represent yourself in court, how to prepare and try a winning case 7th (2010)
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Attorneys Paul Bergman & Sara Berman,
authors of The Criminal Law Handbook
Represent
Yourself
in
Court
How to Prepare & Try a Winning Case
7TH EDITION
“ An excellent resource that outlines what’s involved in representing yourself
in court—from presenting evidence to the rules of cross examination.”
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Cartoons by Mike Twohy
Represent
Yourself in Court
How to Prepare & Try a Winning Case
7th edition
Seventh Edition OCTOBER 2010
Editor EMILY DOSKOW
Cover Design SUSAN PUTNEY
Cartoons MIKE TWOHY
Book Design TERRI HEARSH
Proofreading ROBERT WELLS
Index BAYSIDE INDEXING SERVICE
Printing DELTA PRINTING SOLUTIONS, INC.
Bergman, Paul, 1943-
Represent yourself in court : how to prepare & try a winning case / by Paul Bergman &
Sara Berman. 7th ed.
p. cm.
Includes index.
Summary: "From preparing paperwork to making persuasive arguments to collecting a
judgment once the case is over, readers will learn to represent themselves in all lawsuits.
Updated information includes e-discovery rules and fax fi ling procedures, enhanced
material on court assistance for pro per litigants, and advice on self-representation for
bankruptcy" Provided by publisher.
ISBN-13: 978-1-4133-1269-0 (pbk.)
ISBN-10: 1-4133-1269-1 (pbk.)
1. Trial practice United States Popular works. 2. Pro se representation United States
Popular works. I. Berman-Barrett, Sara J., 1964- II. Title.
KF8841.B47 2010
347.73'504 dc22
2010008721
Copyright © 1997, 2000, 2003, 2005, 2008, and 2010 by Paul Bergman and
Sara J. Berman. All rights reserved. The NOLO trademark is registered in the U.S. Patent
and Trademark Offi ce. Printed in the U.S.A.
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knowledgeable lawyer. If you want the help of a trained professional—and we’ll always
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to practice in your state.
Dedications
To Andrea, Kevin, Hilary, Vincent, Daniel, and Julia, and to all our readers
whose active and knowledgeable participation in courtrooms across the country
improves the American system of justice.
Acknowledgments
Our continuing gratitude to Jake Warner and Steve Elias. In a field dominated by
texts devoted to specific types of legal problems, Jake and Steve saw a need for
a book cutting across the entire spectrum of civil cases, and urged us to produce
a book that could help all pro se litigants achieve justice while helping litigants
represented by lawyers achieve effective representation by becoming “educated
clients.” Our thanks also to Mary Randolph for carrying on Nolo’s tradition of
excellence and caring. We have done our best to fulfill all of their visions by
trying to demystify the entire civil justice process.
Over the course of seven editions, we have been assisted by an array of
excellent professional editors and other creative members of the Nolo staff. We
have also benefited immensely from research assistance provided by attorneys,
UCLA Law School librarians, and UCLA Law School student research assistants, in
particular by Alyssa Thurston for this seventh edition.
Finally, for this edition we gratefully recognize the wonderful editorial
assistance provided by Emily Doskow. To the extent that we have been able to
produce a new edition that is not only up to date but also more complete and
helpful than its predecessors, we must give much of the credit to Emily, her years
of litigation experience, and her careful reading of the entire text.
Illustration Credits
Cartoons
All cartoons in this book were drawn by Mike Twohy. The following cartoons
are being reprinted with permission from the artist:
Page 8, © 1981 Mike Twohy, originally appearing in Criminal Defense.
Page 24, © 1987 Mike Twohy, originally appearing in The National Law Journal.
Page 143, © 1987 Mike Twohy, originally appearing in The Wall Street Journal.
Page 216, © 1991 Mike Twohy, originally appearing in The National Law Journal.
Page 232, © 1979 Mike Twohy.
Page 270, © 1981 Mike Twohy.
Page 296, © 1991 Mike Twohy, originally appearing in Trial Diplomacy Journal.
