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  • Arbitration Question: Rebuttal Briefs

    I am currently in arbitration. As each document is filed it has become clear that although ex. has a lawyer, he is not using the lawyer for legal advice, just stamping documents.

    Each document; affidavit, and now brief, is written entirely by ex. with zero involvement from his lawyer. Ex. has also disregarded the rules as set out by the arbitrator and submitted documents of his choosing. His lawyer has stamped and signed each document but that appears to be all the lawyer is contributing.

    I understand the ex. can retain his lawyer in any way that he wants, that is his choice.

    This limited involvement is however causing problems.

    Briefs have been filed and my lawyer is telling me that it is typical to now file rebuttal briefs. The problem is that exs. lawyer is only responding as, "I do not have instructions to agree to rebuttal briefs". Exs. lawyer will also not confirm whether or not ex. wants to proceed with oral hearings.

    The issue is that the first date scheduled for oral hearings is quickly approaching and my lawyer needs to know if he needs to prepare for it.

    My lawyer is telling me 2 things;

    1) He says the rebuttal briefs are important because they form a record on which any appeal will be based. (I believe ex. will try to appeal).

    2) In the absence of the rebuttal brief, the only way for me to get a rebuttal would be to insist on an oral hearing.

    Because of the cost of an oral hearing, I have, up to now, not agreed to this expense. I am now feeling that I am forced to agree to this and I believe this is what the ex. is trying to do. He is most definitely high conflict and definitely has an axe to grind.

    Question:

    My lawyer is asking me if I am prepared to accept the cost of these steps - Oral hearing/or written rebuttal - Obviously an oral hearing is the more expensive of the 2 steps. My lawyer wants to make sure I am protected as fully possible in the event of an appeal and I do believe ex. is going to appeal.

    I don't know how to respond. Only agree to a written rebuttal, or go all the way and insist on an oral hearing?

    Because exs. lawyer has very limited input, I feel that this process has gone off the rails and I am struggling and reacting to what I think the ex. will do. Help!

  • #2
    If the ex doesn't submit a rebuttal despite being given yours and numerous opportunities to submit one, can you go ahead under the assumption that because he is not rebutting the brief, he agrees with the content and you will proceed accordingly?

    Comment


    • #3
      Originally posted by frustratedwithex View Post
      I am currently in arbitration. As each document is filed it has become clear that although ex. has a lawyer, he is not using the lawyer for legal advice, just stamping documents.

      Each document; affidavit, and now brief, is written entirely by ex. with zero involvement from his lawyer. Ex. has also disregarded the rules as set out by the arbitrator and submitted documents of his choosing. His lawyer has stamped and signed each document but that appears to be all the lawyer is contributing.

      I understand the ex. can retain his lawyer in any way that he wants, that is his choice.

      This limited involvement is however causing problems.
      The other party to the arbitration may have retained their lawyer on what is known as a "limited retainer". Nothing you can do about it but, the Arbitrator can by making orders in your favour on the matters and awarding you costs.

      Originally posted by frustratedwithex View Post
      Briefs have been filed and my lawyer is telling me that it is typical to now file rebuttal briefs. The problem is that exs. lawyer is only responding as, "I do not have instructions to agree to rebuttal briefs". Exs. lawyer will also not confirm whether or not ex. wants to proceed with oral hearings.
      Your arbitration agreement should call out in detail the procedures which are being followed and what Acts have to be leveraged. It should be all spelled out in detail to the Arbitration Agreement and subsequent agreements. If there is no agreement on what to do next, the Arbitrator should do their job and "arbitrate" a resolution and order it.

      Cross examination is way better for breaking down untruthful statements than written documents. Judges order "viva voce" (Oral exam - Wikipedia, the free encyclopedia) all the time in highly conflicted matters.

      For example, in a hypothetical situation, if a parent without consent of the other removes children from their habitual residence, calls the police, attempts to have the other parent arrested, attempts to forum shop and files in the wrong court jurisdiction an emergency ex-party motion they may find themselves with an order for a "viva voce" trial after the return of the motion so the judge can "find out who is really telling the truth".

      So, you want Oral Arguments... People who lie often crumble under cross examination. WorkingDad's case law demonstrates that.

