar, and the district attorney. The Proof of Service is signed under penalty of perjury. Explain that in your letter and request that the bar and the DA take action. They won't, but it will at least call some attention to dirty trick.
Facts
Many “Family Law” lawyers have sex with their clients and most “Marvin” plaintiffs mistakenly go to “Family Law” lawyers because they do not realize that a “Marvin” action is not a “Family Law” matter.
The Trick Works Like This
Malicious Marvin tells Slutty Susan that he will charge her a $20,000 retainer to begin work on her case. Slutty Susan forces herself to cry. Malicious Marvin puts his arm around her and comforts her. He gives his sympathy, “I know its very hard. I’ve never done this before, but maybe just this once – because its you – I could take part of the money now and get the rest later. How much could you put down?” She sobs, “I only have $2,000 now.” More comfort follows, “I know how it is when someone you love doesn’t give love back. I’ve been having so many problems with my wife. I’ll take the $2,000 and we can work out the rest later.”
Later, Marvin and Susan continue their negotiations by “comforting” each other about their failed relationships. After a few more rounds of negotiations, Slutty Susan is regularly on her knees taking care of her bill.
This gives her great strength in the legal matters against you. To have an attorney prepare and try a motion for you could easily cost $2,000. To pay for the same work, Slutty Susan would only have to lie on her back for a while. This can empty your checkbook and max out all of your credit cards faster than Marvin can change condoms between clients.
Your Defense
Investigate Malicious Marvin. Perhaps his exploits have landed him in hot water in the past. The clerks at the courthouse should be able to tell you if he has a criminal record for soliciting prostitutes, lewd acts in public, spousal abuse or other crimes related to sexual misconduct. If he does, you can request the court to take Judicial Notice of the court records in Malicious Marvin’s cases and not that he has been convicted of crimes of moral turpitude. You may also be able to find arrest records in the local paper and find out if Marvin was arrested but not charged. In some cases, uncharged crimes can be used to impeach witnesses.
Malicious Marvin will argue that the records are not admissible because he is not a witness. If he signed any declarations, he has made himself a witness and the records should be admitted.
If Marvin or Susan tell you about their sex for legal services arrangement, you can tell the court about it by filing a Motion to Recuse. Be careful though, you had better have more evidence of attorney misconduct that just statements from Marvin and Susan to you because they will simply deny the relationship.
If you are absolutely sure of their financial arrangement, file the Motion to Recuse and subpoena all of the complaints filed against Marvin with the state bar, subpoena his billing records for Slutty Susan’s case, subpoena her bank records to match up with his billing records, subpoena Marvin’s wife to testify and subpoena the names and addresses of all of his female clients during the last five years. You probably won’t be allowed to get all of the records, but the added attention may cause him to withdraw from the case, thereby recusing himself.
5. Steal and Hide
Facts
Slutty Susan can take almost anything from you she wants.
The Trick Works Like This
Slutty Susan calls a moving company and has everything moved from your house. It makes no difference whether or not she lives at your house because she can easily get a restraining order against you giving her exclusive control of all of your possessions (see below). If you come home and find Slutty Susan stealing your things, don’t bother calling the police. The police will either 1) arrest you if Slutty Susan has a restraining order or 2) help Slutty Susan take your things.
Your Defense
6. Restraining
Orders
Facts
Slutty Susan can easily get a restraining order against you. You probably won't even know when the order is issued because it is done on an ex parte basis. Malicious Marvin and Slutty Susan get to privately tell the court what a terrible person you are. The first impression is the lasting impression, and the court's first impression of you is that you are a violent man who beats innocent women. You’ll may also be accused of being an alcoholic, drug addict, rapist, and child molester.
The Trick Works Like This
Slutty Susan has already met with Malicious Marvin and they have agreed that she will do him in exchange for legal representation. Marvin tells Susan not to move out right away, but to start building a paper trail. The plan forms...