Page 398, © 1981 Mike Twohy, originally appearing in Medical Economics.
Page 471, © 1984 Mike Twohy, originally appearing in The National Law Journal.
Computer Drawn Illustrations
All computer drawn illustrations were done by Terri Hearsh.
Table of Contents
1
Going It Alone in Court 1
e Scope of is Book 2
Can You Really Represent Yourself? 5
Coping With Being a
Stranger in a Strange Land 6
Finding a Legal Coach 7
Using is Book 10
Trying to Settle Your Case 12
Alternatives to Trial 13
2
e Courthouse and the Courtroom 17
An Overview of Different Courts 19
A Typical Courthouse 20
e Courtroom Players 23
e Courtroom and Its Physical Layout 29
Courtroom Rules, Customs, and Etiquette 32
3
Starting Your Case 37
Do You Have a Good Case? 39
Is Your Lawsuit Timely? 42
Which Court Has the Power to Hear Your Case? 46
Beginning a Lawsuit 55
4
Pretrial Procedures 73
Know and Follow Pretrial Deadlines 74
Pretrial Conferences 75
Court-Ordered Mediation and Arbitration 75
Initial Pretrial Procedures: Setting Ground Rules 76
Intermediate Pretrial Procedures: Discovery and Motions 80
Final Pretrial Procedures: Trial Preparation 84
5
Investigating Your Case 93
Informal Investigation 94
Formal Discovery 100
Depositions 104
Written Interrogatories 120
Requests for Production of Documents and Subpoenas 125
Requests for Admissions 129
6
Settlement 133
Court-Ordered Mediation 136
Court-Ordered Arbitration 140
Offers of Judgment 142
Pretrial Settlement Conferences 142
Postsettlement Documents 145
7
Pretrial Motions 147
Overview of Pretrial Motion Practice 148
Is a Motion Necessary? 152
What Goes Into a Motion? 152
Scheduling a Court Hearing on a Pretrial Motion 154
Serving and Filing Your Documents 154
Court Hearings on Motions 155
Common Pretrial Motions 157
8
Proving Your Case at Trial:
e Plaintiff’s Perspective
183
e Elements of a Legal Claim 184
Finding the Elements of Your Claim 186
Proving Each Element 186
Your Burden of Proof 188
Identifying Facts to Prove the Elements of Your Claim 190
Looking Ahead to Trial: Organizing Your Evidence 195
Learning About Your Adversary’s Case 198
9
Proving Your Case at Trial:
e Defendant’s Perspective
199
Identifying the Elements of the Plaintiff’s Legal Claim 201
Identifying the Plaintiff’s Facts 201
Defeating Any One Element of a Claim 203
Disproving the Plaintiff’s Facts by Impeaching Witnesses 204
Proving Your Version of Events 205
Putting Defense Strategies Together 206
10
Selecting the Decision Maker 211
Are You Eligible for a Jury Trial? 212
Are You Better Off With a Judge or a Jury? 212
Your Opponent’s Right to a Jury Trial 213
Disqualifying a Judge 213
Making a Timely Request for a Jury Trial 215
e Jury Selection Process 216
Your Right to Challenge Jurors 218
What Jurors Should You Challenge? 222
What Should You Ask Prospective Jurors? 223
Alternate Jurors 226
11
Opening Statement 229
Should You Make an Opening Statement? 230
When to Make Your Opening Statement 231
Putting Together Your Opening Statement 232
What Not to Say During Your Opening Statement 234
Rehearsing and Presenting Your Opening Statement 238
Sample Opening Statement and Outline 239
12
Direct Examination 243
Direct Examination as Storytelling 244
Overview of Direct Examination Procedures 244
Preparing for Direct Examination 246
Presenting Your Own Testimony on Direct Examination 250
Questioning Witnesses 251
Hostile Witnesses 262
e Judge’s Role 264
Sample Direct Examination 265
13
Cross-Examination 269
Overview of Cross-Examination 270
Should You Cross-Examine? 272
