Legal
The law is the body of rules of a society that are enforceable through a system of courts. Laws may be created by legislatures or, in common law jurisdictions, by the courts. They regulate relations between individuals (private law); between individuals and the state (public law); and between different states (international law). The word law derives from the late Old English lagu, meaning something laid down or fixed.
Laws vary widely between different countries and even, in some cases, within countries. An area in which a particular set of laws holds is called a jurisdiction.
Practice of law is typically overseen by either a government organization or independent regulating body such as a bar association, bar council, barrister society, or law society. To practice law, the regulating body must certify the practitioner. This usually entails a two or three-year program at a university faculty of law or a law school, which earns the student a Bachelor of Laws, a Bachelor of Civil Law or a Juris Doctor degree. This course of study is followed by an entrance examination (e.g. bar admission). Some countries require a further vocational qualification before a person is permitted to practise law. In the case of those wishing to become a barrister, this would lead to a Barrister-at-law degree, followed by a year's apprenticeship (sometimes known as pupillage or devilling) under the oversight of an experienced barrister (or master). Advanced law degrees are also often pursued, though they are academic degrees and are not required for the practice of law. These include a Master of Laws, a Master of Legal Studies, and a Doctor of Laws.
Basic Rules of Evidence
Any evidence offered by a party at trial is subject to certain Rules of Evidence, which dictate whether or not the evidence may be considered by the decision maker. The Federal Rules of Evidence establish admissibility rules for evidence in federal court. Each of the states has its own rules of evidence, although for the most part these shadow fairly closely the federal rules.Relevancy
Evidence must be relevant to the issue at hand. Relevancy must be shown at two levels before evidence is admitted: the evidence must be LOGICALLY relevant and LEGALLY relevant.
Evidence is logically relevant if it relates to the issues being argued in the trial and tends to prove the contentions of the party offering the evidence. Both aspects must be met for evidence to be considered for admission by the court; this requirement saves time by preventing the court, jury, and parties from having to consider information that is not particularly helpful (that does not shed light on the case and/or does not help the party offering the evidence prove their side of the argument).
Legal relevance requires that there be a legal foundation for allowing the evidence to be included in the trial. In general, all relevant evidence is admissible unless it falls under an exception. However, much evidence that seems as though it would be particularly useful to a party's case will not be allowed for lack of legal relevance. The most common example of evidence that is logically relevant but not legally relevant, and thus not admissible, is hearsay (discussed below).
Privilege
Some evidence must be excluded because the information it presents is privileged. Privileged information is that which is considered so private that it is inappropriate to allow it to be generally released. Examples of privileged information include private communications between spouses, doctor-patient communications (including psychiatrists), attorney-client communications, and conversations between people and their religious or spiritual advisors.
However, privilege is not absolute. There are many exceptions that have developed over the years because our courts have determined that the necessity of getting to the truth outweighs the reasoning behind the granting of privilege. If privilege is relevant in your particular case, be sure to check on possible exceptions that may exist.
Opinion
Witnesses who are laypeople may offer opinion testimony. However, the rules of evidence require offered opinions to be based on first-hand knowledge or perception. In other words, opinions of a general opinion of a party's character or testimony regarding perceptions of people other than the witness him- or herself are not acceptable.
Expert Testimony
Expert testimony can be very valuable because professionals are likely to be viewed as particularly trustworthy by a jury. However, this is true only if the expert projects a professional, knowledgeable demeanor; an expert who is disheveled, confused, or unable to speak clearly on the topic regarding which he/she proposes to be an expert will probably be more harmful than helpful to the party offering his/her testimony.
Expert witnesses must be qualified as experts, although the term "expert" is fairly broad. A witness may be considered an expert in his/her field by virtue of education, experience, profession, or some specialized knowledge. A degree of formal designation is not required for one to be considered an expert: for example, a long-time mechanic may be considered an expert on automobiles.
Hearsay
Hearsay is the trickiest part of the evidentiary aspect of a trial. Hearsay is evidence that is offered for the truth it asserts, but is not admissible because it represents information from a source too far removed from the trial itself. For example, a witness may testify to something he/she experienced personally; however testimony regarding what a neighbor told the witness the neighbor saw is hearsay and is not admissible.
There are many rules regarding hearsay and many exceptions to those rules. If any evidence a party wishes to offer is not clearly first-hand information with a readily-ascertainable source, the rules should be carefully reviewed to ensure that an offer of the evidence is not in violation of the applicable rules of evidence.
Physical Evidence
Photographs, records, graphs, charts, maps, and so on are all considered documentary evidence. In contrast, physical evidence is an actual, tangible object offered as illustration of a fact presented by a party. For example, a diagram or photograph of a malfunctioning steering wheel is documentary evidence; the actual steering wheel involved in a given accident is physical evidence.
Physical evidence must be carefully authenticated: that is, there must be corroborative proof of some sort, usually testimony of someone familiar with the physical evidence, to identify the evidence as what the party alleges it is and in the same condition as when the physical object was involved in the occurrence that led to the controversy at hand. Authentication and identification can be accomplished either through the testimony of an expert familiar with physical objects of the variety offered into evidence or the testimony of a layperson familiar with the particular object.
Closing Argument
The closing argument, like the opening argument, is extremely important to a party's case. It is a chance to recap all of the positive points established during the course of the trial, to explain (and, ideally, diminish the importance of) anything negative suggested by the opposition, and to make a final appeal to the judge or jury on one's behalf.In a trial where it appears one party will clearly be successful, the opening argument is important to the prevailing party to secure for the decision maker the correctness of deciding in their favor, and to the non-prevailing party as a final plea to the decision maker to consider their side of the argument. Where at the conclusion of trial the respective likelihoods of success of the parties are not clearly established, closing arguments are particularly important as they are a final opportunity to sway the decision of the decision maker.
Content
A closing argument should include a reminder of all evidence helpful to a party's case, brought together in a cohesive and persuasive manner to establish that the party's position in the lawsuit is the correct one. Take this time to also remind the decision maker that this is what you told them you were going to prove at the outset. If you cannot make this declaration then you are in trouble!
In a jury trial, the closing argument is a good opportunity to remind the jury of the applicable standard of proof, or how much the plaintiff must prove to prevail against the defendant. This is crucial, because there are instances when the evidence presented by both sides carries equal weight, and the slightest push will skew the case in favor of one party or the other.
The closing statement should conclude with a strong, confident statement about why the law as applied to the facts proven by the party dictates a decision for that party. It is imperative that you also ask the jury to return a verdict in your favor. This may seem like a very simple tip, but it is the most important part of a successful closing.
Demeanor
The closing statement is the last opportunity for a party to present not just his/her position in the case to the judge or jury, but also to present him- or herself as a person. Juries, especially, are affected by parties' physical demeanor and the way they present themselves.
Nervousness is an understandable emotion, particularly during the "last chance" stage of a closing argument, but a nervous demeanor does not inspire confidence or trust in a jury. A party must appear sure of their position and confident of their success.
A kind and non-argumentative approach is also important. The jury will leave to deliberate with an impression of a party that is largely shaped by what how the party appears and what he/she says during their closing statement. A eager, complete, confident, and honest presentation is more likely to make the jury sympathetic to a parties' case and to influence the jury to return a decision in favor of the party.
Language
In a jury trial, the closing argument should be presented in clear, easy-to-understand terms. The goal is for the jury to leave the courtroom for deliberations with a clear picture of what the evidence is and which party it favors.
Limits
Although a closing argument should be convincing, clear, and impassioned, it is NOT appropriate to set forth personal beliefs during this time. Personal opinions are not only legally unallowable, they are likely to make the party offering them look desperate and incompetent.
It is important to stick to the evidence presented at trial, the applicable law, and the rational relationship between the two. For example, it is useful to point out any inconsistencies in the testimony of opposition witnesses, but it is not appropriate to call a witness or a party for whom that witness testified a liar. Strong evidence stands alone; injecting personal disdain into a closing argument is likely to drive the jury away.
Golden Rule
The "Golden Rule" is a rule that prohibits a plaintiff (or his/her attorney) from requesting that the jury put itself "in the position of" the plaintiff when deciding what damages to award should the plaintiff emerge victorious.
This approach may seem tempting, but is absolutely forbidden; every person is different, and suggesting such a consideration to a jury may result in biasing the jury toward awarding more or less than the plaintiff's case actually warrants. If a plaintiff or his/her attorney does pose a similar consideration, the defense should object immediately.
It is, however, permissible to ask the jury to consider the plaintiff's damages, as long as it is clear that the consideration should apply to the specific plaintiff, NOT to a jury member in the same position as the plaintiff. To ensure that no violation of the Golden Rule occurs, closing arguments should be phrased in terms of the plaintiff specifically, or in terms of a "reasonable person" or the general public.
Cross-Examination
Cross-examination is the process of questioning witnesses called to the stand during trial by the opposing party. The structure at trial is typically as follows: First, the plaintiff calls a witness and proceeds with direct examination; next, the defendant has an opportunity to cross-examine the witness. This happens with each of plaintiff's witnesses. Following the plaintiff's case, the defendant calls his/her own witnesses to testify, and proceeds with a direct examination of each. The plaintiff has an opportunity to cross-examine each individual defense witness.
Cross-examination may also be followed by a redirect or re-examination. Redirect is the process by which a party again questions their own witness, following their own direct examination and their opponent's cross-examination of said witness, to strengthen their point, reemphasize certain points brought up in the initial direct examination, or to rehabilitate a witness whose credibility has been attacked by the opposing party on cross-examination.
