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Post by Adm. T.M. Asmourescu, O. Ben. on Jul 8, 2014 5:13:19 GMT -6
Your honor, begging the court's indulgence.
The defendant notes a right to call witnesses. As we have pointed out we do not feel petitioner is a witness. We also observe that the procedures do not include the inherent right to call witnesses at any time during the proceedings. Again, defendant had months to prepare a defense and never made such an attempt. Additionally, at the opening of these proceedings when we requested an answer to three questions defendant accused plaintiff of attempting to have him do our research for us.
Defendant also asserted he was too busy to answer any such questions. That time would have been defendant's latest opportunity to raise the issue of a planned witness. Neither procedure nor applicable statute provide for a right to surprise witnesses. If defendant has identified flaws in plaintiffs argument, he should raise them in his rebuttal brief.
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Post by Sir Alexandreu Davinescu on Jul 8, 2014 6:47:43 GMT -6
If possible, I would request that I be permitted the day to respond to plaintiff's counsel's essays; I was under the impression we were now awaiting a reconsideration of the ruling. If we are still arguing the point, I lack sufficient time today to discuss how attorneys customarily call witnesses during their phase of the trial and how they seldom call witnesses unless they think they will be helpful.
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Dr. Txec dal Nordselvă
Puisne (Associate) Justice of the Uppermost Court
Fraichetz dels punts, es non dels mürs
Posts: 4,063
Talossan Since: 9-23-2012
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Post by Dr. Txec dal Nordselvă on Jul 8, 2014 10:13:49 GMT -6
The court has carefully considered arguments made by both sides. The right to confront a witness (or an accuser), which has a long historical basis in English Common Law (the right to cross-examination), Roman Law (looking one's accuser in the eye) and the Confrontation Clause from the 6th Amendment to the United States Constitution. In each of these examples the court has provided, all of them are directly related to criminal proceedings, not civil proceedings. A criminal defendant absolutely has the right to confront his or her accuser and the State has the absolute requirement of making that accuser available in all but the most extreme conditions. A citizen who has renounced and left but still accuses someone in Talossa of a crime must absolutely make himself available by way of visa or other mechanism which allows entry into Wittenberg. In a civil proceeding, however, the customary method in Talossa of arguing positions has been through the submission of briefs. The court would not be opposed to allowing for witness statements or examinations and depositions (even from those who have left Talossa as the simple filing of proceedings brings such witness back into the courts jurisdiction), however, timing is important. In Case 14-03, the Plaintiff presented his opening case, the defense did the same, and the plaintiff has presented a rebuttal. The court would have preferred to have witnesses examined prior to the submission of a brief by the defense.
Before issuing a final ruling on the objection, the court finds it necessary to take a short recess as the magistrate is going to be on vacation until the weekend. In light of that, the court is staying its previous ruling and allowing time for the defense to respond to the plaintiffs most recent motions before the court. Court will resume next week.
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Post by Sir Alexandreu Davinescu on Jul 12, 2014 7:14:36 GMT -6
Your Honour, looking through the replies, I see objections to my request for a reconsideration on several grounds, none of which are sufficient.
Counsel suggests that the plaintiff has no testimony to offer because he didn't witness anything. However, the witness is the only person who can testify in support of several of the central facts in my defense, and questioning may also reveal further truth about the case. The plaintiff was the only person to upload the many edits of information to the page, and submit it. He was the only person who uploaded the image to the page, and select the license to release the image's copyright. And he is certainly the only person who can testify as to his state of mind and disposition on these matters. And, in any case, it is entirely irrelevant whether or not opposing counsel thinks this witness could be helpful to my case. I assure your Honour that I believe that this witness would assist me in preparing a defense.
Counsel also suggests, oddly, that I should not be allowed to questions witnesses at all, because doing so might help my defense and harm the plaintiff's case. Needless to say, this is essentially the entire point of a defense. There are many flaws in the plaintiff's case, and the central goal of my briefs, my arguments, my evidence, and my witnesses is to demonstrate these flaws. Plaintiff's counsel seems to consider this to be, somehow, wrong of me.
