PAPER ON THE WINNING OF COURT CASES

BY

Charles Francis Conces

This paper is written to explain to the ordinary citizen how to win their lawsuits and why these things are necessary. Most citizens lose when going up against a government entity because they don't have the knowledge of the necessities of claims and testimony and even many lawyers fail to do the lawsuit right. This is not complicated and as I am writing these things down, you can go over them until you have a full understanding.

Requirements for Suit

1) Establish that defendant has done some act or failed to do some act that caused you damage. Ex. IRS agent refuses to respond to your administrative pleadings.
2) Establish that the defendant had a duty to perform some act or refrain from doing the act. Ex. Federal Crop insurance case states that the agent has moral and legal duty to speak when you raise a credible issue. Ex. IRS agent took collection actions without proper procedures and he had the duty to follow procedures.
3) Establish that the agent's actions or inaction was the immediate or proximate cause of the damages that you suffered. Ex. IRS agent caused you and your family economic and emotional damages by acting outside of his lawful authority.
4) Establish that you had damages and list those damages. Ex. Emotional, financial, rupture of family relations, defamation of character, etc.
5)Immunity is not normally a refuge for the IRS agent being sued, but you should be aware that "good faith" efforts on the part of any agent are requirements for any claim of immunity. Ex. IRS agent refused to respond to "C" letters, being the equivalence of fraud according to the U.S. Supreme Court.

Steps for Lawsuit

a) Target the agent who has caused you damage. (emotional, etc.)
b) Set up the lawsuit by notification to the agent. Statement of Fact letter are great for this purpose.
c) Use the Statement of Facts as the basis for writing your lawsuit. If the agent does not respond, then he is guilty of the equivalence of fraud.
d) You make four copies of everything. 2 for the court, 1 for the agent, and always keep a copy for yourself.
e) You will need the Complaint, the affidavit, the demand for jury trial, the Notice To Court, and exhibits of the letters that you have sent to the agent (mark them exhibits "A", etc.).
f) When you go to the U.S. District Court to file the Complaint, etc., you will need a summons that you can get from the Court. You can fill out the summons before you file or fill the summons out in pen. The Court Clerk will stamp and date them. You should get at least three copies of the summons for serving on the defendant. You can check "Federal issue" as being the basis for a suit or ask the clerk.
g) You will then need to serve the summons, complaint, affidavit, and exhibits on the Defendant. Look at Rule 4 to see the best way to do this.
. h) The Defendant has about 20 days to Answer. If he does not, you can file for a Default Judgment.
i) If there is a motion to dismiss, use the case law in my Important Case Law document to prevent Summary Judgment.
j) Under rule 26 you can begin to demand documents and names without waiting for Discovery.
k) Under Discovery, you can request Admissions, Interrogatories, and Depositions. This is the fun part. Make your interrogatories short and to the point.
l) You may be asked to settle at this point or earlier.

What to do to win

1)The first thing that has to be established in court to confer jurisdiction on the court, is that there must be a least two parties that have an issue to be litigated. You must file a complaint that sufficiently establishes a controversy. A Complaint must be filed. When an IRS agent steps outside of his authority, he should be sued as an individual.
"Sovereign immunity does not shield individual United States officials in their individual, as opposed to their official capacities"; Williamson v. U.S. Department of Agriculture, 815 F.2d. 369, ACLU Foundation v. Barr, 952 F.2d. 457, 293 U.S.App.DC 101, (CA DC 1991).
"An instrumentality of Government he might be and for the greatest ends, but the agent, because he is agent, does not cease to be answerable for his acts."BRADY v. ROOSEVELT STEAMSHIP CO., 317 U.S. 575 (1943).
"Personal involvement in deprivation of constitutional rights is prerequisite to award of damages, but defendant may be personally involved in constitutional deprivation by direct participation, failure to remedy wrongs after learning about it, creation of a policy or custom under which unconstitutional practices occur or gross negligence in managing subordinates who cause violation." (Gallegos v. Haggerty, N.D. of New York, 688 F. Supp. 93 (1988).
Remember that a fictional entity such as the United States cannot even pick up a pen and can only act through its agents. If you sue the United States, you are risking having it thrown out because the United States is innocent and can only do what the law authorizes.

2) The second thing is that there must be subject matter jurisdiction. This means that the subject matter of the case must be presented in the proper court. It also means that there must be a valid controversy and such controversy shall be clearly laid out in the complaint. It is best to state the basis on which you are conferring jurisdiction . The legal dictionary states that it is jurisdiction to hear and decide cases of a particular type. The two major categories of subject matter jurisdiction in the federal courts are diversity jurisdiction and federal question jurisdiction.
The court clerk will answer this question for you if you do not understand it. You cannot file a case for child abuse in a bankruptcy court, for example. If you are the Plaintiff, this will not be a burning concern since you only have to be sure your case is being presented in the proper court and you can state that jurisdiction in your complaint and the defendant will then have to rebut your claim of jurisdiction if they choose to do so.

3) The third thing to do is find case law that matches your issues as closely as possible.
It is important to realize that law emerges only through litigation about actual controversies. Once a precedent has been set in law, that precedent guides courts:
holdings in a case must follow previous rulings, if the facts are identical. This is the principle of stare decisis. But subsequent cases can also change the law. If the facts of a new case are distinguishable, a new rule can emerge. And sometimes, if the grounds of a precedent are seen to be wrong, the holding can be overruled by later courts.

