Nature

Many say they wouldnt want a public defender. I think theyre great.
Their incompetence makes it

easy to stir the pot. For example, a quick search usually shows: 1) The won the bid to represent all
indigents and have a duty to defend them [however]: they have too many clients and cannot
EFFECTIVELY (its that effective assistance of counsel thing); the public record shows they fail to
perform on their contract, instead, pleaing out their clients; they usually meet their clients after
arraignment (at which the attorney is appointed), though the arraignment is considered a critical stage
of the proceedings and at which representation should have been had; reviewing the case file usually
shows they filed no motions (again, did nothing to earn their contact fees qui tam (taking money for
work not performed)); they can be put on notice to build a record for appeal (e.g., entering objections,
introducing and moving into evidence documents and things, and taking testimony), making discovery
(other than the usual crap the prostitutor just hands out), producing their errors and omissions insurance
and so forth.
Whereas permanent estoppel by acquiescence barring any peace/court officer or prosecutor from
bringing charges against a Private Man under any Act is created if this claim is not responded to in the
stated fashion and time,
It is My Understanding that it was lawful for me to send you the previous Notice.
It is My Understanding that I could and did provide, within that Notice, time for objections to be
resolved honourably on both sides.
It is My Understanding that it is lawful for me to assume that, since you have not responded in
substance (to the best of my knowledge) I have your tacit consent (by acquiescence) to the
statements I made/Proofs I requested which now stand as MyTruth, in Law.
It is My Understanding that it is now possible for me to assume that, since the proper time for your
objections has expired, I have gained a lawful estoppel by your acquiescence.
It is My Understanding that I have acted in honour at all times, since you have not objected to what I
said.
It is My Understanding that it is now possible for me to point out that you must henceforth cease and
desist from all and any activity regarding this current matter, or that any further communications from
you will be considered to be unlawful harassment, and can be disregarded by My Self
without dishonour.
Then the next thing is that if you were to ask the following question Is it true that only those with a
licence are able to practice law?, the answer would always be Yes!. To which you could
respond But I do not have a licence, does this mean I cannot defend myself in a court of law?.
If you wan
1) By answering a question, the person answering would be deemed to have implicitly agreed to the
meaningintended by the person asking; but,
2) It would not be unusual (especially when answering legal questions) for the person answering to
mistakenly assume the question had a significantly different meaning from that intended by the person
asking; then,
3) It wouldnt be unusual for a person to mistakenly answer questions which had a meaning he did not
apprehend.
If so, it would be reasonable and even essential for every person answering questions to fully
understand the meaning of each of the words used by the person asking to comprise the questions.
More, given that virtually every definition of almost every word in a decently-sized, fairly complete
dictionary have multiple definitions, we might have to go through each definition of each word used to
see which definition was intended by the questioner.
Once we reach the point of discovering the intent of the person asking questions, we might not be
too far from accumulating evidence of fraud or deception.
Title 18 United States Code (USC) Section 6001 (Definitions) begins with the phase As used
in this chapter. That phrase tells us that the four definitions found at 18 USC 6001 are only certain to
apply in this chapter (Chapter 601; Witness Immunity) but might not apply in any other Chapters in
the USC.
The USC has 50 Titles. If we assume that each of the other 49 Titles also has 601 Chapters, then
there may be over 30,000 chapters in the entire USC. In theory, then, there could be 30,000 unique
definitions (one or each Chapter in the USC) foreach of the four terms defined at 18 USC 6001.
Of course, its virtually impossible that any word or phrase used by Congress could have 30,000
separate definitions. Nevertheless, many word or phrases used by Congress do
have multiple definitions. More, these multiple definitions are often contrived by Congress to have
meanings that, for ordinary Americans, are not only unknown and unimagined but are virtually
incomprehensible.
This multiplicity of definitions goes to the heart of the following inquiry as to our right to ask to know
thedefinitions of each of the words used in laws, instruments or testimony that are relied upon in our
court cases and legal relations.
18 USC 6001 (Definitions) continues:
(1) agency of the United States means any executive department as defined in section 101 of title 5,
United States Code, . . . .;
(2) other information includes any book, paper, document, record, recording, or other material;
(3) proceeding before an agency of the United States means any proceeding before such an agency
with respect to which it is authorized to issue subpoenas and to take testimony or receive other
informationfrom witnesses under oath; and
Thus, while a witness is under oath he is apparently entitled to introduce other information into
evidence that is not testimony. But, other information has been previously defined (in item (2)) to
include any book, paper, document, record, recording, or other material.
I strongly suspect that this other material can include a purported affidavit that is based on mere
information and belief rather than direct personal knowledge. For example, I might draft an
affidavit on information and belief that I believe that John Doe killed Becky Doe. Whats the basis
for my information and belief? Well, I heard two guys talking in a bar and Im pretty sure thats what
they said. Thus, my information and belief would not be based on direct personal knowledge (having
seen John kill Becky) but rather on mere hearsay.
Normally, hearsay is inadmissible in court. However, under the guise of 18 USC 6001 (2) & (3) it
appears possible that hearsay might be admissible if it were presented in the guise of an alleged
affidavit based on mere information and belief.
(4) court of the United States means any of the following courts: the Supreme Court of the United
States, a United States court of appeals, a United States district court established under chapter 5, title
28, United States Code, . . . .
18 U.S.C. 6002 Immunity generally declares,
Whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify or
provideother information in a proceeding before or ancillary to
(1) a court or grand jury of the United States,
(2) an agency of the United States, or
(3) either House of Congress, a joint committee of the two Houses, or a committee or a subcommittee
of either House, and the person presiding over the proceeding communicates to the witness an order
issued under this title, the witness may not refuse to comply with the order on the basis of his privilege
against self-incrimination; but no testimony or other information compelled under the order (or any
information directly or indirectly derived from such testimony or other information) may be used
against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or
otherwise failing to comply with the order.
Twice, we see that the primary basis for granting immunity to compel a witness to testify is the
witnesss preliminary claim of the privilege against self-incrimination. I.e., I might be granted
immunity from criminalprosecution and then forced to answer a question IF I first refused to answer
that question on the basis of [my] privilege against self-incrimination.
But, in a world where most criminal proceedings are actually penal (civil with attached criminal
penalties) in nature, immunity from criminal liability may not be much of a reward for being forced to
testify. I.e., although I might be granted immunity from criminal prosecution, my testimony might still
expose me to significant civil(possibly penal) liabilities.
Insofar as witness immunity (and compulsion to testify) seems based primarily on the witnesss claim
of privilege against self-incrimination, what happens if I refused to answer based on some other
privilege? Unless there are other laws that also grant immunity based on a claim of other privileges, it
appears that I could not be compelled to answer.
What other privileges might exist as grounds for the right to refuse to testify . . . ?
For example, do I have a right to understand (comprehend) the meaning of the questions presented to
me? Surely, I must be entitled to the privilege of understanding (comprehending) whatever question
I am asked to answerespecially if my answer could expose me to criminal or civil liability or help to
enforce my rights.
So, what if I refused to answer a question because I didnt understand the meaning of the question?
The whole idea of refusing to answer a question based on my privilege against self-incrimination
presumes that I understand (comprehend): 1) the concept of self-incrimination; and 2) the
incriminatory elements of whatever question Im asked to answer. Thus, before I can even decide
whether I should refuse to answer a question as self-incriminatory, I must first fully understand how
that question might incriminate me.
Normally, a defendant hires an attorney. The attorney is presumed to understand the meaning of a
question and tells the defendant whether he should answer that question. The defendant may not
actually understand the question, but he relies on his attorney to understand the question and on his
attorneys advice as to whether he should answer.
Thus, its not only possible but probably commonplace for litigants to answer questions that they dont
really understandand be held liable for their answers.
But what happens if a litigant doesnt have an attorney to understand the questions for him?
Could the litigant ask the court or opposing party to explain the questions? Would the court or
adverse party be obligated to explain the meaning of the questions? Could the court or adverse party be
obligated to provide definitions for the words used to formulate their questions?
I suspect that the answers to these questions is Yes.
If so, a number of intriguing possibilities come to mind.
As an extreme example, suppose a question were posed to me (Alfred Adask) about ALFRED N
ADASK. Could I legitimately refuse to answer the question as potentially self-incriminatory if I
(Alfred) am not the subject ALFRED?
I.e., can I answer questions about ALFRED without incurring some liability for myself (Alfred)?
More, I suspect that questions and answersespecially those under oath and implicating issued of
self-incrimination, may be somewhat like a contract or agreement (in fact, the question might even
be construed to be something like a notice) wherein there was deemed to be a meeting of the minds.
(How can anyone be expected to answer a question and be held liable for his answer if the person
answering didnt first understand the meaning of the question presented by the questioner?