Asking Questions on Cross-Examination 273
Eliciting Helpful Evidence 275
Impeaching AdverseWitnesses 278
Basing Questions on Evidence You Can Offer 286
What to Do If Your Witness IsImpeached 286
Preparing for Cross-Examination 287
14
Closing Argument 289
When to Deliver Your Closing Argument 290
Preparing and Rehearsing Your Closing Argument 290
Putting Together a Closing Argument 291
What Not to Say During Your Closing Argument 301
Rebuttal Argument 302
Objections During Closing 302
Sample Closing Argument and Outline 303
15
Exhibits 309
Overview of Admitting Exhibits Into Evidence 310
Step 1: Mark Your Exhibits and Show em to Your Adversary 311
Step 2: Identify (Authenticate) Your Exhibits 313
Step 3: Lay a Foundation 313
Letting Jurors See Your Exhibits 326
When Exhibits Are Required: e Best Evidence Rule 327
Objecting to Your Adversary’s Exhibits 327
Organizing Exhibits for Trial 330
16
Basic Rules of Evidence 331
Relevance 332
Excluding Relevant but Unfairly Prejudicial Evidence 334
e Rule Against Opinions 335
Rules Excluding Evidence Based on Social Policies 338
Hearsay 341
17
Making and Responding to Objections 351
Overview of Objections 352
Objections Made Before Trial: Motions in Limine 353
Making Objections During Trial 354
Responding to Your Adversary’s Objections 359
Checklist of Common Objections 363
18
Organizing a Trial Notebook 369
Setting Up Your Notebook 370
Index Tab 1: Legal Pleadings 370
Index Tab 2: Discovery Materials 371
Index Tab 3: Legal Claim Outline 372
Index Tab 4: Opening Statement Outline 372
Index Tab 5: Direct Examination Outlines 372
Index Tab 6: Cross-Examination Outlines 373
Index Tab 7: ClosingArgument Outline 374
Index Tab 8: JuryTrialDocuments 374
Index Tab 9: MiscellaneousDocuments 375
19
Expert Witnesses 377
Who Are Expert Witnesses? 378
Do You Need an Expert Witness? 378
Special Rules for ExpertWitnesses 380
Finding and Hiring an ExpertWitness 383
Questioning Your Expert Witness at Trial 387
Cross-Examining Your Opponent’s Expert Witness 394
20
When Your Trial Ends: Judgments and Appeals 397
How Final Decisions Are Made at the End of Trial 399
Requesting a New Trial or Change in the Verdict 401
Appeals 403
Collecting and Paying Judgments 407
21
Representing Yourself in Family Court 417
Formulate a Divorce Game Plan 420
Understanding the Basics of Family Law 433
Filing for Divorce 440
How Uncontested Divorces Work 443
How Contested Divorces Work 447
Modification of Support, Custody, and Visitation 453
22
Representing Yourself in Bankruptcy Court 463
e Chapter 7 Bankruptcy Process 464
Meeting of Creditors (341(a) Hearing) 467
Relief From Stay Hearing 468
Objection to Exemption Hearing 470
Discharge of Debt Hearing 472
Reaffirmation of Debt Hearing 473
Getting Help Beyond is Book 474
23
Help Beyond the Book:
People, Places, and Publications
477
What You May Want to Research 478
Sources of Information 481
Getting Help From a Lawyer 493
G
Glossary 501
Index 517
Going It Alone in Court
C H A P T E R
1
e Scope of is Book 2
Can You Really Represent Yourself? 5
Coping With Being a
Stranger in a Strange Land 6
Finding a Legal Coach 7
Using is Book 10
If Time Permits, Read rough the Entire Book 10
Use is Book in Conjunction With Local Court Rules 10
Make a Trial Notebook 12
Trying to Settle Your Case 12
Alternatives to Trial 13
Court Hearings 13
Arbitration 13
Mediation 14
Negotiation 14
Administrative Agency Hearings 15
2
|
REPRESENT YOURSELF IN COURT
T
his book provides the information
you need to prepare for trial and
represent yourself in court.
