Litigation: Expectations vs. Reality

Many people who represent themselves in court don’t have a clear idea what to expect. Others might have expectations about the process that don’t reflect reality. If you’re preparing to represent yourself in a civil dispute in court, here are some of the common misconceptions about the process versus what might really happen.

1. My Dispute Will Be Resolved Quickly

While some legal disputes are resolved quickly, most will take a long time. In general, lawsuits that resolve quickly do so through negotiation of settlements. In most civil matters, it’s worthwhile to attempt to negotiate, but trying to settle a case doesn’t necessarily mean you’ll secure the results you want.

If you settle a lawsuit, you must be willing to give up something in exchange for reaching an agreement. On the plus side, settling a legal claim also means you’ll know what you’re getting and what you’re giving up.

If you don’t settle and instead take your case to trial, the process can last from one to several years. Court litigation doesn’t move quickly — there are many steps involved in civil disputes you must complete before going to trial. The speed of your case will also depend on the court’s schedule. Most courts schedule civil cases months in advance due to a backlog of cases.

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2. The Judge Will Help Me When I Represent Myself

Many pro se litigants think the judge will be sympathetic to them and/or cut them some slack because they haven’t hired an attorney. However, if you represent yourself in court, the judge will expect you to understand the court procedures, the civil process, and the objections you can raise in the same way they expect an attorney to understand.

Here are a few ways you must prepare before going to court:

  • Familiarize yourself with the procedures in your jurisdiction (check with the court for this).
  • Review the Federal Rules of Evidence.
  • While your state has its own set of evidentiary rules, most states’ rules closely mirror the federal ones. Pay particular attention to how you can admit evidence, to the hearsay rule, and to the exceptions to the hearsay rule.
  • Be prepared to object when the other party attempts to admit something without following the rules or present hearsay that doesn’t meet an exception.

If you’re prepared, you’ll have an easier time in court and will be likelier to achieve the outcome you want.

3. I Don’t Have to Share Everything About My Case with the Defendant

Some people wrongly believe they can hide evidence and present it at trial to surprise the defendant. However, the court system doesn’t allow trials by surprise.

After you file the civil complaint, and the defendant files their answer, your case enters a phase called “discovery.” During the discovery process, both sides must exchange the evidence they have about the case. You’re expected to share ALL of your evidence with the defendant and cannot hide anything. If you do, the non-disclosed evidence won’t be admissible at trial. You could also face sanctions if you fail to share evidence that could be helpful to the defendant. 

The discovery process is lengthy and can take months. You might also exchange interrogatories (a formal set of written questions) with the other party. You must answer interrogatories truthfully within a set time frame.

You might also schedule a deposition or be deposed yourself. During a deposition, both you and the other party will appear in an out-of-court setting in front of someone qualified to administer oaths. Testimony at a deposition is under oath, and a transcript will be prepared that you can use later if your case proceeds to trial.

4. If I File a Lawsuit, I Automatically Have to Go to Trial

Actually, the vast majority of civil cases are settled well before trial. Some are even settled before a lawsuit is ever filed.

If you’re unable to negotiate a fair settlement before filing a lawsuit, you can then take the matter to court. Know that even after you file a lawsuit, you can continue negotiations with the defendant to resolve your claim.

Some cases settle well into the discovery phase, after depositions, when both parties can hear testimony from the witnesses and the parties involved. Others are resolved shortly before trial when either party determines it’s not worth the risk to try the case.

5. My Trial Will Only Take an Hour

People believe this thanks to the many television programs that depict trials lasting an hour or less. However, civil cases can take several days to resolve, depending on their complexity.

When the court schedules your case for trial, you’ll be asked how long the court should set aside for your case. If you plan to call multiple witnesses, you should request several days, and the defendant might also request a few days if they have similar plans to call several witnesses.

While the litigation process might seem overwhelming, civil cases follow established processes and procedures. By familiarizing yourself with the process used in your jurisdiction and the evidentiary rules, you can be prepared to handle your case confidently.

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