      Originally posted by frustratedwithex View Post
      The issue is that the first date scheduled for oral hearings is quickly approaching and my lawyer needs to know if he needs to prepare for it.

      My lawyer is telling me 2 things;

      1) He says the rebuttal briefs are important because they form a record on which any appeal will be based. (I believe ex. will try to appeal).
      Excellent point by your lawyer! But, you can have the oral testamony done with a court reporter present and request an order from the arbitrator that it form part of the record. (Costs $ to do this.)

      Originally posted by frustratedwithex View Post
      2) In the absence of the rebuttal brief, the only way for me to get a rebuttal would be to insist on an oral hearing.
      Which can be recorded and form part of the record for the arbitration.

      Originally posted by frustratedwithex View Post
      Because of the cost of an oral hearing, I have, up to now, not agreed to this expense. I am now feeling that I am forced to agree to this and I believe this is what the ex. is trying to do. He is most definitely high conflict and definitely has an axe to grind.
      Request that your costs be considered by the Arbitrator for all conduct in the matter.

      Originally posted by frustratedwithex View Post
      Question:

      My lawyer is asking me if I am prepared to accept the cost of these steps - Oral hearing/or written rebuttal - Obviously an oral hearing is the more expensive of the 2 steps. My lawyer wants to make sure I am protected as fully possible in the event of an appeal and I do believe ex. is going to appeal.
      Appeals are no walk in the park. So don't be motivated by a fear of "appeal". They are rarely heard as they are a based on an error in judgement of law. They are not heard because someone doesn't like the resulting order.

      Originally posted by frustratedwithex View Post
      I don't know how to respond. Only agree to a written rebuttal, or go all the way and insist on an oral hearing?
      Oral (viva voce) with everything reported and recorded and to form part of the record is my recommendation.

      Originally posted by frustratedwithex View Post
      Because exs. lawyer has very limited input, I feel that this process has gone off the rails and I am struggling and reacting to what I think the ex. will do. Help!
      Your lawyer should be reminding everyone of "costs" at every step of the arbitration.

      Comment


      • #4
        Originally posted by Rioe View Post
        If the ex doesn't submit a rebuttal despite being given yours and numerous opportunities to submit one, can you go ahead under the assumption that because he is not rebutting the brief, he agrees with the content and you will proceed accordingly?
        The ex. has to agree, or give instruction to his lawyer to agree to submit written rebuttals before they are submitted.

        This is the problem right now. He has retained his lawyer on a very limited basis and his lawyer "does not have instructions" to agree to rebuttal briefs. Until the ex. gives his lawyer instructions, one way or the other, I am in limbo. The date for the first day of oral hearings is almost here, and my lawyer needs to know if he should start preparing.

        Exs. lawyer doesn't need to prepare because he isn't retained in this capacity, so there is no need to press his client for an answer.

        Comment


        • #5
          Originally posted by Tayken View Post
          The other party to the arbitration may have retained their lawyer on what is known as a "limited retainer". Nothing you can do about it but, the Arbitrator can by making orders in your favour on the matters and awarding you costs.
          What do you mean about awarding me costs on the matters? Do you mean on the stuff the ex. is doing outside the rules of the arbitration? Or for the entire arbitration?

          Originally posted by Tayken View Post
          Your arbitration agreement should call out in detail the procedures which are being followed and what Acts have to be leveraged. It should be all spelled out in detail to the Arbitration Agreement and subsequent agreements. If there is no agreement on what to do next, the Arbitrator should do their job and "arbitrate" a resolution and order it.
          Yes there is a detailed agreement. Ex. has his own interpretation of what it means, resulting in extra communication being generated by my lawyer in order to clear stuff up. For some reason the issue of rebuttal briefs was not addressed in the agreement. My lawyer is attempting to get an answer, but all he is getting from opposing counsel is, "I do not have instructions to agree to rebuttal briefs".

          All three lawyers, mine, opposing counsel and arbitration lawyer are scheduled to have a phone conference to discuss the matter.

          My lawyer wants to know what he can agree to.

          Originally posted by Tayken View Post
          Cross examination is way better for breaking down untruthful statements than written documents. Judges order "viva voce" (Oral exam - Wikipedia, the free encyclopedia) all the time in highly conflicted matters.