Doesnt an answer to any question presuppose a kind of meeting of the minds wherein the person
asking and the person answering are both deemed to have understood/agreed to the meaning of the
question?
If so, then if it could be argued that:
1) By answering a question, the person answering would be deemed to have implicitly agreed to the
meaningintended by the person asking; but,
2) It would not be unusual (especially when answering legal questions) for the person answering to
mistakenly assume the question had a significantly different meaning from that intended by the person
asking; then,
3) It wouldnt be unusual for a person to mistakenly answer questions which had a meaning he did not
apprehend.
If so, it would be reasonable and even essential for every person answering questions to fully
understand the meaning of each of the words used by the person asking to comprise the questions.
More, given that virtually every definition of almost every word in a decently-sized, fairly complete
dictionary have multiple definitions, we might have to go through each definition of each word used to
see which definition was intended by the questioner.
Once we reach the point of discovering the intent of the person asking questions, we might not be
too far from accumulating evidence of fraud or deception.
For example, suppose:
1) The person asking the questions was a lawyer or judge trained in the law and fluent in legalese (a
term recognized and defined in recent editions of Blacks Law Dictionary);
2) The person asking the question knowingly and intentionally used a word (say, understandas in
Do youunderstand the charges against you?) as a term of art (also defined in Blacks Law
Dictionary) that has a meaning in the context of law (perhaps, meaning agree) that
the questioner knew was entirely different from the words common definition (intellectually
comprehend) that the person answering would ordinarily suppose; and,
3) It could be shown that the person asking the question intentionally used the term of art (with a
meaning unknown to the person answering) for the purpose of exploiting the ignorance of the person
answering and thereby using the persons ignorance to cause him to make admissions that were against
his interests or even absolutely (but unwittingly) false; then
4) It might be proved that the person asking the questions had intentionally used his words to deceive
and/or defraud the person answering; and
5) The court system that routinely employs, recognizes, relies on, and approves of such verbal
deception would, itself, be guilty of conspiring to exploit the answerers (publics) ignorance.
Given the extensive use of terms of art by lawyers and judges, it seems probable that there must be
an underlying presumption that allows the system to escape liability for exploiting the publics
ignorance. In this regard, Im reminded of the fact
that notices (see, https://adask.wordpress.com/category/notice/) need not be complete, but need only be
sufficient to put the recipient on inquiry. I.e., the recipient has the right to ask questions to fill in
whatever blanks exist in the notice received. If the recipient does not ask those questions, it is
presumed that he has understood and agreed to all the terms of then (even including the unstated
terms) as intended by the sender.
Does every question likewise create a right of inquiry whereby the answerer is entitled to exercise his
due diligence to discover what the exact meaning of the question (and each of its words) is intended
by the questioner?
I believe the answer must be Yes since, under this hypothesis, the right of inquiry also includes a
duty of inquiry. If you have the right to ask questions, but fail to exercise that right, the personal
liability for failing to ask those questions falls on younot the lawyers or judges who asked the
questions using words with definitions most people would not expect or understand. Under the pretext
of the publics rightand dutyto ask questions, the judges and lawyers could freely deceive the
public without incurring personal liability.
If so, the most effective and prudent response to any question might be to ask your own questions
about the questioners intended definitions of each of the words employed. Of course, this might be a
lengthy and tedious process. In fact, I wouldnt be surprised if it might take a full half hour to ascertain
the exact meanings of all the words used in a question comprised of just a few words.
For example, suppose a judge asked Do you understand the charges against you?
Suppose you looked up the meaning of understand in Blacks Law Dictionary and discovered that
understand might sometimes mean agree and therefore asked the judge if hed used the word
understand to mean comprehend or agree.
Suppose the judge confessed that he used the world understand to mean agree.
Well, if you now opened your Blacks to find the definition of the word agree, you might discover
that agree has four possible meanings. If so, you might want to ask the judge Which of the four
meanings of agree did he intend when he used the word understand?
If the judge answers definition number three, there might a word or two in that definition that you
didnt understand, so you might want to look up those words and ask the judge to declare which
definitions he intended.
As you can see, once the definitions of words becomes an issue, it might take a very long time to
discover the precise meaning of a phrase like Do you understand the charges against you? In fact,
the process of discerning (and agreeing to) the precise meanings of words might be so drawn out that
the courts might be reluctant prosecute cases against defendants who insisted on the privilege of
precisely comprehending the meaning of the questions posed to them.
Its even possible that issues of definition might even be grounds for interlocutory appeals to demand
a higher court to rule on the meaning of just one critical word. Heck, if the meaning of a second
critical word were also at issue, there might be grounds for a second interlocutory appeal, etc..
Of course, these interlocutory appeals can take some time. The appellate courts are busy and once a
defendant demands an interlocutory appeal, it could take several days, even weeks before an appellate
court would have time to answer his question. The actual proceeding at the trial court might have to
suspended and continued until an appellate court could rule on the definition of a particular word. Its
conceivable that interlocutory appeals for just five or six words might cause a single, seemingly simple
case to drag on for six months or more.
Of course, the judge might be furious. The jury, if any, might also be a bit miffed. (The judge might
even threaten to label someone who was intent on understanding the definitions of all relevant term as a
vexatious defendant and threaten to never allow him to appear in court again as a defendant.)
Nevertheless, despite the potential for lengthening a trial significantly, prudence and due diligence
might still require a defendant or witness to fully investigate discover and agree to the precise meaning
of the questions posed before they could answer those questions.
It occurs to me that the Oath taken by witnesses should be another ground for a witness to respond to
questions with his own questions about the precise meanings of the words used and the question posed.
After all, as a witness Im sworn to tell the truth, the whole truth, and nothing but the trutha very
high and exacting standard. Im even threatened with pains and penalties of perjury if I violate my
oath. So, how can I possibly (or safely) satisfy my oath if I dont exactly comprehend the meanings of
the questions presented to me? How can I be sure that Im telling the whole truth and nothing but
the truth, in response to questions if I dont exactly understand the meanings of those questions?
And, again, how can I determine if a question is or is not self-incriminating unless I fully understand
the meaning (and therefore, legal implications) of each question presented to me?
If theres a challenge by the judge or lawyers to my determination to fully comprehend the exact,
intended meaning of each question (and incorporated words), I can find some justification (here on
Texas, at least) atTexas Penal Code 1.04(d) which defines the territorial jurisdiction of this state as
follows:
This state includes the land and the water and the airspace above the land and water over which this
state has power to define offenses.
Thus, the jurisdictional limits of this state are determined by definitions. Thats not my hypothesis
or personal opinion. Thats a fact declared in the Texas Penal Code. Clearly, if the jurisdiction of this
state is a function of its definitions, then my right to inquire about definitions of words used by my
adversary must be significant. Given 1.04(d), who could argue that I have no right to discover relevant
definitions?
More, given that Texas Penal Code 1.04 declares that the territorial jurisdiction of this state is a
matter ofdefinitions, then it follows that definitions can be a jurisdictional issue. Jurisdiction is the
crucial issue of every case. If a court has no jurisdiction, it cannot lawfully proceed or issue any orders
or judgments. Its my understanding that jurisdictional issues can be raised at any timebefore,
during, or even after a trial. This suggests that questions about definitions of words used to charge a
defendant, or questions posed by an adversary might be raised as a jurisdictional issue at any time that
jurisdictional questions might be raised.
So far as I know, its a fundamental principle of law that every contract is subject to the law of the
situs (place) wherein that contract is executed. As a result, identical contracts might be executed in
Texas, Mexico and Canada and still have three significantly different sets of meanings, rights,
obligations and consequences according to the governing law of the situs where the contracts were
signed. Given the relationship seen in Texas Penal Code 1.04(d) of definitions to territorial
jurisdiction, it appears possible that every definition may have a situs (place, or venue).
If so, it may be the one of the questions in response to questions posed by a lawyer or judge may be to
inquire about the situs or venue of the original question and of each of the words used to phrase that
question.
For example,
Q: Do you understand the charges against you?
A: What is the situs/venue of your question? What is the situs/venue of the word understand?
Are you using the word understand as evidence of the territorial jurisdiction of this state? (As a
bonus question, you might ask the judge What is your blood pressure . . . ?)
This hypothetical tactic of asking questions about the meanings and definitions of words sounds
kinda funny, but it couldnt actually work, could it? I mean, if this strategy could work why dont we
see defense lawyers using it every day?
A: Because a licensed attorney who dared to try it, would probably be quickly disbarred.
But its a fact that the law of the law is the definitions of words comprising the law. In the same
sense that Bill Clinton once answered a question with it all depends on what the meaning of is is,
the meaning and effect of any law ultimately depends on the definitions and meanings of the words
used and intended to express that law. If you can change the meaning or definition of one or more
words in a particular law, you can change that law without a formal process of legislation.
