Represent Yourself in Court
How to Prepare & Try a Winning Case
Represent Yourself in Court
How to Prepare & Try a Winning Case
Paul Bergman, J.D. and Sara J. Berman, J.D.
October 2013, 8th Edition
How to prepare and present a winning civil court case
Many disputes are too big for small claims court but too small to justify
a lawyer’s fee. Fortunately, if you are willing to learn the courtroom ropes, you can successfully handle your own case from start to finish.
Represent Yourself in Court breaks the pretrial and trial process down into easy-to-understand steps. Armed with these clear and thorough instructions, you’ll be well prepared to:
• file court papers • present an opening statement
• deal with pretrial issues • cross-examine hostile witnesses
• handle depositions • make and respond to objections
• pick a jury if necessary • get help from an attorney or
• discover, obtain and legal coach
prepare your evidence • deal with the court clerk and judge
• line up and prepare witnesses
Whether you are a plaintiff or a defendant, this book will help you handle a bankruptcy, divorce, landlord-tenant dispute, breach of contract case, small business dispute—or any other civil lawsuit.
This new edition is completely updated to include the latest rules and court procedures.
“An excellent resource that outlines what’s involved in representing yourself in court—from presenting evidence to the rules of cross examination.”- New Orleans Times-Picayune
“Nolo publications…guide people simply through the how, when, where and why of the law." -The Washington Post
1. Going It Alone in Court
- The Scope of This Book
- Can You Really Represent Yourself?
- Coping With Being a Stranger in a Strange Land
- Arranging for Limited-Scope Legal Representation
- Pro Se-Friendly Court Runes and Procedures
- Online Legal Assistance
- Using This Book
- Trying to Settle Your Case
- Alternatives to Trial
2. The Courthouse and the Courtroom
- An Overview of Different Courts
- A Typical Courthouse
- The Courtroom Players
- The Courtroom and Its Physical Layout
- Courtroom Rules, Customs, and Etiquette
3. Starting Your Case
- Do You Have a Good Case?
- Is Your Lawsuit Timely?
- Which Court Has the Power to Hear Your Case?
- Beginning a Lawsuit
4. Pretrial Procedures
- Know and Follow Pretrial Deadlines
- Pretrial Conferences
- Court-Ordered Mediation and Arbitration
- Initial Pretrial Procedures: Setting Ground Rules
- Intermediate Pretrial Procedures: Discovery and Motions
- Final Pretrial Procedures: Trial Preparation
5. Investigating Your Case
- Informal Investigation
- Formal Discovery
- Written Interrogatories
- Requests for Production of Documents and Subpoenas
- Requests for Admissions
- Court-Ordered Mediation
- Court-Ordered Arbitration
- Offers of Judgment
- Pretrial Settlement Conferences
- Post-Settlement Documents
7. Pretrial Motions
- Overview of Pretrial Motion Practice
- Is a Motion Necessary?
- What Goes Into a Motion?
- Scheduling a Court Hearing on a Pretrial Motion
- Serving and Filing Your Documents
- Court Hearings on Motions
- Common Pretrial Motions
8. Proving Your Case at Trial: The Plaintiff’s Perspective
- The Elements of a Legal Claim
- Finding the Elements of Your Claim
- Proving Each Element
- Your Burden of Proof
- Identifying Facts to Prove the Elements of Your Claim
- Looking Ahead to Trial: Organizing Your Evidence
- Learning About Your Adversary’s Case
9. Proving Your Case at Trial: The Defendant’s Perspective
- Identifying the Elements of the Plaintiff’s Legal Claim
- Identifying the Plaintiff’s Facts
- Defeating Any One Element of a Claim
- Disproving the Plaintiff’s Facts by Impeaching Witnesses
- Proving Your Version of Events
- Putting Defense Strategies Together
10. Selecting the Decision Maker
- Are You Eligible for a Jury Trial?
- Are You Better Off With a Judge or a Jury?
- Your Opponent’s Right to a Jury Trial
- Disqualifying a Judge
- Making a Timely Request for a Jury Trial
- The Jury Selection Process
- Your Right to Challenge Jurors
- What Jurors Should You Challenge?
