Watch Out For These Common Litigation Pitfalls

For many pro se litigants, court decisions can be a confusing array of pitfalls and ragged corners. This is especially true when a simple statement or subtle procedural move on your part could have saved your case. How many times have you been stunned by a judgment that went the other way when you thought you had both the law and the facts on your side? I’ve experienced it more than once.

Every day, self-represented parties leave courtrooms asking themselves what happened in there. Days, weeks, months, maybe even years later, they figure it out. By then, of course, it’s too late. Things might have been different with a little more knowledge or experience. You might have skirted a pitfall and avoided a loss.

The problem with that is the nature of being pro se. You have one case. That’s it. You don’t get much of a chance to build knowledge, do-over or even look to the next case for a win. You don’t want a next case. That’s the crux of the matter. Where a lawyer may have been involved in 10, 50 or 100 cases, you only have one. So, if you want the best chance to get it right the first time, be aware of pitfalls that don’t often happen to lawyers. The scenario below demonstrates one such pitfall.

Scenario–Order of Hearing

Selena, a pro se plaintiff in a case, conducted depositions for two employees of a company. The same attorney represented both employees. When questioning the company owner about the date on which a payment was received, the owner gave one answer. Her employee gave a different answer to the same question. The answer was relevant because the date of payment determined whether a debt was owed, the subject matter of the case.

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The day following the depositions, Selena moved to disqualify the attorney because representing clients with two different accounts of the facts was a breach of his ethics. One of his clients had committed perjury, and the other had provided evidence of that perjury.

Meanwhile, a hearing on a motion to dismiss Selena’s case had been scheduled. At the hearing, the defendant’s attorney insisted the judge hear the motion to dismiss first. Selena had a strong case and thought the motion to dismiss was very weak. She wasn’t worried.

However, before she knew it, the judge had dismissed her case with prejudice. Selena never had the chance to argue her motion to disqualify.

How Might Things Have Been Better?

Things might have been better had Selena persuaded the judge to hear her motion to disqualify before hearing the motion to dismiss. The attorney couldn’t argue for dismissal if he’d been disqualified. Selena had a strong case for disqualification and her motion should’ve been heard first.

In short, she fell into the inexperience gap. She learned her lesson and will in the future know what to do in a similar situation. Unfortunately, like the typical pro se litigant, she probably will never have the chance. Lesson: When a hearing is set on multiple issues, always think through the order in which you’d prefer them to be heard. Then, be prepared to persuade the judge to do things your way.

Other Pitfalls to Watch Out For

Like the hearing scenario, the instances below are subtle. You can lose by not speaking up in court or not adequately responding to your opponent in writing. Sometimes lawyers set you up for a fall, and at others you do it to yourself. Hopefully, these will help you avoid a few subtle pitfalls.

Object to Objectionable Things

When a court case begins, the typical pro se litigant is already overwhelmed with the process. There’s so much to learn in such a short period of time that something is bound to be missed. If you can remember to speak up even if it feels awkward, you’ll save yourself a lot of heartache later.

There’s this thing called preservation of error whereby you “save” issues for use on appeal by making them issues in the case. Preservation of error is a way of giving your judge an opportunity to make a decision on an issue. Appellate courts are loathe to review issues that a lower court judge has not had an opportunity to rule on. So, when a judge makes a ruling you disagree with in a hearing, object on the record. Object also to discovery that is irrelevant, over-broad, and so on. At trial, make yourself heard. Object!

Respond Adequately to a “Strange” Motion

Sometimes a lawyer will file a strange motion that you underestimate because it looks dumb. The argument he makes is bizarre. You assume he’s making the argument because he’s desperate or doesn’t even have a case. You get cocky and file a summary response almost mocking the motion. That’s a mistake. When you respond to a motion or pleading without addressing or respecting what it said, you set yourself up to fail.

Far too often, the lawyer writing the bizarre motion wins, and you’re left wondering what happened. So, take the motion seriously. Research authorities listed by your opponent and find your own legal authorities. Then, as best you can, address all the points made.

Prepare for a Hearing Even if You Don’t Know What the Other Side Will Say

Did you know that the opposition doesn’t have to respond in writing to your motion? It’s true. Instead of responding to your motion, an attorney might simply show up at the hearing and respond orally. It’s a risk, but attorneys don’t want you to preview their case or want to baffle you. Don’t let it lead you into a pitfall. The opposition’s failure to respond in writing to your motion does not mean you win. It certainly does not mean you shouldn’t do your homework. Prepare as you normally would. Try to anticipate how the other side might respond, and develop your oral argument based on that.

Turn the Tables On Your Opponent When You See an Opportunity

On occasion, an attorney may misinterpret the law. She may cite a case that’s perfect for her client and hide it amongst other cases in her motion. The case might be the one that helps her win at a hearing. I once had an opponent cite a case from a dissenting opinion. A dissenting opinion disagrees with the majority opinion. It’s not the law. That didn’t stop the attorney from citing it in an opposition motion and attempting to argue it in court.

Read the cases your opponent cites and determine if the court ruled as she says it did. If it didn’t, be sure that the judge knows this. You should bring it to the judge’s attention in your response or at the hearing, not in a letter. The most enjoyable way to inform the judge is to wait until the attorney refers to the case in oral argument. Then you can embarrass her in open court.

Indeed there are pitfalls that pro se litigants face, but you don’t have to suffer them. Between the pitfalls listed above and the mishaps mentioned in 6 Of The Biggest Mistakes Pro Se Litigants Make, you’re well informed.

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