Judges responsibility to 'understand' ?
eas...@absamail.co.za
how does it work in your country ?
A civil dispute, but where the other party is a state department;
The legislation reads:
"..must be supported by an affidavit setting out...and the grounds of the
defendant's defence to the claim."
Consider:
* not all knowledge can be aquired from an affidavit, else people would
not need to attend university for 7 years.
* humans aquire knowledge by an iterative process. But law doesn't
allow to:
a) explain to the judge,
b) question him to see if he understood,
c) repeat 'teaching' as per school proven method.
Apparently for some justice systems, the judge is just seen as a neutral
referee, and the parties must convince/educate him.
But what about the case where the one party is a state department ?
I guess 'independance of the judiciary' handles this ?
What about when the transcripts proves that the magistrate didn't
have/find the vital replying affidavit before the hearing ?
Perhaps the theory is that if the justice department is degenerating,
it does not imply a un-level playing field, and that one's duty is to
dumb-down. Ie. both parties are dealing equally with incompetence ?
Thanks for any answers, also emailed to: eas...@absamail.co.za
-- Chris Glur.
Daniel R. Reitman
>Hi,
> how does it work in your country ?
>A civil dispute, but where the other party is a state department;
>The legislation reads:
>"..must be supported by an affidavit setting out...and the grounds of the
>defendant's defence to the claim."
What must be supported?
>Consider:
> * not all knowledge can be aquired from an affidavit, else people would
> not need to attend university for 7 years.
> * humans aquire knowledge by an iterative process. But law doesn't
> allow to:
> a) explain to the judge,
> b) question him to see if he understood,
> c) repeat 'teaching' as per school proven method.
I'm definitely missing something here. An affidavit is merely a sworn
statement of facts. Presumably, we're looking at a motion being heard
without testimony to save time. The court reads the affidavits to
decide what the facts are.
>Apparently for some justice systems, the judge is just seen as a neutral
> referee, and the parties must convince/educate him.
The American system assumes that the court is not an active
participant in investigating a case.
>But what about the case where the one party is a state department ?
>I guess 'independance of the judiciary' handles this ?
In the American system, yes. A majority of the judges probably do not
have government experience, except for former prosecutors and public
defenders.
>What about when the transcripts proves that the magistrate didn't
>have/find the vital replying affidavit before the hearing ?
I think I need more information to discuss this.
>Perhaps the theory is that if the justice department is degenerating,
>it does not imply a un-level playing field, and that one's duty is to
>dumb-down. Ie. both parties are dealing equally with incompetence ?
I'm confused by this question. Can you clarify?
Daniel Reitman
Eart...@mindspring.com
> how does it work in your country ?
Except for an occasional aberration, it "works" pretty much in direct
proportion to a litigant doing _exactly_ the converse of what you've
earlier said in your postings you have chosen to do or were
emotionally unable to avoid doing in your benighted lawsuit -- namely,
that asserting one's claim in a _timely_ fashion (e.g., not just
fantasizing that not paying a disputed bill will cause the other party
to sue and, instead, if a lawsuit is realistically the least
ineffectual and apparently needed means to resolve the dispute, suing
promptly one's self) and doing so in a way which coherently identifies
the important issues in dispute then persuades the court by way of an
effective marshalling/presentation of the important facts and cogent
argument based on controlling legal principles why claimant's (here:
defendant's) rather than the adverse party's version of the facts and
of applicable law ought be accepted "works" better than deflective
ruminations about what, in general, is the Nature of "Knowledge"
aggravated by never clearly stated yet too often also incorrect
assumptions as further compounded by inattention to actually important
rules of law applicable to the case.
> A civil dispute, but where the other party is a state department;
You are right to imply that there often are procedural and also not
infrequently substantive rules which apply to a litigant which is "a
state department" or other governmental agency which do not apply to a
private-party litigant, and vice versa.
But this usually is no different in principle from saying that
procedural and also substantive rules applicable to one sort of
law-related dispute (e.g., about an obligation allegedly created by a
negotiable instrument or other written contract) and to one sort of
party (e.g., a competent adult) might differ from rules applicable to
other kinds of law-related disputes (e.g., whether plaintiff is
entitled to a monetary award by reason of what are alleged to be
negligently-caused personal injury) and to other kinds of parties
(e.g., a non-adult human or to a business corporation).
> The legislation reads:
> "..must be supported by an affidavit setting out...and the grounds of the
> defendant's defence to the claim."
One does not need to attend any university (much less for 7 years) to
understand.
>
>Consider:
> * not all knowledge can be aquired from an affidavit, else people would
> not need to attend university for 7 years.
To the extent that not almost entirely just an empty truism, this (in
tone) portentous statement is signficant as applied to your apparently
largely self-created Plight in one signficant respect: It illustrates
your commitment to irrelevance.
It is not necessary, nor usually desirable, for instance, for a jury
or a judge in a case tried without a jury to be asked to have anything
even remotely approaching "all knowledge" even about the dispute at
hand. They need instead only the "knowledge" about what is _relevant_
and also _material_ to that unresolved dispute.
> * humans aquire knowledge by an iterative process.
