LITIGATING A BOUNDARY DISPUTE
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Transcript of LITIGATING A BOUNDARY DISPUTE
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LITIGATINGA
BOUNDARY DISPUTE
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Litigating a boundary dispute
YOUR TRIP INTO THE CRAZY
UNPREDICTABLEWORLD OF LITIGATION
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A PRESENTATIONTO
Taps
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PRESENTED BY
WALT ROBILLARD, ESQ., RLS, FORENSIC SURVEYORATTORNEY AT LAW
NOW YESTERDAY
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WhyDo
PeopleLitigate?
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Some of the reasons
1. TO SOLVE ACTUAL OR PERCEIVED PROBLEMS.2. TO RIGHT A WRONG.3. TO GET EVEN.4. TO BRING AN ENEMY TO HIS/HER KNEES.5. TO GET MONEY.6. TO SOLVE A PROBLEM THRU LITIGATION.7. TO GET A FINAL “LEGAL” ANSWER.8. JUST TO BE AN OLD “S-O-B.”9. NONE OF THE ABOVE.
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THE SYSTEM
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Three REQUIREMENTS: (AT LEAST)
1. MUST HAVE A JUSTICIABLE ISSUE.2. COURT MUST HAVE JURISDICTION.3. MUST BE THE PROPER VENUE.4. Should have the money
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FIRST MUST DETERMINE WHAT LAW IS
WHO SAID?LAW IS A PREDICTIONOF WHAT THE COURTS
WILL DO ?
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OLIVER WENDELL HOLMES
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WHO SAIDLAW IS A RULE OF REASON; PROMULGATED BY AUTHORITY AND SUPPORTED BY SANCTIONS?
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SAINT THOMAS AQUINAS
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A TRIAL IS A PROCEDURE CONDUCTED BY ESTABLISHED RULES TO DETERMINE THEFINALIZATION OF A LEGAL OR EQUITABLE PROBLEM.THE FIRST PROBLEM ONE MUST DETERMINE IS, IS IT IN LAWIN EQUITYCRIMINAL
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2ND
The “TEAM” THEN MUST DETERMINE WHAT THE TOTALITY OF THE EVIDENCE WILL PROVE.
Evidence IS NOT proof. The amount of evidence recovered and then interpreted leads to the proof.
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A.C. MULFORD SAID
BEFORE LEAVING THIS GENERAL SUBJECT IT WOULD PERHAPS BE WELL TO CONSIDER FOR A FEW MOMENTS THAT RELATIONSHIP BETWEEN THE SURVEYOR AND THE ONE WHO MAY PERHAPS BE
CALLED HIS CO-WORKER- THE LAWYER.
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The legal system is based on the introduction of evidence by two types of witnesses.I. EXPERTII. LAYWHAT DID THE WITNESSESDOSEEHEARSMELLTASTETOUCH
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FUNCTION OF THE SYSTEM
ITHE FUNCTION OF THE ADVERSARY SYSTEM
IS TO RENDER A FAIR CONCLUSIONOF DISPUTES, BY THE APPLICATION OF
EXISTING LAW TO THE FACTSESTABLISHED BY THE
EVIDENCE
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THE PARTIES
The system has to have several individuals.I. Two or more parties.II. Attorneys 0-1-2-3 or more.III. The jury (maybe)IV. The judge.
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The parties
An attorney is not need to sue in any court.A party may engage attorneys. or A person may represent him/her self (pro se.)
Or Attorneys may be engaged by one or all parties.
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Pro se
As the American Bar Association stated:At the same time, courts almost as a
rule. Openly display a bitter and venomous hatred of pro se .. Litigants. So don’t expect courts to just roll over & give you what you demand without a battle. It doesn’t matter that you are right, it only matters that you are pro se; an inferior low life being… .
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IITHE FUNCTION OF AN ATTORNEY IS TO PRESENT ANY EVIDENCE AND LAW FAVORING THE PARTY FOR WHICH HE IS THE ADVOCATE IN THE LITIGATION.IT IS THIS REPRESENTATIVE FUNCTION THAT IS SUPPOSED TO EQUALIZE THE ABILITIES OF ALL THE PARTIES.
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The “Road map” of a trialAll (or most) trials are conducted in accordance with rules that are identified for the “public.”These rules may be “bent” by the courts as desired, but usually they usually remain as required by the parties, to be followed.
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DETERMINE: WHERE DO I WANT TO GO?
FIRST: WHO WILL BE THE PARTIES?SECOND: THE PARTIES THRU THEIR ATTORNEYS & WITNESSES DETERMINE WHAT THEY CAN PROVE BY THE EVIDENCE.THIRD: HAVE TO DETERMINE WHO THE PARTIES ARE.FORTH: HOW EXPENSIVE IT WILL BE.
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DETERMINE “HOW TO GET THERE” FROM HERE
THE TEAM PLOTS THE ROUTE THEY WANT TO GO.IS IT TROUGH “UNCHARTED” LEGAL WILDERNESS.
THEN
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WHAT KIND OF ACTION ?
IN REM: Against the thing (land.)
In persona: against the person(s).
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THE 3 BASIC STEPS
i. pre- trialii. Trialiii. Post trialThe surveyor should (or could) be consulted in these phases.
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The Surveyor’s Involvement
i. As a party
ii. As a witness
iii. As a “amicus curiae”
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Two basic questions
I. What do the facts prove?II. Am I able to finance to the final solution?III. How knowledgeable is my attorney?IV. How convincing are my witnesses?
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Then
The attorney has to find and engage, eitherLay witnesses or an
Expert witness.
Each serves a specific purpose.
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The witnessesThe system provides for two types of witnesses, whose function is to testify truthfully as to recalled memories of preceptions or opinions.Lay witnesses testify as to facts.Expert witnesses as to opinions. (hopefully)
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YouThe surveyor can be involved
in litigation in several capacities:
i. As a partya. Plaintiff b. Defendant
ii. As a witness
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BUT
As A. C. Mulford wrote in 1912:
Before leaving this general subject it would perhaps be well to consider for a few moments
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Let’s Assumeyou are not a party
As a witness you should have some idea of what the system is and the “road map” of how we get from the initial complaint to the decision.
The following is a generic road map of a normal trial.
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The system
I. What direction to take?1. Question of title?
2. Boundary issue? 3. Road map of the trial. 4. Should use imagination. 5. Tell a story.
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PRE-TRIALVery first question of your client
How much justice can you afford?
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The complaint
I. Who are the parties?II. What is the problem?III. What are the solutions?IV. What is the proper form of action? contract tort otherV. Should an expert be retained?
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The Answer
I. How much should be revealed about your case?
II. Is a counter claim necessary? III. Is a cross-claim necessary?IV. Should the expert be involved?
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Pre-trial matters
I. Can it be used in place of discovery?II. Should the attorney consider a Summary
judgment?III. Is a motion to dismiss in order?IV. Has there been a pre-trial order?
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the trial
i. Opening statement.ii. What direction?iii. Avoid common errors.iv. Direct examination.v. Cross examination.vi. Closing arguements.
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discovery
Discovery can commence at any point.Most widely used is depositions.Interrogatories Requests for admissionRequests to inspect propertyExpert witness requests