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LITIGATING A BOUNDARY DISPUTE

LITIGATING A BOUNDARY DISPUTE. Litigating a boundary dispute. YOUR TRIP INTO THE CRAZY UNPREDICTABLE WORLD OF LITIGATION. A PRESENTATION TO. Taps. PRESENTED BY. WALT ROBILLARD, ESQ., RLS , FORENSIC SURVEYOR ATTORNEY AT LAW

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LITIGATING A BOUNDARY DISPUTE

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  1. LITIGATING A BOUNDARY DISPUTE

  2. Litigating a boundary dispute YOUR TRIP INTO THE CRAZY UNPREDICTABLE WORLD OF LITIGATION

  3. A PRESENTATIONTO Taps

  4. PRESENTED BY WALT ROBILLARD, ESQ., RLS, FORENSIC SURVEYOR ATTORNEY AT LAW NOW YESTERDAY

  5. Why Do People Litigate?

  6. Some of the reasons • TO SOLVE ACTUAL OR PERCEIVED PROBLEMS. • TO RIGHT A WRONG. • TO GET EVEN. • TO BRING AN ENEMY TO HIS/HER KNEES. • TO GET MONEY. • TO SOLVE A PROBLEM THRU LITIGATION. • TO GET A FINAL “LEGAL” ANSWER. • JUST TO BE AN OLD “S-O-B.” • NONE OF THE ABOVE.

  7. THE SYSTEM

  8. Three REQUIREMENTS: (AT LEAST) • MUST HAVE A JUSTICIABLE ISSUE. • COURT MUST HAVE JURISDICTION. • MUST BE THE PROPER VENUE. • Should have the money

  9. FIRST MUST DETERMINE WHAT LAW IS WHO SAID? LAW IS A PREDICTION OF WHAT THE COURTS WILL DO ?

  10. OLIVER WENDELL HOLMES

  11. WHO SAID LAW IS A RULE OF REASON; PROMULGATED BY AUTHORITY AND SUPPORTED BY SANCTIONS?

  12. SAINT THOMAS AQUINAS

  13. A TRIAL IS A PROCEDURE CONDUCTED BY ESTABLISHED RULES TO DETERMINE THE FINALIZATION OF A LEGAL OR EQUITABLE PROBLEM. THE FIRST PROBLEM ONE MUST DETERMINE IS, IS IT IN LAW IN EQUITY CRIMINAL

  14. 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.

  15. A.C. MULFORDSAID 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.

  16. The legal system is based on the introduction of evidence by two types of witnesses. • EXPERT • LAY WHAT DID THE WITNESSES DO SEE HEAR SMELL TASTE TOUCH

  17. FUNCTION OF THE SYSTEM I THE FUNCTION OF THE ADVERSARY SYSTEM IS TO RENDER A FAIR CONCLUSION OF DISPUTES, BY THE APPLICATION OF EXISTING LAW TO THE FACTS ESTABLISHED BY THE EVIDENCE

  18. THE PARTIES The system has to have several individuals. • Two or more parties. • Attorneys 0-1-2-3 or more. • The jury (maybe) • The judge.

  19. 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.

  20. 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… .

  21. II THE 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 EQUALIZETHE ABILITIES OF ALL THE PARTIES.

  22. The “Road map” of a trial All (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.

  23. 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.

  24. DETERMINE “HOW TO GET THERE” FROM HERE THE TEAM PLOTS THE ROUTE THEY WANT TO GO. IS IT TROUGH “UNCHARTED” LEGAL WILDERNESS. THEN

  25. WHAT KIND OF ACTION ? IN REM: Against the thing (land.) In persona: against the person(s).

  26. THE 3 BASIC STEPS • pre- trial • Trial • Post trial The surveyor should (or could) be consulted in these phases.

  27. The Surveyor’s Involvement • As a party • As a witness • As a “amicus curiae”

  28. Two basic questions • What do the facts prove? • Am I able to finance to the final solution? • How knowledgeable is my attorney? • How convincing are my witnesses?

  29. Then The attorney has to find and engage, either Lay witnesses or an Expert witness. Each serves a specific purpose.

  30. The witnesses The 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)

  31. You The surveyor can be involved in litigation in several capacities: • As a party • Plaintiff • Defendant ii. As a witness

  32. BUT As A. C. Mulford wrote in 1912: Before leaving this general subject it would perhaps be well to consider for a few moments

  33. 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 complaintto the decision. The following is a generic road map of a normal trial.

  34. The system • 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.

  35. PRE-TRIAL Very first question of your client How much justice can you afford?

  36. The complaint • Who are the parties? • What is the problem? • What are the solutions? • What is the proper form of action? contract tort other V. Should an expert be retained?

  37. The Answer • How much should be revealed about your case? • Is a counter claim necessary? • Is a cross-claim necessary? • Should the expert be involved?

  38. Pre-trial matters • Can it be used in place of discovery? • Should the attorney consider a Summary judgment? • Is a motion to dismiss in order? IV. Has there been a pre-trial order?

  39. the trial • Opening statement. • What direction? • Avoid common errors. • Direct examination. • Cross examination. • Closing arguements.

  40. discovery Discovery can commence at any point. Most widely used is depositions. Interrogatories Requests for admission Requests to inspect property Expert witness requests

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