Scope
The scope of questioning on cross-examination refers to the limits placed upon the party doing the questioning. In general, the scope of cross-examination is limited to information revealed during the course of direct examination. In other words, the cross-examining party is not allowed to ask questions about new topics unrelated to those facts established by the opposition during direct examination.
Cross-examination is intended to either dispute the truth of the evidence offered through direct examination or to attack the credibility of the witness offering the evidence. Many times cross-examination is used by attorneys to push witnesses and try to create tension which may result in the decision maker taking a closer look at the witnesses credibility.
Leading Questions
Unlike on direct examination, leading questions usually ARE permitted on cross-examination. This is because the witness being cross-examined, being a witness testifying at the request of the questioner's opponent, is more likely to be sympathetic to and/or cooperative with the opposing party. Leading questions may thus be necessary to get complete, truthful answers.
Weakening the Opponent's Case
The main goal of cross-examination is to attack the case presented by one's opponent. There are several ways in which to accomplish this goal, and thus strengthen one's own case:
Witness Bias
Much of the work towards presenting a successful trial, including effective cross-examination, occurs before the trial begins. Witnesses that will be called by one's opponent are, for the most part, revealed during the discovery process prior to trial. It is then useful to discover any information that may be used to attack the integrity or honesty of an opposition witness.
Attacking a person's character directly is frowned upon by courts, but genuine, concrete evidence of a person's inability to testify in an unbiased, impartial way is not only allowable but imperative to weakening an opponent's case. Helpful information that could serve to demonstrate witness bias may include a special relationship: for example, that the witness is a friend, relative, or colleague of the opposing party, or that the witness has some sort of interest ”financial or otherwise” in seeing the opposing party prevail.
Witness Incapability
Cross-examination may be used to show that a witness' testimony is unreliable, even if the witness is not clearly biased toward the opposing party. For example, one may be able to prove that an eyewitness was not in a position to offer truly accurate and reliable evidence: poor eyesight but no glasses, an obstructed view of events, etc.
It is also possible to appeal to the judge or jury's common sense by playing up the improbability or even impossibility of a sequence of events occurring in the way an opposition witness claims. Parties must remain sensitive to potential hearsay, or evidence offered for the truth of what it asserts but based on second-secondhand (or even further removed) information rather than direct experience.
Inconsistent Statements
Inconsistent statements are an extremely useful tool that may be used on cross-examination to discredit an opposition witness. Many times, witnesses will have made a previous statement prior to trial, as in a deposition, signed statement to police, or answers to interrogatories. Parties should have such documents readily available at trial. If a witness responds to any question on cross-examination in a way that is inconsistent with a previous statement he/she made, their credibility is severely damaged before the decision maker.
Impeachment
Impeaching a witness is NOT the same as discrediting him/her, as described above. Impeachment during cross-examination is essentially catching the witness in a lie. If the witness testifies one way, and the cross-examining party has concrete evidence to show that the testimony is a lie, the witness will be impeached, branded as a liar by the court. Impeachment of an opposition is very helpful to a party, as it not only serves to cause the decision maker to question everything that witness professes, but also to potentially become disillusioned with the opposing party, which chose to put an untruthful witness on the stand to testify.
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Defendant's Perspective
In a civil trial, the defendant is the person who the plaintiff alleges is liable to the plaintiff for the plaintiff's damages: that is, the person who caused the plaintiff's harm. The terms "defendant" and "respondent" are often used interchangeably in civil trials. "Respondent" refers to the defendant's duty to respond to the complaint issued to him/her by the plaintiff.
In many instances, lawsuits are decided before trial, as is the case with settlement. If this is the case, the defendant and plaintiff may never meet; negotiations may be conducted and legal paperwork exchanged via mail, email, etc. Even if a case proceeds to trial, if defendant is represented by an attorney, he/she may not be required to appear in court. This is in contrast to a criminal trial, at which the defendant has the right to "confront" his/her accuser, and thus the parties are usually both present in the courtroom.
Burden of Proof
The plaintiff commonly has the BURDEN OF PROOF with respect to his/her complaint, and is responsible for persuading the judge, jury, or other decisionmaker that he/she should prevail in the lawsuit over the defendant. It is the plaintiff's role to prove that the defendant is liable, rather than the defendant's role to prove he/she is free of liability. The defendant can often sit back and wait for the plaintiff to introduce proof of liability. In some cases, after the plaintiff has rested, the defendant need only ask the judge to issue a directed verdict because the plaintiff has failed to prove all the elements of their case.
Affirmative Defenses
Occasionally, the burden of proof may "shift" to the defendant. Affirmative defenses are a defendant's arguments that although he/she was admittedly at fault for the harm alleged by the plaintiff in the lawsuit, liability should be for some reason limited or excused.
Examples of affirmative defenses include:
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Assumption of Risk: the plaintiff took a known risk and was thereby injured
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Duress: the defendant acted only because he/she was threatened with death or bodily injury
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Contributory Negligence: the plaintiff contributed to his/her own harm
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Statute of Frauds: certain agreements are legally required to be in writing and to meet certain specifications; an agreement that does not meet the legal standards may be unenforceable
Timing is critical in every lawsuit, and is an aspect that defendants must pay particularly close attention to.
First, upon receipt of a complaint from a plaintiff, there is a time frame during which the defendant must provide his/her response (or answer). It is important to be aware of what that time frame is to ensure the defendant does not wait too long and risk a finding that he/she is in DEFAULT. A default entry against a defendant means that, unless the defendant has a strong excuse, judgment in the lawsuit will be in favor of the plaintiff.
Second, when preparing a defense to a plaintiff's complaint, a defendant must be alert to any applicable STATUTE OF LIMITATIONS. If a plaintiff has waited too long to file a claim following the alleged harm, the defendant may be off the hook, even if he/she would be otherwise liable; citing a statute of limitations that has run can save a defendant a good deal of time, money, and effort.
Finally, if defendant is found liable, he/she should be cognizant of the requirements of the judgment. For example, if the defendant is required to pay money to the plaintiff in installments, those installments should be paid in a timely fashion to avoid the possibility of being held in CONTEMPT of court. If a court finds that a defendant is in contempt, it may impose sanctions, or further punishments.
Emotional Perspective
Some defendants know to expect a complaint to be filed by someone they have harmed in some way; others are taken by surprise when they receive a complaint and summons. Nobody likes to be sued and have to defend oneself, and depending on the lawsuit, a defendant may need to prepare for a judgment against him/her that could require high costs.
Defendants should also be prepared to suffer from a stigma. Those found liable for alleged damages are frequently viewed not only as "losers" in the lawsuit, but also as social losers whose actions make them reprehensible to others. Even defendants who ultimately prevail in lawsuits may be faced with some social stigma for the mere reason of being involved in a lawsuit at all.
Some defendants are able to separate themselves from the personal aspect of a lawsuit. However certain subject matter can be more difficult to deal with; for example, torts that result in financial losses are less likely to take an emotional toll than those that lead to physical harm to a plaintiff.
Defendants must be prepared for the emotional rollercoaster that accompanies a lawsuit, from initial receipt of the summons and the plaintiff's complaint to the final resolution of the case.
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Direct Examination
A party to a lawsuit can only be successful in a trial if he/she proves the necessary elements of their case. The law requires that the facts and information offered be proven to be true to the satisfaction of the decision maker. One of the main ways to present evidence that supports the facts of one's case is direct examination. Direct examination is the process of questioning one's own witnesses, people who will produce testimony that supports the facts the party is claiming are true. This is in contrast to cross-examination, which is the process of asking questions of the opposing party's witnesses to weaken the opposition's case (by weakening the impact of any statements made by the opposition's witnesses or by attacking the credibility of a witness him- or herself).
Witnesses
Different witnesses will serve different purposes in establishing one's case in a court. Eyewitnesses may be members of the general public who actually saw the events transpire that led to the damages claimed by the plaintiff. Some witnesses may be provided to verify that other evidence, such as pictures, diagrams, or records, are authentic. Others may be professionals who describe the events at issue from the perspective of their professional duties: for example, a police officer at the scene of a car accident.
Because direct examination involves the questioning of one's own witnesses, it is important to ensure that each witness whose testimony will be offered will indeed be helpful to a party's case, and that the party is aware of what the party will say. It is useful to prepare with a witness prior to trial, so that the witness knows what questions to expect and the questioning party knows what answers the witness will offer.
Questioning
Several key points are important to remember when questioning witnesses on direct examination:
- Courtesy: regardless of one's personal feelings toward a witness, it is essential to remember that witness responses can mean the difference between winning and losing the lawsuit judgment; thus each witness should be treated politely and courteously
- Non-Argumentative Questioning: arguing with a witness will both lessen the likelihood that the witness will offer anything helpful to one's case (and may, in fact, damage one's case), and will make the argumentative questioning party appear crude and unsympathetic to the decisionmaker
- Physical Demeanor: the party questioning the witness should stand during the course of direct examination, but should never approach the witness stand unless permission is asked for from the judge and granted
- End of Questioning: it is important to recognize when to stop questioning: if a witness is not providing the answers a party desires, at some point the direct examination becomes no longer helpful, and instead wears on the energy and patience of the witness, the parties, the judge, and the jury; when the cross examination is at a stopping point, one should announce "no more questions" and return to their table
On direct examination, a party may NOT ask LEADING QUESTIONS. Leading questions are those that suggest an answer, and are forbidden because the law requires that a witness answer questions honestly and to the extent of their knowledge, rather than pushing for an answer favorable to a party's argument. For example, a leading question may be phrased, "You were at the plaintiff's house on Monday, weren't you?" The appropriate way to pose the same inquiry is, instead, "Where were you on Monday night?"
