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Going It Alone in Court: When the Other Side Has a Lawyer
by Judge Roderic Duncan
Copyright © 1992 Nolo Press
It wasn't long ago that the standard advice to a person
representing herself in a lawsuit was that if the other side showed up
with a lawyer, the best thing to do was to run. Run home and hide under
your bed. Run to the nearest lawyer's office and hire yourself a
lawyer. Run anywhere, but don't stand and attempt to deal toe-to-toe
with a professional who has been trained to fight legal battles in
court.
Even an attorney who wrote a series of self-help books about handling
legal matters without a lawyer had this advice in his 1986 book about
representing yourself in a California Municipal Court: "If the
defendant is represented by an attorney, you should employ an attorney
to represent you, since you will not be able to 'compete' with an
attorney at trial."
Today much knowledgeable advice is to the contrary. If your claim is
not too complicated and you have good information, there is no reason
to back down just because a lawyer shows up on the other side.
Likewise, if a lawyer brings suit against you in certain types of
simple lawsuits, you should consider defending yourself without paying
the expense of a lawyer.
But why take on a task that even with good preparation is likely to be
stressful? In a word, money. Lawyers routinely charge $150 to $250 an
hour for their time, and that includes time spent talking to you on the
telephone, researching your case in the library, driving to and from
court and waiting (sometimes several hours) in the courtroom for the
case to be called. It doesn't take a genius to understand that if you
can do the job yourself, you can save buckets of money.
If you do decide to represent yourself in a lawsuit, here are a few
tips for dealing with lawyers.
Before You Go to Court
Don't be intimidated by anger or theatrics. Most lawyers will treat you
politely if you do the same. Those who insist on putting on a show
every time they deal with their opponent usually do so, whether she is
another lawyer or a pro per (person acting without a lawyer).
Describing a California lawyer recently, a legal newspaper said: "A
good litigator knows that a civil suit is like a knife fight. The goal
is not just to win but to come away from it having slashed away at your
opponent, while losing as little of your own blood as possible." The
story goes on to talk about how a litigator's every move must be
designed to confuse and distract his opponent.
Nonsense. If you are unlucky enough to draw such a pretentious
opponent, there is no reason for you to go along with it. Simply tell
the lawyer you'll be glad to talk about settling the case any time, but
that you are not going to sit still for a dog and pony show.
Whether you are suing or being sued, keep in mind that the lawyer
probably has the authority to recommend an amount to settle the case
with you.
If you have a good fact situation, you want to demonstrate through your
court papers and conversation that you know enough about the legal
system to get what you deserve. There is no need to be obnoxious. The
opposing lawyer can make your life a lot easier by recommending a
reasonable settlement at an early stage--something she won't do if you
come on like Attila the Hun. That only gives the other lawyer the
opportunity to recommend fighting instead of settling--which a lawyer
who is getting paid by the hour may secretly like to do.
If you arrive at a verbal settlement of your case beware the lawyer who
wants you to sign an agreement that is full of undecipherable legal
language. At this stage it is often worth the cost to hire a lawyer to
look over the document and advise you. Especially if yours is a
good-sized settlement, the fee for a 30-minute consultation should be a
bargain.
When You Get to Court
When you prepare any documents you will file with a court, be sure they
are accurate, typewritten and mailed to the other side well before your
court date. This is where a good self-help law book containing detailed
instructions is invaluable. Lawyers love to find some minor error you
made in a court document and then claim that since you were wrong about
one thing, you are wrong about all.
And if you want to see a grown lawyer cry about how unfairly he has
been treated (and a judge who used to be a lawyer sympathize), wait to
give him your court documents on the courthouse steps. In most cases,
you create a picture of strength by letting the other side see your
argument ahead of time.
When faced with a pro per, some lawyers immediately start talking to
the judge in lawyer-talk, referring to laws by their numbers and court
cases using citations. Without apologizing, tell the judge you are
representing yourself without a lawyer because you can't justify the
expense and that you'll rely upon her to apply the correct law. In most
routine cases this is exactly what would happen even if you hired a
lawyer to pontificate for half an hour.
Do the best you can to explain the facts of your situation and to
present any necessary witnesses, following the advice of self-help
materials. Then sit down. Realize that it is not the length or
poignancy of your story that will win your case--it is how your facts
fit with the law of the state.
Once you're in court it can be intimidating to talk to the judge, who
looms over you from the "bench" (it's just a desk on a platform). Just
remember a few simple rules.
- Call the judge "your honor," not "Judge Smith."
- Don't interrupt your opponent or the judge--you'll get your turn.
- Don't get up and repeat all that you said before. I sometimes have
to tell pro pers (and some lawyers): "When you have an important point
to make in a jury trial, it's okay to tell them three times. If you are
in a trial before a judge alone, two times is enough."
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