Myths and uncertainty about the litigation process can be detrimental to parties involved in a lawsuit, especially those representing themselves. Reliance on myths, in fact, can lead to wasted time, avoidable losses and other headaches. The best cure for uncertainty is information, and the best cure for myths is truth. So, below is my list of myths that self-represented litigants should be aware of and the truths that dispel them.
Litigation Myth #1: If I don’t keep my court date, I’ve defaulted, so there’s no hope.
Truth: Not always. There is hope. In most states, you might be able to have the default removed within a specified period of time. A default judgment is a court order that gives a win to the plaintiff because the defendant didn’t appear in court as scheduled or didn’t respond to the complaint within the time allotted. Quite often, you can have a judgment of default vacated or set aside. In some states, Georgia for instance, you can pay a small fee and “open” a default within 15 days after it has been entered. Typically, you have to present your request in writing. Look up the statute in your state that governs defaults and write a motion in light of that statute.
Litigation Myth #2: In a foreclosure case, you’re better off turning over the keys than fighting.
Truth: Rarely is this true, even in states with non-judicial foreclosures. A non-judicial foreclosure begins with a Notice of Default to the homeowner followed by a sale of the house if the alleged debt is not “cured”. The homeowner has the option to sue the lender before a sale takes place. A judicial foreclosure is a court proceeding much like any other lawsuit. It begins with a complaint. In either case, if you’ve been sued for foreclosure, you may lose whether you have an attorney or not, but how long you stay in your house is another matter. Don’t respond to the complaint/notice or simply turn over the keys, and you’re out in as little as 100 days. Respond to the complaint, and you buy time. The average Florida foreclosure, for instance, takes 890 days. Those who respond to the complaint get more time to live in their homes. During this period, they may have a chance to modify their loan, or work out a settlement, short sale or deed in lieu. In some instances, they may even have the case dismissed. Florida is a judicial state. Review the laws in your state and determine what your options are.
Litigation Myth #3: When I go to court, I will be heard with equal zeal as the other side.
Truth: Not always, especially if the other side has an attorney. Lawyers and judges often know each other, and even if they don’t, they’re in the same “club”. As a pro se litigant, you’re not. To avoid being ignored or otherwise disrespected, do your research. Your knowledge of case and statutory law will get a judge’s attention. Too, bring a court reporter. This not only makes the proceedings more formal, it serves as a check on judge and attorney behavior. Finally, tell the judge early on that you are prepared to argue the issues—even if you need to politely interrupt the back and forth between him or her and an opposing attorney.
Litigation Myth #4: If I write the judge a letter explaining everything that happened, I’ll win.
Truth: Wrong. There is probably no faster way to lose a court case than to spell it out on paper and give it to a judge in letter format and let him or her decide the outcome. In fact, it would be a miracle if the judge even read the letter. Perhaps in small claims court you can simply show up and explain what happened (similar to what takes place on TV judge shows). That doesn’t work so well in real courts. In order to communicate with the judge, you need to file proper motions and show up for hearings. Then, you’ll be heard. You may not always win, but you won’t be out on your butt before the case even gets started.
Litigation Myth #5: If the facts and the law are on my side, I’ll win.
Truth: In an ideal world, perhaps, but the US legal system is a different jackass altogether. The foreclosure debacle highlights the imbalance in today’s legal system. Homebuyers in thousands of cases have found themselves on the losing end of judgments when the law and facts are on their side. Banks and other lenders are awarded houses in foreclosure despite the fact that they don’t have the necessary or proper paperwork to support their claims. Yet, they have lots of money. More importantly, they have good attorneys. For many judges, the truth is whatever an attorney tells him or her it is. Still, hope is not lost. Read on.
Litigation Myth #6: Self-represented parties can’t win against an experienced attorney.
Truth: Wrong. Though attorneys win an overwhelming number of times against pro se litigants, they don’t win all the time. Oftentimes in litigation there are no real “winners” or “losers”. There may be a settlement or an agreement to drop the claim. In a foreclosure case, you can delay the process and stay in your home for an additional six months, year, or even 890 days. If that’s not a win, I don’t know what is. This is not to trivialize the great amount of work it takes to go to court pro se, but there is winning and there is “winning”. I’ve “won” far more judgments than I’ve lost, but for me, winning is standing up for myself in court. It’s encouraging though that, more often than you’d expect, a pro se litigant will become well armed with legal research, learn the necessary civil procedure and beat the pants off a lawyer. With that, we all win.
There you have it, my list of myths about litigation. By no means is it complete. It’s just enough to whet the appetite for now.
Sources for this article