And as relevant to litigation in the court to which you refer, like
many others elsewhere in the world, one way for someone being sued to
implement this "iterative process" for a court is to demonstrate by a
to the case at hand suitably fact-specific affidavit what defendant
claims constiutes a defence of the claim against him including, to the
extent permitted by the court's rules, reference (whether in the
affidavit or, as is preferred in many other courts, by a separately
included and also attached "memorandum of law" or "brief") to what
defendant contends to be controlling legal principle (what the court
ought rule the "law" should be for the particular case) as part of
those grounds, especially when there is a court rule or statute
requiring this.
> But law doesn't
> allow to:
> a) explain to the judge,
> b) question him to see if he understood,
> c) repeat 'teaching' as per school proven method.
If the rules and practice of the court provide for in-person oral
argument, a litigant who might not be permitted directly to "question"
the judge "to see if he understood" usually nevertheless is able to
achieve that end as as part of the give-and-take of oral argument.
But from what you have said is so about the courts in So. Africa and
how it "works" in many courts elswhere in the world is that what you
say in "a" and in "c" the "law doesn't allow" is not correct.
> Apparently for some justice systems, the judge is just seen as a neutral
> referee, and the parties must convince/educate him.
A good judge will try to be "a neutral referee" who, as such, will not
decide a disputed issue of any importance to the case at hand until
after s/he has been educated and convinced to do so by the litigating
parties.
> But what about the case where the one party is a state department ?
See comments addressed to this question above.
You've said in some of your earlier postings that there occasionally
has been "chaos" and also, you've implied, corruption in some courts
in your country; although, interestingly, you have not actually
reported any facts to the effect that either/both these sorts of
considerations have characterized any part of the lawsuit in which
you've been embroiled. But if you had so claimed, that would be all
the more reason for you to have paid special attention to doing what
is suggested above yet what you've repeatedly demonstrated you have
chosen to do or are emotionally unable to avoid doing.
> I guess 'independance of the judiciary' handles this ?
It certainly is a goal to be attempted and not infrequently achieved.
>What about when the transcripts proves
> that the magistrate didn't have/find the
> vital replying affidavit before the hearing ?
This will depend, first, on why the magistrate didn't have/find the
affidavit in question (e.g., maybe its maker/proponnent filed it too
late, or did not otherwise comply with whatever are the court's
rules/procedures to insure that the magistrate would "have" it on
time?), secondly, one whether the reply affidavit is actually "vital"
(or even important rather than, e.g., just repetitive and, if so, why
the litigant had not included whatever is its "vital" content in that
litigant's original submission) and, thirdly, on how timely and
otherwise effective the aggrieved litigant is in pursuing a remedy by
appeal or otherwise measured from the also case-specific point in time
when s/he ought have learned of what you say immediately above.
One of the few things you've actually made clear about the lawsuit to
which you've referred in your earlier postings is that you've failed
coherently to address all three of these issues.
>Perhaps the theory is that if the justice department is degenerating,
>it does not imply a un-level playing field, and that one's duty is to
>dumb-down. Ie. both parties are dealing equally with incompetence ?
That's not the "theory" nor is this a statement which reflects actual
practice of/by litigants (whether or not represented) who behave in a
well-focused and also timely manner.
Your _own_ earlier references in your prior postings about the
litigation to which you implicitly here refer to the opportunities, in
the courts to which _you_ have referred, for properly/timely made
requests ("motions"?) to reargue or to renew or otherwise to
reconsider and to appeals, etc., bely your statement immediately
above.
>Thanks for any answers, also emailed to: eas...@absamail.co.za
> -- Chris Glur.
You would of course be correct if you were to claim that one
occasionally can find very stupid judges and, sometimes, biased or
outright corrupt judges. But, for the most part, in the courts in the
country with which I'm most familiar and in three other countries
about which I have direct knowledge, most judges appear to be
comparatively professional and serious in the manner by which they
approach their judging jobs.
Most also are not geniuses -- much less do they posssess "all
knowledge" -- but they are able to "understand" in most cases (most
certainly, in the sort of elementary/garden-variety lawsuit of the
sort to which you've earlier repetitively referred) and also meet
their "responsibilities" to do so pretty much to the same degree that
the respective parties meet _their_ obligations to do what I've
summarized above.
eas...@absamail.co.za
> > how does it work in your country ?
...[snip answer to unasked question] ..
> > A civil dispute, but where the other party is a state department;
Eart...@MindSpring.com wrote:
> You are right to imply that there often are procedural and also not
> infrequently substantive rules which apply to a litigant which is "a
> state department" or other governmental agency which do not apply to a
> private-party litigant, and vice versa.
> But this usually is no different in principle from saying that
> procedural and also substantive rules applicable to one sort of
> law-related dispute (e.g., about an obligation allegedly created by a
> negotiable instrument or other written contract) and to one sort of
> party (e.g., a competent adult) might differ from rules applicable to
> other kinds of law-related disputes (e.g., whether plaintiff is
> entitled to a monetary award by reason of what are alleged to be
> negligently-caused personal injury) and to other kinds of parties
> (e.g., a non-adult human or to a business corporation).
> > The legislation reads:
> > "..must be supported by an affidavit setting out...and the grounds of the
> > defendant's defence to the claim."
> One does not need to attend any university (much less for 7 years) to
> understand.
