Obtaining information that requires a court order but before to going to the court? I'm struggling with the following dilemma. Some information is not accessible without a court order, for example, some data stored in Apple / Google / Facebook servers. Going to the court directly is too risky. Once the papers have been served, there are various circumstances that could prevent withdrawing / closing / resolving / settling. It happened to me in the past - both parties were in agreement, but the court did not agree on the agreement and forced yet another court hearing 4 months later. Ideally, I would like to obtain the data (that requires a court order to obtain) so that I'm equipped with factual evidence when going to the court. Maybe there is some mechanism available to humans? From reading books, my naive understanding is that in criminal law there is a pre-trial discovery, prosecutor and defender agree what evidence will be put in front of the jury. My situation is civil law and the main intention is to obtain factual evidence but going to court directly is too much risk, too many unknowns. EDIT / UPDATE: From the comments: 🇬🇧 UK jurisdiction pretty sure that discovery occurs in civil lawsuits as well, I would like to have the 1st mover advantage, not disclose to another party that I'm entertaining a thought of taking them to the court.
There are two cases to distinguish: information that the other party does not want to give without court order, and information that the other party may not give without court order. Only the former case matters, of course, since the latter by definition requires a court order. So, if the other party is legally capable of giving the information, but it's commercially not sensible for them, then you'll need to sweeten the deal. And that's business, not a legal question anymore. In other words: there's no legal instrument that's at the same time equal to a court order but also different from one. When you need a court order, there's no alternative to a court order.
This is largely congruent with* the doctrine of laches. The basic idea, under common law, is that you can lose rights by failing to assert them. This is generally important for many reasons, but specifically in the case of appeals: The argument should have been brought before the trial court. Justice is not a game, but it's important to recognize that the party trying to raise the argument had an opportunity to do so already. They have given up their right to raise this argument, and extending them the privilege of doing so is (for the following reasons) not good for the system. Courts of appeals are typically not well-equipped to evaluate factual evidence. It is not their area of expertise. Witnesses or evidence may be less available. It's just not practical to try to adjudicate factual issues on appeal, most of the time. If anyone could get an appeal by bringing new factual arguments, then everyone would do that. You'd bring your strongest argument before the district court, and then if that fails, bring the second strongest before the circuit court. That way, you get an extra trial. This is inefficient. Allowing factual arguments on appeal would encourage attorneys and their clients to strategically bring different facts before different courts. This kind of forum-shopping is harmful because it has little to do with who has the stronger overall case, and more to do with who has the better lawyer. * "Congruent with" is not the same as "an instance of"; this rule is not formally an application of laches. It just happens to share the same justification.
The order of operations is important I assume that plaintiff filed for a Protective Order. To get this granted, the plaintiff has to allege some kind of wrongdoing and evidence of that. If the defendant responds, then the plaintiff can amend their filing. Then the defendant once more can respond to the allegations. If the plaintiff wants to amend the filing once more, they need to ask the court to be allowed to do so, and that opens the door for the defendant to answer once more. That's all history for the case presented: The court apparently found the evidence lacking and dismissed the application for a PO. Plaintiff can only file for reconsideration or appeal but not bring in new evidence at this point. Dismissed Cases are not automatically evidence A case that did not establish its burden of proof and was dismissed - especially with prejudice - has not established that the evidence in it is good. You have to ask each item to be admitted separately and re-establish that it is good evidence. A bulk filing &quot;I want to bring this case as evidence&quot; is generally denied unless you prevailed in that case. A dismissed case is one you didn't prevail in. Get a Lawyer! It seems like you are in serious need of legal counsel to clear up the situation. Contact a lawyer for at least a free consultation if you even have a case.
You could probably hire a Pennsylvania lawyer to intervene in the case on your behalf and file a motion to seal the evidence in the case, and there is a good chance that it would be granted, and quite possibly, unopposed by the parties. But, the fact that it has already been made available to the public on the Internet could cause the court to deny your request on the grounds that it is futile to do so.
