It can be easier to give up than go to court.
More and more Americans need a lawyer but can’t afford one. Just the thought of going to court alone is scary.
You feel intimidated, unprepared, angry and desperate. You’d rather go to the dentist than go to court.
Since you have to go anyway, you wish you could simply call someone and ask them for answers to all your questions. That’s not ideal. First, if you’re inexperienced and it’s early in the case, you don’t know the questions to ask. Second, too many pro se litigants believe they do know the issues early on, but learn quite the opposite later on. But don’t despair.
How might things be different if you had the right tools to succeed in court on your own? You would…
- file the right documents at the right time,
- effectively argue your case and cite appropriate laws,
- respect but not cower to judges and lawyers,
- have knowledge and a strategy to implement,
- know words like prima facie, subject matter jurisdiction, and res judicata and be able to use them properly,
- take charge of your case, and
- fight with confidence.
Wouldn’t you rather be like that than cower? Then, be like that.
The meaning of winning in court
There are all kinds of court wins. Decide early what winning means for you. Is it a favorable judgment, a settlement, a delay?
If your goal is a favorable judgment, focus on the core elements of the case and don’t get sidetracked. Respond fully to all motions and pleadings. Be assertive in discovery. File the right pleadings and motions at the right time. Attend and be prepared for scheduled hearings, and avoid summary judgment or dismissal against you. Put simply, prove your case.
If your goal is to settle, you might try to raise litigation expenses so your opponent wants to end the fight quickly. Force your opponent to spend money by making his lawyer work overtime. Be assertive and demanding in discovery.
If your goal is to delay the outcome — say in a foreclosure case where you want to stay in your home a little longer — you might raise extraneous issues. Review all documents with a fine-toothed comb, and nitpick over everything. Stay in discovery as long as you can. A defendant might file a long list of affirmative defenses.
The skills required to be effective in court
Most of us didn’t go to law school. At the beginning of our cases, we know very little about the law, but we’re willing to learn. For the best outcome, learn a little civil procedure, case analysis, litigation strategy, legal research, and legal argument. Let’s explore these.
Every jurisdiction publishes a book and online sites that set out the rules to follow in its courts. They’re called rules of civil procedure. Failure to follow procedure could weaken or kill your case. A motion to compel discovery, for instance, isn’t going anywhere until you request discovery and/or notify the other party of a late response. It’s in the book and online. Appellate cases are also useful in understanding civil procedure. Read on.
A case analysis will help you understand your case, your opponent’s case and where you stand. Do the following to analyze your case:
- Identify the issues in your case.
- Determine who the parties are and what they want.
- Identify the case law and statutory law that supports each side.
- Find the strengths and weaknesses in your case
- Determine the facts that support the elements of your and your opponent’s claims, counterclaims, and affirmative defenses.
Maintain a strategy throughout litigation. Though every case is different, there are typical strategies each party should be aware of.
- Sue for something the law allows (review rules of civil procedure).
- File the complaint in the right court.
- Deliver the complaint properly to the right person.
- Strike each affirmative defense.
- Be assertive in discovery.
- Find evidence to support the claim and refute the affirmative defenses and any counterclaims.
- Preserve evidence. That is, object to discovery and issues you disagree with, and be sure to bring up issues of concern so that the court won’t consider them “abandoned”.
- At trial, tell the most credible, compelling, persuasive, authoritative and engaging “story”.
- Find defects in the complaint or summons. If something is wrong or incomplete, move to dismiss the case.
- If you filed a motion to dismiss, don’t file the answer and affirmative defenses until you absolutely have to or until the judge orders you to.
- Assert any affirmative defenses and file them with your answer.
- Assert a counterclaim if you have any.
- Preserve evidence.
- Be assertive in discovery.
- Collect evidence that supports the affirmative defenses and counterclaims and refutes the claim.
- At trial, tell the most credible, compelling, authoritative, and engaging story
Case law helps you make sense of statutes, codes, and rules. Use legal databases, like Google Scholar, to look up cases that help you see the law in context. In fact, there’s nothing like case law to persuade a judge to support your position.
Statutes can be found online at multiple sites, including USLegal and Justia. Appellate cases and statutes are legal authorities that judges don’t, and often can’t, ignore. They are mandatory if you want to be credible, compelling, and authoritative orally and in writing.
Other Research Tools
Other research tools that can help include legal dictionaries and encyclopedias and citation guides. “Your honor, res judicata bars this claim for libel and slander.” Huh? Don’t know what res judicata means? Look it up in a legal dictionary. Want some depth? Use a legal encyclopedia.
Before you write a legal argument, determine what point(s) you want to make. Then, collect the facts and law that support your argument. Write clearly, precisely and concisely, without typos, grammatical errors or irrelevant material. Here is an outline.
- First: State who you are, your position on the matter, and the rule or law that supports your position.
- Then: Weave facts and law to answer the question: Why would a judge reach the conclusion I want?
- Finally: State the ruling you believe the court should make given the facts and the law.
You shouldn’t lose a case simply because you’re pro se. Here, we discussed some of the habits that can make you a more effective litigant. Unfortunately, we can’t cover everything you need to know, but if you learn these, you’re less likely to lose because you’re pro se.