We’ve shared the story of Brian Vukadinovich in this space here and here. It’s our pleasure to welcome him to Courtroom5 and to share with you his manual on litigation for the pro se plaintiff. — Eds.
The purpose of this manual is to give the pro se plaintiff helpful insights into essential areas of the law. This should help prepare you to represent yourself, hopefully to a successful conclusion.
This information will help the pro se plaintiff better understand the obstacles you are likely to encounter and perhaps overcome with a better understanding of the principles that will be necessary to prosecute your case and to avoid dismissal by motions to dismiss or motions for summary judgment that will in all likelihood be employed by defense attorneys.
Under the law you have every right to represent yourself, as the Judiciary Act of 1789 states: “That in all courts of the United States, the parties may plead and manage their own causes personally…”
I. Prerequisites to filing discrimination suits
Depending on the state you live in or the nature of action you are pursuing, you may be required to first submit a notice of tort claim if your claim is a state claim against a state governmental agency. Be sure to research your state’s laws with respect to time periods for required notices so you don’t unintentionally waive any of your legal rights for failure to timely submit a tort claims notice.
If your claim involves discrimination in violation of a federal statute, then you must first file an Equal Employment Opportunity Commission (EEOC) charge in the office of the appropriate jurisdiction. Generally discrimination claims for violations of federal statutes require a discrimination charge to be filed with the EEOC within 180 days of the occurrence of the discriminatory act. Failure to timely file the discrimination charge with the EEOC could result in waiver of your right to seek redress for the discrimination claim(s) in a court of law.
Once a discrimination charge is filed with the EEOC, your charge will be investigated. If it finds cause, the EEOC will issue a finding. If it is not able to issue a finding of cause based on the information provided, the EEOC will issue a right to sue letter giving you the right to file a lawsuit in a court of law. You have 90 days to file your lawsuit from the date you receive a right to sue letter from the EEOC.
II. Familiarity with the governing rules of court
It is very important to familiarize yourself with the governing rules of the court where you will be filing your cause of action. Many pro se’s make the mistake of proceeding with their litigation without studying the governing rules of procedure, and that can be very costly in terms of the fate of your case. Defense lawyers love to find technical flaws with a pro se’s procedure and they look for any missteps that the pro se may make in not following the governing rules.
Many times the failure to know and follow the rules of procedure result in a dismissal of a case. These dismissals can be avoided to a large degree simply by taking the time to familiarize yourself with the rules. That would include the state or federal rules of procedure, depending on which venue you are in, and also the rules of the specific (local) court you are in.
If the case is in federal court, it would be the Federal Rules of Civil Procedure. If the case is in state court, you would need to research the rules of procedure from that particular state. In addition to the federal or state rules of procedure, most courts also have their own “local rules” that you should get familiar with to ensure you are following procedures designated by the local court. You also should familiarize yourself with the Rules of Evidence for the venue, i.e., state or federal court.
III. Familiarity with terms generally used in litigation
You will run into many legal terms that you may have never heard of before, for example such as “in limine,” “void dire,” “Daubert motions,” “estoppel” and many others, and it is very important that you learn what those terms mean if and when they come up in your case.
You can do this by obtaining a dictionary of legal terms or of course with an internet search.
IV. Preparing and filing the complaint
The general rules of pleading are such that you must file a complaint stating a claim for relief. To adequately state a proper claim for relief, the complaint must contain three essential elements:
- a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdiction support;
- a short and plain statement of the claim showing that the pleader is entitled to relief; and
- a demand for the relief sought, which may include relief in the alternative or different types of relief.
It’s important that you as a pro se plaintiff look up the rules of pleading in the venue in which you are filing your case. The laws vary from state to state, and some states, like Indiana, do not permit a dollar amount to be stated. Federal complaints allow plaintiffs to state the dollar amount they are seeking in damages.
If you want a jury trial, you must state your jury demand in your complaint. If you are in a federal court, they are required to liberally construe your pleadings and apply less stringent standards under Haines v. Kerner, et al., 401 U.S. 519 (1972).
It is important to state sufficient facts in your complaint to withstand a motion to dismiss for failure to state a claim for relief. This will be one of the first things the defense will look for when your case is filed, as attorneys routinely try this tactic early in the litigation if they see a flaw in your complaint.
Conducting effective discovery is a crucial aspect of prosecuting your case. Discovery helps you obtain information and evidence to prove your case, and it also helps to defend against any dispositive motions. If your cause of action is in a federal court, you should study the discovery portions of the Federal Rules of Civil Procedure. If your cause of action is in a state court, you should study the discovery-related rules for that state.
Rule 26(b)(1) of the Federal Rules of Civil Procedure states:
Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
There are several avenues of discovery that you should be familiar with and prepared to use.
- Interrogatories are written questions you can submit to any and all of the defendants in your case that are to be answered under oath. Generally, the defendants will have thirty (30) days to respond to your interrogatories from the date they receive them.
