This book explains each step of the civil litigation process from pre-litigation investigation through trial on the merits to give you the best chance of prevailing in your efforts whether you are a plaintiff or a defendant. Its detailed explanations of the various requirements of the litigation process are supported with detailed checklists that insure you leave nothing to chance as you work through the process and help you avoid the costly mistakes pro se litigants commonly make as they fight their lawsuits.
Whether you are a plaintiff or defendant and whether you decide to employ a lawyer or represent yourself, this book gives you the information you need to make sure that you have the best chance of prevailing as you proceed.
|Product dimensions:||6.00(w) x 9.00(h) x 1.13(d)|
Read an Excerpt
The Pro Se Litigant's Civil Litigation Handbook
How to Represent Yourself in a Civil Lawsuit
By Kenn Goldblatt
AuthorHouseCopyright © 2016 Kenn Goldblatt
All rights reserved.
What is a Lawsuit?
In simple terms for our purposes, a "lawsuit" is an action brought in a court of law by a person or organization claiming a personal or financial injury incurred from another party's or entity's actions that seeks a legal or "equitable" remedy. The formal and structured process is called "litigation." The person or entity bringing the lawsuit is called the "plaintiff" and the person or entity against whom the lawsuit is brought is called the "defendant."
A lawsuit is an 'adversarial proceeding.' Its basic nature is a contest, conflict, or dispute. While you are expected to observe the customary rules of decorum, you are not expected to 'play nice.' Whether you are representing yourself or being represented by an attorney, the expectation is 'zealous representation.' The nature of a zealot is 'fervent, ardent, fervid, fanatical, passionate, impassioned, devout, devoted, committed, dedicated, hard-core, enthusiastic, eager, keen, vigorous, energetic, intense, and fierce.' By the time your lawsuit is completed, you will understand how all these characteristics are required to prevail.
The functional explanation is much more complex. You can think of litigation as a carefully choreographed and stylized process of combat. Just like every other 'contact sport,' very specific sets of rules and procedures control each aspect and step of the encounter and provides for a referee who is responsible for seeing that each party plays by them. The basic rules of litigation are the jurisdiction's "Rules of Civil Procedure." They describe and determine each step of the lawsuit and control the time for each required action. They dictate what may be filed, when, and to obtain what result.
In most states and in Federal courts, the applicable rules of procedure provide you with detailed instructions of what is required to be done, how it is to be accomplished, and the penalties for failures to perform as required. At each juncture of your lawsuit, you should refer to those rules for guidance in what to do and how to do it correctly. They will give you step-by-step directions to accomplish what you need to do.
A corresponding "Rules of Evidence" specifies what constitutes "evidence," how can be used, how it is admitted by each party, and how it can be challenged. Often, courts also have "local rules" that specify additional requirements and/or actions that must be followed within that particular court or category of courts. A party proceeding pro se needs to be familiar with and understand all of them to be successful in the litigation struggles.
The various "rules of procedure" can differ greatly from jurisdiction to jurisdiction, and often from court to court within the same jurisdiction. Failure to comply with them can result in serious limitations upon your ability to present claims or defenses at hearings or trial – and can even result in dismissal of your lawsuit.
In a recent case an opposing attorney misquoted the rules to the opposition to avoid answering discovery properly. The wronged party quickly filed a motion to require conformity to the rules – quoting the applicable rules, explaining how they were being violated, and supporting the argument with applicable case law. The results were significant damage to the misbehaving attorney's case. In this instance, the extra work and expense was well worth the effort to confront the opposing attorney and bring the situation to the attention of the judge.
Applicable statutes, "case law," and constitutional provisions also affect the rules and define the rights and responsibilities of the parties to the lawsuit. Therefore, if you choose to represent yourself, you must proceed methodically and pay careful attention to which rules may affect your case at any given time and how those rules are applied.
Particularly complicated and tedious lawsuits often settle before trial. Such settlements are common in Federal cases, where a court may be required to apply state law or in a state court that must apply the laws of another state to a dispute. Some experts estimate that about ninety-eight percent (98%) of civil cases in the Federal courts are resolved without a trial.
Within a 'single' lawsuit, there can be any number of claims and defenses (all based on various laws) between any number of plaintiffs or defendants, each of whom can bring additional "cross-claims" and "counter-claims" against each other, and even bring additional parties and entities into the suit on either side as it progresses.
For instance, in a typical lawsuit, the plaintiff sues a single defendant. In a somewhat more complicated case in which there are two defendants, one defendant may cross-claim against the other defendant. Alternatively, one or both defendants may counter-claim against the plaintiff. Under different facts, one or both defendants might file a "third-party complaint" against a different party entirely. Finally, the third-party defendant might counter-claim against one or the other defendant. Complications multiply as parties are added.