Again, the law of the law is the definitions of the words that comprise the law.
As evidence that definitions provide the law of the law, note that the Supreme Court spends much of
its time trying to discern whatever meaning was intended by the legislature when they used a particular
word or phrase in a particular law. If the legislature intended a critical word to mean one thing, a
defendant may be found guilty; if the legislature intended a different meaning for that word, that
defendant may be found innocent. Words matter. Big time.
When doubt arises about the meaning of a particular word or phrase used in the law, the Supreme Court
will expend considerable resources exploring congressional records, documents, and meeting notes that
impacted on the passage of the particular law to discover What th hell did those damn
congressmen mean (intend) when they passed this damn law?
Insofar as the Supreme Court can expend considerable resources trying to figure out what meanings
and definitions were intended by Congress when they wrote a particular law, we can see that the
meanings of words are not fixed. There is no single dictionary thats available to even the Supreme
Court to discover what the sole meaning of every word must be. Instead, its not only true that some
words have multiple definitions, its true that the Congress routinely creates its own new definitions for
words.
Read any Title in the United States Code. Youll find multiple sections entitled definitions. Some of
these sets of definitions apply only to a particular Title, some to a particular Chapter, others to a
particular Section. Ive never done it, but I have no doubt that you can probably find two or three
conflicting definitions of the same word in the same Title. One definition applies only to one Chapter,
another definition of the same word is different but applies only to one Section in a different Chapter,
etc.
If Congress can legally create new and multiple definitions for words and phrases, why cant we?
More, why should we presume that a particular word or phrase used in a legal document or legal
question has the same meaning as used by our parents or schoolteachers when we were kids?
We the People tend to presume that each word has only one common definition. Were absolutely
wrong. Virtually all words have multiple definitions. Sometimes, some words have absolutely unique
definitions that are only recently created by Congress and are virtually unknown and even unimagined
by the majority of people.
All of these truths about the variability and multiplicity of definitions suggest that an intelligent,
reasonable inquiry into the meanings of each word used to pose a question should be a credible
practice.
Insofar as the Supreme Court can expend considerable resources looking for the definition of a
particular word, its not so hard to believe that a similar process might take place at the trial court level.
Declaratory judgments. I just now stumbled onto the Florida law on Declaratory Judgments
at: http://leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0000-
0099/0086/0086.html. Parts of this law include:
86.011Jurisdiction of trial court.The circuit and county courts have jurisdiction within their
respective jurisdictional amounts to declare rights, status, and other equitable or legal relations whether
or not further relief is or could be claimed. No action or procedure is open to objection on the ground
that a declaratory judgment is demanded. The courts declaration may be either affirmative or negative
in form and effect and such declaration has the force and effect of a final judgment. The court may
render declaratory judgments on the existence, or nonexistence:
(1)Of any immunity, power, privilege, or right; or
(2)Of any fact upon which the existence or nonexistence of such immunity, power, privilege, or
right does or may depend, whether such immunity, power, privilege, or right now exists or will arise in
the future.Any person seeking a declaratory judgment may also demand additional, alternative,
coercive, subsequent, or supplemental relief in the same action.
Any fact upon which the existence of any immunity, right or privilege etc. may depend would seem
to include the definitions of words used to affect that immunity, power, privilege or right.
For example, is it a fact that the word understand as used in the question Do you understand the
charges against you? means agree to?
If so, a litigant would seem to be entitled to ask for a declaratory judgment on the definition of the
word understand.
86.021Power to construe.Any person claiming to be interested or who may be in doubt about his
or her rights under a deed, will, contract, or other article, memorandum, or instrument in writing or
whoserights, status, or other equitable or legal relations are affected by a statute, or any regulation
made under statutory authority, or by municipal ordinance, contract, deed, will, franchise, or other
article, memorandum, or instrument in writing may have determined any question of construction or
validity arising under such statute, regulation, municipal ordinance, contract, deed, will, franchise, or
other article, memorandum, or instrument in writing, or any part thereof, and obtain a declaration of
rights, status, or other equitable or legal relations thereunder.
How could a litigant not be in doubt about his or her rights under a deed, will, contract or other
article, etc., if that litigant did not understand the meaning of all of the words used in the relevant
document? Insofar as declaratory judgments can be used to alleviate such doubts, it seems likely that
declaratory judgments can be demanded to determine the definitions of critical words or phrases.
The power to construe would seem to include the power to define any word used in any of the
documents or even testimony that are relied on by a judge or jury to make a decision. This power of
construction would seemingly not only allow parties to ask questions about definitions, it would
seemingly allow a judge to independently and silently reach his own construction (definition) of
words and phrases used in his courtunless one of the parties exercises his right to ask questions about
the meanings of particular words.
This speculation is consistent with my earlier speculation that the judicial system must have some sort
of mechanism in place that allows the courts to use certain words as terms of art or have meanings
different from what the parties might normally expectwithout imposing any liability upon the judges
or lawyers for deceiving the person answering the questions. So long as a party questioned has
a right to ask questions about the meanings of words used to formulate the question, that party (not the
judge and attorneys) also has the implicit duty of asking questions to discover the definitions intended
by the judge or attorney. If the parties having the rightand dutyof asking questions about
definitions fail to do so, the liability for that failure falls squarely on the partiesnot the lawyers and
judges.
A parties power to ask questions about the definitions and meanings of words is not merely a right, its
also an implicit duty. I.e., if you dont ask questions about the meanings of words in the questions
presented to you, you may be waiving any right to subsequently object to the courts ultimate
construction of the case and verdict.
Assuming that the courts power to construe includes the power to define words, by failing to ask
questions about such definitions, you may open the door to be intimately construed by the judge.
It appears to me that the Florida law on Declaratory Judgments opens a door for parties to ask
questions about the meaning/definition of any (and perhaps every) word used in any official or written
document that is relied on by the court or plaintiff to affect his powers, privileges, rights, duties, etc.
If so, it probably follows that the law concerning declaratory judgments in other states and even at the
federal level will enforce the same right.
There may be some law other than declaratory judgments that affects a litigants right to ask
questions about definitionsbut, for now, I dont know what that law might be. Declaratory
Judgments appears to me to embody the right to ask questions about definitions (and the personal
liability for litigants who fail to ask those questions).
In jury trials, the judge will provide instructions to the jury that include the law relied on by the
litigants. I have no experience with the jury instruction process, but as I understand it, each litigant can
offer proposed instructions for the jury. The judge then picks and chooses between the parties
proposed instructions to determine which instructions the jury finally receives.
If its true that the law of the law is the definitions of the words that comprise the law, then it might
be argued that the jury instructions should include the definitions of words. This argument might not
work if neither litigant sought to expressly define the words used during the court proceedings. But if
either litigant exercised his right during the trial to receive a declaratory judgment on the definitions of
various words, the courts declarations (definitions) might be required as part of the jury instructions.
If a plaintiff wont supply the relevant definitions of words relied upon, then a defendant might want
to be prepared with a set of his own definitions to use as the meanings for the words hes using in his
answers.
Finally, the implications of the hypothesis that we have a right to ask questions about the definitions
of words may, at times, seem almost hilarious. If that hypothesis were correct (and logic, at least,
suggests that it must be), then the entire judicial system could be brought to a halt.
It might take a court several hours to issue a declaratory judgment as to the definitions of each of the
seven words in the question Do you understand the charges against you? If the word Do was
defined by the court, the courts definition would be composed of other words. In theory, a litigant
could be entitled to ask for the definitions of each of the words used to define Do. The next set of
definitions would also be comprised of words which might require another round of definitions and
declaratory judgments.
The courts would not stand for this process. The judges might label incessant demands for more and
more definitions as dilatory and attempts to obstruct justice or some such.
Therefore, if youre inclined to attempt to use a demand for definitions strategy, you should not ask
for the meanings of every single word employed in the paperwork, questions or testimony of the court
or your adversary. Id bet that in any significant case, there might 100 words that deserved to be
precisely defined, but that less than ten words or phrases were so critical that their definitions could
decide a case.
For example, if I read STATE OF TEXAS on a cases caption, does that mean the de jure government
of The State of Texasa member-State of the perpetual Union styled The United States of America?
If I read ALFRED N ADASK, does that term signify Alfred Adaska man made in Gods image
and endowed by his Creator with certain unalienable Rights?
How bout DALLAS COUNTYdoes that term signify The County of Dallas that was created in
the 1800s as a political subdivision of The State of Texas?
Does the Zip Code 75044 signify a location within a territory or a location within a State of the
Union?