          So, you want Oral Arguments... People who lie often crumble under cross examination. WorkingDad's case law demonstrates that.
          I don't really know how this will play out during an appeal, and yes I understand appeals are difficult, however, I read the exs. affidavits and brief as highly emotional and opinionated, not based on law.

          So why cross examine on emotional responses?

          Originally posted by Tayken View Post
          Excellent point by your lawyer! But, you can have the oral testamony done with a court reporter present and request an order from the arbitrator that it form part of the record. (Costs $ to do this.)
          This is what my lawyer is making me aware of. Although he has not indicated the exact cost of this, he has said there is considerable costs involved.

          QUOTE=Tayken;104324] Request that your costs be considered by the Arbitrator for all conduct in the matter.
          This has been asked for.

          Originally posted by Tayken View Post
          Appeals are no walk in the park. So don't be motivated by a fear of "appeal". They are rarely heard as they are a based on an error in judgement of law. They are not heard because someone doesn't like the resulting order.
          This is what I am trying to avoid, reacting out of fear.. When I read the exs. brief, I think he is setting up this error in law. The words he uses, the case-law he uses, which in some cases I find his choice bizarre, his tone, etc. Its hard to explain, it just feels like a set up.

          It also sounds like he used his brief to respond to my affidavit. Which he didn't respond to at the time. He points out paragraphs from my affidavit and discredits them, or instructs the arbitrator to disregard them, or not give them any weight in the matter, or instructs the arbitrator to give his affidavit more weight. It's like he is trying to cut costs by overlapping the purpose of each document.

          Originally posted by Tayken View Post
          Oral (viva voce) with everything reported and recorded and to form part of the record is my recommendation.

          Your lawyer should be reminding everyone of "costs" at every step of the arbitration.
          Thanks for the recommendation.

          My lawyer is reminding me of the cost, I don't know if his lawyer is.

          If the only reason to agree to an oral hearing is for the purpose of an appeal, which you are saying is highly unlikely and difficult, why go to that expense?

          Comment


          • #6
            Originally posted by frustratedwithex View Post
            What do you mean about awarding me costs on the matters? Do you mean on the stuff the ex. is doing outside the rules of the arbitration? Or for the entire arbitration?
            If your Arbitration agreement specifically states that the Arbitrator (and I hope it does!) has to make any order in accordance with the Family Law Rules (FLR) and the Courts of Justice Act then costs are assessed on the Rules set forth for assessing costs.

            For example, if the other party to the matter is being unreasonable it could result in a costs result that looks something like this:

            http://www.hamiltonlaw.on.ca/Librari...2012.sflb.ashx

            Originally posted by frustratedwithex View Post
            Yes there is a detailed agreement. Ex. has his own interpretation of what it means, resulting in extra communication being generated by my lawyer in order to clear stuff up.
            Again, your lawyer can request the arbitrator make an order in accordance with the agreement and to award costs against the other party for any unreasonable delay in the matter.

            If your arbitration agreement is written properly then it should reflect that the Arbitrator is bound to the FLR/CJA.

            Originally posted by frustratedwithex View Post
            For some reason the issue of rebuttal briefs was not addressed in the agreement. My lawyer is attempting to get an answer, but all he is getting from opposing counsel is, "I do not have instructions to agree to rebuttal briefs".
            Then your lawyer should basically respond with:

            "We will seek an order from the Arbitrator and relief in accordance with the rules of Arbitration for which these proceedings were agreed to for determination on the next step in the matter." (Or something along that line.)

            Originally posted by frustratedwithex View Post
            All three lawyers, mine, opposing counsel and arbitration lawyer are scheduled to have a phone conference to discuss the matter.
            This is where your lawyer should be addressing the next step and requesting an order (technical) to be made by the Arbitrator on determining the next step in accordance with the Arbitration Agreement and for costs to be awarded in accordance with the Agreement.

            Originally posted by frustratedwithex View Post
            My lawyer wants to know what he can agree to.
            Your lawyer should be putting the onus on the Arbitrator to enforce the Rules as outlined in the Arbitration agreement signed. If the next steps are not clear then it may be in the Arbitrator's power to ORDER it in accordance with the agreement that was signed.