While judges typically have various powers to add, dismiss, deny, and sever claims and parties into separate actions when it may be more efficient to do so, they usually prefer to keep things simple. If there is not a sufficient overlap of factual issues between the various parties and issues, a judge is more likely require that separate cases be filed and prosecuted. Complicated suits generally require the assistance of an attorney and various staff personnel. If your case is relatively straightforward, or your part of the case is relatively simple, you may be able to join the growing number of litigants proceeding pro se to represent themselves in cases across the country.CHAPTER 2
Before You Decide to Litigate
If you are contemplating filing a lawsuit to right a wrong that has been done to you, there are a variety of analyses that you should conduct and decisions you should consider before you go to the time, effort, and expense of filing a lawsuit to make things right. Otherwise, you may find yourself in greater difficulty than you were in before you filed suit.
For a while, you may feel that you have traveled to a foreign country while you learn what amounts to the new language of litigation, and digest the various rules that will govern your conduct as you proceed through the court process. At the same time, you must resolve to require everyone else to follow those same rules as well. Protecting yourself from misuse of the rules by an opposing attorney or party, or a judge's erroneous use of the rules is a crucial commitment to winning your case. To do so, you will need to become familiar with the rules of procedure, the rules of evidence, and the local rules that apply to the court in which you will be litigating.
Then you need to understand the general legal principles of the causes of action you wish to bring before the court and the case law that will place the applicable statutes, "regulations" and rules in context before the court. And, you will need to accomplish all of these tasks while keeping calm, cool and collected to maintain your common sense and reason to guide your case to its conclusion.
Once you have addressed those tasks, you will be on your way to preventing questionable behavior and actions by the opposing attorney or the opposing party. To do so, you will need to enforce the rules as fervently as possible as you demand the truth from all parties. You will need to take great care to make sure every person who speaks to the court to give testimony is sworn under oath to place them under the potential "sanctions" for perjury should they falter.
In the same way, you must verify all of your own and your opponent's pleadings and motions. That means that you need to verify every factual statement included in your own filings to the court just as you do for your opponent's filings. In the same manner, you must check and verify every case law citation in your own pleadings and the opposition's. That means reading every cited statute, every cited case, and every rule or regulation cited in any document filed to verify it has been used correctly.
Just as important, you must stay constantly on guard that an effective and correct record of the case is made as it takes place. In this effort, you should verify that the "court reporter" providing the record has appropriate credentials and experience to work on the type of case you are litigating. Throughout the process, there will be temptations to 'go off the record' in meetings in the judge's "chambers," in informal hearings, and in other circumstances. You should resist allowing any of those occurrences. Too often, inexperienced litigants wince at the burgeoning costs of the ongoing transcripts. Those costs are minimal, however, when considered against the considerable total expenses of the lawsuit. If those transcripts contain statements that can be construed as admissions against interest of your opponent, or reversible error on the part of the judge, their value can be priceless.
Another skill you must cultivate and polish is the ability to use simple, direct sentences when you communicate with the court. Whether you are standing in front of the judge or jury, or drafting a document to file in the case, simple, direct sentences will make it less likely for your point to be misunderstood. Simple, direct sentences will also force you to focus on making your point precisely.
In these efforts, you should learn to manage your own case, so that it goes precisely where you want your litigation to go. This effort will also resist your opponent from exercising control of the case as it goes along and minimize the control the court may try to exert that is not in your interest.
Developing and honing these skills as you progress through your litigation will enhance your chances to achieve a favorable judgment. Believing that you have a right to win is an important first step in your effort to prevail and to make others believe you do. Mastering the various new skills that you will be required to recognize, understand and implement will help take you the rest of the way to your goal. Winning at the trial court level is your most important goal. Blindly depending upon your attorney – if you have one – can be deadly if that attorney is not zealously and energetically representing you.
Only about one out of four cases is altered or reversed in "appellate" actions – and many others are never even appealed. Overturning a "verdict" based on arguments of ineffective counsel or incompetent representation are even more difficult. So it is imperative that you understand just how important all of your actions in the trial court are going to be and how long your odds are at prevailing on "appeal."
Past the trial court, reviewing appeals court judges are not going to be concerned with whether or not you were actually right or wrong, but whether there was "legal error" that should be corrected. One of the most frustrating things to realize about litigation is that once the trial phase is completed, your types of recourse to change the decision are severely limited. While the initial review of the trial court's ruling will usually be by a "panel" of three appellate justices, you may request further review "en banc" by the entire court of appeals. By failing to object timely and properly, you will waive whatever objections you may have. The trial court is the place for your full court press in every play. Then, if you lose, you will likely have prepared the way for a stronger appeal position with a favorable record.