Understanding the procedures and
techniques described here will help you
present a persuasive, legally proper case
whether you are a plaintiff (meaning that you
have filed a lawsuit yourself) or a defendant
(meaning that you have been sued). Illustrated
with sample forms, pleadings, and courtroom
dialogues, the book will take you through the
litigation process step by step, from deciding
whether you have a valid legal claim or
defense to preparing an appeal if you lose.
If you had your druthers, you might prefer
to turn your case over to a trial attorney
(often called a “litigator”), who is trained to
gather and present evidence in court. But in
many common situations, it doesn’t make
economic sense to hire a lawyer. Perhaps
you find yourself in a situation like one of
the following:
•Youinjuredyourbackwhenyou
slipped on loose carpeting in an office
building you were visiting.
•Youownasmallmanufacturingbusiness
and have sued a supplier for delivering
faulty raw material.
•Yourlandlordhassuedtoevictyou
from your apartment, and you claim
that the eviction is unlawful.
•Youhaveledaclaimagainstyour
ex-spouse seeking increased child
support.
•Youareabuildingcontractorwhohas
been sued by a homeowner for using
building materials other than those
specified in a remodeling contract,
and you claim that the homeowner
asked you to modify the contract after
work was begun.
•Moneythatwaslefttoyouintrustby
your parents has been depleted by
improper investments made by the
trust company that controls the trust
assets.
In any of these instances—and count less
more—if you can’t resolve your dispute in a
friendly way, you may have to go to court to
protect your rights.
Unfortunately, with fees charged by
lawyers commonly running in excess of $150
an hour, it may not make economic sense—
or even be financially possible—for you to
hire a lawyer. Even if you win and are able
to collect what the other side owes you, the
lawyer’s fees may devour much of your gain.
As a result, representing yourself in court or
dropping your claim or defense altogether
may be your only realistic alternatives.
e Scope of is Book
This book explains rules and techniques for
preparing and trying a civil case, including
how to handle a case in family court or bank-
ruptcy court. It does not cover criminal cases.
See “Civil and Criminal Cases,” below. You
will learn how to figure out what evidence
you need to present a legally solid case,
whether you are a plaintiff or a defendant.
Among other things, you will learn:
•howtopreparetheinitialpleadings
(usually called a “complaint” or
an “answer”) that get a civil case
underway (see Chapter 3)
•howtocomplywiththeimportant
“pre trial procedures” and activities
that typically take place after the
initial pleadings but before trial (see
Chap ter 4)
CHAPTER 1|GOING IT ALONE IN COURT|3
•howtoinvestigateyourcaseand
gather evidence, using both informal
methods and formal “discovery” (see
Chapter 5)
•howtotrytosettleyourcasewithout
going to trial (see Chapter 6)
•howtoselectajuryifyouarein
volved in a jury trial (see Chapter 10)
•howtopresentyourowntestimony
and conduct direct examination of
your witnesses and cross-examination
of your adversary’s witnesses (see
Chapters 12 and 13)
•howtoapplyrulesofevidencesothat
a judge will accept your admissible
evidence and exclude your adversary’s
improper evidence (see Chapter 16)
•howtolocate,hire,andeffectivelyuse
expert witnesses (see Chapter 19)
•howtopresentapersuasiveopening
statement and closing argument (see
Chapters 11 and 14), and
•howtocomplywithcourtroom
procedural rules, such as where and
when to sit and stand (see Chapter
2), how to handle exhibits (tangible
objects like photographs and receipts)
(see Chapter 15), and how to address
the judge and opposing counsel (see
Chapters 2 and 17).
The book guides you, step by step,
through every phase of a civil trial.
Unless you are in court regularly, you
may not know how a case proceeds from
initial filing through trial. Therefore, this
book also provides you with background
information about what you will see—and
what you need to do—when you enter the
courtroom where your case will be heard.
Why Do People
Represent emselves?
e National Center for State Courts
conducted a study to find out why
more and more people are representing
themselves in court instead of hiring an
attorney. e study found that those who
represent themselves believe that:
• lawyers are too expensive
• courts and lawyers do not deliver
quality services, and
• their cases are simple enough to
handle themselves.