One exception to this bar on leading questions is in the event of a HOSTILE WITNESS. Such a witness is hostile to the questioner's side of the case and be unwilling to cooperate fully and answer questions responsively and honestly. A party who will be calling a hostile witness to the stand to testify must request that the court declare the witness hostile; if the court does so, leading questions are acceptable if necessary.
Other exceptions to rule, where leading questions are acceptable, include:
- Preliminary Matters: a witness' name, address, profession, and similar background questions
- Undisputed Facts: for facts that have already been proven, leading questions may be posed to merely solidify the veracity of such facts
- Special Witnesses: if a witness has difficulty speaking, or if the witness is a child or a person with limited mental capacity, the court may allow leading questions to elicit a response that is helpful to the case at hand
- Refreshing Recollection: if it is established that a witness knows the answer to a question being asked but the witness is having difficulty remembering a precise name or address or date, a leading question may provide a "push" to refresh the memory of the witness
Of course, on rare occasions the sides can agree to allow leading questions of the witnesses. This is often for ancillary witnesses that are not called for testimony on any highly disputed issues.
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Exhibits
Every lawsuit revolves around evidence, which is used to prove the contentions of the respective parties involved in a lawsuit. Evidence may be presented through witness testimony, or through EXHIBITS—tangible, physical representations of proof of facts asserted by a party.Exhibits can be anything from financial records to police reports, photographs to pie charts. What type of exhibit will be most effective depends in large part on the type of lawsuit at issue, and there are rules regarding exhibits that must be followed precisely in order for exhibits to be admitted for consideration during trial. Note that jurisdictions vary regarding the procedure for incorporating exhibits into trial, so rules specific to a given court must be ascertained in advance.
Exhibit List
Each party must submit to the clerk of the applicable court, within the time frame required by the court, a list of exhibits that he/she intends to offer in support of his/her position. A copy of this list is also required to be sent to the opposing party. The legal system is not fond of surprises, so if exhibits are added or changed prior to the commencement of trial, the opposing party must be notified of such additions and changes.
A court will usually have available a standard form on which a party lists their exhibit information. This information typically includes the party’s name and contact information (and that of the party’s attorney, if applicable), the label (for example, a number or letter) assigned to the exhibit, and a brief description of the exhibit. There will also be sections on the form for court use, including a place for the clerk of the court to sign acknowledgement of receipt of the exhibit list.
Form of Exhibits
Courts often have a list of requirements that exhibits must meet to be acceptable for trial. Such requirements differ, so it is best to contact the clerk of the applicable court for specific information.
Regardless of the specific court requirements, all exhibits should be neatly prepared and well-organized. Courts favor ordered, legible, easy-to-understand exhibits, and juries likewise are more likely to favor a well-presented exhibit that obviously was given careful attention than a haphazard, thrown-together mess.
Parties should ensure that exhibits are clear in what evidence they are trying to establish. It is important to avoid too much extraneous information that can serve only to confuse the decisionmaker and potentially irritate anyone who is viewing the exhibit in an effort to extract specific information important to the case at hand.
Types of Exhibits
Exhibits can be presented in almost infinite forms. Outlined here are a few of the more common types of exhibits, and suggestions for making them as useful as possible.
Photographs
Photographs are particularly helpful in jury trials because they are simple to understand and because the jury can immediately see the fact that is being established, without having to wade through words or numbers. Photographs should be as clear as possible, and should be enlarged or focused as needed to eliminate excess information that could confuse or distract the viewer.
Submitting a photograph as an exhibit requires that the submitting party establish the accuracy of the representation. Accuracy is established most commonly through the testimony of a witness familiar with the scene. This does NOT mean that a witness must have actually been present at the scene in the photograph at the time of the occurrence at issue; only that the witness is able to say credibly that the photograph accurately depicts the location.
As an example, consider a car accident: plaintiff may desire to show that defendant ran a stop sign, and offers as an exhibit a photograph of the intersection at which the accident occurred. A witness such as a homeowner near the intersection can corroborate the accuracy of the photograph without having been present at the intersection when the accident occurred—it is sufficient for the witness to testify that the stop sign is indeed located where it is depicted in the offered photograph.
Graphs and Charts
Graphs and charts are frequently helpful as exhibits to demonstrate trends and other numerical statistics. The problem with such representations is that not everyone is savvy enough with regard to mathematics and statistics to interpret them correctly. It is thus important that what a given graph or chart signifies is clearly explained to a jury to ensure there is no confusion. The advantage of a graphical representation is that many people have an easier time comprehending such a visual illustration than they do interpreting the pure numerical values that are actually represented.
Records
Many different kinds of records can be used as exhibits. Some of the possibilities include:
- Financial records and receipts
- Personal correspondence and written memoranda
- Audio or visual recordings
- Business records and timesheets
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Expert Witnesses
Witnesses used to establish one’s case can be of various types. One kind of witness is an EXPERT WITNESS—someone who is an expert in their field. A witness can be an expert witness by virtue of educational credentials, professional experience, or special knowledge regarding a particular matter that is beyond that of an average person.Education
A witness may be considered a witness due to their educational credentials. For example, someone with a Ph.D. in engineering could be used as an expert witness for engineering issues, and an attorney with a J.D. could be used as an expert witness for legal issues.
Professional Experience
Even without a particular educational credential, a witness may be considered a witness based on experience. An automobile mechanic may not have extensive education, but years of working with automobiles may be sufficient to qualify him/her as an expert on automobile-related issues. However, it is best for your case to make sure that the particular expert you call has at least a somewhat impressive educational background to back up their professional experiences.
Special Knowledge
In some instances, a witness may be considered an expert in a field in which they have special knowledge. For example, a native speaker of a particular language can be used as an expert for purposes of translating that language, even though the witness may not have an educational credential in the language or professional experience in translation.
Using an Expert Witness
Either party can utilize an expert witness to assist in the presentation of their case, so long as that party establishes clearly what makes the witness qualified as an expert. In addition, the judge can in some cases request an expert, either one provided by one of the parties or an impartial, independent expert, to provide more complete knowledge about some aspect of the case before the court.
Selecting an Expert
An expert must appear trustworthy and inspire confidence in the decisionmaker that what he/she says is true and knowledgeable. The expert must appear professional in dress, demeanor, and speech. In addition, it is crucial that an expert not overuse industry lingo—highly-technical or overly-specific terms and descriptions. Jurors (and judges) may not be in a position to understand such language, and jargon will only serve to confuse and confound.
Testifying vs. Non-Testifying Experts
Experts will not always testify at trial. In some cases, an expert may be used only to provide parties and/or the court with additional information, and will not appear in court. Rules regarding expert witnesses differ depending on whether they do or do not testify at trial.
Non-Testifying Experts
A party can hire an expert to help with the evaluation of some part of their case. For example, one may consult a mechanic to get an expert evaluation of a problem with an automobile, and may use that information to help formulate one’s case—but not have the expert present at trial.
Non-testifying experts are not subject to the discovery process; in other words, if an expert will not testify at trial, he/she and his/her information need not be provided to the opposing party in response to interrogatories or requests for production of documents.
Testifying Experts
If an expert will be a witness at trial, his/her identity and any information provided to the party engaging the expert must be disclosed to the opposing party. All documents provided by the expert must be turned over upon request during the discovery process; the goal is to ease the burden on a party of gathering information that has already been acquired by the party engaging the expert.
Finding the Right Expert
There are numerous ways to find an appropriate expert. It is easy to search online or in a library’s print resources. The local bar association may have a list of recommended experts, categorized by subject matter of expertise. Word of mouth is also useful—everybody knows somebody, and colleagues, friends, and family may know of someone who is qualified to act as an expert on a particular matter.
It is important to carefully review an expert’s credentials, experience, and history of acting as an expert witness. Beware of experts whose sole profession is to testify at trial; such people may be seen as being involved for money only rather than in the interest of justice, and the credibility of the information they provide could be viewed as questionable.
Finally, be aware that most experts will charge a fee for their time in trial and in preparation, as well as the use of their knowledge and experience. A payment agreement should be prepared to clearly lay out the duties of the expert (preparation for and appearance at trial) and the amount the party engaging the expert is expected to pay for the services provided. Agreements to pay contingent on the outcome of the trial are NOT allowed, and are unenforceable in all courts.
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Getting Help From Lawyers: Hiring A Lawyer
Self-representation may be an attractive option for a party to a lawsuit because of the avoidance of the expense of attorney fees. Sometimes, a case is simple enough that it is relatively easy to self-represent effectively. In fact, the typical small claims case is almost always prosecuted pro se because the cost of hiring an attorney is not cost effective. The small claims system in most states is actually set up for such an arrangement because most such cases would never be brought if an attorney had to be hired to represent the client in court. For more complex cases, one may have no other choice but to hire an attorney. Although attorney fees can, indeed, be high, the time saved by not having to represent oneself and the valuable expertise and familiarity with the court system that an attorney can provide are usually worthwhile.
Attorney fees vary greatly, depending upon the location and the subject matter and complexity of a given case. Note that there is at least some correlation between an attorney’s reputation and his/her rates—a good attorney with a strong record of success will be in higher demand and thus can afford to charge clients more.
Costs are established during an initial meeting with an attorney. Most attorneys have standard fees that they charge per hour of work, which includes all communications and meetings with a client, work on the client’s behalf, and presence at a trial. Some attorneys will be willing to negotiate a reduced fee if a case is of particular interest to them and the client is unable to pay the regular rate.
