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David George Thomas

David Thomas’s Answers

78 total

  • How does one perserve objections and error in regards to an appellate oral arguments hearing?


    David’s Answer

    The other lawyers are very much correct. However, if you do not hire a lawyer and do continue to ask questions, please identify the venue in which the argument is pending. If, for example, you are in an "appeal" in the Massachusetts Department of Unemployment Assistance, you may very well seek to supplement the record or need to preserve issues for an ultimate challenge to the DUA's decision in the Superior Court. Alternatively, if you really are at the Massachusetts Appeals Court, your appeal must focus on errors and preserved objections during the proceeding in the lower court. If you did not preserve those already, you likely will be out of luck. Again, the other lawyers' suggestions that you hire counsel are more than apt.

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  • Please provide, in reasonable detail, an answer to the question --- what is the purpose, applicability and procedure ...

    ... of a "complaint for mandamus", including an applicable Civil Procedure Rule citation, or other resources for such related information, alternative remedies, etc., on this subject, regarding the inaction and/or conduct of a circuit court judge?

    David’s Answer

    A proper answer will be based on whether you are in federal or state court. Traditionally, mandamus is a writ or order issued by a "superior" court to compel a "lower" court or a governmental officer to perform either a mandatory or ministerial duty in the first instance or correctly if the duty is not being performed properly. Note that the analysis of ministerial duties can be very fact intensive.

    If you are seeking mandamus from a federal circuit court judge (i.e., if you are petitioning for a writ of mandamus from the Court of Appeals to instruct a federal district court judge to do something), the procedure is governed by Fed. R. App. Proc. 21, which provides as follows:

    (a) Mandamus or Prohibition to a Court: Petition, Filing, Service, and Docketing.

    (1) A party petitioning for a writ of mandamus or prohibition directed to a court must file a petition with the circuit clerk with proof of service on all parties to the proceeding in the trial court. The party must also provide a copy to the trial-court judge. All parties to the proceeding in the trial court other than the petitioner are respondents for all purposes.

    (2)(A) The petition must be titled “In re [name of petitioner].”

    (B) The petition must state:

    (i) the relief sought;

    (ii) the issues presented;

    (iii) the facts necessary to understand the issue presented by the petition; and

    (iv) the reasons why the writ should issue.

    (C) The petition must include a copy of any order or opinion or parts of the record that may be essential to understand the matters set forth in the petition.

    (3) Upon receiving the prescribed docket fee, the clerk must docket the petition and submit it to the court.

    (b) Denial; Order Directing Answer; Briefs; Precedence.

    (1) The court may deny the petition without an answer. Otherwise, it must order the respondent, if any, to answer within a fixed time.

    (2) The clerk must serve the order to respond on all persons directed to respond.

    (3) Two or more respondents may answer jointly.

    (4) The court of appeals may invite or order the trial-court judge to address the petition or may invite an amicus curiae to do so. The trial-court judge may request permission to address the petition but may not do so unless invited or ordered to do so by the court of appeals.

    (5) If briefing or oral argument is required, the clerk must advise the parties, and when appropriate, the trial-court judge or amicus curiae.

    (6) The proceeding must be given preference over ordinary civil cases.

    (7) The circuit clerk must send a copy of the final disposition to the trial-court judge.

    (c) Other Extraordinary Writs. An application for an extraordinary writ other than one provided for in Rule 21(a) must be made by filing a petition with the circuit clerk with proof of service on the respondents. Proceedings on the application must conform, so far as is practicable, to the procedures prescribed in Rule 21(a) and (b).

    (d) Form of Papers; Number of Copies. All papers must conform to Rule 32(c)(2). Except by the court's permission, a paper must not exceed 30 pages, exclusive of the disclosure statement, the proof of service, and the accompanying documents required by Rule 21(a)(2)(C). An original and 3 copies must be filed unless the court requires the filing of a different number by local rule or by order in a particular case.

    If you are in state court, it likely is best to confer with a local lawyer family with the state procedure. I do not practice in Illinois and a quick Internet search did not reveal a comparable state rule on this issue.

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  • Can attorneys agree to tape record deposition and agree to swear in witness instead of hiring a court reporter?

    i am indigent pro se in a criminal case, but now the court administration state they dont do court reporting for depositions and that I have to hire someone because they only do transcribing for indigent defendant's when it is in front of the jud...

    David’s Answer

    Although I do not practice in Florida, I suspect that you have a right to a court-appointed lawyer in a criminal case. Why are you proceeding pro se? I have never come across a court in any jurisdiction that hosts and pays to transcribe a deposition for a litigant, which by its nature is an out-of-court event. If you do not get any specific answers from Avvo, perhaps contact Florida Legal Services ( They appear to handle only civil matters, but may be able to point you in the right direction.

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  • Does your first name and last name have to be on a work schedule?

    I know a person who won a lawsuit against a hotel because they called out and they claimed that only their first name was on the schedule so it could have been anyone not exactly him on for work that day.

    David’s Answer

    Likely not; however, as Mr. Hammerlund questioned, why are you asking? Absent additional information, your question will not lead to anything other than general answers.

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  • Will a court let me move to Texas if my ex has no good reasons for me to stay?