If you can discover a half dozen critical terms and compel the court or your adversary to exactly define
those terms, Ill bet you can make most court cases disappearespecially if you can pose those
questions during the pre-trial process and long before a trial actually begins.
So, assuming the right to ask questions about the definitions of words actually exists, use that process
but dont be fool enough to abuse it. Use the process judicially. Prudently. Reasonably.
Be prepared to explain exactly why you are asking each question; why each question is relevant and
important to your case or defense; and why you cannot agree to proceed until your questions have been
definitively answered.
Written at arms length within The County of Dallas, within The State of Texasa member-State of the
perpetual Union styled The United States of Americaby Alfred Adaska man made in his Father
YHWH Elohiyms image and endowed by his creator with certain unalienable Rights
n fact, Wikipedia (http://en.wikipedia.org/wiki/Notice_pleading) explains that during American history

weve had three systems of pleading:
1. Common law pleading which originated in England and developed a strong emphasis on
the form of action rather than the cause of action and recognized law and equity as separate
judicial systems which each had their own forms and procedures.
2. Code pleading (first introduced in the 1850s) which sought to abolish the distinction between law
and equity by a) unifying civil procedure for all types of actions; b) shifting the focus from form to
cause of action (substantive right to be enforced by law); c) setting out all required elements for each
cause of action in carefully codified statutes; d) pleading of all ultimate facts with evidence that
would prove each element. Code pleading was allegedly criticized by many lawyers as too
difficult to research all facts needed to bring a complaint before one had even initiated the action
thereby preventing meritorious plaintiffs from bringing their complaints to court before the statute of
limitations expired. (Note that Wikipedia, implies that the merit was to be found in the plaintiff rather
than in his case.); and,
3. Notice pleading is the dominant form in the United States today. In 1938, the Federal Rules of Civil
Procedure were adopted. One goal was to relax the strict rules of code pleading. Code pleading had
served four purposes: notice, issue narrowing, pleading facts with particularity and eliminating
meritless claims. The Federal Rules eliminated all of those requirements except for the notice
requirement (hence we call it notice pleading). The requirements that were eliminated were shifted
to discovery (another goal of the FRCP). In notice pleading, plaintiffs are required to state in their
initial complaint only a short and plain statement of their cause of action. The idea is that a plaintiff and
their attorney who have a reasonable but not perfect case can file a complaint first, put the other side on
notice of the lawsuit, and then strengthen their case by compelling the defendant to produce evidence
during the discovery phase. [Emphasis added.]
Wanting to learn more about the currently dominant form of pleading in the United States, I visited
theFindlaw.com search engine for U.S. Supreme Court cases
(http://www.findlaw.com/casecode/supreme.html) and entered notice pleading in the text search
engine. The result was a list of every Supreme Court case included the term notice pleading. There
were only seventeen cases. Thats interesting. Only seventeenSupreme Court cases expressly touch on
Americas dominant form of pleading? That suggests that my ignorance (and perhaps yours) on the
subject of notice pleading may be due less to my own oversight than to the possibility that the
powers that be dont want the great unwashed to understand the nature of pleading in our modern
courts.
The Findlaw search engine will produce the highlights of each case that includes the term youre
looking for.Each highlight will include about 25 words before the search term appears in a case and
about 25 words after it appears. This 50-word context can give us a pretty good idea as to whether we
want read the whole case or not.
The seventeen cases, their notice pleading highlights and my observations follow in order of the
earliest case (A.D. 1957) to the most recent (A.D. 2002):
17. FindLaw: CONLEY v. GIBSON, 355 U.S. 41 (1957)
http://laws.findlaw.com/us/355/41.html
plaintiffs claim is and the grounds upon which it rests. The illustrative forms appended to the Rules
plainly demonstrate this. Such simplified notice pleading is made possible by the liberal
opportunity for discoveryand the other pretrial procedures [355 U.S. 41, 48] established by
the Rules to
[First, note that the earliest case where the Supreme Court used the term notice pleading was
A.D. 1957. That tells us that Notice Pleading is a relatively new inventionprobably only since
A.D. 1933 (or late) and an attribute of the New Deal and/or the National Democracy.
Second, I have not yet seen evidence that notice pleading also works in the states, but Ill bet
notice pleading does apply in the federal/territorial statesbut not in the States of the
Union. Likewise, Ill bet that Notice Pleading applies in the national democracy, but not within
the republican form of government guaranteed to every State of the Union.
This suggests that if you wanted to avoid being subject to Notice Pleading you might make it
clear that you are not a citizen of the United States but rather a citizen or member of the
people that comprise a State of the Union. Similarly, if you could enforce your standing as a man
to claim your right to a republican form of government (rather than a democracy), you might
be able to avoid being subject to Notice Pleading.
Third, the liberal opportunity for discovery is simply a right of inquiry. I.e., Notice Pleading
works because notice Recipients have a liberal opportunity for discovery. It should follow that
if you are denied your liberal opportunity for discovery (asking questions and having them
answered) that you would not have sufficient notice, you could be surprised, and the gov-cos
authority to subject you to the process of Notice Pleading would be voided. If they wont
answer your questions, they cant proceed under Notice Pleading . . . ? ]
16. FindLaw: ZENITH RADIO CORP. v. HAZELTINE RESEARCH, 401 U.S. 321 (1971)
Hazeltines attorney responded in terms of his theory of surprise, whereupon the District Judge
answered that federal procedure was based on notice pleading and in his opinion Hazeltine had
been put on notice. App. 141-144. See also, e. g., App. 116, 121-123, 146, 155. [ Footnote 4 ] App.
169-223.
[Thus, there is no surprise in Notice Pleading. Once youre put on Notice, nothing else can be
surprising. If you dont respond to the Notice with questions, thats your fault.]
15. FindLaw: OPPENHEIMER FUND, INC. v. SANDERS, 437 U.S. 340 (1978)
that could bear on, any issue that is or may be in the case. See Hickman v. Taylor, 329 U.S. 495, 501
(1947). 12 Consistently with the notice-pleading system established by the Rules, discovery is not
limited to issues raised by the pleadings, for discovery itself is designed to help define and
14. FindLaw: YAZOO COUNTY INDUSTRIAL DEVELOPMENT CORPORATION v.
SUTHOFF , 454 U.S. 1157 (1982)
be one among hundreds where busy federal appellate courts decide whether conclusory [454 U.S.
1157 , 1159] allegations made under the notice pleading premise of the Federal Rules of Civil
Procedure do or do not properly invoke federal jurisdiction. This Court in turn would be entirely
correct in
[Theres a case worth reading. There may be some question as to whether Notice Pleading is
sufficient to invoke federal jurisdiction. Ill bet that the court mustve ruled that notice
pleading DOES invoke federal jurisdiction, but its likely that the court specified one or more
conditions precedent that must be present before notice pleading is able to invoke federal
jurisdiction. If so, we need to know what those conditions precedent might be so they can be
attacked or exploited relative to federal jurisdiction.
Note that jurisdiction can ALWAYS be challengedeven after a case has been decided. So, if
Notice Pleading raises any unusual or surprising jurisdictional issues, we need to know what
they are.]
13. FindLaw: BALDWIN COUNTY WELCOME CENTER v. BROWN, 466 U.S. 147 (1984)
could have filed a motion for a more definite statement pursuant to Rule 12(e) if the complaint did
not adequately serve the purposes of modern-day notice pleading. But of course petitioner would not
have needed a more definite statement. The Federal Rules of Civil Procedure do not require a
claimant to set
[The complaint is now a notice which need not be a definite statement. But there are
purposes for modern-day notice pleading. These purposes should be discovered and used as
grounds to defeat some purported notices.]
12. FindLaw: CELOTEX CORP. v. CATRETT, 477 U.S. 317 (1986)
see Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material
Fact, 99 F. R. D. 465, 467 (1984). Before the shift to notice pleading accomplished by
the Federal Rules,motions to dismiss a complaint or to strike a defense were the principal tools by
which factually insufficient
[The previous excerpt implies that one of the great advantages of Notice Pleading is that the
notice can be issued without much (perhaps any) factual support.
This reminds me that we have two kinds of pre-trial hearings: evidentiary hearings and
argument hearings. I doubt that the two kinds of hearings are absolutely mutually-exclusive. I.e.,
you can probably enter some arguments at an evidentiary hearing, and you can probably enter
some evidence at an argument hearing. However, it should at least be possible to hold an
evidentiary hearing without any arguments, and especially, an argument hearing without any
evidence.
I also know that according to the A.D. 2005 edition of OConnors Texas Rules Civil Trials, that
evidentiary hearings are now disfavored.
