Livinglies's Weblog

The following article is not a legal opinion upon which you can rely. Hire a lawyer at least as a consultant before acting on anything contained herein.

When people retain us to perform analysis, what we are doing is applying our knowledge of facts regarding the current context of foreclosures, foreclosure defenses and claims based upon wrongful foreclosures. Each case must be carefully analyzed to see which of the many potential weaknesses in the foreclosure process are present. Then we  give consideration to which of those might traction in court (i.e., be persuasive to a judge).

Most lay people are familiar with the application of logic in persuading a judge or anyone else for that matter. To complete the process of persuasion you must  convince the judge to accept your proposition as being supported by case law and statutes, if applicable. Logic and common sense are inplay, of course, but judges are charged with responsibility of following previous appellate decisions in their district unless there is something in the present case that is different from the previous decision.

If you have cases supporting your proposition from other jurisdictions, the judge is not bound to follow them, but they still can be persuasive. If those decisions conflict with appellate decisions in your jurisdiction they will have very little persuasive effect.

So if you have previous cases in your jurisdiction that closely resemble the fact pattern presented then the judge might be bound to follow those decisions even if he or she doesn’t particularly agree with the result.

This is where the presentation of facts in an orderly and persuasive manner makes all the difference and is frankly why people come to us to have those narratives drafted. The narrative must logically suggest the outcome you desire — i.e., your proposition. A simple reading should immediately suggest that you are right and your opposition is wrong. If it doesn’t, then all the legal research in the world is not going to help you.

But without the legal research providing the judge with grounds to rule in your favor, you still don’t win. Too many decisions are based upon vague arguments of law that have no real foundation. That is how the banks have chased so many people out of their homes getting “defaults” on non existing claims.

So what I do, after we have done the title analysis and case analysis which includes the first real draft of the defense narrative, is I distill 2-3 main points that I want to support. I then summarize them like a case note as if they were law. And then I hire a research group like National Legal Research Group to find support in cases and/or statutes that support that proposition and which have not been overruled or overturned.

That provides the basis for a persuasive memorandum of law. In jurisdictions where there is no hearing on the pending motion the memorandum of law is the last time you get a chance to convince the judge of anything. In jurisdictions where there is a hearing in which the judge hears oral argument, the attorney or pro se litigant must be able to persuasively argue the defense narrative and show ways in which the opposition is wrong. And all that must be done quickly.

Persuasive argument does not include snide remarks or “but Judge you don’t understand.” If the Judge doesn’t understand your proposition of fact and law you have lost. Oral persuasion of judges is an entire topic that fills hundreds of books because it is an art that improves with each telling.

While sometimes people retain us to draft the proposition of law and fact that they already know they want to pursue so that the field of research is narrowed down to something very specific, most come to us with what turns out to be mini-projects. Our procedures are currently evolving and we are about to go to the next level of IT in automation, case management, document assembly and client portals enabling us to provide both custom and generic forms quickly and efficiently for the lowest cost possible.

But for now, here is how we work for lawyers and for pro se litigants:

Filed under: foreclosure |