Plaintiff's counsel further suggests that I am attempting to contravene the proper legal process by questioning a witness, who is not a lawyer. This essentially amounts to another odd argument that the defense is not allowed to ever call witnesses, which would seem a rather bigger disruption of the legal process. Yes, I might ask questions that go places that the plaintiff's counsel is not happy to go - to "sidestep the briefs submitted." I have no plans to ask questions that extend the scope of the issues under contention, and certainly no plans to ask improper questions, but the entire point of a defense is to show how the plaintiff's arguments are either erroneous or inadequate. The plaintiff is not allowed to decide unilaterally what I am permitted to discuss in my own defense.
Counsel further further suggests that this is procedurally improper or rude of me. However, I specifically notified counsel ahead of time as a courtesy and to let the cort consider this. Procedures in this young cort are a bit unclear, so if I was somehow remiss, I apologize for that fact. But given the vagaries of procedure and my inexperience when compared with the learned counselor (who was, let us remember, a High Cort Justice!), I'd ask for a bit of leeway, if I was in the wrong.
I am not sure why opposing counsel brings up the matter of his research request. I am not requesting that he look up some information for me, but rather simply notifying him that I intend to call his client as a witness (indeed, the sole possible witness to most of the relevant events).
I would also again call your Honour's attention to the poisonous precedents that could be set here. This ruling could establish that a non-citizen has considerable advantages over the citizen in cort, if it is ruled that a non-citizen cannot be called to testify. This ruling could establish that the plaintiff has considerable advantage over the defense, if it is ruled that the defense is not allowed to call witnesses at all if they might harm the plaintiff's case, granting all plaintiff's the right to refuse to testify. Or this ruling could essentially eliminate the calling of witnesses altogether, which would be completely in contradiction to the precedents set by the Uppermost Cort (which has permitted the calling of witnesses in the very fashion in which I am doing so) and in contradiction to the posted rules of witnesses by that body.
I ask your Honour to reconsider the ruling.
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Dr. Txec dal Nordselvă
Puisne (Associate) Justice of the Uppermost Court
Fraichetz dels punts, es non dels mürs
Posts: 4,063
Talossan Since: 9-23-2012
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Post by Dr. Txec dal Nordselvă on Jul 13, 2014 23:38:28 GMT -6
Court is called to order.
A matter of clarification is needed by the court. Has the plaintiff presented its primary case or simply opening arguments in its initial complaint and rebuttal?
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Post by Adm. T.M. Asmourescu, O. Ben. on Jul 14, 2014 13:54:47 GMT -6
Your worship, the brief filed represents our primary case.
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Post by Adm. T.M. Asmourescu, O. Ben. on Jul 14, 2014 13:58:43 GMT -6
Your honor, counsel for the plaintiff also had ankle surgery on this Friday past which had some unforeseen complications.
I do not believe a recess is in order given that this is not a living court, but I would ask the court to take this into consideration when setting deadlines until the end of this week when, it is hoped at least, counsel will be fully restored.
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Dr. Txec dal Nordselvă
Puisne (Associate) Justice of the Uppermost Court
Fraichetz dels punts, es non dels mürs
Posts: 4,063
Talossan Since: 9-23-2012
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Post by Dr. Txec dal Nordselvă on Jul 14, 2014 14:13:45 GMT -6
Thank you counselor, the court will take this into consideration.
The court does not seem to have copies of the email correspondence that were referenced and submitted into evidence in the initial complaint. If plaintiff's counsel would get those to me, the court can make a ruling on the objection.