I therefore suspect that all Notice is essentially an ARGUMENT. The Notice is virtually never
sworn; therefore the information conveyed by the notice itself is not an admissible fact. And if
factual insufficiency is no longer easily claimed against Notice Pleading, that also suggests that
all Notice Pleading is based on ARGUMENTwhich is based on premises (beliefs; hearsay) rather
than facts (testimony).
Implication: Attack the premises on which a Notice (argument) is based.]
be isolated and prevented from going to trial with the attendant unwarranted consumption of
public and private resources. But with the advent of notice pleading, the motion to dismiss seldom
fulfills this function any more, and its place has been taken by the motion for summary
judgment. Rule 56 must be
[The Supremes suggest that the motion for summary judgment is the devise approved (and
perhaps designed) for attacking a Notice/complaint.
If most Notices are nothing but arguments, then an effective Motion for Summary Judgment
would largely rely on an attack on the PREMISES (not facts) on which the adversarys
ARGUMENT was based.]
11. FindLaw: RENNE v. GEARY, 501 U.S. 312 (1991)
by JUSTICE WHITE that a party expressly style his claim in his complaint as
a challenge based on overbreadth is also inconsistent with
the liberal notice pleading philosophy that informs theFederal Rules of Civil Procedure. See
Conley v. Gibson, 355 U.S. 41, 47 -48 (1957); see generally Fitzgerald v.
[Ohh, isnt that fun? What th heck is the meaning of liberal notice
pleading philosophy thatinforms the Federal Rules of Civil Procedure. Notice pleading
is a philosophy rather than law? This philosophy is liberal (meaning what?)?? and
this philosophy informs theFRCPs? What th heck does that mean?
Apparently, the foundation for notice pleading may have been created by the
Supreme Court rather than the Congress. Even if Congress created Notice Pleading, Ill
bet it was intended as process in the territories rather than the States of the Union.
In any case, when the court starts skating around the essence of Notice Pleading with
confusing language like liberal notice pleading philosophy that informs the Federal
Rules of Civil Procedure, you can bet that the Supremes are hiding something
important. More, you can bet that the whole philosophy of Notice Pleading is probably
very vulnerable to whatever is being hidden.]
10. FindLaw: LEATHERMAN v. TARRANT COUNTY NICU, 507 U.S. 163 (1993)
http://laws.findlaw.com/us/507/163.html Independence, 445 U.S.
622, 650 . Second, it is not possible to square the heightened
standard applied in this case with the liberal system of notice pleading set
up by the Federal Rules. Rule 8(a)(2) requires that a complaint include only
a short and plain statement of the claim showing that the pleader
We think that it is impossible to square the heightened pleading standard applied by the Fifth
Circuit in this case with the liberal system of notice pleading set up by the Federal Rules. Rule 8(a)
(2) requires that a complaint include only a short and plain statement of the claim showing that the
pleader
[Previously, weve seen Notice Pleading described as a liberal philosophy; here, its described
as a liberal system. The words system and philosophy may be synonymous as used by the
court. But whatever Notice Pleading is, its 1) liberal and 2) set up (or created) by the FRCPs
and whoever created and continues to amend those Rules.
More, under Notice Pleading there can be no heightened pleading standardwhich would
presumably require the pleader to plead all of the facts and law of his claim (argument) with
great specificity. Under Notice Pleading, all thats required is a short, plain statement of the
claim. I.e., Defendant owes me $1 trillion. In gold.
Why would government want (or even allow short plain claims rather than great
specificity? Ill bet the reason may be that the existing gov-co is de facto rather than de jure. If
gov-co had to plead its suits and even prosecutions with great specificity, it would probably be
forced to admit that its acting in some very strange capacity or perhaps is not even the de jure
government.
In any case, the remedy for the short, plain claim is DISCOVERY wherein the recipient of the
original Notice (claim) is entitled to ask as many questions as he likes about the material facts
and law supporting the claim. Gov-co is betting that 99.99% of all defendants will fail to ask the
right questions required to reveal that the gov-co has insufficient facts or law to proceed. If the
defendant doesnt ask the right questions, too bad for him. If he does ask the right (most
embarrassing) questions (and probably at the right time), the gov-co will probably drop the claim
rather than answer those questions.
In any case, if its impossible to square a heightened pleading standard with Notice
Pleading, then it would follow that if you would avoid Notice Pleading (argument), you might
want to find an undeniable basis for claiming the heightened pleading standard. If a defendant
can prove that hes entitled to the heightened pleading standard (perhaps at common law), the
plaintiff or prosecutor may not be able to proceed under the liberal notice pleading
philosophy.]
9. FindLaw Case
a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support
the claims). In addition, under a notice pleading system, it is not appropriate to require a
plaintiff to plead facts establishing a prima facie case because the McDonnell Douglas
framework does
[Say whut? Whether the claimant is entitled of offer evidence to support the claim?!! Under
Notice Pleading there is at least a question as to whether a claimant can merely argue his claim or
is entitled to offer evidence in support of his claim. How is it possible that a claimant (plaintiff)
might not be entitled to offer evidence in support of his own claim? I wouldve thought
it impossible to prevent a claimant from offering evidence to support his own claim. I wouldve
thought it impossible that the court ask whether the claimant is entitled to offer evidence to
support the claims. I wouldve been wrong.
Under Notice Pleading it may sometimes be impossible to offer evidence. Under Notice
Pleading, the entire case may be decided based on argument and its underlying premises.
I dont know what the McDonnell Douglas framework is, but its probably some previous case
that may lay foundation for elements of Notice Pleading. ]
notice of what the plaintiffs claim is and the grounds upon which it rests. Conley v. Gibson, 355
U. S. 41, 47 (1957). This simplified notice pleading standard relies on liberal discovery
rules and summary judgment motions to define disputed facts and issues and to dispose of
unmeritorious claims.
[Conley v Gibson is the first Supreme Court case to use the term notice pleading.
The Notice must apparently present information of what the claim is and perhaps also the
grounds for that claim. I suspect the claim is an argument. If so, the grounds are
the premises (not facts) on which the argument is based.
Insofar as the Notice Pleading process relies on 1) liberal discovery; and 2) summary judgment
motions, Ill bet that that summary judgment motions are based in large part on the
discovery (inquiry). If you receive notice and are thereby entitled to make inquiry but the
claimant (notice sender; arguer) does not answer your questions, its likely that your proper
response will be some sort of Motion for Summary Judgment.
Again, we see liberal. Im pretty sure that means general in the sense that you can use
discovery generally or liberally to ask for just about any information you like.
Disputed issues (as opposed to disputed facts) are probably arguments or at least premises
that have been asserted by the claimant and denied by the defendant.]
requirements of Rule 8(a). 4 Other provisions of the Federal Rules of Civil

Procedure areinextricably linked to Rule 8(a)s simplified notice pleading standard. Rule 8(e)
(1) states that [n]o technical forms of pleading or motions are required, and Rule 8(f) provides that
[a]ll pleadings shall be
[It appears that FRCP 8(a) may be the cornerstone for the simplified notice pleading
standard. If so, mastery of FRCP 8(a) will be essential to avoid or at least cope with notice
pleading at the federal level.
If we find a rule in a states code of civil procedure thats virtually identical to FRCP 8(a), then
we can presume that Notice Pleading is also predominant at the state level.]
statement under Rule 12(e) before responding. Moreover, claims lacking merit may be dealt with
through summary judgment under Rule 56. The liberal notice pleading of Rule 8(a) is the starting
point of a simplified pleading system, which was adopted to focus litigation on the merits of a claim.
See Conley,
[OKfirst, FRCP 8(a) is the starting point and thus foundation for the feds liberal notice
pleading.
Second, insofar as liberal is not tightly bound by any rules, Ill bet that liberal might be code
for private. I.e., if liberal is not constrained by law, its merely constrained by some
principles. The de facto is probably private rather than public. The Notice Pleading might be
intended for private law.
The whole idea of Notice Pleading is to focus on the MERITS of a claim. That means that if you
can master the concept of merits, you can master the art making or defending against Notice
Pleading.
Blacks 2nd edition (A.D. 1933) defines the word MERITS as:
In practice. Matter of substance in law, as distinguished from matter of mere form; a
substantial ground of defense in law. A defendant is said to swear to merits or to
make affidavit of merits when he makes affidavit that he has a good and sufficient or
substantial defense to the action on the merits. 3Chit.Gen.Pr. 543, 544. Merits, in this
application of it, has the technical sense of merits in law, and isnot confined to a
strictly moral and conscientious defense. Id. 545; 1 Burrill, Pr. 214; Rahn v. Gunnison, 12 Wis.
529.
As used in the New York Code of Procedure, 349, it has been held to mean the strict legal
rightsof the parties, as contradistinguished from the mere questions of practice which every
court regulates for itself, and from all matters which depend upon the discretion or favor of the
court. St. Johns. v. West, 4 How. Prac. (N.Y.) 332.