Is there a good reason why you put the answer/comment above the
originating question/statement ?
> >
> >Consider:
> > * not all knowledge can be aquired from an affidavit, else people would
> > not need to attend university for 7 years.
Yes, cockroaches have much intelligence. OTOH the world's best
mathematicians search for over 350 years for Fermat's last theorem
and only found it recently.
> To the extent that not almost entirely just an empty truism, this (in
> tone) portentous statement is signficant as applied to your apparently
> largely self-created Plight in one signficant respect: It illustrates
> your commitment to irrelevance.
>
> It is not necessary, nor usually desirable, for instance, for a jury
> or a judge in a case tried without a jury to be asked to have anything
> even remotely approaching "all knowledge" even about the dispute at
> hand. They need instead only the "knowledge" about what is _relevant_
> and also _material_ to that unresolved dispute.
OK, you raised a vital point to my question:
in the case of jury, one is deliberately leaving the understanding
to non-specialists (common folk).
> > * humans aquire knowledge by an iterative process.
> And as relevant to litigation in the court to which you refer, like
> many others elsewhere in the world, one way for someone being sued to
> implement this "iterative process" for a court is to demonstrate by a
> to the case at hand suitably fact-specific affidavit what defendant
> claims constiutes a defence of the claim against him including, to the
> extent permitted by the court's rules, reference (whether in the
> affidavit or, as is preferred in many other courts, by a separately
> included and also attached "memorandum of law" or "brief") to what
> defendant contends to be controlling legal principle (what the court
> ought rule the "law" should be for the particular case) as part of
> those grounds, especially when there is a court rule or statute
> requiring this.
I don't believe these assertion were given by the question author ?
Are you perhaps confusing different stories ?
> > But law doesn't
> > allow to:
> > a) explain to the judge,
> > b) question him to see if he understood,
> > c) repeat 'teaching' as per school proven method.
> If the rules and practice of the court provide for in-person oral
> argument, a litigant who might not be permitted directly to "question"
> the judge "to see if he understood" usually nevertheless is able to
> achieve that end as as part of the give-and-take of oral argument.
> But from what you have said is so about the courts in So. Africa and
> how it "works" in many courts elswhere in the world is that what you
> say in "a" and in "c" the "law doesn't allow" is not correct.
Interesting: I meant a, b, c, in that sequence. Ie. all three.
a,b,c, are steps of one process. Like you can't have the beer without
the container. And this verifies my point: only by your feed back,
was I able to know that I failed to convey my meaning.
> > Apparently for some justice systems, the judge is just seen as a neutral
> > referee, and the parties must convince/educate him.
> A good judge will try to be "a neutral referee" who, as such, will not
> decide a disputed issue of any importance to the case at hand until
> after s/he has been educated and convinced to do so by the litigating
> parties.
>
> > But what about the case where the one party is a state department ?
>
> See comments addressed to this question above.
>
> You've said in some of your earlier postings that there occasionally
> has been "chaos" and also, you've implied, corruption in some courts
> in your country; although, interestingly, you have not actually
> reported any facts to the effect that either/both these sorts of
> considerations have characterized any part of the lawsuit in which
> you've been embroiled. But if you had so claimed, that would be all
> the more reason for you to have paid special attention to doing what
> is suggested above yet what you've repeatedly demonstrated you have
> chosen to do or are emotionally unable to avoid doing.
Better restrict yourself to the exact question asked - which is
difficult enough.
> > I guess 'independance of the judiciary' handles this ?
>
> It certainly is a goal to be attempted and not infrequently achieved.
>
> >What about when the transcripts proves
> > that the magistrate didn't have/find the
> > vital replying affidavit before the hearing ?
...[ snip more of answering YOUR own question]...
They to focus boy !
> >Perhaps the theory is that if the justice department is degenerating,
> >it does not imply a un-level playing field, and that one's duty is to
> >dumb-down. Ie. both parties are dealing equally with incompetence ?
>
> That's not the "theory" nor is this a statement which reflects actual
> practice of/by litigants (whether or not represented) who behave in a
> well-focused and also timely manner.
How does the concept of 'timely' relate to the "Subject:" question ?
...[ snip more of answering YOUR own question]...
>Thanks for any answers, also emailed to: eas...@absamail.co.za
> -- Chris Glur.
> You would of course be correct if you were to claim that one
> occasionally can find very stupid judges and, sometimes, biased or
> outright corrupt judges. But, for the most part, in the courts in the
> country with which I'm most familiar and in three other countries
> about which I have direct knowledge, most judges appear to be
> comparatively professional and serious in the manner by which they
> approach their judging jobs.
>
> Most also are not geniuses -- much less do they posssess "all
> knowledge" -- but they are able to "understand" in most cases (most
> certainly, in the sort of elementary/garden-variety lawsuit of the
> sort to which you've earlier repetitively referred) and also meet
> their "responsibilities" to do so pretty much to the same degree that
> the respective parties meet _their_ obligations to do what I've
> summarized above.
You've lost the thread, which is simply:
* there is no guarantee that information passed betwenn humans
is understood;
* the method of feedback for confirmation allows repeated
attempts, until likely success;
* because of the awe and dignity expected in courts in
certain societies, this feedback is not possible.