In some cases, attorneys work on “contingency.†This means that they charge a client based on some percentage of that client’s recovery in a lawsuit. This is common especially in personal injury lawsuits; an attorney may be paid some percentage of the damages recovered by the plaintiff he/she represents, which means that if the plaintiff is not successful and recovers nothing, the attorney also is not paid. Contingency fees vary, but are commonly 20-40% of recovery.
Many attorneys also will charge a “retainer.†This is an up-front payment that represents what the attorney believes it will cost to represent a client in a case, but is an estimate only. If the actual costs are less than the retainer, the balance will be returned to the client; if the costs are higher, the client may be required to pay the balance owed.
A few options are available to persons who need legal services but who cannot afford an attorney, including legal service clinics, law school clinics, and pro bono representation.
Numerous resources exist for finding an attorney. The yellow pages for every city or county list area attorneys; this information is also available online. More reliable sources include the state bar, which in most states includes a referral service, and personal references from friends, family, colleagues, or professional resources (doctor, CPA, another attorney, etc.).
Not all attorneys practice all kinds of law regularly, so it is important to find an attorney who is familiar with the type of legal issue one is involved in. Attorney specializations may include bankruptcy, commercial law, criminal law, labor and employment matters, family law, real estate, or personal injury.
The first meeting with an attorney is an “initial consultation.†Some attorneys offer this first consultation for free, but remember that if an attorney explains that he/she charges for that time, the potential client is obligated to pay, even if he/she chooses not to hire that attorney.
A party should talk with the attorney to establish what is to be expected during the collaboration and also to get a feeling for how comfortable he/she is with the attorney. The most competent attorney will not be the right fit for a client who does not feel comfortable with him/her.
In order to effectively represent a client, an attorney must have all information; because complete and honest disclosure is a must, a client who has any doubts at all about his ability to trust the attorney with personal matters should move on to a different attorney.
It is also imperative to gather information about the attorney to determine if he/she can effectively represent one’s specific needs. Important points of discussion include the expected length of time for resolution of the issue; how many similar cases the attorney has handled and with what rate of success; whether any other professionals will be involved in the work; and how frequently and by what means the client and attorney will communicate.
After a client has established that an attorney is the right one for him/her to retain, the client and attorney will enter into an agreement that describes clearly what the scope of representation will be, at what rate the attorney will be paid, and any other terms important to the attorney’s representation of the client.
Going it Alone in the Court
Representing oneself in court is called pro se (for himself) or pro per (for oneself) representation. Anyone considering this approach should be aware that self-representation requires patience and hard work. In almost all courts the judge will give a person acting pro se certain leeway with regard to the procedures and decorum of the tribunal. However, it is the very rare judge who will go out of their way or expend much more effort than absolutely necessary to help such a person with the particulars of their case.
The Court
The first step is determining in which court one should file their complaint (see “Filing a Complaint,†below). Different courts handle different matters. Federal courts handle only specific cases, including those involving federal issues or disputes between parties from different states.
State courts handle most cases. State courts typically have a general civil division as well as specific divisions to handle family law, small claims, criminal issues, and probate (wills, trusts, and estates).
Filing a Complaint
The first thing the plaintiff (the person suing) must do is to file a COMPLAINT, the document that describes the reason for the suit, including alleged facts and the law on which the suit is based. The complaint involves allegations only, so proof is not required in this document.
The complaint is filed with the clerk of the court. The clerk will be able to tell you how many copies are necessary, the amount of the filing fee, and any other requirements.
The Answer
The defendant (the person being sued) files an ANSWER within the time indicated by the summons. In the answer, the defendant answers each numbered allegation by admitting or denying each. If the defendant fails to deny an allegation, the court will deem the statement true. An answer need not be formally filed with the court; it is sufficient to return the answer to the plaintiff or his/her attorney.
The defendant also has the option of filing a MOTION challenging the plaintiff’s suit. Common motions include challenges to the court in which the complaint was filed or the manner in which the complaint and summons were served. Motions may be filed without first providing an answer to the plaintiff’s complaint.
Additionally, a defendant may file a COUNTERCLAIM within the answer, which is an allegation that the plaintiff was in fact at fault.
Amending a Complaint
If it is necessary to amend a complaint, a new document must be filed in the same manner the initial complaint. This should be titled “Amended Complaint†and incorporate the necessary changes. Courts have time limits for how long a party has to file an amended complaint; consult the clerk of the court.
Discovery
Self-representation will require the party to remain vigilant about discovery, or the process of gathering all relevant information to assist in one’s case. Depending on whether one’s opponent is or is not represented by an attorney, the information received from the opponent may be well-organized and complete or haphazard and incomplete.
Organization
Attorneys are taught to be organized, since the cases they represent are their very livelihood. A non-attorney involved in a lawsuit who chooses to self-represent should be prepared for the fact that a lawsuit often involves great volumes of evidence, documents, and so on, and nothing should be considered unimportant. An organized system of storage will be extremely helpful in saving time and preserving emotional well-being.
Expense
Lawsuits can be expensive. Preparation costs money, courts charge filing fees, and involvement in a trial may require taking time off from income-producing work. It may seem desirable to save the money that would go to attorney fees by representing oneself, and in come cases the savings will indeed materialize.
However, note that an attorney is experienced in the processes and intricacies of lawsuits, and thus will be able to work efficiently. Attorneys are also in a position to know and to advise their clients how to cut costs. The savings, in terms of time, stress, and money, of hiring an attorney should be weighed seriously against the potential benefits of representing oneself to ensure that the savings are truly worthwhile.
Advice
There are numerous resources available to assist one in determining whether or not they can expect to successfully self-represent, or whether they should hire an attorney to represent them. Courts and state bar associations frequently provide self-representation tools such as checklists to determine whether, based on the complexity of one’s issue, self-representation is in the best interest of the party.
Many attorneys offer free initial consultations, or meetings in which one can present one’s case and seek information as to how the attorney would proceed with representation. Such consultations can be incredibly useful for a party to get a sense of how complex a lawsuit will be, how much time it will require, the expense involved in hiring an attorney, and, ultimately, whether or not to retain an attorney, or to go it alone.
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Investigating Your Case
After pleadings have been filed in a lawsuit, DISCOVERY begins. Discovery is the process of gathering facts and evidence for your case. Some information that seems trivial may prove to be very valuable, so it is important to document everything one learns during the discovery process.
Information may include background information, information about the facts of the case, names and contact information, of people who are involved or who may have additional information, documents, and almost anything else that sheds light on the case.
The RULES OF EVIDENCE limit what evidence can be presented in court, but the discovery process can yield information that may be helpful and informative even if is not ultimately allowed at trial. Therefore, the discovery process should be as complete and thorough as possible.
Some information that would be helpful to a case may be unavailable because it is “privileged.†Privileged information is that which is for any number of reasons protected from being disclosed to the opposing party in the lawsuit. Rules of privilege vary from state to state. However, the following generally apply:
- Spousal Communications—conversations between husband and wife are often privileged; the idea is to protect the spousal bond and marital privacy
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Doctor-Patient Communications—in many instances, information exchanged between a person and his/her doctor (including psychiatrists and psychologists), as well as medical files, are privileged to protect a person’s intimate privacy; an exception may apply where the lawsuit involves a personal injury claim or when a doctor’s examination is of a party at the request of the opposing party, as with a court-approved INDEPENDENT MEDICAL EXAMINATION (see below)
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Communications with Religious Counselors—conversations with priests, rabbis, and other religious counselors are typically privileged; the religious counselor is morally obligated to keep in confidence any information disclosed to him/her during a private consultation
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Financial Information—rules vary from state to state, but some financial records may be privileged, depending on the nature of the lawsuit and the type of records involved
Gathering Information
Information that is not privileged can be gathered directly from the opposing party. In an effort to save time and money, courts usually require that basic information be exchanged among parties at the outset.
Additional information can be obtained through a number of devices, including:
- Request for Production of Documents—written request for any documents that may help a party prove their case; examples include police reports, business records, receipts, correspondence, and any other applicable documentation
- Request for Admissions—written statements that the other party must, under oath, admit or deny; this time-saving approach eliminates the need to prove certain obvious facts or the authenticity of documents
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Interrogatories—questions sent to the other party to answer truthfully; these answers may become part of the testimony used in the case, and must be answered honestly and completely, but it is important to limit answers to the scope of the actual questions and not offer extraneous information that could ultimately prove harmful to one’s case
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Depositions—interviews with witnesses or any other sources of information relevant to the case; depositions allow parties to learn what witnesses will say in their court testimony and to gauge a witness’ credibility and demeanor; all parties may be present at a single deposition of a witness
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Independent Medical Examinations—medical examinations by a doctor who is unbiased and uninvolved with any party to the case and who has not previously treated the person undergoing the examination; such examinations are rare but are occasionally performed when the physical condition of a party is at issue (as in personal injury cases)
If problems arise during the discovery process, parties may file one of a number of motions designed to resolve the issue. Commonly-used motions include:
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Motion for More Responsive Answers—request more complete or more responsive answers than those provided; must be accompanied by documentation of discovery requests, actual responses, and explanations of reasons why responses are inadequate
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Motion to Quash—request for relief from having to answer certain interrogatories or provide certain documentation on the basis that such information is privileged
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Motion to Seal Matters Produced Upon Discovery—request that any protected information that a judge allows the opposing party to obtain be “sealed†(limited in use to informing the requesting party, but not otherwise released)
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Legal research: How, Where?