You go out with your buddies. As the door shuts behind you, Slutty Susan dials 911 and forces herself to cry. She sobs, "Please, send someone, I'm afraid." The cops come over all pumped up with testosterone from rubbing their phallic batons hoping to save a damsel in distress by whacking some heads. The men in blue get blue balls when they learn you have left, so they comfort Slutty Susan and take a report. The report goes something like this:
“Suspect came home drunk and possibly loaded on PCP, heroine, methamphetamine, and other narcotics. Wife, Slutty Susan, had just finished ironing his clothes, vacuuming, cleaning the bathroom, moping the floors, and making a sumptuous dinner. Suspect demanded sex, but Slutty Susan asked that the family eat dinner first. Suspect went into a rage and hit Slutty Susan repeatedly before attempting to rape her. While Suspect was in the other room attempting to molest Slutty Susan’s children, Slutty Susan called 911. Suspect fled.”
Slutty Susan made sure to get a few key elements in the report.
1) “Wife” She identified herself to police as your wife.
2) “ironing his clothes” etc. She established that she was doing work for you. This will help in her Quantum Meruit claim.
3) The allegations of violence.
Pop Quiz: In California, are you “innocent until proven guilty”?
Answer: Absolutely Not!
When it comes to a domestic violence restraining order, you are guilty unless you can prove you are innocent. Slutty Susan just needs to show the police report to a judge and ask for an order.
With one swipe of a judge’s “I feel like God when I hold this” pen, you can be ordered out of your own house and ordered to give everything you own to her to use while you settle your differences.
Your Defense
By the time you read this book, its probably too late. The orders have probably already been issued, but if not, make sure you take it seriously. If the police are called when you are still home, file your own report, request a restraining order asking that Slutty Susan be immediately kicked out of your house. When the restraining order hearing comes up, bring witnesses - lots of witnesses who can testify that you are a good person and have never hit her.
Subpoena her attorney. The court probably won’t allow him to testify because of attorney client privilege, but do it anyway. Explain to the court that he has been called to establish that the restraining order is simply a tactic being used to aid a “Marvin” case. Even if the testimony is not allowed, it will at least clue the court in to the real purpose of the restraining orders.
Facts
The first story heard is often the most believed. If the police are called to investigate spousal abuse, they don’t show up to arrest someone for making false police reports. They show up to arrest someone for spousal abuse.
The Trick Works Like This
Slutty Susan has the restraining order in hand. You know nothing about it.
You sit down to watch some TV. Slutty Susan goes to the other room and dials 911 again. She tells the cops that you refuse to obey the restraining order and that you have a gun! The police, completely unaware that we have a Constitution, converge on your easy chair with guns drawn. Officer Smallwilly gets so excited about holding his gun that he has to excuse himself to the men’s room. The other officers cuff you, search your house, steal your guns (the Second Amendment right to Keep and Bear Arms does not apply to men accused of abuse) and haul you off to jail. Slutty Susan calls Malicious Marvin and tells him to come on over for a quickie in your bed.
Maybe you’ll only be charged with Penal Code 12022(a)(1), “Committing or Attempting Felony with Firearm”, and have to post $25,000 bail. Maybe you’ll be held without bail.
Your Defense
When the
cops come, be polite and cooperative.
Tell them that you were unaware of the restraining order and ask that
you be allowed to get your clothes and leave.
Facts
People don’t want legal problems.
The Trick Works Like This
Malicious Marvin writes a nice letter to your boss:
Dear Mr. Bossman,
Enclosed is a restraining order issued against [insert your name here]. Due to his exceptionally violent nature, the court has chosen to issue restraining orders against him. The police have searched his house and confiscated his firearms. We believe that he may have additional firearms hidden at his work. Immediately call the police if you find firearms in his possession or control. Please, also call Slutty Susan or me so that she can hide from this violent man.
Be advised that the court will not tolerate anyone assisting [insert your name here]. If he uses you phones to continue to harass Slutty Susan, you could be held liable.
Also, note that the restraining order includes a provision that he cannot take Slutty Susan off of his insurance or make any changes to his withholdings, or payroll allocations. Please, provide me with documentation of the current state of his finances with your company.
Sincerely,
Malicious Marvin
Malicious Marvin has several goals:
1) Make your boss suspect you and possibly fire you.
2) Have your workspace searched for guns.
3) Block your access to the phones.
4) Force you to provide insurance for Slutty Susan.
5) Get copies of your payroll records.
Unfortunately, there is not a lot you can do besides talk to your boss. Show the boss this book. Explain to him that this is just part of the game Malicious Marvin and Slutty Susan play and that there is nothing to worry about.