In the south african context, apparently the advocates get to know
what the judges can understand, like each man knows how his wife
will react. This is a type of nepotism - real life ?
-- Chris Glur.
eas...@absamail.co.za
>
> >> A civil dispute, but where the other party
> >> is a state department;
> >
> >> "..must be supported by an affidavit
> >> setting out...and the grounds of the
> >> defendant's defence to the claim."
> >
> > What must be supported?
The "Subject:" attempts to address at the highest most abstract level,
the problem of getting the 'judicial body': judge or jury, understand.
I believe that the essential attributes of the/an affidavit are
independant of what it 'supports'. And not essential to the subject ?
When you started school, and the teacher said "two apples plus two
apples equals four apples", she was using an 'abstraction', and it was
inappropropriate for you to say "I can't see any apples" !
> Apparently (based on his past postings), he is referring to a motion
> to vacate a default judgment.
>> Consider:
>> * not all knowledge can be aquired from an affidavit,
>> . . . .
>> * humans aquire knowledge by an iterative process.
>> . . . [blah, Blah, BLAH]
The blah, Blah is the essential part of the thread: the how and why
Judges don't get the opportunity to understand the facts, because
the presenter can't 'test the judge, to see if the message has been
successfully transfered'.
Is this more or less of a problem with a jury ?
>
> > I'm definitely missing something here. An affidavit
> > is merely a sworn statement of facts. Presumably,
> > we're looking at a motion being heard without testimony
> > to save time. The court reads the affidavits to
> > decide what the facts are.
> The gist of what is "missing" -- missing only because the OP does not
> want or is emotionally unable want to say clearly -- is this:
... [snip some 80 lines of irrelevant and inevitably partly
mistaken speculation] ...
Indeed I have an emotional discipline to avoid being a wind-bag.
More so, since it is becoming increasingly obvious that my problem
is partly due to the difficulty in trimming down to the essential facts.
Related to 'abstracting to a minimum': a spread-sheet of mine
showing detailed accounts over several months, which was falsely
(apparently because 'legal' people can only phrase-match) used
against me; I have abstracted to a 3 column table.
This minimal table which captures all the essential concepts in
a simplified form, I have posted to colleagues and these NewsGroups.
On testing, I found that NOBODY understood them, and only one
poster (my hero) admitted not understanding.
Hence my conclusion that the problem is in not in the merits of the
case but my inability to transfer the information.
>> Perhaps the theory is that if the justice department is
>> degenerating, it does not imply a un-level playing field,
>> and that one's duty is to dumb-down. Ie. both parties
>> are dealing equally with incompetence ?
>
> I'm confused by this question. Can you clarify?
1. It is a question, in that it is terminated by a "?".
This is an abbreviation mechanism [because I have an emotional
problem of avoiding being a wordy-wind-bag].
It's like: "It's hot today ?".
Ie. my assertion: "It's hot today", followed by a "?", which
invites you to comment/criticise.
2. If the so. african [because of furious affirmative action] newly
appointed judges lack competence, this does not necessarily lead to
mis-justice, in the sense of predjudicing one party [un-level playing
field is the buzz-phrase here], because both parties are equally
[theoretically] subject to the 'dumbing down'.
3. Do you think this is a reasonable conclusion re. 'level playing field' ?
Thanks,
-- Chris Glur.
PS. I would be an arrogant pig if I posted the details of this matter
- occupying other users' bandwidth resources.
Since I started this project [to test whether a citizen can resolve the
municipal billing chaos via "a fair hearing" - as guaranteed by the
constitution - instead of by rioting, arson and loss of life, as repeatedly
reported in the press] I have collected all correspondence on computer
files. It is NO trouble for me to e-post any/all original documents.
The appeal judgement is only 5 pages of sparse text (double spaced)
with some of the judges statements being:
1. seen to be impossible/illogical, eg. 2002 being 'prior' to 2000.
2. some being trite: which wouldn't be spotted by 'legal types'
who are merely phrase-matching-clerks. eg. that one MUST
normally 'owe' the municipal service supplier, since billing
must occur after consumption. 'Legal types' have got a real
problem understanding that effect follows cause.
3. other less obvious but crucial to me, legal points; eg. the
'date of cause of action', for a running acount, ie. where the
amount owed is increasing.
I would be most greatfull for any feed back on this appeal judgement,
together with a crit on my evaluation/crit of it.
Am I wrong in thinking a 5 page judgement should NOT be posted
to the news group(s) ?
Would some kind person provide a URL for me to post to ?
Eart...@mindspring.com
>On Sat, 09 Aug 2003, eas...@absamail.co.za wrote:
>
>> A civil dispute, but where the other party
>> is a state department;
>
>> The legislation reads:
>> "..must be supported by an affidavit
>> setting out...and the grounds of the
>> defendant's defence to the claim."
>
> What must be supported?
Apparently (based on his past postings), he is referring to a motion
to vacate a default judgment.
>> Consider:
>> * not all knowledge can be aquired from an affidavit,
>> . . . .
>> * humans aquire knowledge by an iterative process.
>> . . . [blah, Blah, BLAH]
>
> I'm definitely missing something here. An affidavit
> is merely a sworn statement of facts. Presumably,
> we're looking at a motion being heard without testimony
> to save time. The court reads the affidavits to
> decide what the facts are.
