Chapter 1: Going It Alone in Court
This book provides the information you need to prepare for trial and represent yourself in court. It explains rules and techniques for preparing and trying a civil case, including how to handle a case in family court or bankruptcy court. It does not cover criminal cases.
Understanding the procedures and techniques described here will help you present a persuasive, legally proper case whether you are a plaintiff (meaning that you have filed a lawsuit yourself) or a defendant (meaning that you have been sued). Illustrated with sample forms, pleadings, and courtroom dialogues, the book will take you through the litigation process step by step, from deciding whether you have a valid legal claim or defense to preparing an appeal if you lose.
If you had your druthers, you might prefer to turn your case over to a trial attorney (often called a “litigator”), who is trained to develop and support legal theories in adversarial circumstances. But in many common situations, it doesn’t make economic sense to hire a lawyer. Perhaps you find yourself in a situation like one of the following:
- You injured your back when you slipped on loose carpeting in an office building you were visiting.
- You own a small manufacturing business and have sued a supplier for delivering faulty raw material.
- Your landlord has sued to evict you from your apartment, and you claim that the eviction is unlawful.
- You have filed a claim against your ex-spouse seeking increased child support.
- You are a building contractor who has been sued by a homeowner for using building materials other than those specified in a remodeling contract, and you claim that the homeowner asked you to modify the contract after work was begun.
- Money that was left to you in trust by your parents has been depleted by improper investments made by the trust company that controls the trust assets.
In any of these instances—and countless more—if you can’t resolve your dispute in a friendly way, you might have to go to court to protect your rights.
Unfortunately, with many lawyers charging hourly fees of hundreds of dollars, it might not make economic sense—or even be financially possible—for you to hire a lawyer. Even if you win and are able to collect what the other side owes you, the lawyer’s fees could devour much of your gain. As a result, representing yourself in court or dropping your claim or defense altogether might be your only realistic alternatives.
Unless you are in court regularly, you may not know how a case proceeds from initial filing through trial. Therefore, this book also provides you with background information about what you will see—and what you need to do—when you enter the courtroom where your case will be heard. You will learn where to file your court papers; how to subpoena witnesses (order witnesses to come to court and testify); the functions of a courthouse Clerk’s Office and a courtroom clerk; and the powers and duties of all the personnel who typically carry out courthouse business, including bailiffs, court reporters, interpreters, attorneys, jurors, and judges.
| Why Do People Represent Themselves? |
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The National Center for State Courts conducted a study to find out why more and more people are representing themselves in court instead of hiring an attorney. The study found that those who represent themselves believe that:- Lawyers are too expensive.
- Courts and lawyers do not deliver quality services.
- Their cases are simple enough to handle themselves.
Analysts of civil court systems provide additional reasons for the growth in self-representation, including: - People want to be in control of their cases.
- Lawyers often lack good “bedside manners” and aren’t good at explaining to clients what is happening with their cases.
- Many people distrust lawyers, both because of negative personal experiences and because of the negative images of lawyers often portrayed on TV, in books, and in the movies.
- Legal assistance is available from other sources, such as the Internet, computer software, and paralegals or other legal document providers.
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| The Federal Rules of Civil Procedure (FRCP) |
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| Virtually all the procedures you will read about in this book are governed by a set of federal rules known as the Federal Rules of Civil Procedure, or FRCP for short. A reference to “FRCP 26(a)” tells you to look at Rule 26(a) of the Rules. The FRCP are available for free online. If your case is in federal court, check online to make sure that you know the current version of the rules. Each state has its own set of procedural rules. For the most part however, state rules are either identical or very similar to the FRCP. As a result, this book will help you understand civil litigation procedures whether your case is in state or federal court. |
Finally, the book devotes separate chapters to two types of specialized court proceedings. Chapter 21 provides information about hearings in divorce and related family law matters, such as spousal abuse, child custody, child support, and spousal support. Chapter 22 provides information for debtors and creditors about contested hearings that often occur in bankruptcy cases.
Family law and bankruptcy matters merit separate chapters for a number of reasons. Each involves specialized hearings that you don’t find in other types of civil cases. Also, judges usually decide these disputes alone, without juries. And litigants frequently represent themselves in both family law and bankruptcy cases. This is especially true in divorce court, where at least one of the parties is self-represented in 80% of cases.
| Civil and Criminal Cases |
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This book covers only civil cases, which arise when private citizens (including corporations and other associations) sue each other. Criminal trials, by contrast, occur when a state or the federal government seeks to punish someone for violating a criminal law. The major differences are:- The result. Civil cases typically end with money paid by one party to the other; criminal cases may result in fines paid to the government and imprisonment.
- The burden of proof. In most civil cases, a plaintiff wins by convincing a judge or jury by a “preponderance of evidence” that its claim is true. In criminal cases the prosecution must prove a defendant’s guilt “beyond a reasonable doubt.”
- The right to a jury trial. Defendants are entitled to a jury trial in all serious criminal cases but jury trials are not an option in many types of civil cases. For example, you are entitled to a jury trial in personal injury cases but not in child custody and spousal support cases. Also, most states require unanimous jury verdicts in criminal trials but agreement by only three-fourths of the jurors in a civil case.