Many lawsuits will involve conducting some legal research. The sources of legal information are many, some more reliable than others, and varying widely in their usefulness to a particular issue. The one thing to always remember when conducting legal research is that if the research is not reliable it is useless to you. If you should happen to find a case that supports your theory of liability that is out of date or has been overturned by subsequent decision then it cannot be used. The worst thing you can possibly do is prepare a case around caselaw that is no longer appropriate. This will only make you look like a fool in the courtroom and destroy any credibility you may have developed. In today’s technology-driven world, much information is available online, but this accessibility comes with a major caveat—reliability of the information is at times sub-par and must be ascertained before the information is relied upon. Other ways to research legal issues include through libraries, classroom education, or recognized organizations.
Online Research
The internet is a powerful resource with a wealth of information. Nevertheless, a researcher must remain alert to bogus sources that offer inaccurate information.
A good place to start is on the website of the American Bar Association, or the bar association for a particular state. Bar associations frequently offer basic legal advice online to the general public, and also frequently provide contact information for attorneys and other experts who may be of assistance. Note, however, that much specialized information on bar association sites is limited to attorneys who are a member of the particular bar.
Court websites are also a valuable resource. The entire text of the constitution, the United States Code, and all federal and state laws and regulations are available online. Sites of particular courts provide not only contact information, which can direct researchers to the appropriate person to answer a specific question, but most also have downloadable tools, such as child support calculators, and jurisdiction-specific forms for filing documents with the particular court.
Attorneys commonly use online resources such as LexisNexis or Westlaw to conduct legal research. These databases offer complete laws, regulations, journal articles, case law, and other information. However, they are accessible by subscription only, which can be quite expensive, and probably not worth the investment for an individual with limited research needs.
A more public-friendly site is Findlaw.com, a reliable and complete resource for legal information that is free, and that includes a section geared to the general public with explanations of legal nuances and language easily understood by a non-attorney.
Beware online “do-it-yourself†legal resources. Many websites are written by amateurs and offer forms and guidelines for situations such as writing one’s own will, starting one’s own business, and so on. Even with the best intentions, a non-professional may omit something imperative in such offerings, so a researcher is advised to stick to reputable sites with verifiable and correct information.
Libraries
Public libraries offer a multitude of legal resources, including books, journals, microfiche, and other formats. A reference librarian can assist a researcher with determining what types of resources are most useful to his/her needs and where to locate said resource.
Law school libraries are a wonderful place to conduct research. Most public law schools’ libraries are open to the public during regular hours of operation, and here a researcher can find everything from statutes to journal articles to case law to advice for trial. Because law school libraries are, of course, primarily for the use of law students, numerous volumes are usually available that are geared to those new to the legal profession, which makes them easier for a non-attorney researcher to comprehend.
Education
Some legal issues, such as estate and divorce matters, are common enough among the general populations that local organizations, universities, or community colleges offer classes to address them. Such classes are frequently advertised in local newspapers, as well as in publications and on the websites of the hosting organization or educational institution.
Be aware that such classes offer very basic information. They are not intended to provide formal legal advice as one would get from a consultation with an attorney. Nevertheless, education of this type can lay the basic groundwork and steer a researcher to other resources to develop, if necessary, a further understanding of the issue in question.
Other Resources
Other resources for legal research include the following:
- Books—many volumes offering legal advice are available for purchase, but as with online research, it is imperative that the researcher ascertain that the information provided is reliable, accurate, and current
- Clinics—attorneys frequently participate in free advisory clinics, often held at public locations such as libraries, during which persons with legal questions can have them answered by professionals on a very basic level without having to pay the attorney for his/her time
- Bar Associations—state bar associations may have available resources that they will allow a researcher to use, such as statutory materials and volumes of case law
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Making and Responding to Objections
An objection is a motion made when a party wants to prevent the opposition’s evidence from being presented. Objections can be made either to witness testimony or to any other evidence offered. If an objection is SUSTAINED by the judge, that means he/she agrees with the contention that the evidence being offered should not be allowed (for a variety of reasons, including irrelevance, privilege, hearsay, etc.) and that the party offering the evidence cannot use it in the court. If an objection is OVERRULED by the judge, he/she feels it is either not in violation of any rule of admissibility, or even if it is, that it is valuable and warranted, in which case the evidence will be allowed.
When to Object
Objections should be made only when the evidence being offered is truly harmful to a party’s case and relates to an important issue. Making objections that are random, frivolous, or likely to be overruled is unacceptable, and the motions will not only be overruled by the judge, but he/she, as well as the jury and the opposing party, will view the party making the inappropriate objections as desperate and incompetent.
If a party feels he/she has a good reason to object, timing is imperative and will depend what is being objected to. If a question posed to a witness is improper, as if it is leading during direct examination, beyond the allowable scope during cross-examination, or hearsay, one should stand and object immediately, before the witness has a chance to answer. If the question is permissible but the answer of the witness is not, one should stand and say “excuse me,†stopping the witness’ flow of speech, and then object.
Content
Objections must be as specific as possible. A mere “objection†will not get the objecting party anywhere, and the judge will quickly tire of the vagueness. Instead, the reason for the objection should be stated, such as “objection—hearsay.†There is no need to elaborate beyond this unless the judge requests an explanation for one’s foundation for making the objection, in which case one should be prepared to respond appropriately.
Responding to Judge’s Ruling
If a judge sustains an objection, do not say anything, including “thank you,†to the judge, or to the opposing party. Simply sit back down and wait for questioning to continue. Be prepared—the opposing party may try to rephrase the same question in a new way that still warrants objection.
If the witness has already responded, and an objection to the answer is subsequently sustained, one should ask the judge to STRIKE the answer so that it does not become part of the court record of the trial.
If the judge overrules an objection, the moving party must decide how important the particular issue is to his/her case. If it is relatively minor, one can just accept the ruling and sit back down. If, however, one feels strongly about the objection, it is appropriate to say “May I be heard, your honor?†The judge may allow a party to further elaborate on the grounds for their objection and can either let the overruling stand, change his/her mind and sustain the objection, or overrule but note the objection argument as potentially important to the case.
Responding to Objections
The best way to avoid objections to one’s own questioning of witnesses or offers of other evidence is to avoid anything objectionable. However, one’s opponent or his/her attorney will generally find something to object to.
When an objection by one’s opponent is overruled, there is no reason to thank the judge or say anything else to the judge or opposition; simply move on as smoothly as possible with questioning. It may be helpful to pose the question again or have the witness repeat the answer leading to the objection so that the decisionmaker grasps the information being offered without being hindered by the motion’s disruption.
If the judge sustains an objection, the questioner can rephrase the question in a way that is acceptable. A party against whom an objection has been sustained can also make an OFFER OF PROOF. What the question or line of questioning seeks to prove must be clearly explained during the offer of proof. If the judge allows the inquiry, one can continue with questioning.
Types of Objections
The following is a list of commonly-used objections:
- Leading questions
- Vague questions
- Repetitive questions (asked and answered)
- Argumentative (attorney or questioner is arguing with the witness)
- Harassing the witness
- Irrelevant
- Witness incompetence
- Privilege
- Hearsay
- Beyond the scope
- For exhibits—immaterial, irrelevant, or lack of foundation
While in most cases these objections will serve you well there are numerous other objections that you can make. Even seasoned attorneys struggle with making the right objection at the right time, so you should make sure that you are up on what particular objections you may be required to make at various points in your case.
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Opening Statement
An opening statement is the first thing each party presents in court, the first chance they get to present their case to the judge and/or jury. The statement is a short speech that introduces a party and his/her case to the court.Attorneys are experienced in delivering opening statements and are likely to have a good feel for the specific judge or jury members, knowing how to present the opening statement so as to win the decisionmaker over in their client’s favor. For someone who has less experience, as plaintiffs or defendants who have chosen to self-represent themselves in court, the most important thing to focus on is that the opening statement makes an important first impression—and as the saying goes, a party does not get a second chance to make that first impression.
Persuasion
The goal of a trial is for each party to attempt to persuade the judge or jury that they should prevail over the other party. This persuasion begins with the opening statement.
The statement should concisely explain what the party intends to prove and why their argument is the one that should prevail. It must be delivered confidently and with an assurance that one’s argument is the correct one. The judge and jury must, during and after listening to the opening statement, believe that the party is truthful and sincere, and that the evidence they claim they will present will be sufficient to warrant a judgment in their favor.
Interest
It is crucial for a party to get the judge and jury interested in his/her story, and doing so beginning with the opening statement goes a long way toward “hooking the audience.†If the opening is delivered in a boring, bland way, in monotone and without making eye contact, the audience—judge, jury, witnesses, etc.—will quickly lose interest.
The person delivering the opening statement should speak clearly and confidently, look at their audience, and be passionate about their case. If the jury and judge see how much it means to a party to prevail in the lawsuit, they are more likely to be genuinely concerned about the outcome of the case and about how it will affect the person.
Content
The opening statement should paint a complete picture of the case. It is important to present a clear theme, and to do so in a straightforward manner that will neither confuse nor bore the decisionmaker. A party should determine a to-the-point statement that establishes why their position is the correct one, and make that the focus of their opening argument and of their case as a whole. Include the following information:
- Evidence that will be presented
- Witnesses who will take the stand, what they are expected to say
- Illustrative information that will be used, including pictures, reports, diagrams, charts, graphs, etc.
Limits
The opening statement is just that—the opening to the case. This portion of the trial is intended to describe what the evidence will show, and should be NON-ARGUMENTATIVE. This means that the opening statement is not the time to attach the credibility of the other party, which can be done during the course of the trial.