The gist of what is "missing" -- missing only because the OP does not
want or is emotionally unable want to say clearly -- is this:
The OP is a resident of a municipality in So. Africa in which he had
an on-going dispute with his utility supplier. He paid some moneys
billed on account, disputed others, but, before being sued, failed
clearly to explain to the utility what, exactly, was erroneous about
its billing.
Throughout the pre-litigation dispute stage, it was open to him to
have sued if he genuinely contended that he was owed an actually
demanded accounting, or for other related relief, but he chose not to
do so.
Eventually, the utility sued him and somehow obtain a judgment against
him on default; although in all of his many factually evasive postings
to Usenet newsgroups, the OP has meticulously avoided reporting the
extent to which that judgment resulted from his own deliberate
disregard of the court's processes or (whether or not he had been
properly served with process by the prescribed method) whether he knew
of the lawsuit but chose not to do anything about it or whether he was
not served with process at all.
The So. African courts in question make available remedies and use
processes similar to those generally prevailing in the U.S. and in Gt.
Britain. These include that those courts will vacate a judgment on
default, if the movant acts in suffiently timely fashion and
demonstrates either that the judgment issuing court lacked
jurisdiction over him entirely or, if process was served other than by
personal delivery or the equivalent, the movant both acts in
suffiently timely fashion and in so doing demonstrates that his
default was not wilfull and that he has a probably meritorious defense
which warrants the grant to him of a trial.
As noted, the OP has been evasive on what grounds he sought to move to
vacate the default judgment (re. which, see the affidavit rule to
which he refers), although he seems to have implied that he waited
some time to make his motion and the one thing that he has made clear
in his postings is that hat he chose not to demonstrate in any
meaningful/fact-specific manner, let alone one supported by suffient
citation to and discussion of legal authority, a defense on the
merits.
In the course of an exchange of affidvaits addressed to his motion to
vacate (except that the term he uses is "rescind") the default
judgment, he acknowledged that he was in arrears as of the date of his
motion in an amount greater than the utility's lawyer had demanded on
the utility's behalf before it sued and also that there was a (not
actually prejuicial) discrepancy between what that lawyer had demanded
(pre-suit) and the amount sued for and, despite the on-going and
running-account nature of the relationship, he contended that the
court ought disregard the practical reality (and concession) of since
accrued but then past-due arrears and, instead, that the utility's
claim ought be "frozen" at some by him arbitrarily asserted "point in
time"; but because of his preference for factual vagueness in
expressing the facts exacerbated by his decision not to cite/quote
what he might have claimed to be the applicable provisions of the
parties' agreements or controlling law, etc., he is unhappy that the
court, apparently taking what it believed to be a practical approach
in light of the on-going relationship and his and the utility's
motion-related factual showings, took into account amounts the OP
acknowledged he owed after the date of entry of the judgment in
fashioning what the court considered just relief.
At bottom, therefore (at least as every reasonable person will
conclude from his postings), the OP's 'plaint is no more than that of
any disgruntled "I wuz robbed!!" litigant, but with one important
qualification: Were it not for his obsessive preference for vagueness
compounded by irrelevancy (to a point not just tantamount to but will
beyond wilfull evasiveness), he has the intellectual (but, apparently,
not psychological/emotional) ability to have expressed himself
clearly. In other words, he chose to violate (or was emotionally
unable to avoid violating) the rule he quotes in part above and,
apparently, related others and so, in effect, has further waived
claims he might have been able to assert if he had done so in a timely
manner (bearing in mind, again, that readers of his many postings will
will be unable to determine whether his original default in defending
the lawsuit in the first instance was/wasn't deliberate).
Withal, any number of respondents to his numerous postings, using
methods ranging from prodding to straight-foward commentary (e.g.,
that typically offered by "McGyver"/Phipps), have tried to help him
focus on what are the probably important facts and applicable legal
principles.
But rather than make anything approaching a remotely reasonable effort
to understand these for the most part helpful responses, the OP has
remained fixated on abstractions (e.g., how "all knowledge" is
acquired by the "iterative process") and deflective legalisms posed,
however, in an itself highly abstract and usually misleading manner
without having demonstrated that those are in/for the particular
lawsuit at issue timely or, even if not untimely,
transaction-applicable questions (e.g., he still has not reported what
the underlying agreement itself says about claim-making time
limitations or who is questions, in general, apply to a "running
account" relationshp in particular).
If the issues raised concerned only this one poster, none of this
would be worth saying. It is just that his postings, whether read
singly or together as a whole, demonstrate a much too common failing
of and therefore provide what may be a helpful bject lesson for other
posters.
>> Perhaps the theory is that if the justice department is
>> degenerating, it does not imply a un-level playing field,
>> and that one's duty is to dumb-down. Ie. both parties
>> are dealing equally with incompetence ?
>
> I'm confused by this question. Can you clarify?
Don't hold your breath waiting for him to purport to do so.
