It’s one thing to write and file motions and responses. It’s another to attend court hearings to argue them. Appearing before a judge is one of the biggest challenges for pro se litigants. The judge has the power to kill your case or let it live another day. So, your nerves are taut. You’re not used to this kind of pressure. You’re not a lawyer! How do you survive a hearing?
If you follow these tips before you go into that hearing, you’ll have a fighting chance of getting through unscathed.
Preparation Before Court Hearings
Litigation is a series of filings, hearings, and arguments. Many pro se litigants don’t last long enough to have a second or third hearing, especially when they’re up against a lawyer. So stretching out litigation to get a settlement or judgment counts as a win. If you go into a hearing with an understanding that you won’t win every one, losing one won’t be devastating and you can relax a little.
Know your argument well
Go into court hearings with a handful of supporting legal authorities and knowledge of how to win on the motion being heard. Go with an argument that can persuade a judge to rule in your favor. Then practice it. Know the argument so well that you can say it under pressure. So, practice, practice, and practice some more.
Anticipate the judge’s questions
Before you attend a hearing, brainstorm questions the judge is likely to ask, and have an answer for those questions. You should also be aware of the weaknesses in your case or position and be prepared to address them.
Attend a hearing beforehand
You learn a lot about court protocol by sitting in court hearings. If you can find the time, attend a hearing in your judge’s courtroom. Attend a hearing in another courtroom if your judge is not available. If you do this, you may be more relaxed and knowledgeable at your own hearing.
Schedule a court reporter
We can’t stress this enough. Schedule a court reporter at least a week before you go into a hearing. There is no better “check” on the behavior of an attorney or judge than the presence of a court reporter. A court reporter records everything that’s said on the record. To appeal a bad decision, you need a record of the hearing or trial. A court reporter does that for you.
The Day of Your Hearing
Start for the courthouse early
This goes without saying, but I’ll say it anyway. Start early. Imagine a bad traffic day in your city. You go around the traffic, but everyone else has the same idea, so the detour takes longer than normal. Then, you get a ticket for running a red light. If you allotted enough time to get to your hearing, you should have all these things happen to you and still have time to spare. Start early. If you get hung up, call the court and inform them of the problem.
Be aware of court format and protocol
Know court format and protocol. In court, stand when the judge enters and leaves. Address the judge as “Your Honor.” Speak up and speak clearly. Be polite to court staff. Give documents and exhibits to the bailiff to give to the judge or opposing attorney. Don’t hand them directly to the judge. Keep in mind that any of these rules, with the exception of being polite to staff, might vary depending on the needs of the court.
Make sure everything you need at the hearing is easy to find. When making your argument, all necessary notes, appellate cases and evidence should be at your fingertip. You lose the respect of the judge when you’re ruffling papers and fumbling for stuff.
Act like you belong in the courtroom
It’s difficult, but try not to be intimidated by the people or the procedures of court. They’re just regular people doing their jobs. They may treat you like you don’t belong. Know that you do belong. If you can come to an understanding of this, your arguments and attitude will benefit.
Be assertive when need be
If you need to make an important point, be sure you make it even if the judge seems reluctant to hear it. Be polite yet firm. Here’s an example. The judge will usually allow the person whose motion is being considered to speak first. This doesn’t always happen with pro se litigants. If it’s your motion and the judge looks as if he won’t let you make your argument, you might have to be politely assertive. “Excuse me your honor. I’ve prepared my argument. May I please present it at this time?”
Ever hear the phrase, “less is more”? It fits. You might have strong opinions about your case, but the judge’s main goal is to avoid being overturned on appeal. To persuade him to rule in your favor, use statutes and appellate cases in your argument, answer his questions, and sit down. No fluff. No extra stuff.
Remember to preserve the record
From day one in your case, your goal should be to preserve the record. That is, you should give the judge a chance to review and rule on an issue you deem important. Issues that a judge has not had the opportunity to decide may not be argued on appeal. To preserve the record at a hearing, be sure to OBJECT when you feel an argument, evidence, or question should not be presented. Then, tell the judge why you’re objecting. Again, if you don’t preserve an issue, you may be barred from arguing it on appeal.
After the Hearing
Don’t be too eager to settle
Let’s say your opponent’s attorney approaches you before or after a hearing and hints at a settlement. What do you do? Nod politely. Then, confirm their contact information and tell them you’ll get back to them after reviewing the offer. Don’t make your own “counteroffer” at that time.
Take “suggestions” from the opposing attorney with a grain of salt
Understand that the opposing attorney is there for his or her client, not for you. Any “suggestions” they provide should be seen as suspect. I once had an attorney say to me after a hearing, “I can win this case at anytime. Your best option is to settle.” It was not in my best interest to settle. I’d lost the hearing but went on to win that case. Always weigh what an attorney says against your own interests and knowledge.
Review the judge’s ruling and act accordingly
Whether you won or lost, review the judge’s ruling and statements and prepare for your next move. If you won on a motion to dismiss without prejudice, for example, prepare for the plaintiff to amend his complaint. While doing that, review and prepare for your next strategic move.
In litigation, you win some court hearings and lose others. What matters is staying in until it’s time to exit. These tips will help you stay in longer.
Related Post: Scheduling A Hearing On Your Motion