A defense upon the merits is one which depends upon the inherent justice of the
defendants contention, as shown by the substantial facts of the case, as distinguished from one
which rests upon technical objections or some collateral matter. Thus there may be
a good defense growing out of an error in the plaintiffs pleadings, but there is not a defense
upon the merits unless the real nature of the transaction and controversy shows the
defendant to be in the right.
Over a century ago, one of the definitions of merits (the strict legal rights of the parties)
suggests that merit may be an attribute of each party rather than of the cause of action. Thus,
the question of merit might go to each partys status, standing or even authority in a case. If so,
then you, personally, have sufficient merit, you are apparently entitled to bring a complaint
or cause of action. Conversely, no matter how valid your cause of action might be, it appears that
you might not be personally entitled to bring a complaint if you, personally, dont have sufficient
merit. You have merit if you have a RIGHT (entitlement) to bring a particular suit.
This suggests that if its true that the modern gov-co is de facto rather than de jure, that gov-cos
right (personal merit) to bring suit against a purported defendant may depend on
some private relationship or recognition between the gov-co and the defendant. This private
relationship might be an implied trust relationship, or it might be based on the defendants
recognition of a gov-co employee (de facto officer doctrine?) as if he were an officer of the de jure
government rather than an employee of the de facto gov-co.
Another definition (
Blacks Law Dictionary, eighth edition (A.D. 2004), defines merits as:
1. The elements or grounds of a claim or defense; the substantive considerations to be taken
into account in deciding a case, as opposed to extraneous or technical points, especially of
procedure <trial on the merits>. 2. EQUITY (3) <on questions of euthanasia, the Supreme Court
has begun to concern itself with the merits as well as the law>.
The first definition of merits applies to things substantive. This is consistent with previous
statements by the court which refer to a claimants entitlement (or right) to enter evidence in
support of his own claim.
Blacks 8th does not define substantive. However, it does define substantive law as:
The part of the law that creates, defines, and regulates the rights, duties, powers of parties. Cf.
PROCEDURAL LAW.
So far as the administration of justice is concerned with the application of remedies to violated
rights, we may say that the substantive law defines the remedy and the right, while the law
procedure defines the modes and conditions of the application of the one to the other. John
Salmond, jurisprudence 476 (Glanville L. Williams ed., 10th ed. 1947).
Blacks 4th does define substantive as:
An essential part of constituent or relating to what is essential. Stuart-Warner Corporation v.
Le Vally, D.C.Ill., 15 F.Supp. 571, 576.
The second definition of merits refers to the third definition for equity which reads as
follows:
The recourse to principles of justice to correct or supplement the law as applied to particular
circumstances <the judge decided the case by equity because the statute did not fully address
the issue>.Also termed natural equity.
8. FindLaw Case
6. FindLaw Case
http://laws.findlaw.com/us/000/01-394.html
[Note that these two cases are identical but reported in each of two different
volumes: 536 and 000. The 000 volume is recent, spans about a decade or so, and
appears to include cases heard by the Supreme Court of the United States rather than the
United States Supreme Court. If so, such casesthough heard by the Supreme Court of
the United Statesare also reported in the U.S. reporter for cases decided by the United
States Supreme Court. Though two cases are referenced, both have the same highlight:]
against the CIA defendants alleged elsewhere in her complaint, App. 55 (counts 18-19). See infra, at
18. Whatever latitude is allowed by federal notice pleading, no one says Harbury should be allowed
to construe adequate legal redress to mean causes of action that were not even mentioned in her
complaint.
[This case should be read to see if this argument prevailed or was rejected. Ill bet that since
notices need not completely allege all material facts, the court may ultimately allowed adequate
legal redress to include causes of action that were not even mentioned in the complaint.
Also note that this case involved CIA defendants. That means this case should be very well
done.]
7. FindLaw Case
Haines v. Kerner , 404 U. S. 519, 520 (1972) (per curiam). Liberal construction of pro
se pleadings ismerely an embellishment of the notice-pleading standard set forth in the Federal
Rules of Civil Procedure, and thus is consistent with the general principle of American jurisprudence
that the party who brings a suit is master to decide what law he will rely upon. The
Fair v. Kohler Die & Specialty Co., 228 U. S. 22, 25(1913). Our adversary system is designed
around the premise that the parties know what is best for them, and are responsible for
advancing the facts and arguments entitling them to relief.
[Very nice. The plaintiff, claimant or prosecutor will essentially choose whatever law he wishes to
be enforced against the defendant. This implies that the Notice that initiates the suit/prosecution
must give information as to the EXACT LAW that the plaintiff/prosecutor relies on or at least
allow the defendant a right of inquiry to DISCOVER what exact law(s) are being alleged by
the plaintiff/prosecutor as the ground for his claim.
When we discover (inquire about) the plaintiffs alleged law, this should not mean merely
asking whether the case if filed under 42 USC 241 or 42 USC 242. The discovery should included
whether the cause of action is based on public law or private; at law, in equity,
maritime/admiralty etc..
More, insofar as the not only facts but also arguments may allegedly entitle the
plaintiff/prosecutor to file his case, we should be able to expressly inquire as to whatever facts,
law or arguments are believed to entitle the P/P to file suit against the defendant. Once they
admit whatever will allegedly entitle them to sue/charge the defendant, the defendant may be
able to attack and defeat the basis for that entitlement. If the defendant succeeds, the case
should be dropped.]
5. FindLaw Case
argument for the narrow reading urged by petitioner Mayle inheres in the distinctive pleading
requirement for habeas petitions. Unlike the generous notice-pleading standard for the benefit
of ordinary civil plaintiffs under Federal Rule of Civil Procedure 8(a), see Conley v. Gibson, 355 U. S.
41, 47
[This text tells us that an habeas corpus petition at least has distinctive pleading requirements
that are greater (or different from) than the liberal (vague) Notice Pleading requirements. This
raises the possibility that a defendant might be able to avoid Notice Pleading if he could interject
a habeas corpus petition and force his adversary to respond. ]
4. FindLaw Case
out during a flexible pretrial process and, as appropriate, through the crucible of trial. See
Swierkiewicz , 534 U. S., at 514 (The liberal notice pleading of Rule 8(a) is the starting point of a
simplified pleading system, which was adopted to focus litigation on the merits of a claim). Charles E.
the rules contemplate ); Thomson v. Washington , 362 F. 3d 969, 970 (CA7 2004) (Posner, J.)
(The federal rules replaced fact pleading with notice pleading). II It is in the context of this
history that Conley v. Gibson , 355 U. S. 41 (1957), must be understood. The Conley plaintiffs
[This is another indication that Notice Pleading is more about (perhaps exclusively about)
introducing ARGUMENTS (beliefs; hearsay) into evidence rather than FACTS.
How do you introduce facts into evidence? By TESTIMONY. How do you introduce BELIEFS
into evidence? By ARGUMENT. But given that the premises of arguments are merely BELIEFS
and thus HEARSAY, those arguments cannot be VERIFIED (sworn to).
Gov-co tries to get around their inability to swear to FACTS by drafting affidavits on
information and belief (hearsay). This may be the weak link in the Notice Pleading procedure. A
defendant can SWEAR to (verify) the FACTS that might be introduced into evidence at an
EVIDENTIARY hearing while the gov-co cannot swear to the premises being advanced in its
arguments at ARGUMENT hearings.
This suggests that we may be able to defeat Notice Pleading by insisting on introducing
EVIDENCE under OATH at EVIDENTIARY hearings. I.e., you probably cant beat an
argument at an Argument Hearing. To stop the plaintiffs/prosecutors argument (beliefs), you
must invoke an Evidentiary Hearing and then, under oath, introduce EVIDENCE (facts) that
refute the premises (beliefs) on which the P/Ps arguments are based.
This may explain why evidentiary hearings are [now] disfavored.]
a prima facie case of discrimination under the McDonnell Douglas standard. We reversed in
another unanimous opinion, holding that under a notice pleading system, it is not appropriate to
require a plaintiff to plead facts establishing a prima facie case because the McDonnell Douglas
framework does
[The 1st question is: Does the P/P proceed under a notice pleading system?
2nd Q: Can I (defendant) be compelled to proceed under a notice pleading system?
3rd Q: Does P/P presume that I have consented to proceed under a notice pleading system?
I.e., if were under a notice pleading system, the plaintiff need not plead (and then swear to)
any FACTS to establish a prima facie case. On the other hand, if were not under a notice
pleading system, the plaintiff must plead enough FACTS (that can be verified under oath) to
establish a prima facie case. Whether those facts need be verified in the original complaint (or
attached affidavit) in a process that is not under notice pleading is unclear to me. But clearly, if
the plaintiff does not initiate suit under a notice pleading system, then the plaintiff must allege
facts which, sooner or later, the PLAINTIFF can verify under oath.