If there are others how have read this thread who have been or
realistically expect to be involved in litigation, the lessons of the
OP's experience ought be, in sum,
-- that it is almost always important to act in a timely fashion
to preserve one's claims/defenses, yet determining what a timely
fashion for the particular person in the particular case is usually
not difficult;
-- that if litigation results, it is very important coherently to
identify the material factual and legal issues likely to be at in
dispute, including that, if (as for the OP) if the dispute arises from
an agreement expressed wholly or partly in/by one or more writings, it
is worse than counterproductive to ask much less about its
terms/provisions without first having carefully read them (or, as in
the case of the OP, making a motion to vacate a default judgment but
without first verifying what grounds must be established, and how, to
warrant such a motion's grant).
That these requirements are obvious is . . . well, . . . as obvious as
is the all too common reality that too many persons, most certainly
including the OP, obviously have difficulty perceiving them.
Eart...@mindspring.com
> How does the concept of 'timely' relate
> to the "Subject:" question ?
This would have been a good question, if you had raised it in itself
timely fashion with respect to your lawsuit. It is quite apparent
from your numerous postings, however, that you did not (although
whether by reason of deliberate choice or emotional screw-up is not
entirely clear); yet it also appears from your numerous postings about
and arising from your lawsuit that your (seemingly) more general
projections (including bizarrely unfocused indictments) about what you
say to be defects, in general, in your country's legal system, about
what you say (based on just one experience in one lawsuit?) are
generally stupid judges, about what you refer to about how "all
knowledge" is "acquired" by the "iterative process" in general, about
your projections from your own at best confusing and
cryptically-stated versions of what you (as also uttlerly
SELF-defined) avow to be the "essential" facts (in other words, your
inability, even minimally coherently, to communicate), etc, Etc.,
ETC., derive in large part from (in addition to your self-created
factual incoherence) your not having long ago (that is: when still
timely) addressed this question, although numerous of your respondents
to your postings over the past few years have done so.
Anyway (in summary form) the core point -- for your country's legal
systems as for many others -- is this:
Except in some countries/states where some combination of corrupt
political power imposes place-specific requirements to do otherwise,
the basic aim of litigation is to try to achieve some BASICALLY (that
does not mean: "PERFECTLY") form of "justice" -- a procedure by which
all parties to a litigation, in general, will feel that the dispute
was judicially resolved in/by a manner that is (MOSTLY) FAIR. To
achieve this, there always has to be what lawyers judges, and also
real persons, commonly refer to as a "balancing" of various interests.
One such is that litigating parties (and the courts) should proceed in
a reasonably prompt manner and, correspondingly/conversely, that there
ought be some point at which litigation shall end (hence repeated
references in the law, in your country as elsehwere, to "final
determinations" or to judgments that are "final").
To achieve this, but in an also (more or less) fair manner, every
State and most courts prescribe . . . guess what? . . . RULES, the
crux of which is that
"Plaintiff may/shall do Thus and Such within
but by no later than [stated time] and, if not,
thereafter shall be barred/precluded from so
doing"
and, correlatively, that . . . guess what? . . .
"Defendant may/shall do Thus and Such within
but by no later than [stated time] and, if not,
Defendant thereafter shall be barred/precluded
from so doing"
with, in each instance, also rule-prescribe "triggers" -- mostly, the
service of a summons or like process, in the first instance, and other
prescribe forms of mutual notice-giving thereafter -- from which
whatever is the applicable time period shall be computed.
A (very important corrollary) is that, at each stage of the pre-trial,
trial, intermediate-appeals, post-trial-appeals, etc., process, the
(court-specific/litigation-particular) rules increasingly narrow
("decreasingly allow"?) -- that is, become more and more restrictive
about -- the sorts of issues/claims that may lawfully be litigated.
One key such set of rules to implement these principles -- and they
ARE more or less generally present and yet also
jurisdiction/court-particular principles (if you will: THE LAW) -- in
your country as elsewhere, is that (with only a tiny number of
exceptions/qualifications depending on the specific facts of and
particular procedural posture of a lawsuit) that claims -- whether of
fact or of law -- that are not raised by a part as and when required
by applicable law shall be deemed (that is: generally are) waived.
Here (among numerous others that readily could be
accuratedly/correctly provided as probably applicable to your
self-benighted lawsuit) are two related (but distinguishable) such:
- It is very common, in/for many "running account" relationships,
for the parties to have agreed, in/by their underlying contract, that
suffiently (contract-defined) informative bills (s/k/a "statements of
account") delivered in some contract-prescribed mode (e.g., that a
"notice or bill shall be deemed 'delivered' when mailed [in/by some
stated procedure]") shall be deemed final (that is: not-contestable)
after some defined/agreed period (e.g., "forty-five days from
mailing") if the recipient/debtor shall not have objected (sometimes,
when such constractual provisions are present, "stating the specific
facts/grounds therefor in detail");
- Regardless whether the parties' own agreement prescribes for
them and their relationship some "after some point it will be too late
to complain!" principle, which courts generally enforce (unless they
rule that a particular such provision if present and in contention is
provably unreasonable in light of all the relevant
facts/circumstances), there are (as you are aware) a variety of
statutorily-prescribed time-bar provisions ("statutes of
limitations"), ALTHOUGH, also very commonly, these are mostly of the
"affirmative defense" sort -- i.e., shall (in most
jursidictions/courts) be deemed waived UNLESS . . . guess what? . . .
they are TIMELY asserted.
