If you don’t prepare for your day in court, you’re preparing for an ambush. Opposing lawyers want to leapfrog over any issues favorable to you and get a quick win. The judge also wants a quick resolution of the case and will take any shortcuts to get you off the docket. Expect them both to lay traps for a naive pro se litigant.
When time allows, we visit the local courthouse to catch pro se litigants at their hearings, and we often get to interview them afterwards. Time and again, they express frustration at not being heard or taken seriously. Too often, it’s the last time they’ll get a chance to be heard because the case is over. They’ve either been dismissed out of court, or the judge has skipped the trial and ordered them to pay the other side.
There’s a shocked expression these litigants wear, like “What just happened in there?” I’ve worn that expression on my own face over the years, and it’s not pretty.
Most of us go into a hearing expecting something like a business meeting, where the judge (like a boss) will hear all sides and make the best decision. That’s not the way it works at all. In reality, the judge will side with the best argument, regardless of whether it’s right or just.
So your job is to make the best argument. Having learned the hard way, here’s how I prepare for a hearing:
- Know what’s noticed for hearing, and more importantly, what’s not. Look closely at your Notice of Hearing and re-read the relevant motions and responses on the issues scheduled to be heard.
- Be prepared to object to discussing anything that’s not noticed for hearing. To back up your objection, find and bring with you an appellate case that overturned a decision that wasn’t noticed for hearing.
- Draft a proposed order on each matter to be heard, stating the decision you want. Be prepared to hand it to the judge when he or she agrees with your position.
- Outline your oral argument. While you’ve probably already described your position in a motion or response, your oral argument need not take the same form. Anticipate the other side’s arguments and be ready to dispute them.
- Collect the legal authorities that support the points you want to make, or that oppose the other side’s points. Highlight the passages you want the judge to notice, and make copies for the judge and opposing side.
- Organize the relevant motions and responses, the outline of your notes, and your legal authorities into folders. Use a separate folder for each issue to be heard.
- If evidence is to be heard, make sure you’ve subpoenaed any necessary witnesses or filed any required affidavits. If you’re not ready for the hearing, file a motion to continue it as soon as possible.
- Practice, practice, practice. Dress in court clothes and speak in front of a mirror. Don’t bother being perfect or memorize anything because it will all come out rearranged in bits and pieces during the hearing. Just drill yourself enough to feel confident that you have the arguments ready when you need them.
- Relax. I know the outcome matters a great deal, or else you wouldn’t be there. But being stressed out and nervous will not serve you well. Pretend you’re arguing for a friend, and leave your emotions at home.
- Don’t speak to the other side during the hearing; speak only to the judge. Remember that your job is to help the judge make the right decision using a persuasive argument.
Most importantly, focus on making sure the judge understands your position. You must be prepared to politely assert yourself and to correct the judge’s misunderstandings. Bias against pro se litigants sometimes gives them thick skulls in our presence, so you may need to repeat yourself. Do so as often as necessary without losing your temper.
And by all means, if there’s no court reporter indicated on the Notice of Hearing, make sure to bring your own. You’ll find scores of them in your area for a modest fee ($75 an hour is typical).
When you’ve prepared well, all you have to do is walk into the courtroom knowing how you want the day to end, and the right words will find you.
Have you learned some lessons from a court appearance? Share in the comments below.