Preparing for Motion for New Trial What is needed to prepare for a Motion for New Trial Hearing? My understanding is I will get to make an opening statement, opposing counsel will list reasons to deny and then I will get to discuss my factors listed for why I believe it should be granted.
The first thing you need is a lawyer. Your lawyer will need to understand the standard for granting the motion and be prepared with an explanation of why your case satisfies that standard. If the lawyer can cite to other cases where similar facts led to the outcome you're asking for, that will also be helpful.
Your question slightly misrepresents what the article says: Yes, the judge denied the motion which led to the collapse of the case, he did not make a ruling on the substance of the case. The distinction is significant to my mind as the judge was using non-evidentiary knowledge (i.e. what he read in the paper) to make a decision on process; in this case a process that would have put a lot of people to a lot of inconvenience. It would not be proper for the judge to have used such knowledge to inform a judgement. It is also not clear from the article if the academic paper in question was actually introduced by the defendant as evidence. If that was the case then it is only right and proper for the judge to consider it. As to why a judge is allowed to read the news and a jury is not, I can offer several ideas: A judge must document their reasoning process in a judgement which is subject to review - if they were to make a decision based on matters not supported by the evidence then an appeals court could correct it. Alternatively, juries are specifically prohibited from revealing their reasoning process to anyone. Judges do their jobs for years, perhaps a whole career - to prohibit them from consuming media is a) unworkable and b) a serious impediment on their lifestyle. Juries are empaneled for weeks or months - such sacrifices are more reasonable. Judges are (supposedly) trained and impartial professionals who are more readily able to make the distinction between evidence and news. Newsworthy cases are relatively rare
In general, court hearings are held in public; and anyone is free to make a fair and balanced report of the proceedings. It is important that justice is seen to be done. However, in some circumstances that is not true—the obvious example is if a child is involved. It is not sufficient though merely that "[the claimant] wants to keep his/her identity confidential". Have a look at the Civil Procedure Rules (part 39): 39.2 General rule – hearing to be in public The general rule is that a hearing [including a trial] is to be in public. ... A hearing, or any part of it, may be in private if – (a) publicity would defeat the object of the hearing; (b) it involves matters relating to national security; (c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality; (d) a private hearing is necessary to protect the interests of any child or protected party; (e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing; (f) it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person’s estate; or (g) the court considers this to be necessary, in the interests of justice. The court may order that the identity of any party or witness must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that party or witness. https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part39#39.2 If you can satisfy the court that one of (a) to (g) apply, the court may make an order anonymizing proceedings (for instance, you would only be referred to as "AB" in reports and judgements) or it might hold the hearing in camera (in private). However the other party may well wish to oppose your application. Indeed, even a newspaper hearing of your case but unable to report it is entitled to object: http://www.bailii.org/uk/cases/UKSC/2010/1.html (In re Guardian News) Conclusion In these circumstances, when carrying out the ultimate test of balancing all the factors relating to both M's article 8 rights and the article 10 rights of the press, we have come to the conclusion that there is indeed a powerful general, public interest in identifying M in any report of these important proceedings which justifies curtailment, to that extent, of his, and his family's, article 8 Convention rights to respect for their private and family life. For all these reasons, we would set aside the anonymity order in respect of M. ... Therefore, A, K, M and HAY will be named here and in the judgments on the substantive appeals, as Mr Mohammed Jabar Ahmed, Mr Mohammed Azmir Khan, Mr Michael Marteen (formerly known as Mohammed Tunveer Ahmed) and Mr Hani El Sayed Sabaei Youssef (or Hani al-Seba'i), respectively.
It is somewhat understated, because your silence can also be used against you. In Salinas v. Texas, defendant Salinas was &quot;just talking&quot; to police, not in custody, and his silence (as opposed to shock and outrage) at the question of whether shell casings found at the crime scene would match his shotgun. This &quot;adoptive admission&quot; was introduced as evidence against him. In order to prevent your silence from being used against you, you must invoke the 5th amendment. There are two exceptions to the rule that you must invoke the 5th to be protected by it. First, a criminal defendant need not take the stand and assert the privilege at their own trial. Second, a witness’s failure to invoke the privilege must be excused where governmental coercion makes their forfeiture of the privilege involuntary (Miranda). In lieu of coercion, you must preface your silence with an invocation of your 5th amendment rights.