The purpose of the opening statement is only to prepare the court for what a party’s arguments will be and to create a rapport with the court, inspiring the trust and sympathy of the decisionmaker.
Tools
There are several tools that a party can use to increase the persuasiveness of their opening statement. The following are useful techniques to employ:
- Description—the more detailed and descriptive an opening statement is, the more likely the decision maker is to remember the essential points
- Personality—a party should let the positive aspects of their personality show through; juries, especially, may be able to relate better to a party and their position with whom they can sympathize
- Rhetorical Questions—questions that are presented can be very effective in getting the jury to think along the same lines as the party offering the question
- Bookending—it is useful to offer the strongest aspects of one’s case at the beginning of the opening argument, and repeat them at the end, so that if the jury remembers nothing else they will retain those key points of the argument
The opening statement should generally keep the focus on the strong points of the party’s case, but there is room for mentioning some of the weakness of one’s opponent’s case. Additionally, it may help to offer up-front some of the weaknesses of one’s own case and present, briefly, defenses to those arguments which are likely to crop up in the opposing party’s argument. This will enhance one’s credibility from the outset and when you are dealing with a jury, your credibility can win or lose the case.
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Organizing a Trial Book
Lawsuits, especially those that result in a court trial, produce voluminous amounts of paper—documents, notes, discovery information, and so on. The worst thing a party can do is to become disorganized, which costs time and emotional well being, and runs the risk of losing some piece of information that could turn out to be crucial to one’s case.Organization can be accomplished by use of a “trial book,†generally a notebook, such as a three-ring binder, in which all papers relating to the case are organized in some coherent, easy-to-find and easy-to-use way. This is something that you should start from the very beginning of your case and build as you go forward.
Benefits of Organization
As described above, the most important reason to remain organized, as with a trial book, is to have easy access to all documents related to trial. Not only will this prevent losses of potentially valuable papers and time wasted looking for missing documents, it will save time during trial preparation, allow others to assist one more readily, and convey to the court and to the opposing party that one is organized and well-prepared.
How-To
No single method of organization is “best†when preparing a trial book. What works for one person may not work for another, so it is important to use whatever system makes one feel most comfortable and most able to find the information one needs most quickly and efficiently.
A simple, inexpensive way to prepare a trial book is to use a simple three-ring binder with dividers or tabbed inserts to separate various documents. The size of the notebook will depend on the type of trial and the amount of paper, but be prepared for the possibility that more than one volume could be necessary. If this is the case, it is helpful to make every binder of the same size and color, clearly labeled on the exterior regarding its content and the volume number, and to use the same type of organization system within each.
Currently, some parties choose to use electronic notebooks, with folders on a computer organizing one’s information in the way section labels do with a hard-copy book. One who is comfortable with technology may find this method preferable.
Section labels again will depend on the particular case, but some common headings, with examples of what should be placed in that particular section, include:
- Background—any initial information that brought the lawsuit about in the first place, including personal reflections
- Case analysis—plan of attack: what law applies to one’s position in relation to the available evidence
- Discovery—answers to interrogatories, with notes regarding how those answers will potentially affect one’s position at trial; independent medical examinations, if applicable
- Pretrial orders—any orders from the court in response to motions (motion to extend, motion to compel, etc.) to provide a complete picture of the history of the progression to trial
- Settlement negotiations—if settlement negotiations were attempted but failed, resulting in trial, the information gathered in such negotiations may be helpful in preparing one’s argument at trial
- Depositions—depositions of any witnesses, so that their answers are readily available; particularly useful if witness testimony is inconsistent therewith
- Memoranda—information provided to others (to lay out a progression of communications, and as potential proof of communications alleged); information from others—advice from colleagues, professionals, etc.
- Correspondence—letters, emails, and recorded conversations or messages regarding the case; particularly useful to show inconsistencies with what is presented at trial
- Opening statement—outline of what points one wishes to emphasize during the opening statement, so that nothing is forgotten
- Witnesses—list of one’s own and one’s opponent’s witnesses, with information regarding each that may be important to confronting each at trial
- Questioning—list of important questions that must be asked of witnesses; one may also find it helpful to include expected answers so that if a witness response is unanticipated a red flag is raised
- Exhibit list—a list of exhibits offered at trial, as well as a copy of the other party’s exhibits (which should be provided prior to trial)
- Closing statement—outline of which points to reemphasize during closing
The most popular organization method of documents within sections in a trial book is chronological order. Chronology is beneficial because everything is easy to find by date, which is imperative because so many things in a case depend upon timing. Additionally, as the lawsuit progresses, more documents will appear and need to be included in the trial book; chronological order provides a clear location for each document to be placed and, later, found.
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Overview of Pretrial Procedures
At the outset, it is important to note that most lawsuits are settled before they every make it to trial. Because so many suits are filed, courts encourage settlement of issues by alternative means; some require mediation between the parties. If a lawsuit is the only option, the following is an overview of the pretrial procedures required.
The Complaint
The first thing the plaintiff (the person suing) must do is to file a COMPLAINT, the document that describes the reason for the suit, including alleged facts and the law on which the suit is based. The complaint involves allegations only, so proof is not required in this document. The complaint is organized as follows:
- Caption—Name of court, including division if applicable, followed by the parties (plaintiff v. defendant); also include “Case No.†followed by a space for the court clerk to fill in the number assigned to the case
- Cause of Action—factual and legal basis for the claim; title the document “COMPLAINTâ€; follow this with “The plaintiff alleges as follows:†and numbered paragraphs, each setting out one fact or piece of information, including:
o Damages—description of losses (monetary or otherwise)
o Who—identification of the party who allegedly caused the damages (for the defendant, the “who†is the plaintiff bringing the suit)
o Where and When—location and time (as specific as possible, including date and hour) when the damages occurred
o Theory of Law—explanation of what law you believe supports your claim
- Prayer—“Wherefore, plaintiff respectfully prays the court…†followed by the damages requested (how you would like the court to resolve the matter)
- Certificate of Service—signed acknowledgment that a copy of the document was delivered to the defendant
The documents should be mailed via registered mail as proof that they were sent; with this proof, if the defendant fails to respond or appear in court, he/she automatically loses and the plaintiff prevails.
The Answer
The defendant (the person being sued) files an ANSWER within the time indicated by the summons. In the answer, the defendant answers each numbered allegation by admitting or denying each. If the defendant fails to deny an allegation, the court will deem the statement true. An answer need not be formally filed with the court; it is sufficient to return the answer to the plaintiff or his/her attorney.
An answer is organized as follows:
- Caption—same as caption on the original complaint
- Response—each allegation set out in the complaint should be addressed with an admission, denial, and explanation if necessary
- Certificate of Service—signed acknowledgment that the answer was returned to the plaintiff or his/her attorney
Additionally, a defendant may file a COUNTERCLAIM within the answer, which is an allegation that the plaintiff was in fact at fault.
Amending a Complaint
If it is necessary to amend a complaint, a new document must be filed in the same manner the initial complaint. This should be titled “Amended Complaint†and incorporate the necessary changes. Courts have time limits for how long a party has to file an amended complaint; consult the clerk of the court.
Discovery
Discovery is the process of gathering facts and evidence related to your position in the case. Even seemingly trivial information may be prove to be important, so it is necessary to collect everything that may be helpful to your case. Note that some information is “privileged,†meaning it cannot be disclosed to the opposing party. Non-privileged information can be gathered from the other party through a variety of methods, including Request for Production of Documents, Request for Admissions, Interrogatories, Depositions, and Independent Medical Examinations.
Motions
Various motions may be filed prior to the beginning of a trial. Examples include a Motion for Summary Judgment, Motion to Dismiss, and Motion to Compel (used during the discovery process when one party is unresponsive or uncooperative). Another useful motion that you could file is the Motion in Limine which is a pre-trial motion to keep certain evidence out or certain evidence in.
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Pretrial Motions
Motion to DismissA MOTION TO DISMISS can be filed early on, even before discovery. A defendant may move to dismiss if he/she believes the complaint presented by the plaintiff is somehow unsound. The court analyzes the facts set forth in the complaint in the light most favorable to the plaintiff who filed the complaint.
- Lack of Subject Matter Jurisdiction—the court in which the complaint was filed does not have “jurisdiction†(power to rule) over the SUBJECT of the lawsuit; some complaints must be filed in federal court or in specific state court divisions
- Lack of Personal Jurisdiction—the court in which the complaint was filed does not have jurisdiction over the DEFENDANT; personal jurisdiction requires that the defendant have “minimum contacts†with the place where the lawsuit is filed, a standard which courts interpret in different ways, but which generally means the defendant must reside or have a business in the jurisdiction or the occurrence which is the subject of the lawsuit must have occurred in the jurisdiction
- Improper Venue—the location of the court is not one in which the defendant can be sued, even if the court would otherwise have personal jurisdiction over him/her; improper venue often results in a transfer of venue to an appropriate court rather than in dismissal of the case
- Insufficiency of Process—the summons itself or the method of service was in some way defective, as when a summons and complaint are delivered to an unacceptable location (acceptable locations in most jurisdictions are a person’s home or business) or not properly mailed or published in a newspaper; different jurisdictions have different service of process requirements, and the clerk of the court should be able to inform you what constitutes adequate service
- Failure to State a Claim Upon Which Relief May Be Granted—plaintiff has not clearly set out any facts that constitute a legal claim for relief; the defendant must have, under the law, a responsibility of some sort to the plaintiff which he/she allegedly violated—if the defendant had no such obligation to begin with, he/she cannot be held responsible for plaintiff’s damages
SUMMARY JUDGMENT motions are popular because they save time and expense to the parties and to the court. Such a motion is filed when the key facts of the case are not in dispute; that is, that the facts are as they are set out in the complaint and do NOT need to be tried to establish their truth. If there are not issues of fact present for a finder of fact to determine and the law on the subject is clear one way or the other then the court will likely enter a summary judgment without the need of a trial.