Analysts of civil court systems provide
additional reasons for the growth in self-
representation, including:
• people want to be in control of their
cases
• lawyers often lack good “bedside
manners” and aren’t good at
explaining to clients what is
happening with their cases
• many people distrust lawyers,
both because of negative personal
experiences and because of the
negative images of lawyers often
portrayed on TV, in books, and in
the movies, and
• legal assistance is available from
other sources, such as the Internet,
computer software, and paralegal or
other legal document providers.
(Source: M. Tebo, “Self-Serve Legal Aid,” ABA
Journal, August 2002.)
4
|
REPRESENT YOURSELF IN COURT
You will learn where to file your court
papers; how to subpoena witnesses (order
witnesses to come to court and testify); the
functions of a courthouse Clerk’s Office and
a courtroom clerk; and the powers and duties
of all the personnel who typically carry out
courthouse business, including bailiffs, court
reporters, interpreters, attorneys, jurors, and
judges.
Finally, the book devotes separate
chapters to two types of specialized court
proceedings. Chapter 21 provides information
about hearings in divorce and related family
law matters, such as spousal abuse, child
custody, child support, and spousal support.
Chapter 22 provides information for debtors
and creditors about contested hearings that
often occur in bankruptcy cases.
Family law and bankruptcy matters merit
separate chapters for a number of reasons.
Each involves specialized hearings that
you don’t find in other types of civil cases.
Also, judges usually decide these disputes
alone, without juries. And litigants frequently
Civil and Criminal Cases
is book covers only civil cases, which arise
when private citizens (including corporations
and other associations) sue each other. Criminal
trials, by contrast, occur when a state or the
federal government seeks to punish someone
for violating a criminal law. e major differ-
ences are:
• e result. Civil cases typically end with
money paid by one party to the other;
criminal cases may result in fines paid to
the government and imprisonment.
• e burden of proof. In most civil cases,
a plaintiff wins by convincing a judge or
jury by a “preponderance of evidence”
that its claim is true. In criminal cases the
prosecution must prove a defendant’s
guilt “beyond a reasonable doubt.”
• e right to a jury trial. You are
entitled to a jury in all criminal cases but
not in all civil cases. For example, you are
entitled to a jury trial in personal injury
cases but not in child custody and
spousal support cases. Also, most states
require unanimous jury verdicts in
criminal trials but agreement by only
three-fourths of the jurors in a civil case.
• e right to counsel. Defendants facing
criminal charges have the right to an
appointed lawyer, at the government’s
expense, in almost all cases. In civil
cases, plaintiffs and defendants have to
pay for their own lawyers or represent
themselves.
We have written another book that can help
if you or someone you know has been arrested or
accused of a crime and is facing possible criminal
charges. It’s called e Criminal Law Handbook:
Know Your Rights, Survive the System (Nolo).
While that handbook does not recommend
self-representation in criminal cases, it can be a
tremendous resource at a time you need solid,
trustworthy information.
CHAPTER 1|GOING IT ALONE IN COURT|5
represent themselves in both family law and
bankruptcy cases. This is especially true
in divorce court, where at least one of the
parties is self-represented in 80% of cases.
Can You Really
Represent Yourself?
Unless your case is unusually complex,
you really can represent yourself. You may
not have all the legal training of a lawyer,
but you do not need to go to law school to
have common sense, to learn how to ask
intelligent questions, or to recognize what
makes people and information believable.
In the words of Oliver Wendell Holmes, one
of the country’s most revered U.S. Supreme
Court justices, “The life of the law has not
been logic, it has been experience.” As these
words suggest, your everyday life experience
is the foundation of most of what you need
to know to present a coherent, convincing
case. Besides, as former Supreme Court Chief
Justice Warren Burger was fond of pointing
out, many lawyers are not such hotshots;
they often come to court ill-prepared and
lacking professional skills.
