As A Pro Se Litigant, Beware Of Form Over Substance

Court watchers and legal service providers are offering more solutions to help self-represented litigants move through the courts, but much of what they propose is form over substance. Literally, there seems to be a form for everything from uncontested divorce to criminal record expungement. For those kinds of cases, where there’s no opposition, forms provide a great way to get our legal needs met in the right way. You just have to state your position and provide a few facts. But when you’re doing litigation — battling someone who’s opposed to your position — then forms simply will not do. In fact, forms can be dangerous, prompting you to share information harmful to your case or to reveal it on a schedule that doesn’t suit your purpose.

There’s a reason lawyers don’t use forms, and you shouldn’t either when you’re fighting for your rights. Former presidential candidate Ross Perot said to “Follow the money!” when you want to find out what’s really going on. In my experience, you can always tell what purpose a company or organization truly serves by looking at who pays for their service. Who is the real customer? For example, many Facebook users view themselves as customers, when in fact they’re Facebook’s product. Facebook sells ads, and user eyeballs are the products Facebook sells to advertisers. Likewise, judges and state legislators pay the bills at the courthouse, not self-represented litigants. So while court clerks definitely have their hearts in the right places where we are concerned, their primary motivation is to stop us from clogging up their courts. The forms they produce and share with us are designed to improve judicial efficiency, not to help us win our cases.

Take a look at this 7-page form packet for answering a complaint in the Superior Court of New Jersey. It advises you not to ignore a summons because a default can be entered against you. It advises you to get a lawyer if you can, even if you can’t afford one. There’s a long list of things you can and cannot ask a clerk, like when a filing is due (yes) or who would be a good lawyer to hire (no).

There’s a brief description of how a case moves through the court, followed by a glossary of common legal terms. So far, so good. There are instructions for filling out the form, and the form itself. You enter your name and address, the name of the parties, choose your county, and then admit or deny (“agree or disagree with”) each paragraph in the complaint. If you have affirmative defenses, there’s a separate area for listing them with any relevant additional facts. The form is only two pages, but you’re invited to attached additional sheets as necessary. You date and sign the form, indicating whether you want a judge or jury to decide your case. But here’s the thing. You don’t need to answer a complaint just because you’ve received a summons. Certainly your answer is not the first thing you’d want to file.

Ideally, you want the case dismissed without having to answer at all. You should file a motion to dismiss and have that ruled upon first, before admitting or denying anything stated in the complaint. That goes double for those jurisdictions, like New Jersey, where you have to pay just to answer a complaint. This form must be accompanied by a check for $175, whereas a motion to dismiss the complaint — or any other response — could be filed for free. What’s really troubling about this form is that an answer need only contain ‘Admit’ or ‘Deny’ for each paragraph in the complaint, yet each space on this form for answering a paragraph is four lines long.

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An unwary litigant, assuming the space was there for a reason, would use it to explain why he or she was admitting or denying each of the plaintiff’s allegations. That’s the quickest way for a defendant to lose a case. Like most forms available from a court clerk, this packet was designed for a judge to get all the facts and admissions from a defendant at the pleading stage, and to dispose of the case quickly.

Most court websites offer standard forms for a variety of uses, from filing an affidavit to getting a protective order. The district court in Virginia is typical, with forms for subpoenas and garnishment and discovery and many other legal needs. But like the larger form packets, you want to use these with care. Make sure you’re not throwing away your claim or defense for the sake of judicial efficiency. Many clerks are outsourcing this function to a for-profit company called TurboCourt, which allows you to complete forms and file them in your jurisdiction for a small fee, all online.

Again, just watch yourself and be sure the forms serve your purpose and not the court’s. But if you’re going to do the research to determine whether a simple form will serve your needs, you might as well draft your own documents. There are lots of sample documents online. Unless you plan on hiring a lawyer to handle your litigation, there’s simply no substitute for doing your own legal research and analyzing your own case.

There’s no substitute for crafting your own legal argument, putting it down on paper, and arguing it before a judge. No form has the substance to do that for you. So be careful out there. Decide early on if you’ve got the kind of case a form can handle. If not, then get busy learning how to represent yourself. Don’t settle for form over substance. Have you had a good experience with a form packet, or a not-so-good experience? Share in the comments below.

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Joshua Taylor
December 5, 2023 12:37 am

Thank you, this article was just the thing I needed to read at just the right time. Motivational and reassuring to the blight of a pro se litigant preparing for a hearing.