Question #1: is this even possible? Is there some sort of central database which contains details of all recent court cases involving custody of children in New York City? Yes, it is possible. The court clerk for each respective court in the State of New York maintains a list of every case pending that court that goes back many years in electronic form, and there is some minimal classification by case type although the classifications used might not precisely match what you are looking for - it might be necessary to include more than one kind of case and some classification categories might be over broad for your purposes. There are probably at least three courts that could have jurisdiction over this kind of case in New York City. The Supreme Court (i.e. the trial court of general jurisdiction) which has jurisdiction over custody cases that are incident to a divorce or legal separation and in certain other cases, for example, criminal felony child abuse and neglect cases take place in the Supreme Court; the Family Court, a court of limited jurisdiction which lacks jurisdiction over divorces and legal separations but often handles custody matters involving unmarried couples, custody determinations incident to allegations of child abuse or neglect, and post-decree child custody matters; and the Surrogate's Court, which handles custody determinations incident to deaths and incident to some incapacity determinations (as guardianships of minors) and if I recall correctly, incident to adoptions. It also isn't inconceivable that a de facto custody decision could also be made in another court incident to issuance of a protective order or criminal case. It is also quite possible that there may be multiple related cases in the same or separate court. For example, there might be a child abuse and neglect case terminating person B's parental rights in family court, and then a guardianship of a minor case appointing the adult child as guardian of the minor child in Surrogate's Court. It is quite possible that more than one database (or portion of a centralized database) would have to be reviewed, rather than a single database. When I practiced law actively in New York there was not a single database, but that was more than 20 years ago and given the explosive improvement in information technology that has taken place since then, it would not surprise me at all if some or all of the relevant databases have since been consolidated. They do not know person B's name or other identity, but know they are somewhere in New York City, New York, USA. But they know the following about B: within last 4 years, B was a parent involved in a court case where their older adult child won custody of their younger underage child from them. Some information about the children is known but not precise identity (let's say birthday and first name for one of them is known; as well as ages). Notwithstanding my answer to question #1, it wouldn't be easy. While birthdays and ages would be present in documents filed in the various court cases, they would not be indexed centrally. The index of case names would contain the names of the parties to the case, the general case type, and the case number, and possibly the assigned judges and the attorneys who entered an appearance in the case. Difficulties Involved In Searching By First Name Unless the first name was very unique, locating it in a central index could be very difficult. Also, it isn't at all uncommon for the day to day name that someone uses to differ from the person's legal name used in the court case caption, or for the person's name to be misspelled due to lack of accurate information or clerical error, or for a nickname of someone to be used instead of their legal name. For example, suppose that the person you are searching for has the legal name: Jonathan Ralph Lee. This could easily have an indexed first name of Jonathan, Jonathon, Johnathan, Johnathon, Jon, John, Ralph or some totally unrelated nickname in the central index. I know someone, for example, whose legal name is "Claire" who uses the name "Denny" which has no source in any part of her legal name, in all circumstances except legal documents, because at one point in her life that is what other people and she started to call her (for reasons that are not entirely clear to me), and it stuck. A nickname totally unrelated to a legal name is particularly common among people who immigrate to the U.S. or have parents who do, whose legal name is not commonly used in the U.S. For example, I know someone born in Korea whose true name is Hei-Hyun who used the name June, which she used in English as a second language classes when she was first learning English abroad, in almost all circumstances except in legal documents. In those cases, either the legal name or the nickname could easily appear in court documents. Everyday use of a middle name rather than a true first name is particularly common when father and son have the same true names apart from Senior and Junior or the third, for example, and when the first name is less common or otherwise embarrassing or overlaps with a classmate. I've also known people who used a first name growing up and then later transitioned to a middle name at some point (often upon moving to a new school or new place) and people who have transitioned in the opposite direction under similar circumstances, in each case in connection with a desire of the person involved to "reinvent" themselves. Other Information Which Would Greatly Help In Searching It would be extremely helpful (cutting the number of cases involved dramatically) to know which borough within New York City this took place in, because at the level of court administration, each borough of New York City is a separate county with a separate set of court clerks and all case indexes would reveal the borough in which the case was brought. The more you can narrow the time period, the easier it is for you to conduct the search. If you knew the name of the school that the younger child who was subject to the custody order attended at any time and the younger child's first name and ethnicity, attempting to locate and review school yearbooks and newsletters in the relevant time period (often children are identified by name in newsletters listing children who won academic or attendance or sports awards, or who participated in special field trips, for example) would provide a much more solid basis for a further search of records related to person B, because this would give you a full name for the child and would also establish the most likely borough in which the records would be located. Often a list of parent names at the school can be found in PTA newsletters or lists in school newsletters of parent volunteers who are being thanked. If you knew the address of person B or the younger child or the older child at some point, this would be very helpful. If they lived in a home that they owned you could search property records to find a name of person B or someone related to person B. If they rented, you would still narrow down the likely school that the younger child attended, the likely courts in which the action could have taken place, and you could go in person to the neighborhood and ask former neighbors. Either a first name or a surname for person B, the parent, would also be extremely helpful, although a full name and borough of residence for person B would be much better and might limit the search, if you were authorized to make it, to just a handful of names. Knowing person B's gender would also help. If person B is the father, usually the child's surname will be the same as the father, while if person B was the mother and not married to the father, this would be much less common. The more you know about the precise nature of the proceeding, the better. It would be very unusual for an adult child rather than a parent to be awarded custody of a minor child outside of an abuse and neglect proceeding terminating person B's parental rights, or an adoption proceeding in which person B voluntarily relinquished his or her parental rights. So, the odds are good that you would want to search records in Family Court or Surrogate's Court, rather than in the Supreme Court which handles matrimonial actions. If person B were prosecuted criminally for child abuse or neglect, there is a very good chance that the person is incarcerated in a state prison at this time and so a search of prisoners with the right partial name who were incarcerated at about the right time and were of the right gender could be fruitful. This would be particularly helpful if person B is a woman because there are far fewer incarcerated women than there are men, and there are far few women's prisons than there are men's prisons. Knowing the name of the judge who handled the case would be extremely helpful and would greatly narrow the scope of the search. Also, if you identified the case with sufficient specificity in a request to the judge who handled the case to allow you to gain limited access to court records, it is quite likely that the judge would be able to identify the exact case involved with the help of court clerks from memory or partial memory of the case, making it much more likely that the judge would let you access the information that you needed. Media accounts of a case and appellate opinions arising from case (which are often publicly available in redacted form) are much more likely to identify the name of the judge than the name of the parties in a case involving a minor child. Knowing who represented person B as a lawyer, or in the alternative, knowing that person B was not represented by a lawyer, would help narrow the list considerably. If you knew who the lawyer was, calling the lawyer's office and asking in a manner that explained your need to know would probably be more likely to provide information that obtaining it directly from the court system. Knowing the name of the opposing counsel would be almost as helpful. If you new that person B acting pro se in the case, you could eliminate from the list all cases in which all parties were represented by a lawyer. This search could be made considerably more powerful if you knew the gender of person B as this would allow you to narrow the search to cases where someone of person B's gender was not represented by a lawyer. If the case was an abuse or neglect case, it would have been prosecuted in the name of the State or the People, so you would look for cases where the defendant was not represented by counsel without regard to the attorney for the plaintiff. Question #2: If this is theoretically possible, who would have access/privilege to do this? Any random person? A registered lawyer? Police? Court officer? Usually cases involving juveniles are closed to the general public, so to access them, you would need to be an "interested party", and neither a "random person" nor a lawyer admitted to the bar in New York State could do so without that connection. It might be possible to search case names that might contain the name of the child or the sibling without being allowed to access the contents of the file in some cases, I am not entirely sure on that point. If the case were incident to a case in which the child or the sibling was not a named party (e.g. the probate of a parent), this might not be sufficient to even identify the right case, however. A good summary regarding access to court records in New York State is available here. In some of the pertinent parts, it states: A number of statutes limit access to court records where the interest in confidentiality outweighs the public interest in disclosure: A. Family Court Records Access to court records in the Family Court is governed by Section 166 of the Family Court Act, which provides that the records of any proceeding in Family Court are not open to indiscriminate public inspection. In order to access a particular Family Court record, the requesting party must make an application to the Court and set forth the reasons for the request. It is solely within the discretion of the Court whether to permit the inspection of such records. Certain individuals, such as the parties and their representatives, are permitted access to Family Court records without application to the Court. 22 NYCRR205.5 Given that "B was a parent involved in a court case where their older adult child won custody of their younger underage child from them.", it is conceivable that one could articulate a reason for the need to do the search that a Family Court judge would authorize, but that would depend to a great extent on the precise nature of the reason for the search. It helps that the person you are actually searching for is an adult who would have been a named party in the case, and not the actual minor child. But, a Family Court judge would probably be pretty reluctant to authorize a search on behalf of someone who didn't even know the name of the person being searched for and instead only knew the first name and age of one of that person's children. In part, this is because it indicates that the "need" to locate person B is not very strong, and in part, this is because the search would be much more intrusive requiring review of actual court filings in many cases rather than merely reviewing the index of cases. It further states: B. Civil Actions Like criminal proceedings, civil actions are presumptively open pursuant to the guarantees under the First Amendment. Unlike criminal actions that present constitutional considerations for criminal defendants, in civil actions the First Amendment guarantees must be measured against the public interest in requiring disclosure. Family Court Proceeding The declaration in Section 4 of the Judiciary Law of a presumption of public access to court proceedings does not differentiate among the courts, and therefore applies to the Family Court, subject to any other statute that gives special treatment to Family Court proceedings. As such, there is also a presumption of openness to all Family Court proceedings, and Section 205.4 of the Uniform Rules [22 NYCRR] expressly provides that the Family Court is open to the public, including the media. However the presumption can be overcome on a case-by-case basis by an overriding interest that closure is essential to preserve higher values. See e.g., Globe Newspaper Co. v. Superior Court, 457 US. 596, 608; Matter of Ruben R., 219 A.D.2d 117 (1st Dept.),lv. to app. denied 88 N.Y.2d 806 (1996) (holding potential trauma to mental and physical well-being of children required closure of child protective proceeding to public and press); Matter of Katherine B., 189 A.D.2d 450 (2d Dept. 1993) (holding public properly excluded from child protective proceeding where compelling testimony established that child would be adversely affected). Section 205.4 (b) of the Uniform Rules [22 NYCRR] provides specific factors that a judge may consider in determining whether to close the courtroom or to exclude specific individuals, such as preserving courtroom decorum, avoiding a disruption in the proceedings, and serving the orderly administration of justice, including privacy interests of individuals before the court and the need to protect litigants from harm. Matrimonial Proceedings Domestic Relations Law § 235(2) grants the court the discretion to exclude the public if "the public interest requires that the examinations of the witnesses should not be public." Because matrimonial proceedings include matters concerning child custody, visitation and maintenance, aside from potential embarrassment to the litigants in a public proceeding, the public interest standard may protect minors from public testimony. See CPLR 4019; Matter of Lincoln v, Lincoln, 24 N.Y.2d 270 (1969) (trial court had discretion to interview the child in a custody proceeding in private). Adoption Proceedings Given the nature of adoption proceedings, the proceedings are confidential and held in closed courts, and the records pertaining to adoptions are sealed pursuant to Domestic Relations Law § 114. See Matter of Walker, 64 N.Y.2d 354 (1985) (setting forth the considerations for deeming adoption records confidential). Mental Competency Proceedings The media has a qualified right of access to competency hearings, whether held pursuant to the Mental Hygiene Law or the Criminal Procedure Law. See Matter of New York News v, Ventura, 67 N.Y.2d [sic] C. Matrimonial Actions Section 235 of the Domestic Relations Law provides that neither an officer of the court with whom the proceedings in a matrimonial action or a written agreement of separation is filed or an action or proceeding for custody, visitation or maintenance of a child are filed, or before whom testimony is taken, or his clerk, either before or after termination of the suit shall not permit a copy of any pleadings, affidavits, findings of fact, conclusions of law, judgment of dissolution, written agreement of separation or memorandum thereof, or examination to be taken by any person other than a party, or the attorney or counsel of a party, except by order of the court. D, Confidential Records Records contained in a court file that are deemed confidential