If a summary judgment is granted, there will be no trial. The purpose of a trial is for a fact-finder (judge or jury) to determine which facts are true; there is no reason to go to trial if there is no dispute as to the veracity of the facts. The motion asks the court to consider the facts as presented in the complaint, apply the law to those facts, and decide in favor of the party bringing the motion.
If the opposing party disagrees with the facts presented and wants to proceed with trial, the party must provide some evidence to the court showing that there are facts that are in dispute. If the court determines that there are unresolved issues and that a fact-finding trial is necessary, it will not enter judgment, but instead proceed with a trial.
Motion for Default Judgment
A defendant who is properly served with a complaint must either respond with an answer or file a motion to dismiss. If the defendant does neither within the time frame required by the given court, he/she is considered to be “in default.†Plaintiff can then file a MOTION FOR DEFAULT JUDGMENT, and if the motion is approved, the court will file an ENTRY OF DEFAULT. The court will then send notice to the defendant that he/she is in default and will decide the case for plaintiff.
Occasionally, a defendant may have a good excuse for why he/she is in default. A defendant who considers their excuse valid must immediately provide the court with an explanation and ask the court to VACATE (set aside) the entry of default. If the defendant has a strong reason for his/her default and acts promptly, the entry is vacated and the trial proceeds. Courts typically set aside an entry of default “for good cause shown,†which is a broad standard and variously applied at the court’s discretion; specific categories of “good cause†include mistake, inadvertence, surprise, or excusable neglect.
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Represent Yourself in Bankruptcy Court
Bankruptcy is the legal position of a party unable to pay off their creditors: those to whom they owe money. Filing for bankruptcy is usually the choice of the bankrupt party, although in some instances a group of creditors of the same party may request that the party be declared bankrupt so that they can recover some, if not all, of the money owing to them. One thing to note is that the bankruptcy law was recently changed and there are many new provisions that have been enacted. Also, your state of residence can enact laws that make bankruptcy more or less favorable, so you need to check your state statutes as well as the federal.Purposes
Bankruptcy serves several purposes. From the perspective of the bankrupt party (the "debtor"), bankruptcy relieves many debts owed and can "wipe the slate clean" for the particular party. Any money or other assets a party has will still be mostly used to pay off portions of outstanding debts, but large amounts that the bankrupt debtor cannot possible afford are eliminated.
From a creditor's perspective, bankruptcy has both advantages and disadvantages. The main disadvantage is that a creditor can no longer claim money from a bankrupt debtor; the debtor is relieved of his/her full obligation. On the other hand, bankruptcy can be advantageous to a creditor in that at least some of the debtor's outstanding debt will be repaid; even though the creditor will not recover the full amount owed him/her, some repayment is better than the alternative, which is no recovery, particularly if the debtor owes large sums to a number of creditors.
Jurisdiction
Bankruptcy is a federal issue in the United States, and falls under federal jurisdiction, with the applicable law found in the Bankruptcy Code, Title 11 of the United States Code. Volumes of the United States Code are available in most libraries and online.
States do offer additional insight into bankruptcy law, so any person filing for bankruptcy must be aware of the specific states' rules regarding bankruptcy.
Bankruptcy Chapters
The Bankruptcy Code sets out six types, or "chapters" of bankruptcy. Each chapter applies to a different situation. The two main types of bankruptcy that will be applicable to an individual filing bankruptcy are:
- Chapter 7: liquidation-bankruptcy
- Chapter 13: payment plan for those with a regular source of income
Chapter 7 Bankruptcy
Under Chapter 7 bankruptcy, a debtor will have to sell his property, which is often done by a third-party trustee, such as a bank. The proceeds from the sale are used to pay creditors to the extent of the proceeds only, in full satisfaction of the debt, even if the total debt is much greater than the amount recovered from the sale. A debtor is typically permitted to keep certain property, such as his/her home, vehicle, and household goods. States vary with respect to the time period that must pass before debts are discharged, but 90 days is typical. A DISCHARGE is an order of the court of all debts owed by the debtor, unless a creditor files a lawsuit arguing that a certain debt should not be discharged in the bankruptcy proceeding. Debts that are discharged include personal loans, credit card debts, and medical bills. A few important types of debts are NOT subject to discharge, including child support, student loans, and fines or penalties owing to the federal government.
Chapter 13 Bankruptcy
Chapter 13 is a rehabilitation plan with limits on the amount of debt owed by the debtor. The debtor keeps all of his/her property, but must make regular payments to a trustee, such as a bank, which then pays creditors the balance owed them in installments. Plans may last from three to five years. Chapter 13 bankruptcy is a good option for debtors who have a regular stream of income and will ultimately be able to pay their debt.
Filing for Bankruptcy
The first thing a party must do is to collect all relevant financial documents for easy access and for inspection by the court, including financial records, outstanding bills, bank statements, and income verification, such as a pay stub or employment contract.
Next, a party must calculate the total extent of his/her debt. A financial or legal advisor can help one determine which debts are "secured" (creditor has a security on some property that he/she can claim from debtor if the debt is not paid) or "unsecured".
After deciding whether to file Chapter 7 or Chapter 13 bankruptcy, the debtor should file a Petition with the clerk of the court, and then immediately notify all creditors in writing of the filing.
Respond to questions from the court as completely and honestly as possible. A clear picture of one's financial situation is the most important tool in evaluating the extent of bankruptcy and what debts will be discharged: thing that is omitted, even inadvertently, may later turn up as a debt that was not discharged and must be repaid.
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Represent Yourself in Divorce Court
The number of American marriages ending in divorce is high. The statistic has often been cited as 50%, although this figure is contentious, with some experts claiming the number is much lower, and others arguing that this is a conservative estimate. Regardless of the exact rate of divorce, it is important to understand the process of filing for and securing a divorce, particularly if a trial is necessary.Some divorces are simple and even amicable, and parties may settle disputes out of court. If, however, there is hostility between parties or contentious issues, such as division of assets or child custody, parties may end up presenting their cases in court.
Settlement
If parties to a divorce proceeding come to an agreement out of court, certain paperwork must be filed to make the divorce official. The exact forms will vary depending on the jurisdiction, but common required filings include:
- Petition for Dissolution of Marriage: states the reasons (usually very simple, such as "irreconcilable differences" or "infidelity") for the request for divorce
- Waiver of Final Hearing: signed by both parties; waives the right to a trial
- Settlement Agreement: signed by both parties; states the agreed-upon terms for dividing any assets the parties may share, such as who retains car titles, home ownership, etc.
Trial
If a settlement cannot be reached out of court, a trial may be necessary. In the case of a court proceeding, parties must file a Motion for Final Hearing with the court as well as a Notice of Final Hearing, a copy of which is delivered to the other party.
A divorce proceeding requires payment of a divorce filing fee, which will vary depending upon the jurisdiction. If a party cannot afford to pay the filing fee, he/she may file a Motion for a Fee Waiver. If approved by the court, the fee will be waived and the trial may proceed.
Because so many divorces occur and are heard in courts regularly, divorce proceedings are typically less formal than other trials. Nevertheless, formal or at least business-casual attire is appropriate. In addition, although parties to a divorce may feel hostile toward one another, it is important to maintain one's decorum in the courtroom, addressing the judge as "your honor" keeping emotions under control, and being polite and civil to court personnel and to the opposing party and his/her attorney.
Evidence to be presented at a divorce proceeding includes the following:
- Name and the name of one's spouse
- Addresses of each party
- Date of marriage
- Date of separation
- Residency: most states will grant a divorce only if the parties seeking the divorce have resided as a married couple within the jurisdiction for a stated minimum length of time
- Reasons for the dissolution of the marriage
- Agreed-upon points between the parties
- Points still in dispute between the parties
Depending on the jurisdiction and on the complexity of the case, the judge may make his/her decision immediately. If there are points in dispute, such as division of certain assets, a judge may ask for additional information or evidence. A judge may also recess the trial and consider the parties' respective positions outside of the courtroom, with a final judgment entered later.
Mediation
In some jurisdictions, parties filing for divorce may be required, either as standard practice or by a judge's decision regarding a specific couple, to attend mediation sessions. Mediation involves an unbiased third party, a trained mediator, who will attempt to help parties discuss between themselves the issues leading up to and currently in dispute regarding their divorce.
If after mediation parties are still unable to agree on terms for a divorce, after a mandated time has passed the court will take up the case again and make a final decision.
Children
Divorce proceedings become much more complicated when the parties have a minor child. Clearly, the emotional toll on a child and his/her parents is great, and family counseling may be advisable.
Legally, numerous issues will arise. All states have standard tables to determine child support and post-secondary education cost responsibilities, which are based on parties' respective incomes or income potentials, as well as the child's contribution.
Custody and visitation issues, on the other hand, are a very subjective area; courts decide such matters generally with a view to what is in the best interests of the child. Success in such matters depends largely on a party's financial stability, health, emotional availability, and relationship with the child. Custody can turn on some of the most trivial matters so you need to make sure that you present the best case possible on this issue.
