At 9:35 AM
JUDGE MAILER: All right, next is the case of Jones vs. Jones. I see Mr. Whalen is present, I see Ms. Joplin is present. Are we ready to proceed?
MR. WHALEN:Yes, judge.
JUDGE MAILER: Miss Joplin, we had your client testify yesterday, and I believe cross exam by Mr. Whalen was finished, and I believe you waived any redirect examination. We've had two days of trial, and I think everyone would like to get this finished up today. Let's get started.
MISS JOPLIN: Thank you judge. Our last witness will be the Director of the Genesee County Personnel Office, Mr. Steven Iamarino. Mr. Iamarino will testify that with regard to Mrs. Jones pension...
MR. WHALEN: Excuse me, but I have to interrupt. I'm objecting to this man being called. He's not on the witness list, and we're not prepared to hear his testimony.
MISS JOPLIN: He IS on the witness list. Read it again.
MR. WHALEN: Judge, I have their list right here, and this man is not on it.
JUDGE MAILER: Counsel, please, you will address me, and not each other. This is not going to be a debating society. One at a time. Mr. Whalen, as I understand it, you are saying that you didn't know of this witness?
MR WHALEN: I'm saying I was not advised that this witness is going to be part of their case, and I'm not prepared to hear his testimony, or to cross examine him. I have their witness list right here: the man is not on their list.
MISS JOPLIN: May I speak, Judge?
JUDGE MAILER: You certainly may.
MISS JOPLIN: There are two witness lists. The first was dated October 27, which we filed with the court and served on Mr. Whalen. When we went to file our exhibit list, the next day, we noticed that we hadn't included Mr. Iamarino's name on our witness list. Obviously, he's needed to identify the documents, pension documents, from Genesee County, that are our Exhibit Seven. We filed an AMENDED witness list on November 1st, and served that list on Mr. Whalen as well.
MR. WHALEN: Judge, If I may...
JUDGE MAILER: You may not. Just give me a minute here, to read the Court file.
The proceedings paused for approximately four minutes, and resumed at 9:56 AM.
JUDGE MAILER: Well, I have it right here. The original witness list appears to have been filed on October 27, at 3:15, from the look of the time stamp. Then there's an amended witness list, filed November 1st, at, it looks like, noon. And the last witness on the list appears to be Steven Iamarino. I've got it right here. Mr. Whalen, what's the problem?
MR WHALEN: I'm saying I don't have it. If it was served on my office, well and good, I'll withdraw my objection. But while we're looking, who says they served us? Is Barney still delivering your paper?
JUDGE MAILER: Address me, counsel, not Miss Joplin. But that's a good question. Miss Joplin, is Barney still delivering documents for you?
MISS JOPLIN: Yes, judge, and the Proof of Service should be right there in the file.
JUDGE MAILER: Well, I'm looking for that, while you're talking. I have the proof of service on the first list, dated the next day. I have the second list, but I don't have the proof of service for that document. Am I missing something? Ms. Joplin, do you have a copy of the proof of service on that particular document?
MISS JOPLIN: I'm looking, judge, but I don't seem to have one.
JUDGE MAILER: Well, then, Mr. Whalen appears to be correct, at least on first blush. You know, a proof of service is, can be, a fairly important document. It's an affidavit, made under oath, that certain things were served on someone. Judges tend to take that affidavit at face value. If there were a proof of service here in the file, I would say to Mr. Whalen, well, you may not have the document with you today, but here's an affidavit saying it was served on you, let's proceed.
But now, I have to say just the opposite. Mr. Whalen says he didn't get this document, and there's no proof of service saying he did. That means that you, Miss Joplin, have told me, the court, by virtue of your filing your witness list, that you intend to call this witness, but you haven't told Mr. Whalen that you intend to call this witness, because nobody delivered that amended list to Mr. Whalen. If you haven't advised Mr. Whalen that this man is going to testify then he's not going to testify. It's that simple.
MISS JOPLIN: Well, judge, we only needed him to authenticate the documents that are our Exhibit Seven, the pension documents. Those are still coming into evidence, right?
MR. WHALEN: We object.
JUDGE MAILER: There's a surprise. Miss Joplin, we have two questions here. The first question is whether or not you are entitled to offer these documents labelled Exhibit Seven into evidence. You are entitled to offer them, because you advised Mr. Whalen, in advance, that you would. The next question becomes "What do these computer printouts, which have a bunch of numbers at the top, really mean?" There are no names on any of the sheets, just numbers. Should the court accept these documents as proof of something, without hearing some testimony such as "I am the custodian of these documents, these are my records"? If you insist, I will allow the documents into evidence. If you want, I will read them. But I will not make assumptions as to what they are, or to whom they apply, because I'm not allowed to make those assumptions. If I did make assumptions, I would likely be wrong in my assumptions, with no one to correct me. So judges don't make assumptions, and I won't. These documents, although admissible, are worthless to me. Call your next witness.
MISS JOPLIN: Judge, Mr. Iamarino was to be our last witness.
JUDGE MAILER: Well then, it sounds like you've presented your whole case. We'll take a five minute break, and then each of you has half an hour for final argument. During the break, I've got to advise the lawyers for the case that's on call that they'll be starting in an hour. See you in five minutes. We are in recess.
The court recessed at 10:17 AM.