The first thing most self represented litigants need to do is to unlearn some untruths. No, the judge is not there to figure out who’s right and who’s wrong. The judge is only there as a referee while the two sides duke it out. Too often, we think we know what we need to know, but that’s rarely true.
We don’t know the required legal elements in our case, much less the laws pertaining to those elements, or even the procedural rules that define when and how certain motions can be filed. There’s a reason lawyers go to school for this. And then we go in with the wrong attitudes, as though litigation were a business meeting rather than a war. The truth is, absent a settlement, someone is going to lose bad.
Everyone on our small team at Courtroom5 spends part of each month talking to self represented litigants. We spend a day or two at the local courthouse, where friendly bailiffs who know what we do steer us to hearings involving pro se litigants. We try to snag them on the way out of court to get their raw impressions of the litigation process. Even though we’ve traveled the same road ourselves many times, we get amazing insights from those who share their litigation experiences with us.
We return from every courthouse adventure with stories of celebration and sorrow, remembering the times we won or lost in ways similar to our interview subjects. Invariably, one of us says something like, “if I knew then what I know now, things might have turned out better.” Here are 5 things we wish we’d known:
- A good case strategy starts at the end and works backward. How do you reasonably expect your case to end in your favor? For example, will you win outright on settled law, or will you wear your opponent down and force a settlement? Based on the answer, you’ll either collect the evidence needed to paint your opponent into a legal corner or set up your motions to bog him down on procedures. That decision leads you to the research and filings you need to do now. Don’t expect to stumble upon a winning strategy along the way.
- Learning legal research is priceless. Judges don’t always follow the law, but when self represented litigants confidently support their arguments with rules, statutes and appellate cases — and demand the court recognize those authorities — they’ll likely get their way. You want to get acquainted with one of the many free legal research tools early on, so the learning curve will be flat when you need to find something quick.
- The style of your writing matters more than it should. In theory, the right law and the right argument should carry the day. But the truth is that nobody’s really paying that much attention. I’ve had both lawyers and judges look at a motion and interrupt my argument to say, “I can tell by your writing you know what you’re talking about.” Instant credibility! But I’ll let you in on a secret. There were times I didn’t actually know what I was talking about, yet the words and format I chose got me through.
- Oral argument is pure theater, but with audience participation. Most of your time on a case will be spent drafting and responding to motions, and the judge will often decide these issues without a hearing. On the rare occasion you get to argue before a judge, prepare to put on a show. Spend as much time at your courthouse as as you can, and practice, practice, practice your arguments! Speak confidently, assertively, as though you’ve done it many times. Lead with what you want and why, then start throwing your strongest authorities at the judge. Bring copies of every case you discuss, highlighting the important parts, and hand one to the opposing lawyer and the judge as you mention each case. The judge may pepper you with questions, and you’ll have your answers ready, but shut the lawyer down whenever he or she interrupts. Own the room. The judge will be entertained, but as a result, you’ll actually be heard.
- “Legal ethics” is an oxymoron because a lawyer cares only about winning. A lawyer will lie, cheat, steal, fabricate and destroy evidence, whatever is necessary. The only line a lawyer won’t cross is the one that gets him or her caught, because getting caught is bad for the client. Sounds awfully harsh, I know, but this is actually one of the more endearing qualities of the profession. If we’re honest, most of us want a lawyer who’s willing to win at any cost. But when you’re on the other side, beware. That lawyer’s job is to destroy you by any means necessary, and if she’s any good, she treats the Rules of Professional Conduct like a comedy skit.
There’s plenty more to learn, but these are the lessons we find self represented litigants learning too late, after they’ve lost their cases. We know from experience that’s the absolute worst way to learn, because every case matters. We built our Litigator’s Toolset because we want to see people winning, but we can help just as much by sharing what we’ve learned the hard way.
There’s no better way to ensure we’re building the best tools for the job than to spend time with our customers. Thanks to everyone who’s shared your story with us.