            Originally posted by frustratedwithex View Post
            I don't really know how this will play out during an appeal, and yes I understand appeals are difficult, however, I read the exs. affidavits and brief as highly emotional and opinionated, not based on law.
            This is why you want to cross examine. There is no telling what other stupid stuff the other party will claim on the stand and how they will destroy their own argument when under cross examination. Emotional reasoners / emotional thinkers for a proper barrister (litigation lawyer) to cross examine.

            Again, read WorkingDad's posted decision to see how a potentially someone who relies upon "subjective facts" (emotional reasoning) can be cross examined by someone who relies upon "objective facts" (logical/critical thinker).

            Originally posted by frustratedwithex View Post
            So why cross examine on emotional responses?
            See WorkindDad's case law and all the other case law where people under cross examination's story fall apart.

            Hadenough is also another walking example of someone who has benefitted SIGNIFICANTLY from cross examination viva voce at trial of the other party. If you search Hadenough's threads you can find more... (Hadenough hopefully you are reading this thread and can chime in about the complete meltdown of the other party's "story" occurred and the results it had on your decision.)


            Originally posted by frustratedwithex View Post
            This is what my lawyer is making me aware of. Although he has not indicated the exact cost of this, he has said there is considerable costs involved.
            Yes, there is... The lawyer time, the Arbitrators time and the court reporters time. It all snowballs into a massive cost but, depending on the success (gamble) you could get costs awarded against the other party for dragging matters to that point.

            What you have to do is really break down the relevance of what is being stated against you and understand (not fear!) the impact the other party's position is putting against you. Your lawyer should be assisting you with understanding the "relevance" of allegations and if they are even worth examining further and what impact they could have regarding what is being arbitrated.

            Originally posted by frustratedwithex View Post
            This is what I am trying to avoid, reacting out of fear.. When I read the exs. brief, I think he is setting up this error in law. The words he uses, the case-law he uses, which in some cases I find his choice bizarre, his tone, etc. Its hard to explain, it just feels like a set up.
            Step outside of your shoes and into the shoes of the Arbitrator... How do you think the Arbitrator is viewing the material? Could it be with the same view you are making? Your lawyer should be assisting you in identifying this possibly as well. Ask your lawyer for their professional opinion on the materials submitted, their relevancy and what in particular the lawyer feels need to be responded to and rebutted if anything at all... This is the lawyer's job.

            Originally posted by frustratedwithex View Post
            It also sounds like he used his brief to respond to my affidavit. Which he didn't respond to at the time. He points out paragraphs from my affidavit and discredits them, or instructs the arbitrator to disregard them, or not give them any weight in the matter, or instructs the arbitrator to give his affidavit more weight.
            Now, I have not read the materials so it is hard to determine "how" this is being done by the other party but, if they are explicit requests to do what you are saying... I can tell you the Arbitrator is under no obligation to follow the person's "instructions" on how to judge the evidence. This is what negative advocate solicitors do in court and it OFTEN exploads in their face. Your lawyer may be guiding you to let the other party "fall on their own sword". Ask your lawyer if this is the strategy they are taking in the Arbitration.

            Note: VERY GOOD solicitors will collect piles of allegations made against their clients and hold them to their chest and the responding cogent and relevant evidence. When the other party has demonstrated enough that they are just a emotional factory of allegations with no cogent and relevant evidence then the real tangible facts hit with schedules of real evidence comes forward.

            Originally posted by frustratedwithex View Post
            It's like he is trying to cut costs by overlapping the purpose of each document.
            Which is actually adding to costs and could be awarded against him in the long run.

            Originally posted by frustratedwithex View Post
            Thanks for the recommendation.

            My lawyer is reminding me of the cost, I don't know if his lawyer is.

            If the only reason to agree to an oral hearing is for the purpose of an appeal, which you are saying is highly unlikely and difficult, why go to that expense?
            No, the reason to do viva voce is because lies have short legs and in cross examination the other party does not have days to craft "stories" in response. They have to respond to what they are stating in the "here and now" and more often than not, the "story" falls apart.

            In my honest opinion in any case law I read it is the statements made viva voce and not the "affidavit" in response that wins. In fact, if you really study WorkingDad's case law it demonstrates why written lies into an affidavit are a REALLY BAD IDEA as they can be cross examined viva voce at Trial.