Despite these (and related other) principles, you have never said, in
any of your postings complaining about your dispute with your utility
supplier and resulting lawsuit, whether there is (or isn't) any
explicitly such agreed provisions between you and the
plaintiff/petitioner and you also have not said whether you've ever
bothered even to try to verify what particular statutorily-prescribed
limitations periods apply to that dispute/lawsuit and, worse (yet as
especially pertinent to your present if much too belated question) you
have -- after the denial of your motion to rescind the judgment
against you -- you have posed mostly just questions about when, in
general, a "cause of action" is said to "accrue" but (whether or not
in a "running account" situation) you have not said that you've done
so at a time, in/for whatever lawsuit may be of interest to you, when
that question is still (law-permissibly) relevant (because, as noted,
you have not said whether, e.g., by your conduct, you've waived and
thereby mooted that question for that lawsuit).
Very similar kinds of rules ("the law" in/for particular
jurisdictions/courts) apply
- to what factual and legal standards a party
must meet, and when, to be entitled to rescind (or
to "vacate" or at least to "modify") a judgment
granted on default,
- to whether a party shall have a right to appeal
and, if so, from what kinds of orders/judgments/
decrees,
- to what kinds of issues may (and may not) be
raised and considered on appeal (including what kinds
of asserted facts, sought to be submitted to the appeals
court, may or may not be considered and what an appeal
court's degree of discretion may be in fashioning a remedy),
and ALL such rules, including considerations of the sort summarized
above, result in some manner of, after some jurisdiction/case-specific
passage of time, precluding a party from raising and litigating any
number of otherwise important facts/claims which, IF they had been
TIMELY raised (as prescribed by the jurisdiction/court-specific
law/rules) might well have resulted in a completely different result
than what incurred by reason of the parties default, first, in paying
attention to what these rules provide for his/her/its case and,
secondly, in not making the intellectual or other effort actually to
gloss how to negotiate (and, perhaps, actually favorably exploit) the
qualifications/exceptions which might be available to that party's
advantage even as the law- prescribed options otherwise narrow over
time.
In marked contrast (and although any number of persons have provided
you with any number of intelligent analyses, comments, and suggestions
along the above-stated lines), you have just contiunued
First, to presume that you may litigate de novo, including by way
of a motion to rescind a default judgment or on a (limited) appeal
from the denial of such a motion, all the facts/claims you might have
litigated if you had not been in default or, even if the default would
have been arguably excusable, that you failed (that is: CHOSE not) to
raise, in an actually jurisdiction-specific/law-effective manner, in
support of your motion to vacate what you contended to be an
improperly granted such judgment, although, in indulging in this
presumption, you have NEVER even cited, much less have you analyzed
and discussed, ANY principle of any law of any jurisdiction which
makes this exercise (your unexamined presumption) anything more than
an idle and empty, if also obsessive, gesture; and
Second, to project from your own default not just in appearing
and responding in timely (that is:
jurisdiction-specific/law-prescribed) fashion to the judgment of which
you claim to be aggrieved, but, even more basically, default (among
others) in addressing ANY of these "Is it still timely?" issues (in
timely fashion) that it is the failure of OTHERS (whether it be
"judges" in general or the courts in general) to communicate "all
knowledge" because you believe (though, in functional terms,
substantially incorrectly) that one can't "question" a judge to
determine whether s/he has acquired the "knowledge" you surmise is
needed and"understands" what you suspect is desirable.
> In the south african context, apparently the
> advocates get to know what the judges can
> understand, like each man knows how his wife
> will react. This is a type of nepotism - real life ?
This sort of thing does not apply only in So. Africa. To the extent
that in So. Africa or elsewhere it is "nepotism" (or, sometimes,
worse), there are almost always means by which one who takes the time
to become educated in what the jurisidiction's statutes/rules and
reported decisions provide then who actually makes a well-informed
effort to exploit and to implement what such law is said (granted:
because in some courts of what you here refer to as "nepotism" and the
like, not always sincerely) to require/enable to obtain some
meaningful degree of, if you will, justice (sometimes: a complete
victory).
Whether you have behaved (or are even intellectually and emotionally
capable of behaving) in any effective manner, culturally/politically,
to work for a better court system than you believe you have is not
fully determinable from your many postings, although your seemingly
persistent degree of racist feelings and beliefs does not signal the
likelihood of success for you in this broader respect. (Whether you
have also communicated your racist-tainted contempt to this or that
judge in a manner that was not likely to be productive for you is also
not fully/accurately determinable from your postings.) But what most
certainly you have made clear -- indeed, it is one of the few things
that you've made clear -- is that your self-defined feelings of
intellectual contempt for others has interferred very substantially
with your ability not just coherently but also persuasively (that is:
PRACTCICALLY) to communicate, yet that you then are very quick to
point the finger of blame for these failings of yours at others.
