The Form of a Kentucky Pleading: Basic [Kindle Edition] $0.99

The Form of a Kentucky Pleading: Basic
Amazon Kindle Edition - $0.99

Legal information how-to booklet for Kentucky civil pleadings. This covers the basics of formatting for the essential parts of Kentucky pleadings, motions and other court papers. From the type and size of paper required by the Kentucky Rules of Civil Procedure, to necessary margins, case captions, signatures and proof of service, this show you what a Kentucky civil pleading should look like and how the different parts are arranged.






Or, as in PDF file format for $1.99 from Scribd.com

Form of a Kentucky Pleading - BASIC v. 2.0 by Tom Fox

Bargain basement self-help law books

A used book is always less expensive than the same book bought new, but when you buy online, there is the additional cost of shipping that must be added in to the total cost. Since used book sellers on Amazon.com are allowed a flat $3.99 shipping per book, and the mailing cost of many books is less than that, booksellers sometimes sell their used books for as little as $0.01.

I was surprised to see a book for a single penny the first time, but when I thought about it, it made sense. The bookseller still makes about $2 per book. Even including the shipping cost, a hard-to-find used book for $4, delivered to you door, is a very good deal.

This is the way I buy books, when I can, and I recommend it.

The following is, as of this morning, available used for $0.01 plus $3.99 S&H.

These deals come and go.

Fed Up with the Legal System?: What's Wrong and How to Fix It
(Nolo Press Self-Help Law)

Most people today consider out legal system to be riddled with problems, from courts that don't provide access to the citizenry to lawyers who protect their legal cartel while price-gouging consumers. Can the system be changed? Here are more than 40 suggestions for making our legal system fairer, faster, cheaper, and more accessible.

Bespoke legal advice

'Bespoke' is one of those words that will haunt your dreams until you look it up in a dictionary. I'll save you the trouble. It's an adjective meaning, "made to fit a particular person." Typically, it is used to describe tailor-made clothes that are uniquely fitted a particular person.

One end of the legal service spectrum is the one-to-one personal relationship between an attorney and a client that depends upon a high level of mutual confidence and trust. A significant part of legal professionalism focuses upon protecting the integrity and confidentiality of the attorney-client relationship through rules of ethics and disciplinary enforcement. The communications between lawyers and their clients enjoy the protection of an evidentiary privilege that generally is not available to other types of relationships.

The other end of the legal service spectrum is the anonymous and impersonal marketplace of cavaet emptor. Mostly unregulated and unsupervised, the marketplace is full of uncertainty and peril. Anyone can visit a law library or search online and access the very same source materials and model forms that lawyers use. The challenge for the non-lawyer is to find the one suit out of thousands that fits. A custom made suit fits much better than one bought off the rack, but it is also much more expensive. So it is with bespoke legal advice.

Ignorance of the law is no excuse, they say, but ignorance of the law is rampant. Lawyers have a professional duty to educate the general public on legal rights and obligations, but that is no simple matter and doing it isn't easy.

If you read a dozen opinions on the topic of the unauthorized practice of law you will be impressed by the nobility of intention expressed for protecting the public from legal incompetence. You may also notice that the opinions never, ever, discuss the quality of legal service offered by the individual charged with improper encroachment upon the lawyers' domain. You might also notice that the complaints usually originate from lawyers and not from disgruntled customers.

These turf wars present an interesting puzzle.

The Kentucky Supreme Court Rule 3.020 defines the practice of law this way:

"The practice of law is any service rendered involving legal knowledge or legal advice, whether of representation, counsel or advocacy in or out of court, rendered in respect to the rights, duties, obligations, liabilities, or business relations of one requiring the services. But nothing herein shall prevent any natural person not holding himself out as a practicing attorney from drawing any instrument to which he is a party without consideration unto himself therefor. An appearance in the small claims division of the district court by a person who is an officer of or who is regularly employed in a managerial capacity by a corporation or partnership which is a party to the litigation in which the appearance is made shall not be considered as unauthorized practice of law."

The question is, what is the meaning of "any service rendered . . . [to]one requiring the services"? A non-lawyer might think it has something to do with "services".

Unauthorized practice of self-help law

It's been nearly fifty years since the New York bar association sought to stop Norman Dacey from distributing his legal self-help book How To Avoid Probate. Dacey was generally contemptuous of lawyers and the legal system and he particularly disdained the probate system. Dacey's advice was to avoid the probate system at all costs, inter vivos trusts were an effective method for that purpose and his book was a detailed form book with instructions on setting up an inter vivos trust without the assistance of a lawyer.