            So, if you said the other party is something (say in the extreme example a "Satanist") when it comes time for trial the party who commissioned this as "truth" into an affidavit will be cross examined extensively. Affidavits are affirmations to the truth... What is good about them in the long run is that they PERSIST in a continuing record and the lies can be relied upon at any point of the litigation and especially at the final stage of litigation... TRIAL.

            Lawyers who do not warn their clients of this reality do no service to their clients and the legal system as a whole.

            Good Luck!
            Tayken

            Comment


            • #7
              Originally posted by Tayken View Post
              Your lawyer should be putting the onus on the Arbitrator to enforce the Rules as outlined in the Arbitration agreement signed. If the next steps are not clear then it may be in the Arbitrator's power to ORDER it in accordance with the agreement that was signed.
              If it is not in the arbitrators power, what happens then?

              Originally posted by Tayken View Post
              This is why you want to cross examine. There is no telling what other stupid stuff the other party will claim on the stand and how they will destroy their own argument when under cross examination. Emotional reasoners / emotional thinkers for a proper barrister (litigation lawyer) to cross examine.
              The arbitration is for support only. The stupid stuff he refers to is more along the lines of "I contributed more to the relationship". Its just his opinion and I think all I have to say in response is that I disagree and now its just a he said she said debate. I could be wrong, but, I don't think this is worth the cost of an oral hearing.


              Originally posted by Tayken View Post
              Now, I have not read the materials so it is hard to determine "how" this is being done by the other party but, if they are explicit requests to do what you are saying... I can tell you the Arbitrator is under no obligation to follow the person's "instructions" on how to judge the evidence. This is what negative advocate solicitors do in court and it OFTEN exploads in their face. Your lawyer may be guiding you to let the other party "fall on their own sword". Ask your lawyer if this is the strategy they are taking in the Arbitration.
              Yes he makes explicit requests to the arbitrator to disregard parts of my affidavit and to give his more weight.

              Originally posted by Tayken View Post
              Step outside of your shoes and into the shoes of the Arbitrator... How do you think the Arbitrator is viewing the material? Could it be with the same view you are making? Your lawyer should be assisting you in identifying this possibly as well. Ask your lawyer for their professional opinion on the materials submitted, their relevancy and what in particular the lawyer feels need to be responded to and rebutted if anything at all... This is the lawyer's job.
              I think the arbitrator will see through what he is trying to do, and as a result this strategy will back fire on him.

              I do believe he will appeal and I think my lawyer would agree with me based on exs. behaviour.

              According to our agreement an award may be appealed in accordance with subsection 44(1). Which means one of us may appeal an award to the court on a question of law, on a question of fact or on a question of mixed law and fact.

              And this is why my lawyer wants to make sure I am protected because if I don't respond to his brief I think it would mean I agree with it.

              Originally posted by Tayken View Post
              So, if you said the other party is something (say in the extreme example a "Satanist") when it comes time for trial the party who commissioned this as "truth" into an affidavit will be cross examined extensively. Affidavits are affirmations to the truth... What is good about them in the long run is that they PERSIST in a continuing record and the lies can be relied upon at any point of the litigation and especially at the final stage of litigation... TRIAL.

              Lawyers who do not warn their clients of this reality do no service to their clients and the legal system as a whole.

              Good Luck!
              Tayken
              This is what I don't understand. If the basis of his affidavit and brief is basically hearsay, why is it important to discredit these statements?

              I am struggling with the cost of an oral hearing when a written rebuttal should suffice. But I am being forced to ask for an oral hearing because the ex. won't instruct his lawyer otherwise.
              Last edited by frustratedwithex; 08-24-2012, 11:23 PM.

              Comment


              • #8
                What happens if I don't rebut exs. brief and there is an appeal?

                According to our agreement an award may be appealed in accordance with subsection 44(1). Which means one of us may appeal an award to the court on a question of law, on a question of fact or on a question of mixed law and fact.

                I'm not sure what a 'question of fact' would be?

                Comment


                • #9
                  Originally posted by frustratedwithex View Post
                  What happens if I don't rebut exs. brief and there is an appeal?