Blacks 4th defines prima facie case in part as,
Such as will suffice until contradicted and overcome by other evidence. . . . A litigating party
is said to have a prima facie case when the evidence in his favor is sufficiently strong for his
opponent to becalled to answer it. A prima facie case, then, is one which is established by
sufficient evidence, and can be overthrown only by rebutting evidence adduced on the other
side. In some cases the only question to be considered is whether there is a prima facie case or
no. Thus a grand jury are bound to find a true bill of indictment, if the evidence before them
creates a prima facie case against the accused; and for this purpose, therefore, it is not necessary
for them to hear the evidence for the defense. Mozley & Whitley. And see State v Hardelein,
169 Mo. 579, 70 S.W. 130; State v Lawlor, 28 Minn. 216, 9 N.W. 698.
Thus, a prima facie case is all about the evidence. Without sufficient evidence introduced into
the record (probably under oath), there is no prima facie case.
But under a notice pleading system, the plaintiff need not plead sufficient (or any) facts (under
oath) to provide a prima facie case. This may be another vulnerable link in Notice Pleadingit
does not, perhaps cannot, produce a prima facie case. It does not, perhaps cannot, introduce
evidence under oath.
This makes good sense. Suppose the IRS were preparing to sue you to collect back taxes. Who, in
all the IRS, could swear under oath that you 1) are a taxpayer; 2) generated income; 3) owe five
cents in income taxes; 4) represent a taxpayer; or 5) owe some fiduciary duty to file papers on
behalf of some taxpayer? Simply put, theres no one within the whole IRS who can swear, based
on direct personal knowledge, that you are a taxpayer, owe money, or owe some duty of
filing. Sure, the IRS may have a stack of records to indicate your liability, but those are just
business records which are just hearsay and therefore cannot be introduced as evidence unless
the data entry clerk that entered the data into those records had direct, personal knowledge of
the alleged facts.
Virtually every gov-co bureaucracy operates under the same disability: Theres no gov-co
employee who can verify (swear to) any of the information contained in their records, data
bases, etc..Information unsupported by oath is not admissible as FACTS in evidence. Its just
argument, belief, hearsay. Thats why gov-co devised notice pleadingto get around the fact
that, usually, gov-co has little or admissible evidence sufficient to generate a prima facie case
against the defendant.
I am increasingly convinced that a Notice is merely an Argument. As such, the Notice is (almost
by definition) unsupported by FACTS to which anyone can swear. Instead, the notice is based
largely or entirely on information and belief (at most) which is hearsay and inadmissible as
evidence in a court of LAW.
Hmph. All of which suggests that the rise Notice Pleading and the rise of Administrative
Procedure may be two manifestations of the same phenomenon: the growth of government into a
modern tyranny.
Nothats not just hyperbole. How much of gov-cos growing power is based on criminal
prosecutions or civil suits for victimless crimes or offenses. Without a victim, where are the facts
and testimony to support any penal process? Growing government increasingly intrudes into our
lives based on ARGUMENTS and the underlying premises/BELIEFS rather than FACTS. Hell, if
the gov-co could only kick in doors or write traffic tickets based on sworn facts, I doubt that gov-
co would be one-third of its current size.
The whole freakin gov-co is based on arguments, which are based on premises which are
beliefs. It is conceivable that our current gov-co (this state) exists only as an argument but not
as a fact.]
that Rule 8(a)(2) does not contemplate a courts passing on the merits of a litigants claim at
thepleading stage. Rather, the simplified notice pleading standard of the Federal Rules relies on
liberal discovery rules and summary judgment motions to define disputed facts and issues and to
dispose of
[If the court wont rule on the plaintiffs merits at the pleading stage, the courts will presumably
rule on the merits if that issue is properly raised later in the proceedings.
So, if a defendant wants to stop a case quickly, its up to the litigantsby exercising their right of
inquiry (discovery)to determine if the plaintiff/prosecutor is entitled (has sufficient merit)
to file the suit. In theory, if I ask the right questions in discovery, the gov-co would be forced to
admit that it lacked sufficient merit (entitlement) to make charges against me. Once they make
that admission, the case should be dropped.
In the real world, gov-co will never make that admission. The case might be dropped, but gov-co
will not expressly admit it was not entitled to proceed.
Worse, in the real world, gov-co might sometimes proceed even though both sides know that gov-
co has insufficient merit to do so. Then what do you do?
Countersue: perhaps for denial of honest services of government. And then hope that a jury
will understand your position.
In any case, ]
conclusions of the pleader ); Brownlee v. Conine , 957 F. 2d 353, 354 (CA7 1992) (The Federal
Rules of Civil Procedure establish a system of notice pleading rather than of fact pleading, so the
happenstance that a complaint is conclusory, whatever exactly that overused lawyers clich means,
does
[If the essence of Notice Pleading is argument, there may be no objection to conclusions of law
advanced in an Notice.]
that loss and the [alleged] misrepresentation. Id ., at 347. Here, the failure the majority identifies is
not a failure of noticewhich notice pleading rightly condemnsbut rather a failure to satisfy the
Court that theagreement alleged might plausibly have occurred. That being a question not of
[If there is no Notice or the original Notice is somehow defective, the notice pleading procedure
cannot proceed.
Might plausibly is synonymous with arguably.
Notice is all about argument. Im all but convinced.]
it prevailed here before 1938, when the Federal Rules of Civil Procedure were adopted. The
change could not be accomplished without abandoning notice pleading, increasing the number of
judicial officers, and giving them more authority . If we are to rule out judge-directed discovery,
however, we must be
[I wish I were triplets. One of us could read these excerpts; the other could chase down all the
secondary rabbit trails; and the third one (me) could go fishing.
I wish I had the time and energy to chase down what change the court is talking about. Its
likely to be important, but so is a pile of other documents I have to read, write or file.
But what might judge-directed discovery be? It would be a discovery process where the
obligation of directing the discovery (making inquiries) was placed on the judge. Such obligation
would refute the fundamental principle of modern notice pleading: that upon receiving a notice,
the right and duty of discovery is imposed on the notice recipient (rather than some judge). If the
obligation of directing discovery were placed on the judge, it would be the judges obligation to
ensure that discovery was professional, astute and complete. If the judge didnt direct an almost
perfect process of discovery, hed probably forfeit jurisdiction and cause the defendant to be
released or plaintiffs case to be dismissed.By placing the obligation of discovery (inquiry) upon
the notice recipient, the burden of disproof is placed on the recipient, and the judge need
merely rule according to whether the defendant asked enough questions to disprove the
plaintiffs case.
Thus, under the notice pleading system, the defendant would seemingly be presumed Guilty
until proven innocent. Does that description correspond to whatever courtroom realty youve
experienced or observed? If so, that correspondence might only be coincidental. But it may also
be evidence that notice pleading does in fact shift the burden of proof from the plaintiff to the
defendant.
I am beginning to wonder about the etymological relationship of the words inquiry and
inquisition.Both words implicate the posing of questions.
In the ancient inquisition, authorities imposed questions upon an accused and insisted by
means of torture that those questions be fully and truthfully answered.
In modern notice pleading, the person sending the notice creates a right or duty of inquiry in the
notice recipient. Thus, the notice recipient is entitled to ask questions. But who/what actually
initiates the notice pleading process? We assume that gov-co sends the first notice (in the form of
a letter from the IRS or a traffic ticket, for example) to us and thus creates our right/duty of
inquiry.
I believe thats true in most instances. However, it is conceivable that you and I may have
unwittingly initiated the notice pleading process by sending a notice to the gov-co in the form of a
Drivers License or W-4, W-9 or 1099. If we were deemed to have sent the first notice to gov-co,
then gov-co would have a right of inquiry and be entitled to ask any number of questions
(perhaps of the sort we see on the 1040).
In fact, its probably unnecessary to determine who sent the first notice. Im not sure, but so far
as I know, modern discovery rules allow both sides to engage in discovery, once the case is
initiated. If so, then either sides first notice would create a right of inquiry in both sides. IF so,
then by sending a notice to me, the IRS might create its own right to ask me questions. True, the
IRS would also create my right of inquiry concerning their notice, but given the ignorance of the
typical American, in most cases that would be equivalent to leaving the remote control with the
dog so it could watch whatever TV programs it wanted. Even though entitled to ask questions,
99% of all Americans will not do so effectively.
Thus, it is at least conceivable that notice pleading might initiate a kind of inquisition that was
modern and perhaps fair since both sides were entitled to answer questions. IF so, the gov-co
would unfortunately be more adept at asking those questions than the gov-cos targets.