Norman Dacey was not a trained lawyer, he was not admitted to practice law in the State of New York and he sold a lot of books there. When the New York bar sought to stop Dacey on the ground that his book amounted to legal advice from a non-lawyer, and it was therefore the unauthorized practice of law and illegal, the New York bar at first succeeded. New York County Lawyers' Association v. Dacey, 54 Misc. 2d 564, 282 NYS 2d 985, NY: Supreme Court (1967). It seems that Dacey's business went beyond the mere publication and sale of a legal self-help book. "Dacey operated in such manner that: 'as a direct consequence of his preparation of the Dacey trust arrangement, Dacey virtually assured himself of what amounted to a 6 percent sales commission on almost the entire assets of each estate . . . . ' ".

Upon appeal, the New York bar again prevailed . . . initially. In the Matter of New York County Lawyers' Association v. Dacey, 28 AD 2d 161, 283 NYS 2d 984 - NY: Appellate Div., 1st Dept., 1967, in a four-to-one decision, with Justice Stevens dissenting. Within two months the court simply reversed itself without elaboration and Justice Stevens' dissenting opinion became the majority opinion. In the Matter of New York County Lawyers' Association v. Dacey, 21 N.Y.2d 694, 287 N.Y.S.2d 422, 234 N.E.2d 459 (1967). The court held that Dacey's legal self-help book How To Avoid Probate was not legal advice and its publication was not subject to judicial control as the practice of law. Dacey's publishing activity was protected Free Speech.

The Dacey decision has since become the leading case on the subject of legal self-help publishing and the unauthorized practice of law, and it has been followed in many other jurisdictions.Dacey's book is still in print and it is still available for purchase in bookstores and online across the country, even in Kentucky. The Dacey decision has helped spawn an entire industry of legal self-help publications.

Kentucky courts have not addressed this legal self-help issue directly. The Kentucky Court of Appeals has quoted form the Dacey decision, with seeming approval, in a slightly different context. Edwards v. Land, Ky. App., 851 SW 2d 484 (1992)

'Without the establishment of an attorney-client relationship, an attorney cannot be said to render legal advice by simply providing a party with a statutorily required statement of the law. In such a situation there would not exist "that relation of confidence and trust so necessary to the status of attorney and client. This is the essential of legal practice — the representation and the advising of a particular person in a particular situation." ' [emphasis added]

Local Rules of Court - Obey or Die

It's an unpublished opinion from the Kentucky Court of Appeals, but there is no other case quite like it that I have found, so maybe it qualifies as a hint or suggestion how a similar case might be decided down the road. Gaines v. Nichols, No. 2011-CA-000413-MR.(Ky. App. December 6, 2011) involved the granting of a motion to dismiss for failure to prosecute in disregard of the procedures contained in a local rule of court. Specifically, the local rules of court for the Jefferson County Circuit Court (30th Judicial Circuit), Rule 401,  gave the defendant 20 days to respond to a motion to dismiss and called for the submission of a form AOC-280, Notice of Submission of Case for Final Adjudication. The AOC-280 was not submitted and the court did not wait the 20 days before granting the dismissal.

The primary issues before us are whether JRP 401 may be enforced in the same manner as a Kentucky Rule of Civil Procedure and, if so, whether Gaines and Parker were availed of the rule's protection. First, our determination is that the Jefferson Rules of Practice are enforceable in the same manner as the Kentucky Rules of Civil Procedure. The Jefferson Rules of Practice were approved by way of an order of the Chief Justice of the Kentucky Supreme Court on July 11, 2006. Once local rules are duly approved, they have binding effect. SCR 1.040(3)(a).

 The Circuit Court's dismissal was reversed.

Kentucky has fifty-seven circuit court judicial districts and sixty district court judicial districts. Each of these one hundred seventeen judicial districts adopt their own respective local rules of procedure on a wide variety of matters.You don't need each and every one of them. You need the ones governing your favorite judicial playgrounds.

General advice for litigating without lawyers

 "I'm not very good at thinking things through. That's why this plan is such crap."
from a movie trailer for Bad Words

If you insist upon representing yourself in court without a lawyer, I can think of five important pieces of general advice:

1. Except when actually present in the court room, all communications to the court must be in writing with a copy 'served' (generally mailed) to every party to the action or their lawyers.
2. Give the court what it wants, when it wants it and in a form that is easily recognizable by real lawyers and judges. If your piece of paper causes a judge to scratch his or her head, you're in trouble. In Kentucky courts, the Kentucky Rules of Civil Procedure is your friend. At least look at it.There is a rule for everything,
3. Neatness counts. This is the 21st Century and there is no excuse for handwritten motions or pleadings. Nobody wants to struggle with reading your penmanship, so use a word processor. Again, there is a rule for everything. See: Rules for Legal Greenhorns – A Kentucky Case Caption
4. Electronic court filing is for professional attorneys only. Non-lawyers have to do it the old fashioned way on printed pieces of paper.
5. Understand the essential legal points and stick to them. No story telling. Being sued and called into court is not anything like being called into the school principal's office. I'm sure you have a really good excuse for doing what you did, but it is generally not important. If you didn't pay your credit card debt, for example, the fact that you needed the money to buy insulin for your diabetic mother doesn't matter much in a courtroom.If you say, "I did not pay because . . . . ", the only message that matters is the "I did not pay" part.