- The right to counsel. Criminal defendants have the right to an appointed lawyer, at the government’s expense, in almost all cases. In civil cases, plaintiffs and defendants usually have to pay for their own lawyers or represent themselves (and may be able to recover attorneys’ fees if successful).
Our Nolo book The Criminal Law Handbook: Know Your Rights, Survive the System can be a valuable source of information about the criminal justice system. |
A Note to Law Students
If you’re a law student—or plan to go to law school—this book is a useful and easy-to-follow guide to the basics of civil procedure and litigation, from initial pleadings and discovery to appeal. The knowledge of general court procedures and fluency with legal terminology that you will gain from reading this book will help you successfully transition to law school and enhance your understanding of assigned casebook readings.
If you plan to work as a summer intern in a litigation law firm or as a judicial clerk, this book will provide you with many of the tools you need to help your supervisor prepare for court or show your judge that you understand the different phases of a trial.
| Overview of a Typical Civil Case |
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- A plaintiff starts a lawsuit by filing a document often called a “complaint” with a court and serving the complaint and a Summons on the defendant(s) named in the complaint. How long can a plaintiff wait before starting a lawsuit? What court has “jurisdiction” (power) to decide a case? How do you state and prove a valid legal claim? See Chapters 3 and 8.
- A defendant files a response (typically, an “Answer”) in the same court and serves it on the plaintiff. What information goes into an Answer and how can you defeat a legal claim at trial? See Chapters 3 and 9.
- The plaintiff and defendant seek to bolster their legal claims while finding out about the adversary’s case. They do this by conducting an informal investigation and using the information-gathering tools of formal discovery. See Chapter 5.
- Mediation and settlement discussions may take place before a lawsuit is filed and also afterward, just before trial. See Chapter 6.
- The parties to a lawsuit may file motions asking a judge to terminate a lawsuit before it goes to trial or make other orders. See Chapter 7.
- The parties go to trial. Will the case be tried to a judge or jury? See Chapter 10. How do you effectively present an opening statement, conduct direct and cross-examination, and a closing argument? See Chapters 11–14 and Chapter 18. What are the rules of evidence that the judge will expect you to follow and use at trial? See Chapters 15–17. If you need an expert witness, how do you find one? How can you effectively conduct the direct examination of your expert and cross-examine your adversary’s expert? See Chapter 19.
- A party may appeal in an effort to overturn an unfavorable trial outcome. See Chapter 20.
- Two types of cases with specialized rules and procedures in which pro se litigants are common are Family Court and Bankruptcy Court. See Chapters 21 and 22.
- You may have to engage in legal research to represent yourself effectively. See Chapter 23.
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| An Educated Client |
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| This book will help you even if you are represented by a highly competent lawyer. The information you will find here will turn you into an “educated client,” who understands the litigation process and can participate actively in making the important decisions that affect the outcome of your case. |
Can You Really Represent Yourself?
Unless your case is unusually complex, you really can represent yourself. You may not have all the legal training of a lawyer, but you do not need to go to law school to have common sense, to learn how to ask intelligent questions, or to recognize what makes people and information believable. In the words of Oliver Wendell Holmes, one of the country’s most revered U.S. Supreme Court justices, “The life of the law has not been logic, it has been experience.” As these words suggest, your everyday life experience is the foundation of most of what you need to know to present a coherent, convincing case. Besides, as former Supreme Court Chief Justice Warren Burger was fond of pointing out, many lawyers are not such hotshots; they often come to court ill-prepared and lacking professional skills.
Nor do you need to be intimidated by the difficulty of the law or legal reasoning. Your trial will probably be concerned with facts, not abstract legal issues. For the most part, you can look up the law you need to know. (See Chapter 23 for information on how to do this.) Legal reasoning is not so different from everyday rational thinking. Forget the silly notion that you have to act or sound like an experienced lawyer to be successful in court. Both lawyers and nonlawyers with extremely varied personal styles can succeed in court. The advice to “be yourself” is as appropriate inside the courtroom as outside.
| The Changing Face of Civil Court |
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| In the years since this book first appeared, the number of people representing themselves in civil court cases has continued to grow. A 2021 report from the United States Courts (Just the Facts: Trends in Pro Se Civil Litigation from 2000 to 2019) indicates that pro se litigants appeared in about 27% of all federal civil cases. (To read the article, go to uscourts.gov and type the title into the search box.) The percentage of pro se litigants in most state courts is even higher, because in many states, the vast majority of family law cases involve at least one, and often two, self-represented parties. The U.S. Supreme Court decision in Turner v. Rogers (2012) suggested that civil court proceedings have to be fundamentally fair, that courts should create forms to help pro se litigants participate fully in the justice system, and hinted that at least in some civil cases, the government might have to provide free legal assistance to parties who cannot afford to hire a lawyer. |
No matter how many times you read this book and how carefully you prepare, you will probably feel anxious when you represent yourself in court, especially if your opponent has a lawyer. Perhaps it will help you if you know that you aren’t alone. Many professionals feel anxiety—particularly before a first performance—whether they are lawyers about to begin a trial, teachers about to teach a class, or actors about to perform on stage. So take a deep breath and gather up your courage. As long as you combine your common sense with the principles and techniques described in this book, and are not afraid to ask a court clerk, a law librarian, an attorney, or even the judge for help if you become confused, you should be able to represent yourself competently and effectively.
