What do we do now about an attorney misunderstanding?
October 25, 2006 4:58 PM   Subscribe

LegalFilter: Need some direction in regards to a miscommunication which can affect a cases outcome...

I have been involved in a case in new york state where the case was being tried before a specific judge who was very much leaning in our direction.

After having testimony scheduled several times only to have it rescheduled by the judge several times due to other cases on the calendar being heard first with no end in sight , the attorney told us that the judge had recommended that for a finding of fact in a very specific question which the case was hinging on, we should consider going to a JHO (retired judge) who was to hear the testimony and make a finding as to that question (how much a dongle was worth on a specific date) and then the judge assigned to the case would take that finding and rule on the entire case.

Our attorney told us (and this was his understanding of the judge) that we were in a winning position and that he would not move the case itself to another judge at this point in the case, but that we could go to the JHO for this specific issue.

after going to the JHO and having testimony and evidence heard, the JHO said that he would issue a ruling, to which the JHO Judge commented that he does not answer to any other judge and that he would in fact make the ruling in the case.

my questions are:

If the original judge says that in fact the entire case was handed off and the JHO is making a ruling, is there anything I can do about it?

can I write the judge (and send a copy to all parties) at this time commenting on what I wrote above? it is still unclear at this time if in fact he will rule himself or have the JHO rule on the case.

Is it common for a judge to give a JHO a specific finding in a case to make? or is the usual scenario to hand off the entire case to the JHO to decide?

is the lawyer at fault if in fact the judge says he gave the entire case to the JHO to decide (considering we had the option of going or not)?

Thanks, MeFi.
posted by Izzmeister to Law & Government (4 answers total)
No prudent Mefi lawyer is going to answer this question.
posted by footnote at 5:23 PM on October 25, 2006

Yeah, echoing footnote, I was just going to say, "Aren't these questions precisely what your lawyer is paid to answer?"

I understand that you may be wondering whether your lawyer is representing you effectively ... but you must raise these concerns with your lawyer. Do not be shy about raising questions about your lawyer's judgment or competency. If you have a decent lawyer, he/she should welcome such questions.

If you are in fact correct that something is not quite right, then it is good you raised the concerns with your lawyer. If everything is fine, then your questions will be an opportunity for your lawyer to get you up to speed on what is happening in the case.

You can't lose by raising ALL of the questions you stated here, with your lawyer.
posted by jayder at 5:42 PM on October 25, 2006

I will only say that in many cases (maybe all? I haven't checked), someone represented by counsel cannot simultaneously appear pro se (without a lawyer)-- which means no, you should not write any letters to the court yourself. Most likely, if you did, the court would return it.

You may be thinking, well then, what's the harm, but there are all sorts of potential consequences. For example, I dealt with a case where a party in the case was unhappy with his lawyer, wrote to the court himself directly requesting certain relief, got the letter back from the court because he was still represented by counsel, then talked to his lawyer. His lawyer then filed the proper document with the court requesting the same relief, but by then the deadline for making requests of that type had passed. Definitely a lose-lose situation.

Don't make your situation messier by staking out on your own, while you have a lawyer. As stated above, talk to your lawyer.
posted by Harvey Birdman at 5:59 PM on October 25, 2006

Let me clarify-- no, you should not write the letter to the court yourself , as a represented party, unless you know for a fact this practice is permitted where your case is.
posted by Harvey Birdman at 6:07 PM on October 25, 2006

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