9. Ex
Parte Communications
Facts
It is generally not legal for the court to discuss your case with Slutty Susan or Malicious Marvin unless you being present, but it will probably be done anyway.
The Trick Works Like This
Malicious Marvin drops little comments to the judge…
“I just heard that [insert your name here] is a gun nut, are we sure the metal detectors on this building are working properly?”
“Could we use a room in the courthouse to take depositions? With [insert your name here] having guns and all, I would feel a lot safer if he had to pass through the metal detector’s on his way to the deposition.”
“Sorry I’m a bit late for our meeting, Your Honor. I take a different route to the courthouse each day, just in case [insert your name here] is looking to get me.”
“I just did a codicil to my will, you know with [insert your name here] running around, you can’t be too prepared.”
By the time you finally appear before the judge, he has already heard your name multiple times all with implications of violence and guns. As the saying goes, “the first impression is the lasting impression” and the judge’s first impression of you may be that you are a violent nut.
This sound bad? It gets worse.
With some judges, the rules regarding ex parte communications are simply a formality they choose to ignore. If you are up against one of those judges, the conversation will go something like this.
Malicious Marvin Carry, we need to do something about [insert your name here].
Commissioner Corrupt What did you have in mind?
Malicious Marvin Well, he seems violent and he is a gun nut. Lets make sure we take away his existing guns and make sure he doesn’t have the resources to buy more.
Commissioner Corrupt Good idea. Write up a restraining order and I’ll sign it. We can send the police to search his house and get the guns.
Malicious Marvin We already had a restraining order hearing before Commissioner Honest and lost.
Commissioner Corrupt No problem. We’ll just do it again and again until we get it right. I’ll give him some sanctions too to pay your bills.
Malicious Marvin Thanks Carry.
Commissioner Corrupt then issues orders against you based solely on Malicious Marvin’s lies to Commissioner Corrupt.
Your Defense
Unfortunately, there is no good defense. The best you can do is to report the corruption to the judicial commission and the Bar.
Facts
When the parties are finally allowed in the courtroom, they must stay behind the gate until called forward. The attorney’s are allowed to walk right through and begin making arrangements with the bailiff, the clerk and the judge. This provides a tremendous advantage for an attorney against an unrepresented party. An attorney often has multiple cases at the courthouse on any given day and there are many attorneys waiting for their matters to be heard.
The Trick Works Like This
The attorney strolls up to the bench and says something like “I have another matter in department 12, could you trail me?” or “It appears Mr. Smith’s matter will take some time, could you trail me two hours?”. The attorney is then free to conduct other business. You can’t leave because your case is scheduled to be heard when the attorney returns, so you miss more work. Hours pass and the attorney returns (or just calls in) and – big surprise - the attorney needs a little more time. Its coming up on noon, so the attorney suggests trailing until the courtroom opens again at 1:30 pm. 1:30 comes around and the game starts again – he’s generally in court every day anyway, so its no problem for him to “trail”.
The attorney may even place his client on call, so she doesn’t even have to come to the courthouse until the game winds down. When it is finally time for your case, the attorney will simply ask for a “few minutes” to locate his client. The court has plenty of other business, so the “few minutes” can easily drag into a half hour or more without being questioned.
If the trick is played to perfection, you will sit in court missing work for a day or more while your opponent is free to work, play, or just sit at home watching soap operas and laughing about you sitting in court.
Your Defense
Your best defense is to have an attorney since he can play the game too, but this is expensive. There are a few things to try, but for the most part, you're fighting an uphill battle.
As soon as you find out that you have a court appearance scheduled, send the opposing attorney a letter. In the letter, say that your time is valuable and ask to be notified at least two days in advance if he will not be ready to proceed at the scheduled time. A few days later have someone call his office and give the same message. This accomplishes two things. First, if Slutty Susan does happen to be paying money for Malicious Marvin's legal services, it will cause her to be billed for more of his time. Second, it gives an objection a little strength. When Malicious Marvin starts playing the game, stand up and object. Explain to the court that you have twice requested notification if the matter was not ready to proceed and Malicious Marvin's silence indicated that he was ready to proceed. Request that the matter either proceed as scheduled or that you be compensated for your time. You will probably lose the objection, but at least you will go down fighting.