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My Inquisitorial Motion

A careful review of the March 20, 1995 probate court hearing transcript shows that I was labeled a so-called "vexatious litigant" based chiefly, if not exclusively, on an in limine motion I made which Judge Letteau called "bizarre" and which he held was frivolous.

This was:  

PETITIONER’S IN LIMINE MOTION FOR AN ORDER SETTING MODE OF TRIAL TO BE INQUISITORIAL RATHER THAN ADVERSARIAL ("inquisitorial motion" - click here to view copy).

I filed this motion to try to stop the bleeding.  City National’s lawyers were milking the trust by conducting a lot of unnecessary and expensive pre trial rigmarole (the legal fees for which were coming out of my trust income).  City National hired a team of lawyers from one of the most expensive law firms in Los Angeles.  Pre trial conferences, joint statements, etc were costing the trust tens of thousands of dollars.

  Judge Letteau no doubt considered my motion bizarre because, for him, the purpose of the courts is to enrich the “old boys’ club” of lawyers - not to save anybody money.  However, looking back, some twenty years later, my motion looks perfectly correct.

My inquisitorial motion states the following:

"Petitioner moves the Court to change the mode of the upcoming trial from an adversarial mode, to a judge-centered inquisitorial·mode.  Petitioner requests that the Court become actively involved in the gathering of evidence, investigating the facts, and interrogating the witnesses, based on the following grounds:

a. The adversary mode is appropriate in the context of a jury trial. It has been historically linked to the jury trial.   Therefore, because there will be no jury trial in this action, the adversary mode is not appropriate.

b. Petitioner is a litigant in propria persona, less skilled than opposing counsel in making a formal presentation to the Court, and therefore at a disadvantage in the adversary mode of trial.

c. This is an action involving family members therefore the adversary mode is not appropriate.

d. This is an action where there is a fiduciary relationship between the parties -- therefore the adversary mode is not appropriate.

e. The nature of the case, as a Probate Court matter, is one where the trier-of-fact should participate, so as to satisfy questions which are important to him/ her, but which counsel may not consider significant.

f. As a general principle of communication, more information can be obtained by asking questions than by not asking questions. Transmitting information is a two-way process, not a one-way process.  Whoever makes a decision based on the testimony of a witness, should directly question the witness, so as to gain the most information, and to clarify any questions or doubts regarding the witness's testimony."


MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITIONER'S IN LIMINE MOTION FOR AN ORDER SETTING MODE OF TRIAL TO BE INQUISITORIAL RATHER THAN ADVERSARIAL

I.

A MOTION IN LIMINE IS APPROPRIATE FOR THE REQUESTED RULING

A motion in limine can be used to address virtually any issue arising during trial (see, for example, Sacramento Etc. DrainageDist.Ex Rel.State Reclamation Board v. Reed (1963) 215 Cal.App.2d 60).

Although there is no specific statutory authority for a motion in limine, its use in California has been approved and · even encouraged by the appellate courts (see, for example, Hyatt v. Sierra Boats Co. (1978) 79 Cal.App.3d 325).


The court has inherent power to grant motions in limine (Clemmens v. American Warranty Corp. (1987) 193 Cal.App.3d 444).

II.

THE ADVERSARY MODE OF TRIAL IS INAPPROPRIATE FOR THE INSTANT CASE


a. The trial judge has authority to determine the mode of trial.

 "The court shall exercise reasonable control over the mode of interrogation of a witness so as to make such interrogation as rapid, as distinct, and as effective for the ascertainment of the truth, as may be, ... " (CAL.EVID.CODE §765a).

The trial judge is a judicial officer vested with the task ... of determining where justice lies, under the law and the· facts, between the parties who have sought the protection of the Court. Estate of Dupont 60 Cal.App.2d 276.

b. The adversary·process has been defined as follows:

"The central precept of the adversary process is that out of the sharp clash of proofs presented by adversaries in a highly structured forensic setting is most likely to come the information upon which a neutral and passive decision maker can base the resolution of a litigated dispute acceptable to both the parties and society." (Stephan Landsman, THE ADVERSARY SYSTEM (Am.Enter.Inst.,c.1984,p.2).  


The adversary process has been historically linked to the jury trial. See Landsman, supra, pp.7-25.

c.  Where even one of the litigants, is a laymen in propria persona, the purpose of the adversary system cannot be achieved.

The parties, and the system, under the adversary system:

"have come to rely upon a class of skilled professional advocates to assemble and to present the testimony upon which decisions will be based. The advocates are expected to provide the forensic talents necessary to organize the evidence and to formulate the legal issues. If the lawyers fail to carry out their duty, development of the case will be impeded, and the adversary process may be undermined." (Landsman, supra,p.4).


d.  Landsman, supra -- although, essentially, a defense of the adversary system -- recognizes that the adversary system is not appropriate for some types of disputes, for example disputes between family members.


"The adversary method is not equally useful in resolving all types of disputes . . . there are settings in which adversary procedure does not seem appropriate. . . . Adversary procedure may exacerbate rather than resolve tensions and may not foster the kind of compromise essential to the restoration of harmony. For this reason, disputes between ... family members . . . should usually be resolved in nonadversarial proceedings." (Landsman,supra, at 52).

e.  The court has a special duty to be patient and tolerant towards a pro per litigant.

"Where a party is not represented by counsel, the trial court will exhibit patience and tolerance and permit the widest latitude in any efforts to prove the charges made . " ( 88 C.J.S., Trial §36, p.95).