If you find all of this conjecture confusing, so do I. But in order to understand, we have to
consider all possibilitiesincluding those that seem confusing.
This much remains sureat least to me: 1) a notice need not include all material facts; 2) notice
creates a right or duty of inquiry in the notice recipient; and 3) notice pleading apparently shifts
the burden of proof from the plaintiff to the defendant.
So far, it appears that if you would exempt yourself from notice pleading and your resulting
burden of disproof you need to attack the first gov-co notice with great efficiency. Because that
notice need not be complete, the notice probably cant be attacked as intrinsically
defective. Instead, the attack should probably be made by means of several very astute
questions.
Note that if you receive a notice and respond with a notice of your own statements (rather than
with questions) your response might be construed as your own notice that might create THEIR
right of inquiry. Once gov-co establishes that it has a right of inquiry, if you dont answer, youre
probably screwed. Its a long-shot, but it appears to me that the proper response to a notice is not
1) silence; or 2) statements but only 3) questions.
Once you pose your questions, if they dont answer they will be denying you your right to
sufficient notice. Given that procedural due process consists of 1) notice and 2) opportunity to
be heardwithout sufficient notice, I doubt that the court can have jurisdiction to proceed to the
opportunity to be heard (the hearing where youll be found guilty about 95% of the time).]
3. FindLaw Case
The District Court adopted the Magistrate Judges recommendation that the allegations in
the complaint were vague and constituted insufficient notice pleading as to Goodmans 1983
claims. It therefore dismissed the 1983 claims against all defendants without providing
Goodman an opportunity to amend his
[This tells me that a fundamental complaint against all notices would be that they are
vague. I might charge 20 other errors or defects, but I know the courts MIGHT respect
a claim that my adversarys notice was somehow vague and therefore insufficient.]
2. FindLaw Case
a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support
the claims). In addition, under a notice pleading system, it is not appropriate to require a
plaintiff to pleadfacts establishing a prima facie case because the McDonnell Douglas framework does
[Why is it not appropriate to require plaintiffs to offer to plead facts (evidence) to establish a
prima facie case? Becauseas seen the Blacks 4th and 4th Revised editionsa notice, by
definition, need not provide all relevant material facts but instead must only be sufficient to
put an honest and prudent recipient in inquiry. I.e., since a notice must merely cause the
recipient to ask questions, it should not be required to provide any facts whatsoever. Instead, a
mere statement of argument might provide sufficient notice to put the recipient in inquiry.
Then, once that notice is received, its up to the recipient to ask sufficient questions to learn (or
challenge?) the material facts and premises for the arguments underlying the notice to privately
confirm or deny the notices validity.
If the notice recipient does not ask any or sufficient questions, he will be presumed (under
constructive notice) to have received sufficient notice of all material facts underlying the
notice.Given that hes received constructive notice of all material facts but failed to introduce
evidence to contradict those material facts, those unstated facts will be accepted by a court as
true (probably without being introduced into evidence by means of testimony) and the defendant
will almost certainly lose.
Once all the facts are implicitly agreed to, whats left to debate other than the law of the
case? But the law of the case would be declared or implied by the plaintiff in his original
complaint/notice. If the defendant did not ask about or otherwise challenge the law that
entitled the plaintiff to make his claim when that claim was first made, it would also be presumed
that the defendant had agreed or consented to be bound by the plaintiffs law.
All of this suggests that notice pleading would vastly favor plaintiffs. If defendants didnt ask the
right questions in response to notice, theyd be found guilty in the vast majority of
instances. Clearly, in todays court systems, defendants are routinely convicted of crimes and
predominantly found guilty in civil suits. I wonder if there are statistics that show, over time,
what percentage of cases were won or lost by plaintiffs? If it could be shown that plaintiffs were
once relatively easy to defeat and have more recently tended to win disproportionately, we might
have evidence that notice pleading is distinctly pro-plaintiff.
And therein may lie another fundamental vulnerability in notice pleading. I.e., if notice pleading
could be shown to disproportionally favor plaintiffs, defendants might challenge the notice
pleading process as depriving him of a right to a fair or impartial trial.
It seems possible to object to notice pleading as inherently unfair since it effectively relieves the
plaintiff of the burden of proof and imposes a burden of disproof upon the notice recipient. For
example, if gov-co sends you a notice (unsupported by facts or testimony) that you owe the IRS
$20,000, its up to the notice recipient to prove that he doesnt owe the $20,000 rather than up to
the IRS to prove that he does.
We see actual evidence that notice pleading exempts the notice sender from the burden of proof
in the IRSs routine reliance on Notices of Tax Liens when those alleged tax liens do not in fact
exist. County clerks file these Notices of Tax Liens as evidence into the county records even
when such Tax Liens do not, in fact exist.
One of the curious facts concerning income tax law is the fact that the IRS seems to rely on the
Internal Revenue Code rather than Title 26 as authority to collect taxes. The IRC and Title
26 appear to be word-for-word identical. But are they the same authorities? For example, I could
copy all of the text of Title 26 into a book Id call Adasks Revenue Code. Could I enforce the
tax laws under Adasks Revenue Code or must I enforce under Title 26? Similarly, can the IRS
enforce under the IRC or must they enforce under Title 26?
Is it possible that the IRS uses notice pleading under the IRC that might not be permitted under
Title 26?
Q: Is your notice dated January 1st, 2009 issued under the authority of Title 26?
Q. Is your notice dated January 1st, 2009 issued under the authority of the Internal Revenue
Code?
Q. Are Title 26 and the IRC identical authorities?
Weve found plenty of evidence (EINs, for example) that suggest that most governmental agencies
are actually private, corporate entities that operate independently of the de jure government. Is it
possible that independent governmental agencies rely on Notice Pleading that could not be
tolerated as constitutional under the de jure government?]
notice of what the plaintiffs claim is and the grounds upon which it rests. Conley v. Gibson, 355
U. S. 41, 47 (1957). This simplified notice pleading standard relies on liberal discovery rules
and summary judgmentmotions to define disputed facts and issues and to dispose of unmeritorious
claims.
[Motions are arguments.]
requirements of Rule 8(a). 4 Other provisions of the Federal Rules of Civil

Procedure are inextricably linked to Rule 8(a)s simplified notice pleading standard. Rule 8(e)(1)
states that [n]o technical forms of pleading or motions are required, and Rule 8(f) provides that [a]ll
pleadings shall be
[Again, Rule 8(a) appears to be THE cornerstone for simplified notice pleading. This implies
that if we would attack the notice pleading process, we should probably begin with a thorough
analysis and understanding of Rule 8(a). You can almost bet that somewhere in Rule 8(a) (or the
statute at its foundation) there will be an exception, an exit of sorts for those who do not
consent to be subject to notice pleading.
In the Texas Rules of Civil Procedure, Rule 45(b) appears to correspond to the notice pleading
implied by FRCP 8(a). Insofar as the Texas Rules announce notice pleading, you can bet that ever
other state does much the same.
Notice pleading is predominant at both the state and federal level.
For now, I will say that FRCP 8(a) is all about relief. Relief implicates equity. Equity usually
implicates a fiduciary relationship. If you can effectively deny the existence of an express or
implied fiduciary relationship between yourself and the plaintiff, you might be able to estop the
notice pleading process.
The Texas Rule 45(b) and supporting case law refer repeatedly to fair notice and sufficient
notice as synonymous. This suggests that if you receive notice, pose proper questions in
response, and the gov-co does not answer, the gov-co might be effectively accused of a
fundamental unfairness that violates the fundamental principle of procedural due process.
Ill analyze Rule 8(a) and Texas Rule 45(b) in the near future as time and energy become
available.]
statement under Rule 12(e) before responding. Moreover, claims lacking merit may be dealt with
through summary judgment under Rule 56. The liberal notice pleading of Rule 8(a) is the starting point
of a simplified pleading system, which was adopted to focus litigation on the merits of a claim. See
Conley,
1. FindLaw Case
Haines v. Kerner , 404 U. S. 519, 520 (1972) (per curiam). Liberal construction of pro se
pleadings is merely an embellishment of the notice-pleading standard set forth in the Federal
Rules of Civil Procedure, and thus is consistent with the general principle of American
jurisprudence that the
At arms length and within The United States of America,
Alfred Adask
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Many say they wouldnt want a public defender. I think theyre great.

Their incompetence makes it

n fact, Wikipedia (http://en.wikipedia.org/wiki/Notice_pleading) explains that during American history

requirements of Rule 8(a). 4 Other provisions of the Federal Rules of Civil

requirements of Rule 8(a). 4 Other provisions of the Federal Rules of Civil

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