To represent yourself successfully, especially if your adversary has a lawyer, you must be prepared to invest substantial amounts of time in your case—and particularly in the many pretrial procedures and maneuvers that can mean the difference between winning and losing. To non-lawyers, the legal system seems to center on the outcomes of trials. After all, that’s the dramatic part—and the focus of so many movies and TV shows. If you believe these portrayals, you might think you just have to file a few papers, tell your story to a judge, and claim victory.
For lawyers, by contrast, the legal system is an array of procedures that begin long before trial (and often continue long afterwards). In fact, few cases ever actually make it to trial. Instead, they settle out of court—or are dismissed—because of these pretrial procedures. Although individually justifiable, collectively these procedures create the potential for adversaries to engage in lengthy “paper wars” that you might find harrowing. Many lawyers are fair and reasonable and will not try to “paper you to death.” Nevertheless, you have to realize from the outset that representing yourself effectively is likely to require a substantial commitment of time—even if your case never goes to trial.
CAUTION
Be reasonable. Rule 26(b)(1) of the Federal Rules of Civil Procedure provides that pretrial demands for information about an adversary’s claims must be “proportional to the needs of the case.” This means that your adversary’s lawyer should not bombard you with demands for voluminous information that is out of proportion to the amount in dispute. If a lawyer violates this rule, you can file a motion in court asking a judge to “quash” (cancel) the demand and sanction (penalize) the lawyer.
Coping With Being a Stranger in a Strange Land
Courts are public institutions belonging to the people, and you have the right to represent yourself there. However, courts are also bureaucratic institutions with very heavy caseloads. Historically, filing clerks, courtroom clerks, court reporters, and even judges have usually preferred to deal with lawyers rather than with people who represent themselves. (When you represent yourself, you may find yourself referred to as a “pro per” or “pro se” litigant, Latin abbreviations favored by judges and lawyers.) Although the increasing number of people representing themselves is beginning to change these attitudes in some places, many court personnel believe (often mistakenly) that they can do their work more quickly and easily when they work with lawyers than when they work with people who are representing themselves.
So even if it seems highly unfair, do not be surprised if you encounter initial hostility from court personnel. In your eyes, you are an individual seeking justice and doing what you have a right to do. But to the people who work in courthouses every day, you may be perceived as someone who will make their jobs more difficult. Instead of helping you, they may even attempt to put obstacles in your path, hoping that you will get discouraged and go away.
Knowing ahead of time that you may encounter a hostile attitude is the best weapon against it. Read and study this book and other legal resources, many of which are available free online or in your local library. Learn how to prepare and present a persuasive case and follow the proper procedures for the Clerk’s Office and the courtroom. If you believe that court personnel at any level are being rude to you, be courteous and professional in return, even as you insist upon fair treatment. By knowing and following court rules and courtroom techniques, you can often earn the respect of the judge and the others who work in the courtroom. As a result, you may well find that they will go out of their way to help you.
Realize too that even those lawyers who are in their comfort zone in the court system often get yelled at and harassed by other lawyers, judges, and court personnel. For many lawyers, hassles like these go with the job, and they tend to develop a thick skin. To survive as a stranger in this strange land, your skin probably has to be even thicker.
Civility
The lack of civility among lawyers is a frequent topic at bar association meetings. Canon 7 of the American Bar Association Model Code states, “A lawyer should represent a client zealously within the bounds of the law.” Many lawyers blame an over-enthusiastic reliance on Canon 7 for what they consider a rising tide of lawyer incivility (or bullying) that characterizes modern litigation. Commonly cited examples include:
- refusing a reasonable request to postpone a hearing, which forces the other side to go to court and ask for a continuance the judge will almost certainly grant
- intentionally misconstruing the meaning of a simple and clear discovery request and responding with irrelevant information, an invalid objection, or an inappropriate claim of privilege
- using rude language; for example, in the In re First City Bancorp of Texas case, a lawyer referred (on the record) to opposing counsel as a stooge, a puppet, a deadhead, and an underling who graduated from a bottom-feeding law school.
- using delaying tactics to maximize the inconvenience and cost of litigation; for example, in the case of GMAC v. HTFC Corp., a deponent (on advice of counsel) provided a long and meandering answer, and in response to the deposing attorney’s protest stated, “I’m going to keep going. I’ll have you flying in and out of New York City every single month and this will go on for years. And by the way, along the way GMAC will be bankrupt and I will laugh at you.”
To curb this type of behavior, numerous lawyer associations have developed civility guidelines. For example:
- The American Board of Trial Advocacy (ABOTA), a national group of experienced trial lawyers, adopted the Principles of Civility, Integrity, and Professionalism, which are “intended to discourage conduct that demeans, hampers or obstructs our system of justice.” Principle 19 states that attorneys should “never take depositions for the purpose of harassment or to burden an opponent with increased litigation expenses.”
- Utah’s Standards of Professionalism and Civility state that “Lawyers shall adhere to their express promises and agreements, oral or written” (Standard 6). Standard 13 states, “Lawyers shall not file or serve motions, pleadings or other papers at a time calculated to unfairly limit other counsel’s opportunity to respond, or to take other unfair advantage of an opponent, or in a manner intended to take advantage of another lawyer’s unavailability.”
- California’s Attorney Guidelines of Civility and Professionalism forbid the use of foul and hostile language during depositions, the practice of scheduling depositions without prior contact for convenient times and locations, and rude-toned and intimidating questioning.
You might expect lawyers who disrespect their professional colleagues to be even more disrespectful of pro se litigants. If an adversary’s lawyer tries to intimidate you, keep your cool. Look to the judge for help, and don’t try to out-bully a bully. Perhaps realizing that most lawyers and bar associations disavow bullying tactics can help you do so.
Arranging for Unbundled (Limited-Scope) Legal Representation
Traditionally, legal representation was an all or nothing deal. If you wanted to hire a lawyer to represent you in a civil case, the lawyer would carry out all the legal tasks that the case required. If you couldn’t afford to—or didn’t want to—turn your entire case over to a lawyer, your only alternative was no lawyer at all: You would be a pro se litigant, representing yourself and single-handedly completing all legal tasks, such as preparing pleadings and appearing in court.
Times change, and occasionally, so too does the legal profession. In 2013, the House of Delegates of the American Bar Association passed a resolution “encouraging practitioners—when appropriate—to consider limiting the scope of their representation, including the unbundling of legal services as a means of increasing access to legal services.” Now, many attorneys provide a hybrid form of legal representation generally known as “limited-scope” or “unbundled representation.”
Unbundling refers to an agreement between a client and a lawyer to limit the scope of the lawyer’s services. If you hire an attorney to provide limited-scope representation, your lawyer becomes a “legal coach,” who carries out some case-related tasks while you handle others: You and your legal coach decide how to divide assignments.
Of course, you and your coach may alter arrangements as your case proceeds. For example, you may initially agree that your coach will handle all depositions, but as you become more familiar with deposition procedures and the issues in your case, you may want to modify this so that you’ll represent yourself at some (or all) future depositions.
Limited-Scope Services
Lawyers who provide limited-scope representation often prepare a menu of services, organized into distinct types of tasks. You can then “order off the menu.” For example, with a limited-scope representation, your attorney might do one or more of the following:
- provide legal advice (at an initial consultation or periodically as a case progresses)
- conduct legal research
- draft letters, pleadings, or other documents
- gather facts
- conduct discovery
- negotiate a settlement
- participate in mediation, or
- make court appearances.
The unbundled services you choose will depend on factors such as:
- how much you’re willing to pay
- how much time you can devote to case-related tasks
- your experience and comfort with the litigation process, and
- how complex your case is.
Special Rules For Limited-Scope Representation
All jurisdictions have adopted rules regarding unbundled legal services. For example, most states follow the American Bar Association’s Model Rule of Professional Conduct 1.2(c), which provides that lawyers may limit the scope of their representation, as long as the limitations are reasonable under the circumstances, and the client gives informed consent.
The rules governing limited-scope representation vary somewhat from state to state. Here are examples of limited-scope representation rules from various states:
- Under New York Rule of Professional Conduct 1.2, as part of getting informed client consent, lawyers must disclose the reasonably foreseeable consequences of limiting the scope of representation. If it’s reasonably foreseeable that during the course of representation, additional legal services may be necessary, limited-scope lawyers must tell clients that they may need to hire separate counsel, which could result in delay, additional expense, and complications.
- Florida Rule of Professional Conduct 4-1.2(c) requires lawyers who provide limited-scope representation to notify the court when they have drafted a document on a client’s behalf by including the phrase, “Prepared with the assistance of counsel” on the document.
- California Rule of Court 3.35(c) allows attorneys to provide undisclosed limited-scope representation to clients so long as the attorneys do not appear in court, but requires that lawyers who appear in court as part of their limited-scope representation give notice of their participation to the court and opposing parties.
- A California court ruled that California lawyers in limited-scope representation agreements have to alert their clients to legal problems that are reasonably apparent to the lawyer, even if those problems fall outside the scope of the agreement. (Janik v. Rudy, Exelrod & Zieff, 2004.)
Hiring a Limited-Scope Lawyer
Lawyers who are open to providing unbundled legal services are trying to make it easier for clients to find them through listings on bar referral panels. However, few lawyer referral services identify lawyers according to whether they specialize in providing unbundled legal services. You may have to contact a few attorneys in your area to find one with experience in providing unbundled legal services.
| What You Should Know About Lawyers’ Fees |
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| When you interview a potential legal coach, ask about all fees and costs—including the initial interview. It obviously defeats your purpose if you have to spend more to consult a legal coach than you would to hire a lawyer to handle your entire case. Typically, lawyers use hourly, fixed, or contingency fee arrangements. Most likely, someone serving as your legal coach will charge you by the hour. Hourly rates for lawyers who do personal legal-services work typically run from $250 to $500 per hour. Certain experts and big-firm lawyers charge even more. It is important to find out exactly how the lawyer will calculate the bill. For example, some lawyers who charge by the hour bill in minimum increments of 15 minutes (quarter hour), and others bill in increments of six minutes (tenth of an hour). That means that a five-minute phone conversation for which you are billed the minimum amount could cost you different amounts, depending on how the lawyer figures the bill. Although getting good value for your money is key, this doesn’t mean that you should always look for the lowest hourly fee. You can often benefit by hiring a more experienced attorney, even if the attorney’s hourly rates are high, because the lawyer may take less time to review and advise you on particulars of your case. Many lawyers routinely ask clients to pay a “retainer”—a deposit or advance fee—that is kept in a trust account and used as services are provided. Your legal coach may ask for a retainer in order to see that you are serious and have the money to pay. However, you shouldn’t be expected to come up with a large amount of money, because you do not plan on running up high legal bills. A fee of more than $500 is excessive, especially before you know whether the legal coach relationship is really working out. There are a couple of specific types of fees that you should know about: Contingency Fees. When representing people in personal injury cases, lawyers often take a percentage of the final judgment—often one-third, but varying depending on factors such as whether a case settles before trial—as their fee. Because you will try your own case, you will probably not use a contingency fee arrangement. If your coach suggests one, do not agree to give too high a percentage, since you will be doing most of the work. Fixed Fees. A fixed fee is a set fee for a particular project. For example, a lawyer may charge $1,500 to prepare a Motion for Summary Judgment. It is unlikely that an attorney will suggest a fixed fee to coach you through your whole case, because the lawyer will have little idea of the amount of work involved. But the lawyer may suggest fixed fees for particular services along the way. For example, you may find a lawyer willing to charge you no more than a specific sum of money to review and edit your complaint or to help you respond to your opponent’s interrogatories. |
If you’re considering unbundled legal services, shop for your attorney with the same care as you would if you were hiring a lawyer to handle your entire case. That is, you need to investigate a lawyer’s qualifications, competence, and diligence. You also have to consider the cost of unbundled services, including the lawyer’s fee and additional expenses, such as fees for paralegals, investigators, and experts.
Just as with traditional attorney-client relationships, in unbundled situations, you should expect to sign a written retainer agreement. The agreement will describe the scope of the lawyers’ services—especially the services that are not covered by the agreement. Typical agreements also specify the following:
- the respective responsibilities of the attorney and the client
- the fees and billing arrangements, and
- your consent to the limited scope of the representation.
For instance, an agreement may specify that the client is responsible for making all decisions and court appearances, and that the lawyer will conduct legal research, draft documents, and prepare the client for court proceedings.
RESOURCE
For more information, consult:
- M. Sue Talia, A Client’s Guide to Limited Legal Services: A Simple and Practical Guidebook for Family Law Litigants.
- Forrest Mosten, Unbundling Legal Services: A Guide to Delivering Legal Services a la Carte. (Mosten is one of the early proponents of unbundled legal services. This book is a helpful resource that reviews limited-scope representation in detail and also includes a sample limited-scope client-lawyer agreement.)
- Forrest Mosten and Liz Scully, The Complete Guide to Mediation (the book includes two chapters on unbundled mediation services).
- Forrest Mosten and Liz Scully, Family Lawyer’s Guide to Unbundled Legal Services.
- Joseph Matthews, The Lawsuit Survival Guide: A Client’s Companion to Litigation (Nolo) (the book includes advice on working effectively with a lawyer in a limited-representation situation).
CAUTION
Red Flag Clients.Even lawyers are generally comfortable providing limited-scope representation are often careful to screen out “red flag” clients for whom this model may not be a good fit. Types of “red flag” clients include:
- clients with unrealistic expectations of the value of their cases
- clients who need emergency legal services
- clients who seem to be “control freaks”
- clients who are unlikely to fulfill their case-related responsibilities, and
- “paralawyers,” who want to tell their attorneys how to carry out legal tasks.
If you’re having difficulty arranging for limited-scope representation, talk to lawyers candidly about the reasons for this and do your best to respond to their concerns.
Pro Se-Friendly Court Rules and Procedures
Many states have amended their court procedures to make litigation less of a challenge for self-represented parties. For example, the New York State Courts’ “eTrack System” allows civil litigants to file court papers electronically, sign up for free reminders about court appearances, and receive e-mail notifications whenever a court updates their case file. New York has also established a website that contains information about legal procedures, a glossary, and court forms. Visit www.nycourts.gov/ courthelp and click on “Court Forms & Fees.”
Fill-in-the-blanks court forms for most states are available online. When you visit a state court website that has do-it-yourself forms, you may be asked a series of questions about your legal problem. Your answers will automatically generate the appropriate form with instructions on how to complete it and what to do with it once it’s done. To see the forms available on New York’s self-help website, visit www.nycourts.gov/courthelp and click on “Court Forms & Fees.”
The King County (Washington State) Superior Court website includes a short video that demonstrates how judges expect pro se litigants to conduct themselves in court. To view the video, visit the website at www.kingcounty.gov/courts/SuperiorCourt.aspx.
California courts have developed an extensive online self-help center. The website www.courts.ca.gov (click on “Self-Help”) includes various instructions and court forms organized by type of legal problem, such as divorce or eviction.
To find self-help websites for your state court(s), try running an online search for “[your state] & court self-help.”
Some courthouses are staffed with pro se advisers that offer free advice to self-represented litigants. Your local court Clerk’s Office should be able to tell you if a pro se adviser is available onsite.
No matter how pro se-friendly a state’s rules are, you may still feel like a stranger in a foreign land. But courts’ increasingly pro se-friendly systems lessen the risk that you’ll lose your case because you missed a technical rule, such as filling out a specific document or serving paperwork on the other party correctly.
Online Legal Assistance
A vast array of websites created by government agencies and private groups provide legal information, document preparation services, and other types of legal assistance online.
Nolo.com is one of the most comprehensive, do-it-yourself legal websites, and the information it provides online is free.
You’ll need to exercise caution when relying on online services. When lawyers provide substandard representation, unhappy clients can seek relief from state disciplinary authorities and lawyers who specialize in legal malpractice lawsuits. But a pro se litigant’s ability to fix mistakes made by online websites and nonlawyer advisers is much more limited. And the risk of getting inaccurate information may increase when pro se litigants communicate with online businesses in writing, rather than with lawyers in face-to-face meetings.
For all of these reasons, pro se litigants must be cautious when relying on information offered online or by nonlawyers. Each case is unique, and the “one size fits all” type of general information provided by a website or nonlawyer might be misleading or inapplicable in the context of a particular case.
Using This Book
This book is very different from other books written for nonlawyers. It does not focus on any single area of the law or type of legal problem but serves as a guide to courtroom self-representation in any kind of case. Because of the book’s unique nature, you may find the following comments and suggestions helpful.
If Time Permits, Read Through the Entire Book
This book is designed both to increase your overall understanding of the litigation process and to provide detailed advice about each stage of trial. Unless you are already in the midst of trial and need to refer to a particular chapter immediately, begin preparing to represent yourself by reading through the book as a whole. As you become familiar with the litigation process, you will understand the significance of procedures and techniques that may initially seem peculiar or unnecessary.
| Learning the Lingo |
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| There’s no way to avoid it: If you represent yourself in court, you’re going to run into a lot of unfamiliar legal terminology. This book tries to translate the most common jargon into plain English. For quick reference, check the glossary at the back of the book. You can find more plain-language definitions in Nolo’s online legal dictionary, available for free at www.nolo.com. |
Use This Book in Conjunction With Local Court Rules
This book can guide you through nearly every kind of trial in every court system (state or federal) because the litigation process is remarkably uniform throughout all of them. In part, this is because federal courts and most state courts share a “common law” heritage—a way of trying cases that came over from England and developed along with the country. And, in part, it is because many local procedures are consistent with national legal codes (sets of rules and regulations).
For example, the Federal Rules of Evidence (often referred to as the FRE) govern the introduction of evidence in federal court trials. But about 40 states also use the FRE in their state court trials. And even those states that have not formally adopted the FRE have evidence rules that are quite similar to them. This means that, for the most part, trials are conducted in the same way nationwide. Another set of federal rules, the Federal Rules of Civil Procedure (or FRCP) apply similarly to govern procedural (rather than evidentiary) rules. Because of this basic uniformity, the book frequently refers you to specific rules that, even if they differ somewhat from your state’s rules, should help you understand the basic procedures that will apply to your case.
However, this book cannot serve as a complete guide to all the rules you need to know. For one thing, the exact rule in your court system may be somewhat different from the example we give. In that event, knowing about another similar rule—either a federal rule or another state’s rule—can help you locate the rule in your state. (See Chapter 23 for information on doing your own legal research.) Also, each court system has its own procedural rules that, though important, cannot be covered in this book. For example, local court rules set time limits for filing various kinds of documents and page limits on the length of those documents. You will have to learn and comply with these local requirements.
Whenever you are concerned about a specific rule of evidence or procedure, you should always read your court system’s specific provision. In general, the rule books you will need to have handy are these:
- Your state’s “Rules of Evidence.” These rules define the evidence you and your adversary are allowed to introduce for a judge or jury to consider. Evidence rules may be collected in an “Evidence Code” or a particular “chapter” or “title” of your state’s laws, or they may be included in a larger collection of laws called “Rules of Civil Procedure.”
- Your state’s “Rules of Court.” These are rules that set the procedures and deadlines that the courts in a state must follow. Generally, states have separate sets of rules for different kinds of courts. For example, a state may have one set of rules for its municipal courts (courts that try cases involving limited amounts of money), another for its superior courts (courts that try cases involving higher amounts of money), and still others for its appellate courts (courts that review the decisions of municipal and superior courts). All the rules may, however, be published in a single book. Some states also have separate sets of rules for specialized courts, such as family law courts, which hear cases involving divorce, child custody, and child support; or probate courts, which hear cases involving wills and trusts.
- Your court’s “Local Rules.” These are the rules for a specific courthouse or set of courthouses in one county that generally allocate business between different courtrooms, specify where to file documents, set rules of courtroom behavior, and the like.
Books containing all of these rules should be available in a public law library. You may also want to purchase these books separately from the Clerk’s Office in the courthouse in which your case is filed, or from a legal bookstore, so that you can have them close at hand for reference as you read through this book and go to court. You can also find most court rules on the Internet. The information in Chapter 23 will help you start your search.
| States Organize Their Trial Courts Differently |
|---|
| Some states have just one kind of trial court, which hears all sorts of cases. In Illinois, for example, circuit courts hear all kinds of disputes. In other states, by contrast, cases that involve less than a certain dollar amount may be tried in one type of court (municipal, city, or justice court, for example), while larger cases go to another type of court (superior, county, or circuit court, for example). |
CAUTION
You must follow court rules. Even though you are not a lawyer, judges will expect you to know and follow all court rules. If you miss a deadline, use the wrong kind of paper, or violate some other rule, you will suffer the consequences even though you are representing yourself.
For instance, assume that you want to ask for a jury trial and that your local rule requires a jury trial request to be made 30 days after the initial pleadings are filed. If you miss that deadline, you will not have a jury trial unless you go through a laborious process to request an extension of time to file your demand and the judge is willing to make an exception (but don’t count on it!).
Trying to Settle Your Case
Over 90% of all lawsuits are resolved without a trial. If you and your adversary can arrive at a fair resolution without going to trial, you can save yourself time and money. By showing you how to prove and disprove legal claims, this book can help you arrive at a fair resolution of your dispute using settlement procedures. For a complete discussion of settlement, see Chapter 6.
Alternatives to Trial
There are many popular alternatives to trials that still require you to organize and make your case—such as hearings, arbitrations, and mediation. If you become involved in one or more of them, you can still use this book to understand and prepare your arguments.
Here are the typical situations aside from a trial in which you may also be representing yourself.
Court Hearings
A court hearing is usually a short and narrowly defined proceeding in which you are not entitled to a jury. A judge conducts the hearing and makes a ruling. Depending on the kind of dispute you’re facing, you may find yourself in a hearing rather than a trial. For example, you’ll probably have a hearing if you are seeking an increase or a decrease in spousal or child support following your divorce or if you need to prove how much money you are entitled to after a defendant has failed to respond to your claims. This book’s advice is as pertinent to hearings as it is to trials. Many of the courtroom procedures and rules of evidence are exactly the same in a hearing as in a trial. And you still must offer evidence in a way that persuades the judge or hearing officer to rule in your favor.
Arbitration
Arbitration is an alternative to trial that is often perceived to be quicker and less costly. In arbitration, a privately agreed-to arbitrator, not a judge, rules on the case. There is no jury, procedures before the hearing are more informal, and the arbitrator is not strictly bound by rules of evidence. Arbitrators generally charge by either the full or half day; you and your adversary split the arbitrator’s fee.
If you have a legal dispute, you may well find yourself involved in an arbitration rather than a trial. One reason is that in many states, judges have the power to order you and your adversary to arbitrate certain kinds of disputes. Or you may have signed an agreement that provides for binding arbitration of all disputes arising under the agreement. For example, if you are an investor who believes a brokerage house violated securities laws while handling your account, a condominium owner who has filed suit against your condominium association for unreasonably restricting your right to remodel your unit, or a businessperson who wants to sue for breach of a written contract, you may have agreed in writing (in the broker’s agreement, the condominium association’s set of rules, or the business contract) to arbitrate all disputes.
Consumers have tried to convince courts to set aside arbitration provisions, on the grounds that they are unconscionable and deprive people of their day in court. However, these challenges are not usually successful. For example, under the Federal Arbitration Act, arbitration provisions can overcome consumers’ rights to file class action lawsuits. (AT&T Mobility LLC v. Conception, 131 S.Ct. 1740 (2011).)
Though arbitration proceedings are generally less formal than trials, most of the principles described in this book also apply to arbitration. As in a trial, you and your adversary present evidence to the arbitrator through your own testimony and the testimony of witnesses. Like a judge, an arbitrator evaluates the credibility and legal significance of evidence to decide whether you win or lose the case.
Also, because most arbitrators are lawyers or retired judges, their actions tend to be strongly influenced by their legal training. The rules and procedures they follow generally closely resemble those used by judges in trials.
RESOURCE
Resources on arbitration.
- Settle It Out of Court: How to Resolve Business and Personal Disputes Using Mediation, Arbitration, and Negotiation, by Thomas Crowley, is a comprehensive guide that includes strategies for selecting arbitrators and mediators.
- Alternative Dispute Resolution: Panacea or Anathema? by Harry T. Edwards, 99 Harvard Law Review 668 (1986), is an analysis of the advantages and disadvantages of arbitration and other dispute resolution procedures.
- Dispute Resolution: Negotiation, Mediation, and Other Processes, by Stephen B. Goldberg et al., is a textbook that sets forth arbitration principles and methods.
Mediation
Another popular method of resolving disputes outside of court is mediation, which is generally less formal and less costly than arbitration. Mediation is a voluntary process in which you meet with your adversary in the company of a neutral third person, the mediator. The mediator has no power to impose a solution; rather, the mediator’s role is to facilitate settlement by clarifying each party’s position, encouraging cooperation, and suggesting possible solutions. Professional mediators charge for their services, typically by the hour. Normally, the parties split the mediator’s fee.
Even though mediation is informal, to reach a successful result you will need to show your adversary that you have strong evidence to support your legal position—evidence that is admissible in court should mediation fail. Otherwise, your adversary may not be willing to settle the case on terms you think are fair. This book will help you represent your position effectively during mediation.
RESOURCE
Resources on mediation.
- Mediate, Don’t Litigate: Strategies for Successful Mediation by Peter Lovenheim (Nolo), available as an electronic book at www.nolo.com.
- Mediation: A Comprehensive Guide to Resolving Conflicts Without Litigation, by Jay Folberg & Alison Taylor.
- The Mediation Process: Practical Strategies for Resolving Conflict, by Christopher Moore.
- A Student’s Guide to Mediation and the Law, by Nancy H. Rogers.
- Divorce Without Court: A Guide to Mediation & Collaborative Divorce, by Katherine E. Stoner (Nolo).
Negotiation
The most ancient way to settle a dispute is negotiation, in which you sit down with your adversary and try to resolve your differences. Whether or not your case goes to trial, you will almost certainly find yourself negotiating some or all of the issues that are important to you.
Against this background, it doesn’t normally make sense to interpret your adversary’s offer to “talk settlement” as a sign of weakness. Nor should you be reluctant to be the one to suggest a negotiated settlement. In fact, judges, arbitrators, and mediators routinely urge adversaries to explore settlement even if previous attempts have failed. It’s a wise person who never closes the door to a reasonable settlement.
RESOURCE
Resources on negotiation.
- Effective Legal Negotiation and Settlement, by Charles Craver.
- Effective Approaches to Settlement: A Handbook for Lawyers and Judges, by Wayne Brazel.
- Getting to Yes: Negotiating Agreement Without Giving In, by Roger Fisher et al. (considered to be the bible on positional bargaining).
Administrative Agency Hearings
Administrative hearings rather than trials typically result when individuals contest decisions made by government agencies, or when government agencies refuse to act favorably on individuals’ requests. Thanks in part to movies and TV, a popular notion is that in the U.S., trials are the most common method of resolving civil disputes. In fact, across the country many more administrative hearings than trials occur.
Examples of the numerous kinds of situations in which you will participate in an administrative agency hearing rather than a trial include the following:
- After you were fired from a job, your claim for government unemployment insurance benefits was denied, and you ask for a hearing to establish that you are entitled to benefits.
- You seek to establish that you are totally disabled after the Social Security Administration reduces your disability payments.
- You are a licensed building contractor or liquor store owner and challenge the licensing agency’s decision to suspend or revoke your license.
- You request a hearing to challenge the notice from your state’s Department of Motor Vehicles that your driving privileges have been suspended.
- The Internal Revenue Service claims back taxes based on its determination that you took improper deductions, and you ask for a hearing to establish that the deductions were proper.
Administrative law judges (often called “ALJs”) preside over administrative hearings. ALJs are typically appointed based on their expertise concerning the work of a particular agency. Most ALJs are not, in fact, judges; some may not even be lawyers. Moreover, administrative hearings typically take place in small officelike hearing rooms rather than in courtrooms, and no juries are present. Usually, individuals involved in administrative hearings represent themselves. However, whereas only lawyers can represent people in court, agency rules usually allow nonlawyers called “lay representatives” to appear on behalf of individuals in administrative agency hearings. If you will participate in an administrative hearing, you may want to prepare for it by at least conferring with a lay representative before the hearing takes place.
If you represent yourself in an administrative hearing you should be as respectful to the ALJ as you would be to a judge, even though the former wears a suit and the latter a robe. Moreover, whether you address your arguments to a judge or an ALJ, you have the same need to present a clear and persuasive case. Make sure you understand the basis of an agency’s action, or what evidence you need to produce to uphold your claim. Also, any witnesses you rely on should attend the hearing, and you should be ready to support your claim with documents and records.
If the ALJ rules against you, you typically can appeal within the agency. If the agency’s decision is still unfavorable, you have “exhausted your administrative remedies” and can go to court and file a pleading asking a judge to overturn it. However, the judge who reviews the case will decide it based on the information you provided at the hearing. You won’t be able to present new evidence in court.
Every agency tends to make its own rules and follow its own unique set of procedures. Many agencies describe their procedures on a website. In addition, an agency will furnish you with its rules as soon as you indicate that you want to file a claim. Be sure to contact the agency, ask for a copy of its rules before initiating a hearing, and follow them. The federal government and every state has an Administrative Procedure Act that provides basic protections in administrative hearings. You should read the applicable law and make sure the agency follows it. You can get information about these laws from a convenient database maintained by Florida State University at www.law.fsu.edu/ research-center.
While practices vary widely from state to state and even among different agencies within the same state, here are a few characteristics that administrative hearings tend to have in common:
- Formal “discovery” (see Chapter 5) is unavailable. You can examine an agency’s records, but you cannot depose agency officials nor submit written questions that they have to answer under oath.
- ALJs do not normally have to follow the rules of evidence that govern courtroom trials. For example, you can offer hearsay evidence.
- You may be the only person other than the ALJ who is present at a hearing. In Social Security hearings, for example, ALJs typically question claimants, review any information they submit, and make decisions, all without any representative appearing for the agency.
- While ALJs are, of course, supposed to be fair and impartial, the ALJ who hears your case will probably be employed by the agency involved in your case.
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