    I am set to go to court next month because I have sole custody and my ex wants joint. I found out recently that he is selling marijuana and I can provide a witness to it in court. I am trying to settle with his lawyer now in light of all that....

    David’s Answer

    The answer to your question very much depends on all the facts and circumstances, the majority of which likely are not presented in your question. You really should contact a domestic relations lawyer that practices in the court in which this matter is pending. That stated, there are many ways to make sure your daughter has a relationship with her father without conferring joint custody. You may want to consider why you would want to relinquish any custody to your ex if he is selling drugs. You should look at your divorce decree or separation agreement to determine what, if anything, it states about relocation and any visitation rights your ex has. Contact a lawyer though.

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  • Reach and apply defendant jurisdiction issue

    I am challenging jurisdiction on complaint. I am not doing business in the commonwealth and not a resident. In complaint it states "the claims against her arise out of her transaction of business in the commonwealth of Massachusetts" Do I si...

    David’s Answer

    If you challenge jurisdiction, enter a "special appearance" to challenge jurisdiction only and move to dismiss. You only assert a counterclaim when you answer. If you answer and counterclaim, you will be submitting yourself to jurisdiction in Massachusetts. Otherwise, to be subject to jurisdiction in Massachusetts, a plaintiff must satisfy the Massachusetts Long Arm Statute, MGL Ch. 223A, s. 3, which is set forth below. The plaintiff must also satisfy certain due process considerations (i.e., you must have sufficient minimum contacts with Massachusetts such that the exercise of jurisdiction over you does not offend traditional notions of fair play and substantial justice - this is a fact intensive legal inquiry). If you do nothing and let a judgment enter against you, it is called a collateral attack. If so, the plaintiff could ulimately file a lawsuit in your jurisdiction to try to enforce the judgment from the Massachusetts action. In the new action in your jurisdiction, you could challenge jurisdiction over you in Massachusetts and assert the lack thereof makes the judgment void. This is a risky strategy because, if there was jurisdiction in Massachusetts, you will have waived the right to litigate the merits of the dispute.

    Massachusetts law:

    Section 3. A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person’s

    (a) transacting any business in this commonwealth;

    (b) contracting to supply services or things in this commonwealth;

    (c) causing tortious injury by an act or omission in this commonwealth;

    (d) causing tortious injury in this commonwealth by an act or omission outside this commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this commonwealth;

    (e) having an interest in, using or possessing real property in this commonwealth;

    (f) contracting to insure any person, property or risk located within this commonwealth at the time of contracting;

    (g) maintaining a domicile in this commonwealth while a party to a personal or marital relationship out of which arises a claim for divorce, alimony, property settlement, parentage of a child, child support or child custody; or the commission of any act giving rise to such a claim; or

    (h) having been subject to the exercise of personal jurisdiction of a court of the commonwealth which has resulted in an order of alimony, custody, child support or property settlement, notwithstanding the subsequent departure of one of the original parties from the commonwealth, if the action involves modification of such order or orders and the moving party resides in the commonwealth, or if the action involves enforcement of such order notwithstanding the domicile of the moving party.

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  • I was driving w. a suspended license and hit a car that was parked

    my license is actually from Rhode Island & the accident happened in Boston. The car is not under my name either. I fled the scene and got the citation today. what can happen?

    David’s Answer

    You may be charged criminally and the owner of the car you hit may file a civil lawsuit against you. For starters, you should contact a criminal defense attorney to determine the best course of action.

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  • Pursuant to Rule 9a

    Plaintiff sends me a motion he will file in court something against me. I send back my answers to plaintiff within 10 days. Plaintiff makes changes to motion. After changes are made is the plaintiff then required to again send me back motion wi...

    David’s Answer

    Under Rule 9A a party may serve a motion with a supporting memorandum of law. The non-moving party may then serve an opposition. The moving party must then file the whole 9A package with the Court within a specified time or withdraw the motion. The moving party should not make substantive changes to the motion or supporting memorandum. If so, seek relief from the Court to file a supplemental opposition, if necessary. You should also note that a moving party has 5 days to request leave of Court to file a reply brief to your opposition if something in the opposition could not have been addressed in the initial motion or memorandum.

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  • Complaint filed to court without my opposition included

    in my opposition sent to plaintiff I stated they had sent correspondences protected by privilege. Plaintiff without my knowledge blacked out communications and put "in camera" and filed it without my opposition. Plaintiff simultaneous sent complai...

    David’s Answer

    You are not going to get a decent answer to this question, as my colleagues have indicated. A complaint is different than a motion and an opposition is different than answer. To assist us answer your procedural question, please provide the Court in which you are litigating (e.g., the United States District Court, Massachusetts Superior Court, Massachusetts District Court), the type of document that was filed (e.g., a Complaint or a Motion) and the type of document that you filed in response (e.g., an Answer or an Opposition to the Motion). Also, please explain what was submitted in camera and whether the plaintiff filed documents under seal or followed the uniform rules of impoundment procedure.

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  • Do i have to be read the miranda rights if the cops take me in and finger print me for possession of marijuana?

    Also does it matter that i cooperated and went freely without being hand cuffed?

    David’s Answer

    The police are required to read you your Miranda Rights when they arrest you, i.e., when you are in their custody and you are not free to leave. Prior to that, no. For an interesting discussion on the subject, go to this webpage:

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