                  According to our agreement an award may be appealed in accordance with subsection 44(1). Which means one of us may appeal an award to the court on a question of law, on a question of fact or on a question of mixed law and fact.

                  I'm not sure what a 'question of fact' would be?
                  A "question of fact" would be an "objective fact" which are known truths where are not influenced by someone's personal opinions (beliefs) and/or emotions (emotional reasoning) or experiences (hearsay).

                  Emotional Reasoning:
                  Emotional reasoning - Wikipedia, the free encyclopedia

                  Appeals are heard on objective facts and errors in law, not the emotion of the Applicant to the Appeal. The standard of evidence for an Appeal is incredibly high.

                  Comment


                  • #10
                    Originally posted by frustratedwithex View Post
                    The ex. has to agree, or give instruction to his lawyer to agree to submit written rebuttals before they are submitted.

                    This is the problem right now. He has retained his lawyer on a very limited basis and his lawyer "does not have instructions" to agree to rebuttal briefs. Until the ex. gives his lawyer instructions, one way or the other, I am in limbo. The date for the first day of oral hearings is almost here, and my lawyer needs to know if he should start preparing.

                    Exs. lawyer doesn't need to prepare because he isn't retained in this capacity, so there is no need to press his client for an answer.
                    It sounds like your agreement is worded so that the default method is an oral rebuttal, unless specific consent is given for written rebuttal.

                    Consent hasn't been given, so you are on your way to oral hearings and will either a) Try to save money and not do a rebuttal at all; b) Do the rebuttal orally.

                    If you don't rebut, then your ex's materials are examined, your materials are examined, and a decision is made without further argument.

                    The extra cost of time at the hearing, recording, transcribing, etc. should be weighed against the cost of possibly losing, and as you note, the cost of an appeal later.

                    As Tayken points out, if you are successful you can seek that your costs be paid by your ex. So in this sense, the oral rebuttal, because it will help you win your case, could end up paying for itself.

                    My ex also used a lawyer on a limited retainer and lost miserably for that reason. Not only were her arguments flawed, but the lawyer, when questioned by the judge at case conference, had to reply repeatedly, "I know nothing about that." The lawyer couldn't support my ex's arguments or rebut mine, because she really knew nothing about the case.

                    Comment


                    • #11
                      Originally posted by frustratedwithex View Post
                      The arbitration is for support only. The stupid stuff he refers to is more along the lines of "I contributed more to the relationship". Its just his opinion and I think all I have to say in response is that I disagree and now its just a he said she said debate. I could be wrong, but, I don't think this is worth the cost of an oral hearing.
                      I wish I could sit down with you for a week or so and teach you something about dialectic. These kinds of things are actually amazing opportunities to take someone apart and show how fraudulent their thought process is.
                      • In what way did you contribute to the relationship?
                      • What was the value of that?
                      • How do you determine that value?
                      • What makes that more important or valuable than other contributions?
                      That''s just a starting point. Keep questioning like this and soon he begins to contradict himself. What you are seeking is answers that end up being contradictory. This shows the error in his thinking. The key is to make him expose the process of his reasoning, step by step. It doesn't have to take hours; Socrates could do it in about 45 seconds.
                      I don't know if Workingdad has background in philosophy, but from what I've read of his case he did an excellent job of doing just this.

                      Comment


                      • #12
                        Originally posted by Tayken View Post
                        A "question of fact" would be an "objective fact" which are known truths where are not influenced by someone's personal opinions (beliefs) and/or emotions (emotional reasoning) or experiences (hearsay).

                        Emotional Reasoning:
                        Emotional reasoning - Wikipedia, the free encyclopedia

                        Appeals are heard on objective facts and errors in law, not the emotion of the Applicant to the Appeal. The standard of evidence for an Appeal is incredibly high.
                        So an 'objective fact', would be; "the parties were married for xx years, Mr. x worked for xyz company advancing to a senior position. Ms. x worked for xx amount of years, stayed home to care for children x years and returned to work for x years."

                        An 'emotional fact' would be; " the parties were married for xx years, and I, (Mr. x), contributed more to the relationship because I did more. I worked and advanced to a senior position but Ms. x did not in any way contribute to this advancment or loose out on her own career."

                        If my ex. believes his facts are objective facts can he apply for an appeal on this basis?