- Depositions are oral questions you can ask of any of the defendants in your case. While this is a very effective means of discovery, it can be expensive as you will have to employ a court reporter for this.
- Requests for Production are requests you can make to the defendants to produce documents and other tangible things for your review.
- Requests for Admissions are written requests you can make to any and all of the defendants in your case to admit or deny specific facts and the genuineness of any described documents.
Effective use of discovery can be very helpful in proving your case and also in responding to any motions for summary judgment.
VI. Dispositive motions
In most cases, and especially when you are proceeding pro se, you can expect the defendants to file some type of a dispositive motion in an effort to kill your case before trial. Usually this happens with a motion to dismiss for a technical reason of some kind, or a motion for summary judgment where the defendants will argue there is no genuine dispute as to any material fact and the defendant is entitled to judgment as a matter of law.
You must understand what a “fact” is in the eyes of the law; a fact can be a statement made or an action taken. And that “fact” has to be “material,” i.e. something that matters, something of consequence to the issue. A “genuine dispute” is proven by contradictory or conflcting evidence. “Matters of law” are the components of a claim as defined by statutes and appellate court decisions. If your action is in federal court this rule would be found in Rule 56 of the Federal Rules of Civil Procedure. If you are in a state court, you should research that state’s summary judgment rules.
This is a very critical aspect of your case that you should be well prepared to respond to. If you fail to file an adequate response to the defendant’s motion for summary judgment, and the motion is granted, your case is over and you get no trial. You can, of course, appeal the decision to an appellate court, but it is always better to file a strong response in the trial court and defeat a motion for summary judgment.
You should be prepared to rebut the case law filed by the defendant and to submit case law that is favorable to your position. You need to learn how to research the case law relevant to the issues of your case for two substantial reasons: first, you need to cite supporting case law to convince the judge that the law is on your side on the issue, and secondly, the defense lawyer(s) will generally cite a multitude of cases to support the defendant’s position.
Defense lawyers often try to overwhelm pro se’s with an enormous amount of case law, much of which may not even be relevant to the case and calculated to just overwhelm you. You will need to read well and understand those cases so you can argue against their relevancy to the issues in your case. Many times, cases that are cited by the defendant’s lawyers are actually helpful to your case, as defense lawyers may only point to the one or two sentences in a case that are helpful to their position, ignoring the pages of text that helpful to yours. So you must know how to read and properly apply the case law to make an intelligent argument to the court.
You should be prepared to submit evidence in support of your response showing that there is a genuine dispute as to the material facts and that the defendant is not entitled to summary judgment as a matter of law. This is where your due diligence in the way you conducted discovery will be very helpful, as you will be able to use the information and evidence you obtained — interrogatories, depositions, requests for production, requests for admissions — to help defeat the defendant’s motion for summary judgment.
VII. Preparing for trial
There will be a multitude of things you will have to do to prepare for trial. These things will be outlined by the court in an order controlling the case, such as deadlines for filing any pretrial motions. Pretrial motions include dispositive motions and motions in limine designed to prevent the opposing side from introducing certain items of information or evidence. There will also be proposed final pretrial orders, contentions, stipulations of fact, exhibit lists and witness lists.
If the matter is going to be tried to a jury rather than a bench trial, you will also prepare proposed jury instructions and your objections to the defendants’ jury instructions. Depending on your court’s local rules, you will have to prepare voir dire questions, which are questions to be asked of potential jurors during jury selection.
You will of course have to have copies of all your exhibits, labeled, with a copy that you will introduce into evidence and a copy for the court and defense counsel. You should become familiar with how to do an effective opening and closing statement. Again, be familiar with the rules of procedure and rules of evidence so you will know how to get your evidence admitted at trial. If you fail to do adequate preparation and don’t do your homework to become knowledgeable with the rules of trial procedure and rules of evidence, you will face many objections by opposing counsel and you will become overwhelmed at trial. Your chances of success will be greatly diminished.
Trial preparation can be an overwhelming process and it is very important to do your due diligence with respect to preparing your pleadings and your legal arguments, and being able to address legal points that come up during the trial. When you are preparing your various court papers, it can be helpful to review other court cases as court files are a matter of public record and you can learn a great deal from studying court pleadings in other cases that went to trial. For example, you can take jury instructions from another case similar to yours and tailor the jury instructions for your case. You can do the same thing with pleadings and tailor them to your case.
Because most trials involve a multitude of documents, this alone can be a potential problem for you to handle at trial and will disrupt your thought process and the flow of the trial if you find yourself overwhelmed in keeping track of and looking for particular documents throughout the trial. For this reason, if you have somebody that is responsible and competent enough to help you keep track of the documents and help you stay organized at trial, you can ask the judge for permission to allow this person to sit with you at trial and assist you with the paperwork aspect of things. This would be a tremendous help to you and something that would be wise for you to consider.