Nor do you need to be intimidated by the
difficulty of the law or legal reasoning. Your
trial will probably be concerned with facts,
not abstract legal issues. For the most part,
you can look up the law you need to know.
(See Chapter 23 for information on how to
do this.) Legal reasoning is not so different
from everyday rational thinking. Forget the
silly notion that you have to act or sound
like an experienced lawyer to be successful
in court. Both lawyers and nonlawyers with
extremely varied personal styles can succeed
in court. The advice to “be yourself” is as
appropriate inside the courtroom as outside.
No matter how many times you read
this book and how carefully you prepare,
you will probably feel anxious when you
represent yourself in court, especially if
your opponent has a lawyer. Perhaps it will
help you if you know that you aren’t alone.
Many professionals feel anxiety—particularly
before a first performance—whether they are
lawyers about to begin a trial, teachers about
to teach a class, or actors about to perform
on stage. So take a deep breath and gather
up your courage. As long as you combine
your common sense with the principles and
techniques described in this book, and are
not afraid to ask a court clerk, a law librarian,
an attorney, or even the judge for help if you
become confused, you should be able to
represent yourself competently and effectively.
To represent yourself successfully,
especially if your adversary has a lawyer,
you must be prepared to invest substantial
amounts of time in your case —and particu-
larly in the many pretrial procedures and
maneuvers that can mean the difference
between winning and losing. To non-
lawyers, the legal system seems to center
on the outcomes of trials. After all, that’s the
dramatic part—and the focus of so many
movies and TV shows. If you believe these
portrayals, you might think you just have to
file a few papers, tell your story to a judge,
and claim victory. (This was the belief of
Vinny, who represents two defendants
charged with murder in the wonderful court-
room comedy film, My Cousin Vinny. Vinny
shows up for an arraignment and tries to
explain to the judge that the police made a
mistake. Vinny is shocked when the judge
6
|
REPRESENT YOURSELF IN COURT
advises him that he’s not going to set aside
all of his state’s procedures just
because
Vinny finds himself “in the unique position of
representing clients who say they didn’t do it.”)
For lawyers, in contrast, the legal system is
an array of procedures that begin long before
trial (and often continue long afterwards).
In fact, few cases ever actually make it to
trial. Instead, they settle out of court—or
are dismissed—because of these pretrial
procedures. Although individually justifiable,
collectively these procedures create the
potential for adversaries to engage in lengthy
“paper wars” that you might find harrowing.
Many lawyers are fair and reasonable and
will not try to “paper you to death.” Never-
theless, you have to realize from the outset
that representing yourself effectively is likely
to require a substantial commitment of
time—even if your case never goes to trial.
Coping With Being a
Stranger in a Strange Land
Courts are public institutions belonging to the
people, and you have the right to represent
yourself there. However, courts are also
bureaucratic institutions with very heavy case-
loads. Historically, filing clerks, courtroom
clerks, court reporters, and even judges have
usually preferred to deal with lawyers rather
than with people who represent themselves.
(When you represent yourself, you may find
yourself referred to as a “pro per” or “pro
se” litigant, Latin abbreviations favored by
judges and lawyers.) Although the increasing
number of people representing themselves is
beginning to change these attitudes in some
places, many court personnel believe (often
mistakenly) that they can do their work more
quickly and easily when they work with
lawyers than when they work with people
who are representing themselves.
So even if it seems highly unfair, do not
be surprised if you encounter initial hostility
from court personnel. In your eyes, you are
an individual seeking justice and doing what
you have a right to do. But to the people
who work in courthouses every day, you
may be perceived as someone who will
make their jobs more difficult. Instead of
helping you, they may even attempt to put
obstacles in your path, hoping that you will
get discouraged and go away.
Knowing ahead of time that you may
encounter a hostile attitude is the best
weapon against it. Read and study this
book and other legal resources, many of
which are available free online or in your
local library. Learn how to prepare and
present a persuasive case and follow the
proper procedures for the Clerk’s Office
and the courtroom. If you believe that court
personnel at any level are being rude to you,
be courteous and professional in return, even
as you insist upon fair treatment. By knowing
and following court rules and courtroom
techniques, you can often earn the respect
of the judge and the others who work in the
courtroom. As a result, you may well find
that they will go out of their way to help you.
