You’re in court on your motion, and the attorney for the other side begins chatting up the judge. Like you, the attorney has filed a motion. He feels entitled to take over the hearing because–well you didn’t stop him. Rather than being assertive in court, pro se litigants allow things like this to happen as if they’re watching a play.
Pro se litigants don’t want to rock the boat or offend anyone. We aren’t assertive in court because we don’t always know the ropes or we feel intimidated. Gasp, we could be wrong. Doesn’t it look bad to be both assertive and wrong? Not really. If you’re assertive and you’re wrong, bluff and prepare better next time.
Below is an example of what can happen when you’re not assertive.
Selena, a pro se plaintiff in a case, conducted depositions for two employees of a company. Both employees were represented by the same attorney. When questioning the company owner about the date on which payment was received, the owner gave one answer. Her employee gave a different answer to the same question.
The answer was relevant because the date of payment determined whether a debt was owed, the subject matter of the case.
The day following the depositions, Selena moved to disqualify the attorney because representing clients with two different accounts of the facts was a breach of his ethics. One of his clients had committed perjury, and the other had provided evidence of that perjury.
Meanwhile, a hearing on a motion to dismiss Selena’s case had been scheduled. At the hearing, the defendant’s attorney insisted the judge hear the motion to dismiss first. Selena had a strong case and thought the motion to dismiss was very weak. She wasn’t worried.
However, before she knew it, the judge had dismissed her case with prejudice. Selena never had the chance to argue her motion to disqualify.
How Might Things Have Been Different?
Things might have been different had Selena insisted on the judge hearing her motion to disqualify before hearing the motion to dismiss. The attorney couldn’t argue for dismissal if he’d been disqualified. Selena had a strong case for disqualification and her motion should’ve been heard first.
Being Assertive In Court Can Get You A Win
Here’s something lawyers know that self-represented litigants learn the hard way–in areas that matter, when they’re assertive and we’re not, we lose. When they see a non-assertive pro se litigant, lawyers go to their “pro se playbook”, look up the rules for handling passive litigants, and run their plays.
Nip that in the bud. In court, be firm, direct, and clear about what you want and need and take responsibility for your case. You can be polite while doing this. Assertiveness gets respect from both lawyers and judges.
In the scenario, had Selena expressed herself firmly and confidently in a strong clear voice and argued why she should go first with her motion to disqualify, she might have been able to persuade the judge and avoid the dismissal of her case.
Selena: Your honor, my motion to disqualify will have great impact on the motion to dismiss and should be heard first. In fact, until the issue of his qualifications to represent either of his clients is cleared up, the defendant’s attorney cannot argue in this case at all.
More Pointers on Being Assertive
It pays to know the difference between assertive and aggressive. On rare occasion, you have to be aggressive in court. Most often though, you must be assertive. To be assertive, use appropriate body language. Don’t cower to lawyers and judges. Make eye contact. Widen your stance. Stand tall and erect with your shoulders back, and your head high. You’re representing yourself. Be proud of it.
Assertive means using the appropriate language in court and in writing. Know well the laws/cases you’re arguing. Remember when you were a kid and learned yo yo tricks like the Sleeper, Around the World, Rock the Baby, and so on? Once you learned them, you were confident using them and showing them off. Same thing for litigation. Practice and show your stuff.
It’s Okay Not to Know Every Little Thing
Attorneys are officers of the court, so pro se litigants often believe that it’s okay for the attorney to take charge. Not. There are so many things in litigation that we pro se litigants don’t and can’t know. Truth be told, lawyers, on their early trips into court, don’t know them either. It takes trial and error–no pun intended. It takes abundant writing of motions, pleadings, notices, and requests and many trips to hearings before a judge to learn enough to call yourself an experienced litigator.
Few pro se litigants earn that rank because we have one case. We want to adjudicate that and get out. We don’t want to be in litigation. Attorneys, on the other hand, have multiple cases. They’ve chosen to be there, studied for it, embraced it. It’s only a matter of time that they’ll become experienced litigators. As for you as a pro se, learn as much as you need to learn to get through your one case. You don’t have to know every little thing.
The order of matters at a hearing is one of those things to understand however. So, when a hearing is set for multiple filings, always think through the order you’d prefer them to be heard. Then, persuade the judge to do things your way by acting as if you’ll win it all in the end.
Pssst! Hey, you there, struggling to win your case. Isn’t it time you gave Courtroom5 a spin? We publish articles like this to help you level the playing field, but it’s sometimes too late to save your case. Stop trying to catch up. Get ahead of the game and start driving your case to the judgment you deserve. See how it works today!