This is a general answer based on the state of affairs in various jurisdictions. By that I mean it's not legal advice. Do not assume that the 20 days is the arraignment. Often the thing that happens when you show up at the 20 days is you talk to a D.A. (and I use that term lightly) who asks you if you are going to pay. Maybe offers you a "deal" which is mostly requiring you to pay the full amount but reduce or eliminate the record. If you try to talk to this DA she will act like she's not a DA and say that she can't discuss the facts. If you don't pay she'll schedule your arraignment and THAT's when you plea. Your best bet is to tell her that you are requesting evidence and in likelihood she'll put your date out far enough. You should consider the deferral and the safety course as offers. Offers the DA makes before you get all the evidence. No, you do not have a right to see the evidence before accepting an offer. You have the right to say no to the offer. That's the reason the offer is made; to save the DA the time of the process. (The song and dance I mention above is the pre-arraignment offer for low-level cases) If you reject the offer and get arraigned before you see the evidence you need to tell the judge this before you enter your plea. (Be prepared to show her the written requests) One thing - this stuff is all way easier if you have an attorney. And this is not the "consult an attorney..." disclaimer (although that applies!). Attorneys will short cut all of this for you. They know the clerks, they get you the front of the line at any appearance, and they generally give your argument credibility. It's totally unfair and it's totally the way it works. Walk into a courtroom at 8am and see 30 people waiting. No clerk, no one, just defendants. Between 8 and 8:10 various people in suits will walk past the bar and start rifling through folders on the clerk's desk. They'll read a folder and put it back. See, they're looking for their client. If you do this the sheriff will handcuff you.
A courtroom is not a podium A court is a forum for resolving a specific dispute. Testimony is restricted for a number of reasons the most all encompassing of which is relevance. For testimony to be admitted it has to go to the issue in dispute. For a person charged under the laws of, say, India, it cannot be in any way relevant what the laws of, say, China have to say about the issue. Similarly, for a person charged with a Federal crime, state law is irrelevant (and vice-versa). There is no free speech issue here because testimony is given only for the purpose of resolving the case. If it’s not relevant to that you can’t introduce it and, if you persist in trying the court can hold you in contempt.
For Mr. Petersen, the questions in general should have been elementary. The fact he did not know them is actually quite deplorable. To your questions specifically: Should Mr. Petersen, as a Juris Doctor, know of those things in his sleep? This is the wrong question. The question is: should an individual who has accepted a nomination to serve as a federal judge on the U.S. District Court know of those things in his/her sleep? The answer is unequivocally yes. One could almost argue - one would likely be scoffed at, but one could - that an appointment to a higher court, the U.S. Circuit, could get away not knowing those things 'in his/her sleep,' because appeals courts would not deal with, e.g., abstention doctrines or whether to admit expert scientific testimony, as often as a trial court does. Simply put, lawyers should at least have heard of those things (he looked/sounded absolutely dumbfounded at the words that were being said to him), litigators should know them, and federal trial court judges absolutely need to know those things to do the job. Is his excuse valid when he says that he has no background in the field(s) (he mentioned litigation once) the terms are corresponding to? If he was just some lawyer talking to some guy at a bar, sure, totally valid. If someone is a corporate M&amp;A or project finance attorney, sure, don't expect him to win any trial court vocabulary contests. However, when sitting before a panel of U.S. Senators carrying out their Constitutional duties of "advice and consent" on presidential appointments, not knowing those things can, should, and indeed did end in complete humiliation for the person ignorant enough to try and go through with that. I'm sure his hearing was scheduled some time in advance. The fact he obviously made zero attempt to know anything is actually insulting to everyone involved. For context, I wrote a motion in limine at my first internship. If I live to be 1,000 and never step foot in a court room, I'll still be able to say more about a motion in limine than "I would probably not be able to give you a good definition right here at the table."
it would be a lot of work to formulate a bullet-proof response. Wouldn't that defeat the whole purpose of motion for protective order? No. The purpose of objections --and of motions for protective order-- is not to avoid doing &quot;a lot of work&quot;, but to protect information the party considers unreasonable or which ought to be protected from discovery. Elaborating on an objection to interrogatories and/or requests does not provide the information sought to be discovered. Therefore, objections do not defeat the purpose of a motion for protective order. The difference (or one difference) between a motion for protective order and an objection is that the adversary can overcome the objection by rephrasing the interrogatory or request, whereas a protective order is intended to preclude all attempts to skirt the substance of that order. I never found anything that &quot;stays&quot; the discovery pending the hearing of motion for protective order Because there is no need to. Complying with the discovery request would render the motion for protective order a moot issue. Therefore, it is understood that that particular item of discovery essentially would be stayed while the judge has the occasion to rule on the matter. This is especially important for &quot;request of admissions&quot; There are three possible answers to each item in a request of admissions: Admission, denial, or objection. Since objections are allowed (with the proper justification therefor), there is no need to stay discovery. The party just needs to file his responses within the deadline. Moving for a protective order is an odd, and seemingly useless, way to address requests for admissions.