- What Should You Ask Prospective Jurors?
- Alternate Jurors
11. Opening Statement
- Should You Make an Opening Statement?
- When to Make Your Opening Statement
- Putting Together Your Opening Statement
- What Not to Say During Your Opening Statement
- Rehearsing and Presenting Your Opening Statement
- Sample Opening Statement and Outline
12. Direct Examination
- Direct Examination as Storytelling
- Overview of Direct Examination Procedures
- Preparing for Direct Examination
- Presenting Your Own Testimony on Direct Examination
- Questioning Witnesses
- Hostile Witnesses
- The Judge’s Role
- Sample Direct Examination
- Overview of Cross-Examination
- Should You Cross-Examine?
- Asking Questions on Cross-Examination
- Eliciting Helpful Evidence
- Impeaching Adverse Witnesses
- Basing Questions on Evidence You Can Offer
- What to Do If Your Witness Is Impeached
- Preparing for Cross-Examination
14. Closing Argument
- When to Deliver Your Closing Argument
- Preparing and Rehearsing Your Closing Argument
- Putting Together a Closing Argument
- What Not to Say During Your Closing Argument
- Rebuttal Argument
- Objections During Closing
- Sample Closing Argument and Outline
- Overview of Admitting Exhibits Into Evidence
- Step 1: Mark Your Exhibits and Show Them to Your Adversary
- Step 2: Identify (Authenticate) Your Exhibits
- Step 3: Lay a Foundation
- Letting Jurors See Your Exhibits
- When Exhibits Are Required: The Best Evidence Rule
- Objecting to Your Adversary’s Exhibits
- Organizing Exhibits for Trial
16. Basic Rules of Evidence
- Excluding Relevant but Unfairly Prejudicial Evidence
- The Rule Against Opinions
- Rules Excluding Evidence Based on Social Policies
17. Making and Responding to Objections
- Overview of Objections
- Objections Made Before Trial: Motions in Limine
- Making Objections During Trial
- Responding to Your Adversary’s Objections
- Checklist of Common Objections
18. Organizing a Trial Notebook
- Setting Up Your Notebook
- Index Tab 1: Legal Pleadings
- Index Tab 2: Discovery Materials
- Index Tab 3: Legal Claim Outline
- Index Tab 4: Opening Statement Outline
- Index Tab 5: Direct Examination Outlines
- Index Tab 6: Cross-Examination Outlines
- Index Tab 7: Closing Argument Outline
- Index Tab 8: Jury Trial Documents
- Index Tab 9: Miscellaneous Documents
19. Expert Witnesses
- Who Are Expert Witnesses?
- Do You Need an Expert Witness?
- Special Rules for Expert Witnesses
- Finding and Hiring an Expert Witness
- Questioning Your Expert Witness at Trial
- Cross-Examining Your Opponent’s Expert Witness
20. When Your Trial Ends: Judgments and Appeals
- How Final Decisions Are Made at the End of Trial
- Requesting a New Trial or Change in the Verdict
- Collecting and Paying Judgments
21. Representing Yourself in Family Court
- Formulate a Divorce Game Plan
- Understanding the Basics of Family Law
- Filing for Divorce
- How Uncontested Divorces Work
- How Contested Divorces Work
- Modification of Support, Custody, and Visitation
22. Representing Yourself in Bankruptcy Court
- The Chapter 7 Bankruptcy Process
- Meeting of Creditors (341(a) Hearing)
- Relief From Stay Hearing
- Objection to Exemption Hearing
- Discharge of Debt Hearing
- Reaffirmation of Debt Hearing
- Getting Help Beyond This Book
23. Help Beyond the Book: People, Places, and Publications
- What You May Want to Research
- Sources of Information
- Getting Help From a Lawyer
Going It Alone in Court
The Scope of This Book............................................................................ 2
Can You Really Represent Yourself?....................................................... 5
Coping With Being a Stranger in a Strange Land......................................... 6
Arranging for Limited-Scope Legal Representation.................................. 8
What Are Limited-Scope Services?...................................................... 9
Special Rules Apply to Limited-Scope Representation......................... 9
Hiring a Limited-Scope Lawyer........................................................... 10
Pro Se-Friendly Court Rules and Procedures......................................... 13
Online Legal Assistance......................................................................... 13
Using This Book...................................................................................... 14
If Time Permits, Read Through the Entire Book................................. 14
Use This Book in Conjunction With Local Court Rules....................... 14
Make a Trial Notebook........................................................................ 16
Trying to Settle Your Case...................................................................... 16
Alternatives to Trial................................................................................. 17
Court Hearings.................................................................................... 17
Administrative Agency Hearings......................................................... 19
This book provides the information you need to prepare for trial and represent yourself in court.