Granted (and as previously noted by me and others), not all judges
have "all knowledge" and, indeed, some are pretty stupid (and some are
biased and some are corrupt); but its exactly to the degree that a
litigant or litigant's lawyer has well-founded reason to believe that
a particular judge in a particular court probably is fairly
characterizable by some combination of such claims that the genuinely
intelligent, if also practical, litigant (and lawyer) will make the
effort to find ways to try (as VERY often can be done effectively) to
turn these defects into advantages. The overriding reality about you,
and also about your claims and would-be claims in your lawsuit, is
that you have chosen (or are emotionally unable to act in a manner
other than in effect to choose) NOT to do any of this things, not
least being what has been a choice -- namely, not to allow yourself to
learn and most certainly not actually to understand how, at this (for
you in your lawsuit: belated) stage, the question you pose above,
though answered for you long ago, is (at best) pathetic.
Eart...@mindspring.com
>> eas...@absamail.co.za wrote:
>>
>> >> A civil dispute, but where the other party
>> >> is a state department;
>> >
>> >> The legislation reads:
>> >> "..must be supported by an affidavit
>> >> setting out...and the grounds of the
>> >> defendant's defence to the claim."
>> >
> drei...@spiritone.com (Daniel R. Reitman) wrote:
>>
>> > What must be supported?
>
> The "Subject: [Judges responsibilility to 'understand']
> attempts to address at the highest most abstract level,
> the problem of getting the 'judicial body': judge or jury,
> understand.
> I believe that the essential attributes of the/an affidavit
> are independant of what it 'supports'.
The FUNCTION of the affidavit which the rule you quote is designed
"essentially" to perform is a PRACTICAL one -- not some essentialist
epistemological one -- namely, to PERSUADE the court to which it is
provided to make a ruling IN FAVOR of the defendant, i.e., in your
case, a ruling, in effect if not in these exact words,
"Because we've become convinced from what defendant
has said in the affidavit -- as we would not have, if he
did not therein state the factual and legal grounds for
his proposed defence to the claim -- that he ought be
granted a trial to determine whether there is merit to
the defence's he therein states, we are hereby rescinding
the judgment on default previously rendered against him
and directing that he is enitled to a plenary trial at which
he will have the opportunity to try actually to establish such
a defence so that, if the trial court becomes convinced of
what he will have proven at trial, he will 'win' by having the
complaint against him dismissed (in whole or in part as the
facts/law as established determined at trial require)"
instead of the (also: PRACTICAL) ruling, if the court to which the
rule-required affidavit is not submitted or is (putatively) submitted
but in a form/manner which does not comply with the rule, "Motion to
rescind the judgment herein at issue is hereby denied" with the in
such case then ensuing also PRACTICAL result of that sort of ruling.
> And not essential to the subject ? When you started
> school, and the teacher said "two apples plus two
> apples equals four apples", she was using an 'abstraction',
> and it was inappropropriate for you to say "I can't see any
> apples" !
It is not that there is anything wrong, per se, with trying to
analyze/gloss what "understand" means and ought mean in the court of
judges doing their professional judging functions.
But the statements immediatly above are (hardly just with respect to
the courts and litigation process in So. Africa!) so far off the mark
of what, in real life, is important, EVEN IF one hypothesizes as if
serious questions about what "responsibility" a judge has and ought
have to "understand" and how best (or, anyway, least ineffectually) to
achieve that "understanding" that even one who had not read any of Mr.
Glur's previously postings and complaints about what he says occurred
in his lawsuit will all too readily see the defects in the
intellectual approach signaled by his statements above.
> Judges don't get the opportunity to understand the
> facts, because the presenter can't 'test the judge,
> to see if the message has been successfully transfered'.
There are, IN FACT, not merely (lots of) ways, functionally (if the
"presenter" acts in timely and otherwise law-effective manner), by
which the "presenter" can "test the judge" to verify whether "the
message has been successfully transferred" but, IN ADDITION, ways (if
the "presenter" acts in timely and otherwise law-effective manner) to
seek remedies if the "presenter" has a well-founded (or, for that
matter, just barely colorably arguable) basis to demonstrate both that
the judge in question did not "understand" but also ruled incorrectly.
> . . . my problem is partly due to the difficulty
> in trimming down to the essential facts.
One of the few things you've made abundantly clear in/by your earlier
postings is that the partly self-congratulatory statement immediately
above is (seriously) incorrect.
It was not just "partly" but instead substantially your INABILITY
clearly and also persuasively to state "the essential facts" (as,
apparently, compounded by your default even making even your inartful
attempts to do this in a timely manner) that resulted in your
"problem" to which you've referred.
>This minimal [previouslyt] table . . . captures all
> the essential concepts [of the actual detailed
> spreadsheet to which I've referred] in a simplified
> form . . . .
Even if this was so (although you've never actually made clear in any
of your newgroup postings that it is), what you've also never
specifically addressed (much less made clear) is whether the manner by
which you tried to present what might have been an otherwise
informative spreadsheet at the time you did (in conformity with or in
violation of whatever may have been the ligitation-specific time
requirements?) was such that the court was even permitted to act on
that information in the way you presumed it should.
With respect both to your lawsuit, in particular, and to your more
generalized statements/questions, you have not, in other words,
anywhere near suffiently addressed the effect of the particular
procedural posture of your lawsuit (i.e., that you were attempting to
do what you say in a post-judgment motion to rescind/vacate a judgment
thus already rendered, although you also have not said that/how you've
complied with the court-specific rules to entitle you, at that stage
of the litigation, to the relief you wanted).