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Selecting the Decision Maker
The decision maker determines who wins and who loses, who prevails and recovers damages and who has to pay for those damages. Which decision maker you choose is very important and you should give very careful consideration to what type of entity you want making the decisions in your particular case. This may make the difference between winning and losing in court. The catchall term "decision maker" applies to a number of entities. Some cases require the decision maker to be a magistrate or an administrative agency. However, the most common decision makers available in a civil trial are a judge (or in some instances, a panel of judges) and a jury.The Judge
Judges are officers of the court. Some are elected and some are appointed; their tenures, powers, and responsibilities vary widely among jurisdictions.
A judge is present during a trial whether or not a jury is involved. If the jury makes the factual decisions, the judge's role is to maintain order in the court, to ensure that things run smoothly during the course of the trial, and most importantly, to instruct the jury regarding the law.
When no jury is present, the trial is called a BENCH TRIAL. The judge decides whether the facts presented are true, applies the law, and determines which party should emerge victorious at the end of trial.
One advantage of a bench trial is that it requires less time than a jury trial. Often, it is easier for a single person (a judge) to come to a conclusion than for a jury (usually twelve people, although some jurisdictions allow reduced juries of six or eight) to agree on an outcome. In addition, judges are arguably in a better position to understand all of the intricacies of the trial process, being educated in the law and faced with legal issues every day.
Of course, the pool of judges is much smaller than the jury pool, which is a large section of the general public. Judges are often backlogged, and it may take longer for a case to actually get to trial.
Furthermore, judges are regular people beyond their black robes and elevated benches. Although they are charged with being impartial and making decisions based solely on facts presented and relevant law, judges will always have personal biases. Ideally, a judge will be able to put aside personal issues when deciding a case, but as for any other person, this may be easier said then done. Judges are obligated to excuse themselves from presiding over a trial if there is a risk that they will be unable to remain impartial, but this does not always happen.
The Jury
A JURY TRIAL may be an option, but in most civil cases the defendant must request a jury; it is not automatic. A jury is designed to be a panel of one's peers; that is, a cross-section of the general population that is not personally biased against the individual defendant and not inclined to prejudge the parties or the evidence based on personal preferences or experiences.
People who have the potential to be biased should be weeded out during the jury selection process, when attorneys or parties representing themselves have the opportunity to question potential jurors about their lives, habits, and beliefs and, if necessary, eliminate candidates who seem likely to make decisions adverse to a given party. Note that jurors CANNOT be eliminated based on race or gender.
Some parties choose to hire jury consultants. Consultants approach jury selection strategically, with carefully-researched questions designed to weed out certain categories of jurors that may be adverse to a party in a given trial. Because of their experience, jury consultants can be a valuable resource, but remember that hiring such an expert will require considerable extra funds.
There are advantages to choosing a jury trial. Many people feel that jurors, their "peers" will be better able to evaluate the position of an average person going before the court than a judge, who may seem to be far-removed from everyday life. In addition, while a judge is ideally completely neutral and impartial, a juror could have certain sympathies that may be helpful to a party. For example, a plaintiff who is the mother of an injured child may hope that other mothers on a jury will be more receptive to her side of the dispute.
On the other hand, the opposite may be true "jurors" sympathies can turn out to be harmful to a party. For the example used above, if there are indeed mothers on the jury, they could be considered a danger to a defendant accused of causing the child in question to be injured.
Situations like this are what jury selection and the use of jury consultants aim to prevent, but are always a risk when opting for a jury trial.
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Settlement
The majority of civil lawsuits are settled before trial; each party involved gives something up and agrees to meet at a middle ground. Settlement frequently saves time and money; one's reputation may also be a consideration if it is in one's best interest to keep a matter out of court and thus out of the public eye. Courts encourage settlement because they, too, save time and money when a trial is not necessary. In making any decision to settle you need to think very clearly about just how good your case is and think of it from the perspective of the potential decision maker. Put yourself in the position of someone on the outside looking in and see if you still feel as strongly about your case.Considerations
There are a number of important things to consider before making a decision regarding whether to go through with a trial or to settle ahead of time, including:
- Defendant's Financial Position: if a defendant does not have the money a plaintiff seeks for damages, a trial may be fruitless and merely cost time and money without a satisfactory resolution
- Chance of Success: once information have been gathered during the discovery process, a party to a lawsuit should have some idea of whether he/she would be successful at trial; if chances of success are bleak or unclear, settlement may be a better option
- Costs: even a self-representing party, who will not have attorney fees, will end up paying certain fees and costs for filing and actually going to trial; if the costs associated with trial are greater than the potential recovery then settlement is a preferable resolution
- Emotional Considerations: depending upon a party's demeanor and the subject matter of the lawsuit, a trial can be very emotionally volatile; in addition to the time investment, there are the prospects of testifying on the witness stand and of revealing potentially private matters before the public
Timing
If settlement is a desirable option, it is best to begin settlement discussions with the opposition as soon as possible; however, discussions can continue right up until the time of trial.
Negotiating
A formal OFFER OF SETTLEMENT can be written incorporating one's own terms and submitted to the opposing party. Alternatively, the parties can get together and cooperate to reach a settlement agreement that is acceptable to both.
The first step in negotiating a settlement is to come up with a strategy. Parties must be at least somewhat flexible, recognizing that the idea behind settlement is to reach an agreement, and that nobody will get everything they want; concessions must be made. Strategy, including what to ask for and how far to bend to the other side's adjustments, depends in large part on how strong one's side of the case is.
Major issues should be the focus during settlement discussions. There is no reason to waste time, emotion, and energy on trivial or minor points unless they are needed to round out the bigger picture. Concentrate on what you want to ultimately walk away with and stay on topic; throwing in too many inconsequential things may cause the other party to become frustrated and potentially less inclined to cooperate.
Rein in emotion. Hostile, abrasive behavior will turn others off and make a satisfactory resolution less likely. Remember, the idea behind settlement negotiations is to come to a mutually acceptable agreement; common courtesy and a civil demeanor go a long way toward making settlement negotiations successful.
Consider the use of "ammunition": if you have information that could be damaging to the opposing party or likely to convince them to move closer to your end on the settlement spectrum, it could prove valuable. Sometimes, reserving such information until a crucial point late in the negotiation will be most beneficial; other times, using it early on can lead to a faster resolution. The best timing of the use of such information will depend on the other party's personality, the nature of the information, and the strength of the respective parties' cases, as well as the length of time settlement negotiations last (parties may be more likely to bend when given the right push if negotiations have lasted a long time with little success).
Settlement Results
Once a settlement has been reached, in the form of a document called a SETTLEMENT AGREEMENT signed by both parties, the lawsuit is over. The agreement will describe the different points agreed upon between the parties, including how much money will be paid, who will pay, form of payment, time and place of payment, who will be responsible for court costs, and any other agreements.
The agreement also usually will state that a case cannot be brought up again in a new lawsuit on related issues. A document is filed, signed by both parties, releasing the defendant from obligations of the lawsuit, known as a NOTICE OF DISMISSAL (or "Stipulation for Dismissal").
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Starting Your Case
The Court The first step is determining in which court one should file their complaint (see "Filing a Complaint" below). Different courts handle different matters. Federal courts handle only specific cases, including those involving federal issues or disputes between parties from different states.
State courts handle most cases. State courts typically have a general civil division as well as specific divisions to handle family law, small claims, criminal issues, and probate (wills, trusts, and estates). Chances are that you will be bringing your claim in a state court of competent jurisdiction and you can get a lot of information from the clerk of your local court. They will usually be quite helpful in choosing how to proceed and you should be sure to begin your quest for information with the clerk because they can save you a lot of time.
Which court will handle a case depends on what type of claim is filed. Examples of claims that commonly occur include:
- Debt Actions: Claims for money, which may be for repayment of a loan, payment for purchases, payment for work, unpaid rent, security deposits, etc.
- Trespass Actions: Claims for recovery for damages to one's property caused by another person's intentional or negligent actions, such as car accidents or damages to one's home or personal property
- Replevin Actions: Claims for one's property that someone else has unlawfully
- Landlord/Tenant Actions: Also called "summary possession" actions; a landlord may seek to recover property from a tenant because of rent owing or damage to the property, while a tenant may file an action if he/she feels they have been wrongfully kept out of the rental property
- Domestic Relations Actions:Divorce, annulment, child custody, child support, visitation
- Probate Actions:Will disputes, estate administration, undue influence
- Labor and Employment ActionsDisci:plinary proceedings, wage disputes, affirmative action, race/gender/age discrimination, family and medical leave, employee privacy, occupational safety
Filing a Complaint
The first thing the plaintiff (the person suing) must do is to file a COMPLAINT, the document that describes the reason for the suit, including alleged facts and the law on which the suit is based. The complaint involves allegations only, so proof is not required in this document.
When preparing a complaint, it is important to ensure all information is accurate and well-organized. Relevant names, times, locations, damage amounts, and other related information should be included, and specific documentation to back up each fact should be retained as evidence that the allegations in the complaint are true. Because the legal process can be a long and confusing one, it is advisable to keep all relevant documents together in one safe place for easy reference should any step in the process require production of a document.
Research
Educating oneself is essential when representing oneself in a legal proceeding. Numerous books are available to assist non-lawyers with preparing for and proceeding through all stages of a lawsuit. Bookstores, libraries, and online retailers offer such resources. Most libraries include in their reference section materials that describe the court system and filing requirements, as well as contact information for local courts. The court clerk is a valuable source of information; do not hesitate to contact the clerk as needed, assisting the public with court-related issues is their job.
Also helpful are books geared toward new