may not be disclosed absent a court order including the following: . . . • Court records in sex offense cases that might identify the victim. See Civil Rights Law § 50-b. • Mental health records, including records of commitment, retention and discharge proceedings of the mentally ill and mentally retarded (see Articles 9 and 15 of the Mental Hygiene Law; CPL 330.20) and clinical records submitted in connection with the proceedings (see Mental Hygiene Law § 33.13[c]). . . . • Records of adoption proceedings. See Judiciary Law § 90.10. • Other records or documents that have been sealed or designated confidential by the court. I am not completely clear on the extent to which the case name itself is suppressed, as opposed to merely the contents of the case file in some of these situations, but where the name of a child is suppressed due to confidentiality this often extends to the name used in the caption and indexing of a court case that is available to lawyers not involved in the case and the general public. A court official would have authority to look at the information, but probably wouldn't be allowed to disclose it to you in any situation where you or a random lawyer was not allowed to do so, for the reasons set forth above. I can imagine circumstances in which the police or the prosecutor's office would be allowed to review sealed juvenile custody case records in furtherance of a criminal prosecution or potential criminal prosecution, but I couldn't tell you how they would go about getting that authorization as I have never practiced criminal law and am not familiar with that level of procedural detail in New York State. But, it is hard to imagine law enforcement coming to your aid in the circumstances you describe, although without knowing the reason that you want to locate person B, it is hard to know for sure.
Only if counsel challenged the point during the trial Difficult as it might be, you can’t allow the judge to be wrong during the trial without calling them on it: very, very politely. For example, there is case law that says you can’t successfully appeal because the judge was asleep through significant parts of the trial; appeals courts are clear that you have to wake them up. If you don’t then you accepted that you didn’t want the judge to hear the parts of the case they slept through, it’s your choice how you present your case. Frankly some cases are better if the judge misses half the evidence. Of course, if the error of law makes it through to the oral or written judgement then you can appeal even if you didn’t take issue with it.
The most innocent of your scenarios is "against the rules", so less innocent acts fair worse. The idea behind researching legal theory and precedent (presumably not presidents) is that surely it is good for a juror to know what the law is. But that thinking is wrong. The judge will instruct you as to what the law is, and will also instruct you that "the law" is limited to what he says it is. I will draw on the instructions for an antitrust case, Best Buy v. Toshiba, HannStar. The core instruction is: It is your duty to find the facts from all the evidence in the case. To those facts you will apply the law as I give it to you. The preliminary instructions (the pattern instructions for California civil trials) say the same basic thing: At the end of the trial, I will explain the law that you must follow to reach your verdict. You must follow the law as I explain it to you, even if you do not agree with the law. The judge instructs the jury that: When a party has the burden of proof on any claim or affirmative defense by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim or affirmative defense is more probably true than not true. Your research might find alternative statements of the law out there, which seem entirely plausible. That doesn't matter: you have to set aside whatever ideas (about the law) that you've gotten from anybody besides the judge. In fact, if the judge makes a (serious) mistake and rules against a party in a manner that is contrary to established law, and you know this (it doesn't matter how), you are supposed to apply the law (including rulings during trial as to admissibility) as given to you by the judge. As for a case of a juror knowing that the judge was mistaken (specifically, knowing based on his pre-existing knowledge of statutes and case law – not based on forbidden research during a trial), we can get the "should" from the absolute instruction to follow the judges instructions. Additionally, if you read transcripts of voir dire (not a trivial task), you can observe judges probing attorneys who happen to be in the prospective pool, asking questions to determine whether that person can just do as they are told. But it would be difficult to establish a "hard rule". There never will be an instruction that says "You must follow my orders even if you know for a fact that my orders are wrong" – jury instructions never admit the possibility of judicial error.
It is possible that you could be required to testify in a coroner's inquest, or in a criminal trial (if it were later determined that a crime was committed despite first impressions to the contrary). You could also conceivably be called to testify in a civil trial concerning, for example, insurance payment eligibility. But, it is also quite likely that none of these proceedings will happen and that your initial statement to police on the scene will be sufficient for all purposes in the future. The coroner may be satisfied that he needs no further information. Law enforcement may decide that no crime was committed. And, the death certificate's cause of death and date of death may be found to be sufficient in any future civil dispute.