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Dr. Txec dal Nordselvă
Puisne (Associate) Justice of the Uppermost Court
Fraichetz dels punts, es non dels mürs
Posts: 4,063
Talossan Since: 9-23-2012
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Post by Dr. Txec dal Nordselvă on Jul 15, 2014 12:00:53 GMT -6
In considering all the arguments for and against the objection, the court has concluded that if a non-citizen of Talossa has the legal ability to sue in a Talossan Court, that very act brings him or her into the jurisdiction of the court. The court looks for precedent in this issue to US law as the plaintiff is presumably a citizen or resident of that nation. A foreign national may sue in US court and there are mechanisms in place to subpoena foreign nationals to US courts, though those nations may or may not choose to honor the requests. In Talossa, this may be the first or one of the very first times a foreign national has sued a Talossan citizen. The court is fully aware of the precedents that may be set here. In this case, a foreign national has sued and the court has tacitly accepted the suit as valid (though it has not actually ruled on the legality of the suit itself). The court also concludes that the plaintiff, despite his citizenship, can indeed be subpoenaed to appear before this court and therefore the objection is overruled. There is one caution, however, the court has no ability to force the plaintiff to appear as there exists no form of judicial treaty between the United States of America and the Kingdom of Talossa.
The court orders the Ministry of Immigration and the Seneschal to issue a visitors visa to the plaintiff S:r Marcianus for the duration of the trial.
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Case 14-03
Jul 15, 2014 12:15:13 GMT -6
via mobile
Post by Sir Alexandreu Davinescu on Jul 15, 2014 12:15:13 GMT -6
Thank you, your Honour. I intend to question the witness, then supply a brief for my defense which draws on the testimony.
S:reu Asmourescu, I know that your client doesn't wish to testify and that you are injured, so please take your time in arranging for him to appear here for questioning. Please let me know if I should ask the cort to issue a subpoena, or if that is unnecessary.
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Post by Ián B. Anglatzarâ on Jul 15, 2014 12:28:35 GMT -6
The court orders the Ministry of Immigration and the Seneschal to issue a visitors visa to the plaintiff S:r Marcianus for the duration of the trial. As far as I can see, his old account is not just disabled but deleted. If he registers a new one, he will be issued a Visitor's Visa.
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Post by Adm. T.M. Asmourescu, O. Ben. on Jul 15, 2014 13:30:36 GMT -6
Your honor, at this time, we move to bar the defendant from questioning the plaintiff on any matter of law not raised in our complaint. If the defendant is true in his assertions that he intends to call the plaintiff as a witness, then he should be compelled only to testify to his statements, interactions and other correspondence with the defendant, that is, testimony about events witnessed.
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Post by Adm. T.M. Asmourescu, O. Ben. on Jul 15, 2014 13:33:17 GMT -6
I have directed my client to forward the requested correspondence.
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Case 14-03
Jul 15, 2014 13:47:20 GMT -6
via mobile
Post by Sir Alexandreu Davinescu on Jul 15, 2014 13:47:20 GMT -6
Your Honour, it seems to me that while the plaintiff's counsel can object to any specific line of questioning, it doesn't seem proper that he be permitted to limit my questioning in advance to his own preselected inquiries. I should be given leeway to present my own defense, not given direction and limitations according to what opposing counsel would prefer.
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Dr. Txec dal Nordselvă
Puisne (Associate) Justice of the Uppermost Court
Fraichetz dels punts, es non dels mürs
Posts: 4,063
Talossan Since: 9-23-2012
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Post by Dr. Txec dal Nordselvă on Jul 15, 2014 14:30:21 GMT -6
The court will not permit "fishing expeditions" and expects that direct examination and cross-examinations will be only on issues raised during the trial in briefs submitted. The court directs that during witness examination, counsel will ask one question to which the witness shall answer. Any objections to the line of questioning shall be considered and ruled upon before counsel asks the next question. Should the court sustain an objection, the answer shall be stricken from the record. Any questions asked of any witness in this case that go beyond the scope of the briefs shall be considered on a case-by-case basis.
While any correspondence between the parties may be submitted to the court via email, they are not admitted into evidence until counsel submits them as evidence. The defense sent via email copies of correspondence between the defense and the plaintiff. The court acknowledges their receipt but at this time they are not evidence in this case and will not be considered by the court until such time as they are submitted into evidence.
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