Let’s face it, despite the millions of open legal cases in America’s courts, the average person does not do litigation often. In fact, most people get their dose of litigation through watching court cases on TV, and many of those focus on the criminal aspects of litigation. They do not mirror real court.
It’s not surprising then that many myths have formed around real litigation.
Below is a list of common myths about real court that should be quashed if you want real justice.
MYTH # 8–The only way to “win” in real court is to get a judgment
Judgment isn’t the only way to win. You can delay, settle, or even harass. In a foreclosure case, for instance, if you’re a defendant, and you haven’t paid your mortgage, chances are the bank or mortgage company will win. Focusing on who wins a final judgment might lead you to turn over the keys prematurely or to defend the case hoping you’ll win due to a bank error. These aren’t useful to you. The smart thing to do is to first set an attainable goal. In foreclosure, you may want to stay in your house another year or two. If so, use the litigation process to delay. In an injury case where you’re the plaintiff, it might be easier to settle. In a debt collection case where you know you owe, harass a credit card company long enough that it settles. All of these can be “winning”.
MYTH # 7–The more combative I am, the more likely I’ll win
Wrong. Being proactive will give you a better chance to win than being combative. Litigation is naturally a combative process, but that doesn’t mean you have to be combative all the time. Being too combative can get in the way of your focus, and it almost always comes with lack of knowledge of process and procedures. So, only in extreme situations should you move for sanctions, or move to disqualify an attorney or the judge. Instead, be proactive. Learn what you need to learn and file the right motions, pleadings and opposing motions at the right time. That’ll combat a lot of litigation problems with a lot less work and drama.
MYTH # 6–All I need is one simple answer, and I’ll be okay
Not true. Litigation can be complex. Even when it’s not, there are no simple answers. If you’re at the beginning of a case, and you determine from a lawyer, a website or some other source that you need to move to dismiss, do you then have all the answers for the rest of the case? Chances are, you don’t. Litigation is a series of simple and complex “answers”. In real court, there is no such thing as a single simple answer.
MYTH # 5–To win, I only have to tell my story, like on Judge Judy
Real court is not like Judge Judy’s court. In real court, you can’t simply come to a hearing with a story and let the judge decide. Rather, you write motions and pleadings, argue your position, and get rulings. Then, you go home and prepare for the next filing and hearing. The process can take days, months, years even. It’s not a fifteen minute argument with another unrepresented litigant before a judge who makes a decision right there.
MYTH # 4–I can trust the lawyer for the other side to always be truthful
Nope, you cannot trust the lawyer for your opponent to be truthful and forthcoming. The lawyer for the other side has a client s/he is working for, and it isn’t you. Your needs are not his or her concern. You can expect from the lawyer proper court protocol and procedures, especially if the judge is watching. They’ll usually send you discovery and work with you on hearing dates, but if you get into trouble and make a mistake, don’t expect them to help you with it. To the contrary, expect them to capitalize on it.
MYTH # 3–I know everything I need to know about litigation
Not true. Most people representing themselves for the first time, don’t know all they need to know about litigation. The biggest problem is that many think they do. They may be smart, confident, and assertive. Heck, they may even be right, but that doesn’t always turn into a win, especially if they’re spouting out things they don’t know. The best chance to turn a case into a win is to learn civil procedure and find support for legal positions.
MYTH # 2–All I need to represent myself in court is Google
You might find answers using Google, but unless you go deep, they will be in a jumbled pile and smell of pee. You have to go beyond surface websites to find what you need. Otherwise, you’re likely to find something that might hurt your case or prove to be a waste of time. Be cautious about the sites you use for information. Stay with trustworthy ones that help you understand civil procedure and find statutes and cases for your arguments. Traditional trustworthy sites like the ones on this curated list are good starts.
MYTH # 1–A self-represented litigant can’t win against a lawyer
One of the biggest hindrances to successful litigation for pro se litigants is pro se litigants themselves. Fear of losing, fear of the process, and feelings of intimidation are not uncommon. Feelings though are not what make people lose in court. People lose when they let fear and intimidation take over. Out of fear they may not answer the summons. The lawyer can then get a default. Out of fear or intimidation, they may not do discovery or may answer the opponent’s questions without any thought. Out of fear and intimidation, they let a lawyer be in charge. Don’t do it. No matter how scared you are, you can run your case far better than the lawyer for the other side can.
Litigation is complex, but you can do it as long as you discard your myths about the process, the people involved, and your own preparedness for it.