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 gather and present evidence in court. 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 may have to go to court to protect your rights.
Unfortunately, with fees charged by lawyers commonly running in excess of $150 an hour, it may 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 may devour much of your gain. As a result, representing yourself in court or dropping your claim or defense altogether may be your only realistic alternatives.
The Scope of This Book
This book 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. See “Civil and Criminal Cases,” below. You will learn how to figure out what evidence you need to present a legally solid case, whether you are a plaintiff or a defendant. Among other things, you will learn:
how to prepare the initial pleadings (usually called a “complaint” or an “answer”) that get a civil case underway (see Chapter 3)
how to comply with the important “pretrial procedures” and activities that typically take place after the initial pleadings but before trial (see Chapter 4)
how to investigate your case and gather evidence, using both informal methods and formal “discovery” (see Chapter 5)
how to try to settle your case without going to trial (see Chapter 6)
how to select a jury if you are involved in a jury trial (see Chapter 10)
how to present your own testimony and conduct direct examination of your witnesses and cross-examination of your adversary’s witnesses (see Chapters 12 and 13)
how to apply rules of evidence so that a judge will accept your admissible evidence and exclude your adversary’s improper evidence (see Chapter 16)
how to locate, hire, and effectively use expert witnesses (see Chapter 19)
how to present a persuasive opening statement and closing argument (see Chapters 11 and 14), and
how to comply with courtroom procedural rules, such as where and when to sit and stand (see Chapter 2), how to handle exhibits (tangible objects like photographs and receipts) (see Chapter 15), and how to address the judge and opposing counsel (see Chapters 2 and 17).
The book guides you, step by step, through every phase of a civil trial.
Why Do People
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, and
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, and
legal assistance is available from other sources, such as the Internet, computer software, and paralegals or other legal document providers.
(Source: M. Tebo, “Self-Serve Legal Aid,” ABA Journal, August 2002.)
Civil and Criminal Cases
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. You are entitled to a jury in all criminal cases but not in all 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. Defendants facing criminal charges have the right to an appointed lawyer, at the government’s expense, in almost all cases. In civil cases, plaintiffs and defendants have to pay for their own lawyers or represent themselves.
We have written another book that can help if you or someone you know has been arrested or accused of a crime and is facing possible criminal charges. It’s called The Criminal Law Handbook: Know Your Rights, Survive the System (Nolo). While that handbook does not recommend self-representation in criminal cases, it can be a tremendous resource at a time you need solid, trustworthy information.
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.
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.
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.
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. (This was the belief of Vinny, who represents two defendants charged with murder in the wonderful courtroom comedy film, My Cousin Vinny. Vinny shows up for an arraignment and tries to explain to the judge that the police made a mistake. Vinny is shocked when the judge advises him that he’s not going to set aside all of his state’s procedures just because Vinny finds himself “in the unique position of representing clients who say they didn’t do it.”)
For lawyers, in 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.
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.
The Changing Face of Civil Court
In the years since this book first appeared, the number of people representing themselves in civil court cases has continued to grow. A recent collection of statistics by the National Center for State Courts shows that the vast majority of family law cases involve at least one, and often two, self-represented parties. In California, over 4.3 million people using the courts are self-represented; in New Hampshire, 85% of civil cases in the trial court involve at least one self-represented party. Many courts report an upsurge in self-representation. (Memorandum on Pro Se Statistics, 9/25/2006, National Center for State Courts, available at www.ncsconline.org/WC/publications/memos/prosestatsmemo.htm.) Other research indicates that at least one party was self-represented in more than two-thirds of domestic relations cases in California and in nearly 90% of divorce cases in Phoenix, Arizona, and Washington, DC. (See Jona Goldschmidt, et al., Meeting the Challenge of Pro Se Litigation: A Report and Guidebook for Judges and
Court Managers, A Consumer Based Approach (1998).) These studies are substantiated by many civil court administrators and judges, who estimate that the number of self-represented parties has increased by at least 50% over the past five years.