4) The fourth thing that most people miss is right before our eyes and is the reason why most people lose in summary judgments. Let's say you want your case brought before a jury and you have made that demand. Suddenly the opposition files for summary judgment and you have a hearing before the judge. You argue your case in writing and oral arguments. The judge proceeds to ignore all your citations of law and all your arguments. He rules against you and dismisses your case. Why? Is it because the court is a military court and has a gold fringe around the flag? Does the flag confer jurisdiction on the court? NO. Is this a military or maritime law court? NO. What is it then that allows the judge to dismiss your case???
Is it that you are under adhesion contract to a municipal corporation? You know that you cannot be forced to join a corporation. You know that you cannot be forced to sign a contract or enter an agreement without your consent. You know that any contract must be entered into with full knowledge. You know that any contract must be specific and would be void for vagueness if it did not spell out the terms of the contract. It cannot be an adhesion contract. So what is it that allows the judge to ignore your arguments and make nonsensical rulings?
Before I answer that let me give you two examples of judges statements from the bench that we have on the record. In both cases, the judges refused to tell the plaintiff why they made there rulings. One judge said that the plaintiff must take it to Appeals and let Appeals tell plaintiff why the judge dismissed their case!
So now we are informed of two things. First, there is a secret court ruling or procedure that the judges are colluding in and they do NOT want you to know what it is. Second, the judge is stating that the Appeals Court judges also know what that secret ruling or procedure is. Amazing, utterly amazing!
. To ward off the Summary judgment is not too hard. Use these case laws that the lower courts must honor.
"Since personal involvement is a question of fact we are governed by the general rule that summary judgment may be granted only if no issue of material fact exist and the defendant is entitled to judgment as a matter of law." Fed.R.Civ.P.56(c); Hayden Pub.Co., Inc. v. Cox; Broadcasting Corp., 730 F.2d 64, 67 (2d Cir. 1984).
"The party seeking summary judgment bears the burden of establishing that no such dispute exists." Gutwein v. Roche Laboratories, 739 F.2d 93, 95 (2d Cir.1984).
"Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them." Miranda, 384 US 436, at 491.
Now I will tell you what that secret agenda is. There are a number of high court rulings that state that the court cannot decide on the basis of argumentation and must decide on facts presented to the court by a competent witness. You however did not raise your hand and testify at your hearing. You even failed to present any witnesses because you thought you were testifying when you were giving oral arguments!!! You actually did not raise your hand and swear to give testimony.
You could have presented your testimony before you went to hearing by filing an affidavit sworn by you or any other competent witness, but you failed to do that also. You could have presented a court deposition as testimony. But you didn't.
Oh my, no wonder you got clobbered! But WAIT, there is one more thing that you probably failed to do and now I'll explain that.

5) The last thing that you probably failed to do was to enter your evidence by means of a competent witness. Remember the famous "voter punch cards" that were brought into the Florida court to show the election was flawed? The judge never even looked at them and threw Al Gore's lawyers out of court. The press was upset over this and no one knew why! THIS IS WHY...The boxes of punched cards were never presented to the court by a competent witness. There had to be a witness to state that the cards came from such and such precinct and that they witnessed the cards being gathered up and boxed and transported and that they could testify to all such matters. Without the witness, how would the judge know if there had not been tampering with the cards during the gathering and transporting of them?
Lawyers cannot be witnesses in the case nor can any statements be made by them that could be considered testimony. So much for high price lawyers!

6) One more thing that will be helpful to you in your court filings is this. The opposition will Answer some of your paragraphs with a statement like this:
Plaintiff failed to state a claim on which relief can be granted. Court rules state that you have three options to answer: Deny, Admit, or state that not enough information is given to make a determination as to the statement. Just use the last option and let the attorney explain in court what he meant. The US Supreme Court has ruled that the judge must explain to a Pro-se plaintiff what that means and must give the Pro-se plaintiff an opportunity to amend his complaint.
"...allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient to call for the opportunity to offer supporting evidence. We cannot say with assurance that under the allegations of the pro se complaint, which we hold to less stringent standards than formal pleadings drafted by lawyers..." Haines v. Kerner, 404 US 519 (1972).

7) One more caution. Some have been arguing that if an attorney makes a statement or statements in court that you should object because the attorney cannot give testimony. The attorney is not giving testimony because he is not sworn under oath. His statements are mere argumentation and he has a right to make his argument but arguments must be supported by facts placed on the record. His client is the one who gives testimony under oath and the attorney never does.
Don't put yourself into a foolish situation like that!!!

Richard Cornforth and myself had some discussion on this...
Conces: I have also thought a little on what we can object to in lawyer statements. If the lawyer is citing law, that would be okay. If he says "The record shows...," that would be okay also. I can't think of much else he can say except to question witness.
Cornforth: Now you've got it and the tougher we are on these stupid_______the better.
Polite, mannerly, but very tough.
" A presumption is a deduction which the law expressly directs to be made from particular facts." (Code Civ. Proc., sec. 1959 [Note: now Evidence Code, Subsec. 600.].) And " a presumption (unless declared by law to be conclusive) may be controverted by other evidence, direct or indirect: but unless controverted, the jury is bound to find according to the presumption." (Code Civ.Poc., sec. 1961 [Note:now Evid.Cd, subsec. 602 et seq.].). (bracketed information added.) In re Bauer (1889), 79 Cal. 304, 307.
Remember that all presumptions must be based on fact and can be challenged by other facts. Make sure your facts are stated in a factual way and are accurate and have a superior position to other facts.

Now you can go into court and win. The enemy's handbook and script is in your hands. Go do it!

Charles F. Conces
9523 Pine Hill Dr.,
Battle Creek, MI. 49017
1-269-964-7025
Disclaimer: Mr. Conces is not an attorney, nor does he purport to give legal advise.
. I am now providing my Report on Liability for free. You can get it by E-mailing me. My E-mail address is lawmancharles@juno.com