The initial judgment you must make about filing a lawsuit is to decide if you are legally entitled to the judgment you intend to seek. The question is not whether or not your feelings have been hurt, or that you have been embarrassed by the actions of someone else, or even that you have suffered some damages you believe you should be compensated for. Some actions are quickly dismissed because the lawsuit raises a claim that, even if true as stated, is not one for which the law offers a legal remedy. Once you decide that you have a legally compensable claim, the rest of the analyses and decisions follow.
There are five very important elements that must exist before you can file a case in court. Even if you have met all five elements, there is always a possibility that you may not win. They are:
[check] The plaintiff must have experienced a real injury or wrong.
[check] The trial court must have proper jurisdiction.
[check] The suit must have been filed within the limits of any applicable statute of limitations.
[check] There can be on applicable immunity issues.
[check] The suit must be based upon appropriate facts and admissible evidence.
Cases brought by persons without counsel are typically based on "tort" claims in state courts and/or civil rights violations in Federal courts. A tort is a 'private or civil wrong or injury.' There are three types of torts: intentional, negligent, and strict liability. A "civil rights" case involves a claim seeking redress for the violation of a person's Constitutional rights.
Jurisdiction is the authority a court has to hear and decide certain cases. For a court to render a valid judgment, it must have both "jurisdiction" over the subject matter of the controversy (known as "subject matter jurisdiction") and jurisdiction over the persons or entities involved (known as "personal jurisdiction"). Subject matter jurisdiction is required as a minimum requirement for a court to proceed. Personal jurisdiction is also required, but it can be waived by the parties if the court has subject matter jurisdiction.
Excerpted from The Pro Se Litigant's Civil Litigation Handbook by Kenn Goldblatt. Copyright © 2016 Kenn Goldblatt. Excerpted by permission of AuthorHouse.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.
Table of Contents
What is a Lawsuit?, 1,
Before You Decide to Litigate, 4,
Defining the Legal Issues Involved, 20,
Knowing What the Law Actually Says, 26,
Game Equipment, 32,
Getting the Game Started, 39,
The Rules of the Game, 41,
Understanding Applicable Statutes, Rules and Regulations, 55,
Making a Clear and Unambiguous Record, 60,
Law of the Case, 63,
Due Process: What It Is and What It Isn't, 66,
Why Pro Se Litigants Have a Hard Time, 68,
Doing It 'Right' if You Decide to Proceed Pro Se, 78,
Deciding to 'Lawyer Up' or Not, 87,
Fifty Shades of Unauthorized Practice of Law, 93,
Focused and Precise Pleadings, 98,
Effective Legal Research, 107,
Effective Legal Writing, 123,
'Credible and Admissible Evidence' and How to Get It Admitted, 130,
Testimony in Court and Out, 143,
Getting Evidence Admitted and Keeping It Out, 157,
'Preserving' Witness Testimony, 170,
Drafting Your Petition or Complaint, 172,
Special Appearance Motions, 179,
The Answer, 187,
Now that the Parties are 'Joined', 191,
Restraining Orders, Injunctions and Ex Parte Motions, 195,
Alternative Dispute Resolution, 198,
Why, When and How to Make Timely and Proper Objections, 202,
Recognizing and Preventing Opposing Party Dirty Tricks, 207,
How to Argue with a Judge, 211,
Making Sure Transcripts are Made of all Court Proceedings, 214,
Developing a Proposed Scheduling Order, 216,
Discovery and the Rules, 219,
Motions for Summary Judgment, 236,
Drafting 'Proposed Orders' for the Judge, 244,
Frequently Used Motions, 255,
Preparing for Trial, 277,
Limiting Pretrial Skirmishes and Preventing Ambush, 301,
Bench Trial or Jury?, 308,
Trial Procedure, 320,
The Trial, 322,
Post Judgment Practice, 332,
Findings of Facts and Conclusions of Law, 336,
Final Word, 343,
Appendix Templates, 375,
Pleading paper template, 377,
Captions templates, 378,
Template for plaintiff's original petition, 379,
Jurisdiction paragraph templates, 381,
Statement of facts template, 382,
Ad Damnum section template, 384,
Typical "motion" pleading template, 386,
[Deposition Excerpt], 402,
Proposed order(s) templates, 421,
Motion to dismiss template, 424,
Motion to strike template, 427,
Motion for more definite statement template, 432,
Motion to sever template, 435,
Motion to change/transfer venue template, 439,
General denial template(s), 441,
Defendant's answer template(s), 442,
Request for disclosure template, 444,
Interrogatories template, 446,
Requests for documents template, 448,
Requests for admissions template, 452,
Request for deposition by written questions template, 455,
Notice of deposition template, 460,
Subpoena template, 465,
Subpoena duces tecum template, 467,
Template for proposed order, 469,
Template for motion to amend, 470,
Motions for summary judgments template, 476,
Proposed summary judgment order template, 485,
Trial brief template, 488,