                        Will I then be forced to defend myself against his claim for an appeal?

                        Comment


                        • #13
                          Originally posted by Mess View Post
                          It sounds like your agreement is worded so that the default method is an oral rebuttal, unless specific consent is given for written rebuttal.

                          Consent hasn't been given, so you are on your way to oral hearings and will either a) Try to save money and not do a rebuttal at all; b) Do the rebuttal orally.
                          This is what I am not clear on right now. My lawyer is trying to get an answer from the arbitrator. At this point he thinks it was an oversight. But he wants to know, if it was not in fact an oversight, if I am prepared to accept the cost of going to an oral hearing if only for the purpose of ensuring a rebuttal is recorded in the event of an appeal.

                          Originally posted by Mess View Post
                          If you don't rebut, then your ex's materials are examined, your materials are examined, and a decision is made without further argument.

                          The extra cost of time at the hearing, recording, transcribing, etc. should be weighed against the cost of possibly losing, and as you note, the cost of an appeal later
                          My lawyer believes the rebuttal is not crucial to make my case or oppose my exs. case. He believes the arbitrator will see through exs. facts.

                          This is the cost I am trying to weigh. This oral hearing, and rebuttal, is for the purpose of an appeal.

                          Originally posted by Mess View Post
                          As Tayken points out, if you are successful you can seek that your costs be paid by your ex. So in this sense, the oral rebuttal, because it will help you win your case, could end up paying for itself

                          And this is the gamble. I can seek costs, however, from the research I have done, cost awards are not a given just because I 'win'. The cost of this arbitration so far is killing me.

                          This is supposed to be a simple file. Long term marriage, property division already agreed to, simple issue of support, and 4 years later I am still trying to get an agreement.

                          The cost benefit has long since gone out the window. And yes, I can't tell you how many times I agreed to his proposals, only to have him come back and make some crazy conditions or amendments. He is continuing to do this even now in arbitration.

                          He is arguing in his affidavit and brief that the property division is unfair to him, (it was his proposal agreed to and accepted during mediation), and support should be adjusted to compensate for this. Property division is not part of the arbitration.

                          Originally posted by Mess View Post
                          My ex also used a lawyer on a limited retainer and lost miserably for that reason. Not only were her arguments flawed, but the lawyer, when questioned by the judge at case conference, had to reply repeatedly, "I know nothing about that." The lawyer couldn't support my ex's arguments or rebut mine, because she really knew nothing about the case.
                          Although he is using his lawyer on a limited basis, his lawyer does know the case. He used this lawyer during the mediation part of this med/arb agreement. He was also his lawyer in 2010 before he fired him, hired a new lawyer, fired that one, and then went back to this lawyer.

                          I believe he will use his lawyer to his fullest capacity if this goes to an oral hearing.

                          Comment


                          • #14
                            Originally posted by Mess View Post
                            I wish I could sit down with you for a week or so and teach you something about dialectic. These kinds of things are actually amazing opportunities to take someone apart and show how fraudulent their thought process is.
                            • In what way did you contribute to the relationship?
                            • What was the value of that?
                            • How do you determine that value?
                            • What makes that more important or valuable than other contributions?
                            That''s just a starting point. Keep questioning like this and soon he begins to contradict himself. What you are seeking is answers that end up being contradictory. This shows the error in his thinking. The key is to make him expose the process of his reasoning, step by step. It doesn't have to take hours; Socrates could do it in about 45 seconds.

                            I don't know if Workingdad has background in philosophy, but from what I've read of his case he did an excellent job of doing just this.
                            Thank you for this! I have not been able to figure out what questioning would look like.

                            After spending years in counselling when no one questioned his thought process and made me out to be the crazy one, this would actually be very satisfying to see!!

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                            • #15
                              Originally posted by frustratedwithex View Post
                              Thank you for this! I have not been able to figure out what questioning would look like.

                              After spending years in counselling when no one questioned his thought process and made me out to be the crazy one, this would actually be very satisfying to see!!
                              Another common form of questioning method is "Socratic Questioning":

                              Socratic questioning - Wikipedia, the free encyclopedia

                              Which is really a method of "Critical Thinking":

                              Critical thinking - Wikipedia, the free encyclopedia

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