Certificate, affidavit or something else?

No doubt the point of this post is technical, but it illustrates how the Kentucky Rules of Civil Procedure are somewhat different for lawyers and for litigants proceeding to represent themselves in court without a lawyer. Virtually every motion filed in court must be served upon every other party named in an action. Under Civil Rule 5.03, proof of this service upon the other parties or their attorneys must be filed with the court. This rule specifies that attorneys may make this proof to the court by a certificate of service, but non-lawyers must file an affidavit of service. The difference between a certificate of service and an affidavit of service is not insignificant.  An affidavit requires appearing in person before a notary or a clerk of the court, and being sworn to an oath. 

Although CR 43.11 and KRS 454.170 allow a solemn affirmation to be substituted for an oath, CR 43.13 is quite specific that an affidavit, as required by CR 5.03, "shall be a written statement or declaration sworn to or affirmed before an officer authorized to take depositions by Rule 28. .  . "

Normally I would suggest a written affirmation made under the penalties of perjury, as defined in KRS 523.01(2)(a) ("The statement was made on or pursuant to a form bearing notice, authorized by law, that false statements made therein are punishable"), but I simply cannot connect the authoritative dots to reach the conclusion it is specifically allowed by the written rules and statutes.

If a sworn or affirmed affidavit of service by a non-lawyer pro se litigant is an actual requirement of the Kentucky Rules of Civil Procedure, it would represent a significant and pointless burden upon those who represent themselves in court.

However, CR Rule 5.03 provides in relevant part

* * * * Proof may be by certificate of a member of the bar of the court or by affidavit of the person who served the papers, or by any other proof satisfactory to the court.:* * * * [emphasis added]

With this element of flexibility and judicial discretion injected into the mix, I feel confident that I could use the following as an Affirmation of Service when the time comes for me to sue somebody without a lawyer.

Affirmation of Service 

I affirm, under the penalties of perjury, that on __________ I deposited an accurate and complete copy of this (pleading) with the United States Postal Service in an envelope with sufficient First Class postage prepaid and properly addressed to:
______________________________
______________________________

(signed) _______________________________

Legal research and writing for the non-lawyer: Rules of citation

The easiest way to win a legal argument and to convince a judge to do what you want is to find a respected authority who has already decided and discussed the same legal issue favorably to you, in writing. For this reason, legal briefs and arguments are peppered with quotes and references from statutes, court decisions, regulations and law review articles, to name a few of the more important types of authority commonly used.

To be effective and verifiable, each of these references must be accompanied by a clear indication of the original source material, that is to say, a citation.

For example: Pierson v. Coffey, 706 S.W.2d 409, 413 (Ky.App. 1985)

This is a standard citation to a specific opinion of the Kentucky Court of Appeals, in the format preferred in the Kentucky court system. By looking at this citation, any lawyer or judge would immediately know where to find this court opinion to read it for herself. State court systems and the federal courts each have their own way of citing statutes, court cases and every other thing imaginable, and they have rules for proper citations. That is a lot of different rules.

Every lawyer and law student is familiar with The Bluebook, A Uniform System of Citation®, which is a collection of all the rules of all the different jurisdictions. The Bluebook is comprehensive, it is updated frequently, it is expensive, and it is unnecessary for self-help legal purposes. The Bluebook is for professional use.

Do-it-yourself law for non-lawyers does not need such comprehensive detail. You can often Google a state name along with "rules of legal citation" to find the information you need for your state online, for free. For example, Delaware's rules for citation are available online - Guide To the Delaware Rules of Legal Citation.

If you cannot find the rules for your state, there is an excellent beginner's substitute for the Bluebook offered by the Legal Information Institute at Cornell University. It is available online, Introduction to Basic Legal Citation, and it is also offered for download in three different e-book formats.

Legal self help: Be your own lawyer?

For anyone who aspires to think like a lawyer, it is important to know there is usually more than one way to accomplish any specific desired result, in theory, but the various possible methods are not equally useful or effective in practice. "In theory there is no difference between theory and practice. In practice there is." - Yogi Berra. 

To learn to think like a lawyer is no exception. In modern times the main method of  learning this is to attend a law school for three years and study hard. Prior to the advent of the modern law school, the method was to read appellate decisions and textbooks or to apprentice with an older lawyer, until you knew enough to pass the test. If you are a non-lawyer and have a legal problem you wish to handle yourself, without the immense expense of hiring a lawyer, going to law school just for that reason alone is not practical. It's faster and cheaper to pay the lawyer,compared to law school. So, if you aim to solve your own legal problems while avoiding lawyers, you are on your own to figure it out.

Be your own lawyer? It's possible, but not easy.