Several California cases recognize the special status of the pro per litigant. Pete v. Henderson (1954) 124 Cal.App.2d 487 holds that the court has a special duty to aid a layman litigant representing himself in propria persona. Campbell v. Jewish Committee for Personal Service (1954) 125 Cal.App.2d 771 holds that the court must be liberal in favor of the layman pro per litigant.

f. Two-way communication where the judge actively participates, is far better than the usual one-way trial communication system, where the judge is a neutral and passive decision maker.

"As a legacy of the lawyers' dominance of the trial dialogue, trials are conducted according to a linear one-way communication process ... 'It is bizarre,' says a critic, 'that those people who have to decide the issues of the trial are not permitted ... to ask questions.' "(Austin, Complex Litigation Confronts the Jury System (Univ.Pubs. of Am.,c1984) at p. 102 (speaking of jury trials)).

 One-way communication distorts information reception.

"Research reveals that linear-one-way communication distorts reception in numerous ways: .... " (Austin, supra at 102).

Participation by the judge in asking questions, improves the accuracy of information transmission.

"The very act of asking a question involves analysis and self-education. . . . To the advantage of everyone, questions will identify comprehension problem areas and give the lawyers an opportunity to correct misapprehensions. The benefits far outweigh the disadvantages .. " (Austin, supra at 102-103).


"'Experiments have demonstrated with consistency that the accuracy of information transferred by two-way communication far exceeds the accuracy of information passed by one-way communication.'" (Austin,supra quoting from Forston, Sense and Non-sense:Jury Trial Communication 1975 B.Y.U.L.REV. 60, at 629,n.6).


My supplementary points and authorities states the following:


"This is a supplement to PETITIONER'S IN LIMINE MOTION FOR AN ORDER SETTING MODE OF TRIAL TO BE INQUISITORIAL RATHER THAN ADVERSARIAL, served February 13,1995; and to PETITIONER'S IN LIMINE MOTION FOR COURT-APPOINTED EXPERT WITNESSES,· served February 15,1995:


THE PROBATE COURT HAS ADMINISTRATIVE POWERS AS DISTINGUISHED FROM STRICTLY JUDICIAL POWERS IN REGARD TO ADMINISTRATION OF TRUST ESTATES TO ENFORCE THE DUTIES OF TRUSTEES -- THEREFORE PETITIONER'S IN LIMINE MOTIONS SHOULD BE GRANTED


 Even if it were not called upon by the beneficiary to do so, the probate court should, on its own motion, act to enforce the duties of trustees. See 3 Scott, LAW OF TRUSTS (4th ed), §200.4, pp.216-219.  Although a court generally does not act on its own initiative in protecting rights or enforcing duties, the modern tendency is for the probate court to do so.


"There is, however, a modern tendency in the United States for a court that has supervision over the administration of trust estates to enforce the duties of trustees even though not called upon by the beneficiaries to do so" (3 Scott, LAW OF TRUSTS, §200.4).


The Court has a function of seeing that the directions of the trustor are carried out; an administrative function.


"The notion seems to be, although it is never very explicitly. stated, that it is the function of the court to see that the directions of the settlor are carried out, even though no one complains to the court of the failure of the trustee to carry them out; that the court has administrative powers as distinguished from strictly judicial powers; that once the court acquires jurisdiction over the administration of the trust, it is the function of the court to see that the trust is administered in accordance with the directions of the settlor." (3 Scott, LAW OF TRUSTS, §200.4).


The modern tendency in the United States is for a court that has supervision over the administration of trust estates to enforce the duties of trustees. See 3 Scott,supra §200.4, citing International Trust Co. v. Preston (1916) 24 Wyo: 163:


The fact that the trustor can restrain alienation of a beneficiary's interest (i.e., spendthrift provision-- which is valid in California) is consistent with an administrative-type function of the probate court. In this regard, compare the English with the American views.


"In England the courts have adhered to the idea that it is the function of the court to protect the interests of the beneficiaries. In England the intention of the settlor is of importance in determining the extent of the interest of the beneficiaries, but these interests, once created, are subject to the control of the beneficiaries. Thus in England the beneficiaries can transfer their interests, even though the settlor has provided otherwise, whereas in most of the American states the settlor can restrain the alienation of a beneficiary's interest." (3 Scott,supra §200.4):


The spendthrift provision has a paternalistic, socialistic, nature which is NOT consistent with the look-out-for-yourself (capitalistic) nature of the adversary (litigation-as-a-fight·) paradigm.  


"Professor Gray's eloquent preface to the second edition of his Restraints on Alienation suggests that the judges who aided in the introduction of spendthrift trusts were influenced, perhaps unconsciously, by the spirit of paternalism 'which is ·the fundamental essence alike of spendthrift trusts and of socialism." 11 (2A Scott,supra, §152, citing Gray, Restraints on Alienation ix (2d ed. 1895)).  


The Fannie Borun trust does contain a spendthrift provision. Petitioner cannot sell his interest. He is irrevocably entangled by the "hand of the dead" as an unwilling participant in this entity.  Petitioner has no ownership rights, per se, to enforce, because his interest in the trust lacks an essential incident of ownership, which is the power of alienation.


"OWNERSHIP. Collection of rights to use and enjoy property, including right to transmit it to others. ." (BLACK, Black's Law Dictionary rev.4th ed. (West Pub.Co.,l968, s.v. nownership" --emphasis added).


The essence of petitioner's action in this Court is, therefore, to enforce the wishes of Fannie Borun, rather than to enforce his own rights of ownership. Therefore, this Court should treat this action in an administrative, rather than judicial, manner.  An inquisitorial, rather than adversarial, mode of trial is appropriate.