Realize too that even those lawyers who
are in their comfort zone in the court system
often get yelled at and harassed by other
lawyers, judges, and court personnel. For
many lawyers, hassles like these go with the
job, and they tend to develop a thick skin.
To survive as a stranger in this strange land,
your skin probably has to be even thicker.
CHAPTER 1|GOING IT ALONE IN COURT|7
e Changing Face of Civil Court
In the years since this book first appeared, the
number of people representing them selves in
civil court cases has continued to grow. A recent
collection of statistics by the National Center for
State Courts shows that the vast majority of family
law cases involve at least one, and often two, self-
represented parties. In California, over 4.3 million
people using the courts are self-represented; in
New Hampshire, 85% of civil cases in the trial court
involve at least one self-represented party. Many
courts report an upsurge in self-representation.
(Memorandum on Pro Se Statistics, 9/25/2006,
National Center for State Courts, available at
www.ncsconline.org/WC/publications/memos/
prosestatsmemo.htm.) Other research indicates
that at least one party was self-represented in
more than two-thirds of domestic relations cases
in California and in nearly 90% of divorce cases in
Phoenix, Arizona, and Washington, DC. (See Jona
Goldschmidt, et al., Meeting the Challenge
of Pro Se Litigation: A Report and Guidebook
for Judges and Court Managers, A Consumer
Based Approach (1998).) ese studies are
substantiated by many civil court administrators
and judges, who estimate that the number of
self-represented parties has increased by at least
50% over the past five years.
Politicians and judges have started to respond
to the growth in self-representation. For example,
some courts have created fill-in-the-blanks
court forms tailored to the types of documents
a self- represented party is most likely to need.
In other courts, “pro se advisors” are available
in the courthouse to give free advice to people
representing themselves. As a result, while you
may still feel like a stranger in a strange land,
you will not be alone—and the land won’t be as
strange as it was just a few years ago.
Finding a Legal Coach
Even if it does not make economic sense
for you to turn your entire case over to an
attorney, you may want or need to seek
occasional legal advice during the pro-
ceedings. A legal coach—someone you can
turn to on an as-needed basis—might help
you in a number of areas. For example, your
legal coach might prepare documents, shorten
the time you spend on legal research by
suggesting helpful sources, suggest evidence
that might help you establish a legal claim,
advise you of filing deadlines, and inform you
of rules and customs peculiar to your local
courts (and, therefore, beyond the reach of
this book). Throughout the book, we point
out the specific stages of a lawsuit when it
might be wise to seek help from a legal coach.
An experienced civil litigator (an attorney
who primarily works on civil lawsuits) who
is willing to work with you on a part-time
basis is generally the best choice for a legal
coach. However, you may have difficulty
finding an attorney who will agree to such an
arrangement. Traditionally, almost all litigators
took cases on an all-or-nothing basis. That
is, they assumed complete responsibility for
a case or declined representation altogether.
In part, litigators’ reluctance to help self-
represented parties is probably attributable
to fears about violating lawyers’ ethical codes
8
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REPRESENT YOURSELF IN COURT
or committing legal malpractice for giving
advice based on incomplete knowledge.
Reluctance also stems, at least to some extent,
from professional bias; many attorneys believe
that only lawyers are competent to deal with
America’s courts.
Fortunately, many lawyers’ attitudes
toward serving as a legal coach are changing.
The American Bar Association’s Standing
Committee on the Delivery of Legal Services
has sponsored conferences on “unbundling,”
which refers to providing legal advice and
services on a piecemeal basis to consumers
who are representing themselves. The
benefits of unbundling are further promoted
in the book Unbundling Legal Services, by
attorney Forrest Mosten (ABA). (Consider
asking an attorney of good will who is
nevertheless hesitant to act as a legal coach
to read that book!)