The Legal Services Corporation 2009 report, Documenting the Justice Gap in America, confirms an increase in the number of civil pro se litigants. Due to a lack of government funding, few low-income people can address their legal needs with the assistance of an attorney. As a result, state courts are flooded with unrepresented litigants. To close the gap between the number of people who don’t have access to legal help and those that are lucky enough to work with a legal aid office, the report calls for increased legal aid funding from federal and state governments and private funders and recommends that lawyers contribute additional pro bono services.
The lack of civility among lawyers is a frequent topic at bar association meetings. Canon 7 of the American Bar Association Model Code states that 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 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 writing briefs and appearing in court.
Times change, and occasionally so too does the legal profession. Now, many attorneys provide a hybrid form of legal representation generally known as “limited-scope” (or “unbundled”) representation. If you hire an attorney to provide limited-scope representation, your lawyer becomes a “legal coach” that 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 decide to 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 and your attorney can modify this arrangement to provide that you’ll represent yourself at some (or all) future depositions.
What Are Limited-Scope Services?
Lawyers who provide limited-scope representation often prepare a menu of services, organized into distinct types of tasks. You then “order off the menu.” For example, a typical menu may offer one or more of the following activities:
provide legal advice
conduct legal research
conduct settlement negotiations
draft documents, such as pleadings and pre-trial motions, and
appear in court.
The 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.
The book Unbundling Legal Services: A Guide to Delivering Legal Services, written by attorney Forrest S. Mosten (one of the early proponents of unbundling), is a helpful resource for anyone considering limited-scope services. Mosten reviews limited-scope representation in detail, including its pros and cons. The Lawsuit Survival Guide: A Client’s Companion to Litigation by Joseph Matthews (Nolo) provides advice on working with a lawyer in a limited representation situation.
Special Rules Apply to Limited-Scope Representation
All states and the District of Columbia 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 consent.
The American Bar Association Standing Committee on the Delivery of Legal Services’ website has helpful information on limited-scope representation. Its address is www.americanbar.org/groups/delivery_legal_services.html. For a state-by-state summary of unbundling rules, visit www.americanbar.org/groups/delivery_legal_services/resources/pro_se_unbundling_resource_center/court_rules.html.
Rules governing limited-scope representation can vary from state to state. The following are some of the most notable examples:
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, non-agreed-upon 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. (See Janik v. Rudy, Exelrod & Zieff, 119 Cal.App.4th 930 (2004)).
Hiring a Limited-Scope Lawyer
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. A typical limited-scope representation agreement spells out fee arrangements and the division of legal tasks between client and lawyer. 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. (Mosten’s book, Unbundling Legal Services: A Guide to Delivering Legal Services, includes a sample limited-scope client-lawyer agreement.)
What You Should Know About Lawyers’ Fees
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 $100 to $250 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 $500 to write your will. 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.
Keeping Legal Bills in Check
Working with a competent, supportive lawyer will likely be well worth the expense. But there are approaches you can use to keep the bills down and get the most for your money:
Prepare before you talk to your coach. To save time and thus money, prepare for all sessions, including the initial interview and phone calls.
List your questions before you meet. If possible, get questions to the lawyer in writing before meetings. That allows the lawyer time to look up answers and saves you an additional meeting. It also helps focus the conversation so there’s less of a chance of digressing into unrelated topics.
Consolidate questions. Hourly charges are usually divided into parts of an hour, so you may be charged for more time than you actually spend. For example, if your legal coach bills in 15-minute intervals and you only talk for five minutes, you may still be charged for the whole 15. If that is your coach’s practice, it pays to gather your questions and ask them all at once, rather than calling every time you have a question.
Try to answer questions on your own. Remember that you are hiring a legal coach, not a full-service lawyer. That means you need to do as much as you can by yourself and only turn to the coach when you are really stuck. By reading this book all the way through and consulting a nearby law library, you can answer many of your questions on your own. And those you cannot answer completely you can often narrow down.
Beware of other costs. Whatever the formal fee arrangement, there may be incidental costs, such as photocopy and fax charges. If so, you might cut down on these by picking up or delivering documents yourself, or making your own copies.
Review lawyer bills carefully. A lawyer who bills at $200 an hour who spends six minutes talking with you might charge you $20 or “0.1” on the bill. If that were transposed by accident as 1.0 (one hour) when the data is entered, you could end up paying $200.
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.nycourthelp.gov.
Fill-in-the-blank 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.nycourthelp.gov/diy/index.html.
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.courtinfo.ca.gov/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 advisor 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 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. Other websites that offer helpful information to pro se litigants include:
LawHelp.org provides state-by-state links to a variety of legal resources, including state-specific court forms.
Alllaw.com provides links to a variety of legal forms and state and federal legal resources.
NACA.net (a website sponsored by a plaintiffs’ attorney group called the National Association of Consumer Advocates) provides information about fraudulent or abusive business practices.
Legalhotlines.org/seniorlegalhotlines.php provides links to organizations that provide legal help to senior citizens.
When lawyers provide substandard representation, unhappy clients can seek relief from state disciplinary authorities and legal malpractice lawsuits. But a pro se litigant’s ability to fix mistakes made by online websites and non-lawyer 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 non-lawyers. Each case is unique, and the “one size fits all” type of general information provided by a website or non-lawyer 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
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.
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).
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.
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!).
Make a Trial Notebook
We strongly recommend that you prepare a trial notebook. A trial notebook is a series of outlines covering matters such as what you must prove (or, if you are a defendant, disprove); the evidence you will use to prove (or disprove) those matters; the topics you intend to cover on direct and cross-examination; a list of the names, addresses, and telephone numbers of your witnesses; and the exhibits you plan to introduce into evidence. The notebook serves as your courtroom manager. You can refer to it to make sure that you do not overlook evidence you planned to offer or an argument you intended to make.
As you read through the chapters describing the various stages of a trial, you will find specific sections on how to prepare related outlines for your trial notebook. Chapter 18 pulls together suggestions from earlier chapters and describes how to organize a trial notebook.
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.
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 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 them of their day in court. However, these challenges are not usually successful. For example, under the Federal Arbitration Act, arbitration provisions can trump 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.
Resouces on arbitration. Settle It Out of Court: How to Resolve Business and Personal Disputes Using Mediation, Arbitration, and Negotiation, by Thomas Crowley (John Wiley & Sons), 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. (Aspen Publishers), is a textbook that sets forth arbitration principles and methods.
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.
Resources on mediation. Mediate, Don’t Litigate: Strategies for Successful Mediation by Peter Lovenheim & Lisa Guerin (Nolo), available as an electronic book at www.nolo.com.
Mediation: A Comprehensive Guide to Resolving Conflicts Without Litigation, by Jay Folberg & Alison Taylor (Jossey-Bass).
The Mediation Process: Practical Strategies for Resolving Conflict, by Christopher Moore (Jossey-Bass).
A Student’s Guide to Mediation and the Law, by Nancy H. Rogers and Richard A. Salem (Matthew Bender).
Divorce Without Court: A Guide to Mediation & Collaborative Divorce, by Katherine E. Stoner (Nolo).
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.
Resources on negotiation. Effective Legal Negotiation and Settlement, by Charles Craver (Matthew Bender).
Effective Approaches to Settlement: A Handbook for Lawyers and Judges, by Wayne Brazel (Prentice Hall).
Getting to Yes: Negotiating Agreement Without Giving In, by Roger Fisher et al. (Houghton Mifflin) (considered to be the bible on positional bargaining).
The Joy of Settlement: The Family Lawyer’s Guide to Effective Negotiation and Settlement Strategies, by Gregg Herman (ABA).
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 have 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/library/admin.
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.