Many states allow attorneys to offer
unbundled services, sometimes referred to
as “limited representation” or “limited scope
representation.” A lawyer’s services may
include providing advice, preparing docu-
ments, and even making court appearances.
(For example, an ethics opinion issued by
the New York County Lawyers Association
states that Rule 1.2 of New York’s Rules of
Professional Conduct allows lawyers to pre-
pare court documents for pro se litigants
without disclosing their involvement to courts
or to adversaries. Rule 1.2 recognizes that
lawyers can undertake limited scope repre-
sentation.)
The scope of the lawyer’s services should
be clearly explained in a written agree-
ment. Limited scope representation should
also be reasonable under the circumstances.
For example, lawyers should be reluctant to
serve as a legal coach when legal issues are
very complex or a client has a serious dis-
ability or has suffered horrific injuries.
Some lawyers may not be familiar with
the term “legal coach.” When you are looking
for a legal coach, explain to the attorneys
you interview that you are looking for
coaching or limited scope representation, or
ask them whether they’re willing to do the
specific tasks you need, such as reviewing
documents or helping you prepare for a
court hearing or trial.
You may also be able to hire someone
other than a lawyer to be your legal coach.
Some states now allow licensed paralegals
(attorney assistants) to perform some tasks
that formerly were the exclusive domain
of lawyers. For instance, in California and
Florida, paralegals are allowed to prepare
many types of documents for self-represented
parties to file. If you are considering hiring a
CHAPTER 1|GOING IT ALONE IN COURT|9
Be Cautious When Getting Advice From Nonlawyers or the Internet
When lawyers provide substandard represen-
tation, dissatisfied clients can get help from
state disciplinary authorities and file legal
malpractice claims in court. By contrast, while
it may be cheaper and easier to get help from
a nonlawyer, the services they can provide are
limited—and it may be much more difficult to
seek redress for their mistakes. For example,
paralegals or websites may help you prepare a
document, but they can’t give you legal advice
as to whether that document is best suited to
your situation. Also, you are ultimately respon-
sible if a document provider fills out a form
incorrectly; a clerk or judge is unlikely to correct
any mistakes.
And, of course, charlatans may be waiting to
take advantage of you. An article in the August
2002 issue of the ABA Journal describes one such
ploy: A nonlawyer who provides legal assistance
may promise a self-represented party, “I can go
to court with you.” However, the party may
understand this to mean that the nonlawyer can
provide repre sentation in court, which of course
the nonlawyer cannot do. (M. Tebo, “Self-
Service Legal Aid.”)
Finally, be aware that the concept of legal
advice on the Internet is still new. Shakeouts
in the industry are likely; some websites may
disappear only to be replaced by others. Also,
remember that the risk of inaccuracy and
miscommunication may be greater when you
communicate over the Internet than when you
seek legal assistance face to face.
For all these reasons, you should always be
a cautious consumer when seeking assistance
from nonlawyers. Seek references and ask about
the nonlawyer’s background, training, and
experience. Just as important, do some research
yourself so that you have a basis for evaluating
the nonlawyer’s work.
•www.lawguru.com
•www.AllLaw.com
•www.legalzoom.com
•www.ndlaw.com,and
•www.courtinfo.ca.gov/self.help
(prepared by the California Judicial
Council. This website has extensive
articles and information on unbundling).
Before consulting a legal coach, read
through this book and your local court rules.
(Court rules are discussed and explained in
the next section of this chapter.) You may find
answers to questions that you would other-
wise pay a legal coach to answer. (For more
detailed advice about hiring and working with
an attorney as a legal coach, see Chapter 23.)
legal coach, therefore, check to see whether
paralegals are available in your area and
what services they are allowed to provide.
(We the People is the name of one business
that provides paralegal services directly to
consumers in some states.)
Legal websites may provide another
source of legal coaching. While websites such
as www.nolo.com offer loads of high-quality
legal information and tools to create many
simple forms, very few Internet companies
provide case-specific legal advice and compre-
hensive document preparation services to
people who represent them selves. Here are a
few websites that may be able to provide legal
information, form preparation, or advice:
