Chapter 4: Order of Proceedings

Order Of Proceedings:

What To Expect In Court

 “The court should be a place where anybody can come – whatever they have in their pocket – and be able to file a complaint in simple fashion and at least have somebody 

give consideration to it and give them an opportunity to be heard.” 

—  Thomas T. Curtin,  Judge, U.S. District Court 

“It is not good to have zeal without knowledge, nor to be hasty and miss the way.” 

—  Proverbs, 19:2 


This chapter will equip you to:


  •  Understand the judicial branch of government
  •  Learn what different legal terminology really means
  •  Learn the proper way to proceed – there is an A to Z framework to follow



This chapter is a quick flyover summary of the legal landscape and will acquaint you with our judicial system. Many of the elements touched on in this section will be revisited in subsequent chapters in more detail, while others are included to help give you a better hands-on grasp of the law and your place in it.

Types Of Law

There are four main elements that together comprise the rule of law and governance in our legal system: Constitutions, statutes, precedent or case law and rules or regulations. These elements are constantly evolving as the legislative, executive and judicial branches weigh in and add, change or take away the body of understanding that we know as the law. It is this change and mutual interdependence that constitutes the system of checks and balances the founding framers envisioned.

In the years following the end of the bloody American Revolution delegates from the 13 states assembled in Philadelphia to create a new framework of governing to keep the nascent union from sliding into rival factions and advance upon the hard won victories of the war. The Constitution of the United States, ratified in 1787, defined the structural components of our system of government and justice, assigning power to three separate but equal branches and establishing the limits of those powers. Coming from a tradition of tyranny, the founders sought to ensure that no one branch could ever concentrate such power that it could come to dominate the other branches. Instead, they established a dynamic tension that requires mutual dependence on the one hand, while permitting each branch certain oversight provisions affecting the other two.

Additionally, the states have constitutions reserving powers to their governments or permitting them to delegate some powers to the cities, counties, townships and municipalities under them. These are powers not expressly enumerated to the federal government by the United States Constitution.

Statutes and laws are those rules enacted by Congress or the state legislature, and signed into law by the executive branch. These are then interpreted and applied by the judiciary, which is also tasked with determining whether statutes are properly within the constitutional framework of rights and legal constraints.

Decisions and precedents form the body of case law by which the judiciary interprets and applies the laws the legislature has passed. Courts in similar jurisdictions are bound to follow these precedents to ensure consistency under the law, which gives these decisions or opinions the rule of law in themselves.

The profound impact of this process is often overlooked and underestimated. Indeed, as author Robert Shachner writes, “this process of interpreting statutes and reviewing previous decisions, more than any other action by any branch of government, is responsible for the evolution of our [system of] laws and statutes.” [1]

Over time, as these judicial reviews stretch and test the boundaries of these statutes with each new opinion, these precedents build into a volumes of case law and become pathways of understanding for others searching for definitive answers to legal issues.

Regulations and rules are the means by which federal and state agencies carry out the mandates imposed on them by the legislature. For example, if Congress was to pass a law requiring the EPA to reduce the amount of trace arsenic in drinking water by two-thirds over the next ten years, the EPA might publish a new set of regulations requiring townships to overhaul their drinking water filtration systems until the offending compound is reduced to the statutory limits. These rules are subject to the same oversight by the courts that statutes must endure and must often also undergo public scrutiny and comment before they can be published.

Additionally, the courts promulgate their own rules and procedures effectively governing the access to and conduct of the local justice systems under their authority. “Although many states use the Federal Rules of Civil Procedure as guidelines for their own procedural rules,” [2] each state is unique, Schachner writes. It is wise for the pro se litigant to spend time becoming familiar with the procedural differences in his or her locality, as the outcome of a given action can and often does, hinge on obscure differences from one jurisdiction to another.

The Courts – From Top To Bottom

The judiciary branch of government is composed specifically of a federal court, a state court and in some rare instances, a local court. The first step in considering legal action is determining which court has jurisdiction over the issue of your dispute.

“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish…”

—  Constitution Of The United States

Jurisdiction: The term jurisdiction refers to the extent of a particular court’s authority to hear your case and determine its outcome. Courts are either of limited or unlimited jurisdiction. Limited jurisdiction defines particular issues a court may decide or how a case can be brought before that court. For example, most small claims courts are limited jurisdiction courts in that they can decide disputes of up to $5,000 in some states, while the US Supreme Court is also a limited jurisdiction court in that it decides which cases to hear, handing down writs of certiorari (“send us your papers”) to lower courts for certain cases it think require its special attention.

At the federal and state levels general or unlimited jurisdiction courts can hear criminal and civil cases, conduct jury trials, decide some appeals claims and usually proceed at a slower pace and are more involved than lower limited jurisdiction courts.

Both the federal and state judicial systems are structured in essentially three-tiered frameworks. The most basic framework is the trial level, where cases are initially introduced and decided by judge or jury. Jury trials must be requested by one of the parties. If a jury is not requested – or if the litigants are not entitled to a jury as in some petty cases such as some divorce or estate dispute cases depending upon the state – the judge will usually decide the case in “bench trial.”

Decisions issued from trial courts can then be appealed to the next level, the appellate courts, which may or may not decide to hear a given case. There is not a new trial in appeals cases, but rather both sides in a dispute can submit briefs and oral arguments urging the appellate court to either uphold or overturn a trial court decision. Appellate courts review the materials filed alongside the trial court’s decision as part of the case “record” and then issues a decision based on its determination of what the law requires. This is important. Since an appellate court can only consider material previously introduced at trial and already “on record,” the litigant does not have an opportunity to furnish fresh evidence at appeal even though it may be germane to the case.

From there, a case can be appealed to the state supreme court or the US Supreme Court, which may decide that a particular case requires a definitive ruling. These are the courts of last resort and there is nowhere else to take your appeal once the Supreme Court of the United States has issued its ruling. Additionally, since these courts agree to hear a relatively small number of appeals cases, for most disputes, the appellate decision is effectively the ultimate ruling.

Most cases are decided before they ever reach trial. A case can be concluded before trial in one of the following ways:

  1. Out-of-court settlement is reached between the parties
  2. Plaintiff voluntarily dismisses suit
  3. Default judgment is entered against a party that does not appear in court
  4. Summary judgment is rendered when one party has such clear-cut and compelling evidence that no trial is needed.
  5. The judge, when asked to rule by a motion from one side, may assert that a party cannot win the case as a matter of law.

Federal Courts

The federal court system wields its authority through the United States Federal District Courts (including Federal Magistrates), the United States Circuit Courts of Appeals and ultimately, the Supreme Court of the United States. Federal courts generally resolve disputes arising over the application of federal laws or federal agency regulations.

The 94 US District Courts are courts of general or unlimited trial jurisdiction, meaning it can decide almost any dispute brought properly before. This is the first rung of the federal court structure. In this court, litigants are entitled to a federal jury trial. Cases can originate in District Courts or come from federal agencies, or from the state courts.

The US Circuit Court of Appeals is a court unlimited jurisdiction, that is, able to decide most any dispute emerging from a district court in its geographic region or circuit. There are 13 US Circuit Courts of Appeal.

Increasingly, federal and state courts are finding that their authorities are beginning to overlap as more and more laws and regulations emerge with dual jurisdictions. In these instances, the doctrine of preemption will cede jurisdiction to the federal court where federal law will be applied. Examples of such cases might include environmental protection standards, food and drug regulations, employment fairness issues or consumer protections.

State Courts

As a practical matter, most civil disputes are resolved in state courts: including child-custody and divorce disputes, probate, inheritance and juvenile matters. State courts generally also resolve most real estate cases, contract disputes, personal injury and traffic violation disputes. Like the federal system, state courts are structured upon a three-tiered general trial, appellate and high court model, but some states have additional jurisdictional divisions at the trial and appellate levels.

Some states have county or local courts with jurisdiction over small claims and misdemeanors. Generally, these courts are very accessible to pro se litigants, with fast schedules and less involved proceedings, but usually without access to jury trials. State court decisions are not binding in other states, but many states consider such decisions carefully in disputes without clearly, established rule of law.

Each state’s courts are established by the constitution of each state and the statutes of that state. They are all a little different but yet they follow the same pattern. A very popular state court administrator in Florida used to say – “ the judges tell me that their court is the best and does things differently, but I can tell you that they do the same thing differently.”

So state courts follow this pattern

                          I.           Supreme Court

                        II.           Intermediate Appellate Court

                      III.           Court of Unlimited Trial Jurisdiction

                      IV.           Court of Limited Trial Jurisdiction

 For example in Maryland, the courts of unlimited trial jurisdiction are the Circuit Courts operating in eight geographic regions and the City of Baltimore. The Circuit Court is a court of general jurisdiction and wields authority over the most serious criminal and civil matters as well as some District Court appeals and agency originated disputes. The Circuit Court is where jury trials are held. Judges are appointed by the Governor and then must stand for election. They are elected to 15 year terms.

The trial courts of limited jurisdiction are District Courts divided into 12 geographic regions and presiding mostly over minor criminal , civil cases, traffic cases and all landlord / tenant claims. No jury trials are conducted in the District Court. Judges are appointed by the Governor and confirmed by the Senate to ten year terms.

The appellate and high court responsibilities in Maryland are vested in the Court of Special Appeals and the Court of Appeals, respectively. The Court of Special Appeals is the appellate-level tribunal empowered to decide virtually all civil and criminal issues, except death-penalty cases; the great many of them appeals from the lower Circuit Court. The governor appoints the 13 judges of the Court of Special Appeal and they are confrimed in a retention election to ten-year terms.

The Court of Appeals in Maryland is the highest tribunal in the state and its seven judges are appointed to ten-year terms. The Chief Justice of the Court of Appeals is the constitutional head of the state’s judicial system. Like the US Supreme Court the Maryland Court of Appeals is almost  a certiorari court, allowing it to selectively review the cases covering the most important and far-reaching issues. The Governor appoints the 7 judges of the Court of Appeals and they are confirmed to 10 year terms in a retention election.

Each state has a similar organization although the names of the courts are different for each state and the method of appointment and election also differs. The National Center for State Courts, in Williamsburg, Virginia has compiled a chart of the courts of each state – click here.

Surveying The Landscape

The local courthouse, the likely location for your foray into self-representation, is a wealth of information and public records that that can enhance your case preparation.

Court Rooms / Filing Offices

Court Records

License Bureaus

Property Tax / Land Records

Probate Records

Judges Chambers

Court Clerk’s Office

Access to State Law Library

The staff of the court system, from court clerk’s offices to judge’s and other official staffers are not permitted to offer legal advice and counsel to any litigants (as that would be the practice of law), which places the onus of preparation squarely on the shoulders of the pro se. However, many of these staffers are eager to provide whatever help and assistance they can and; will often offer insightful information to direct the pro se to the exactly correct source material or set of procedures to help him or her succeed. Many courts have sought to be more accessible and have provided many self help forms and procedures on web sites and at the clerks counter in the courthouse. Also many self help organizations formed by bar associations and other community groups exist to provide help – Click here for links.

Clerks and staff might be available to help you work through court dockets and appeal filings and schedules, or help direct you toward the proper court documents to fill out and file, helping to reduce the likelihood that a wrong bit of information or last minute process or schedule change doesn’t jeopardize your rights to access.

Clerks can walk you through claim filing requirements providing you with forms and procedures and can likely offer a list of approved methods to collect a judgment once you’ve won your case in court. What they won’t do is offer an opinion about the merits of your case, or make suggestions regarding elements of it, or advise you whether you should even file your claim at all. They might suggest you talk to a lawyer when questions begin to stray beyond those areas where they are equipped to advise

Observing Court Conventions

When you appear in a courthouse as a self-represented litigant, think of yourself as a substitute attorney, acting on behalf of a client in absentia. You must conduct yourself in a professional manner, dressing and behaving as any other professional might. Since you will leave an impression – for better or worse – on the judge, jury, court officers and personnel who are directly impacting your chances of success, make it a policy not to go to court underdressed or under-prepared.

A business suit is proper attire for any appearance in court including non-trial appearances for depositions, court filings and motions.

If possible, visit the court prior to your trial to acquaint yourself with the customs and procedures occurring before and during trial. As Schachner observes, “The human dramas played out daily are usually interesting and, by observing such things as [the court’s] procedures, formalities and general decorum, you can become more comfortable in the court setting.”

Like it or not, judges make assumptions about litigant based on first impressions. Many times in my thirty years on the bench, pro se litigants (and even a few lawyers) have come into court less than properly attired and almost without exception, I have found them unprepared, disorganized, often disrespectful and usually, their cases became more or less a waste of time. Judges don’t appreciate having their time wasted because it prevents the court from considering another case where the parties are respectful and prepared. You have to remember that there is a never ending line of folks who want their “day in court”. Come to court professional and prepared and you and your claim will be taken seriously. 

Pretrial Activities

The business of lawsuits has become big business in America, employing millions of trial lawyers and court officials and associated personnel, while consuming hundreds of millions of man-hours and productivity spent preparing, filing litigating and determining exactly who is and who is not “entitled” in a given dispute.

America’s love affair with litigation has become cliché. The simple fact that most legal claims are decided before they get to trial demonstrates that far too many ill-conceived and unwarranted lawsuits are clogging the judicial system dockets. Parties too often end up in court when a couple of phone calls or a face-to-face conversation could’ve resulted in a mutually agreed upon conclusion.

Resolving Disputes:  Filing a lawsuit should be your last recourse, after exhausting all other avenues to reach to a compromise. Try some of these suggestions before driving to the courthouse:

–        Suggest an outside mediator or alternative dispute resolution to save trial fees and expenses.

–        If you’re owed money, offer a compromise that trims 20 percent off the top.

–        If you’re the one who owes the money, and your would-be opponent has a good claim, make an initial offer of 50 percent to get the talks going.

–        Be patient and creative in your negotiations, but don’t give away too much too soon and only then in tiny chunks.

–        Listen carefully to determine if the other party is more interested in some non-monetary element in the dispute – loss of good name or prestige, for example – and offer to remedy that loss if you can.

–        File your claim with an online dispute resolution web site like

Filing A Lawsuit:  Once you’ve determined where to file your claim ask for help from the court clerk to work through the paperwork and schedule requirements to get your case on the court calendar. You may be required to schedule a pre-trial conference.

What kind of lawsuit will you file? Some common categories of suits include contract actions, tort actions, and suits against private nuisances. When one person fails to fulfill the terms of a contract, the other party may file a breach of contract action asking the court to void the contract, grant damages resulting from the breach, or order the defendant to meet the agreed upon terms.

Tort lawsuits seek compensation for some civil wrong the defendant has committed. Personal injury, professional malpractice, property damage, libel and false arrest are examples of tort actions.

nuisance lawsuit contends that the plaintiff is unable to fully enjoy his life or property because of something the defendant is or is not doing.

Lawsuits are essentially complaints filed with the court, usually after the plaintiff has made a written demand of the defendant without success. The complaint describes the dispute as the plaintiff sees it and makes the legal case for the lawsuit. A summons accompanies the complaint and is delivered to the defendant advising of the complaint and giving him or her a short time of usually from 10 to 30 days to “answer” the claim.

Serving Defendant With Court Papers:  A sheriff or process server delivers the complaint and summons to the defendant. Oftentimes, the defendant must receive the package by hand to be considered properly served.

Defendant Files Answer:  If the defendant does not answer a claim in the time allotted, the plaintiff can ask the judge to grant a default judgment. If there is “proof of service,” evidence that the defendant was properly notified of the complaint; the judge might grant the judgment.

In his answer the defendant might deny the claim or parts of it, counter the claim with an adequate legal defense and/or file a counterclaim for damages. The defendant must make it clear whether he admits or denies each separate claim and allegation. If not, the defendant risks the judge deciding for the plaintiff for each allegation not denied. Whether the answers are true or not will be determined later, but the defendant’s answer to the complaint is not questioned at this point.

The defendant should take the time to assert her “affirmative defense” here as thoroughly as possible. Some courts may deny affirmative defenses if a defendant tries to introduce one later that was not part of her answer to complaint. It is a good idea to remember that once certain rights expire or are waived, they are probably gone forever, at least as far as that particular case is concerned.

Discovery:  Gathering the information and evidence you will need to support your claim in court is a process known as discovery. Discovery also allows the other side to know what you know and grants you access to their information. Television shows often portray courtroom trials that are decided by a last-minute scrap of evidence that comes to light at just the right second to acquit the hero, (or condemn the villain). Real life trials are different and courts have rules in place to discourage such surprises.

While both criminal and civil cases employ rules of discovery, civil cases provide for its more extensive use.

Litigants should use the discovery stage to more fully prepare their cases for trial. The onus of preparation falls on the pro se and he has much to gain (and lose) through this process. Some goals of discovery:

–        Acquire information leading to evidence

–        Obtain relevant and admissible evidence such as supporting documents, admissions, testimony and physical evidence

–        Grasp opponent’s legal thrust, themes and basis in fact

–        Become familiar with opposition

–        Identify the opposition’s expert and non-expert witnesses and testimony

–        Secure information concerning opponent’s witnesses for the purpose of weakening credibility and expertise.

The four main types of discovery are requests for admissions, interrogatories, notice to produce and depositions:

             Request for admission of facts—One party may request that the other acknowledge that some element of evidence or fact of the case is authentic and a matter is considered uncontested and admitted as evidence if an answer to the contrary is not provided within the prescribed time. Since such requests for admissions generally contend with issues that are not in dispute, the trial proceedings are spared from the need to establish them in court.

             Interrogatories—Are written questions that are asked of the opposition under oath and must be answered in writing. There may be a prescribed limit to the number of questions and there is usually a set limit of time by which the answers must be forthcoming. Interrogatories are typically used along with obtained documents to prepare for depositions.

             Notice to produce—Used by one party to obtain facts not already turned over in discovery. These facts might be documents, objects, photos or other material under the control of the opposition. Notices can cover everything from photos of a deck that collapsed in a civil suit to a sample of a murder suspect’s DNA in a death-penalty case.

             Deposition—These are the cornerstones of the discovery stage. Oral examinations recorded by a court reporter under oath. Each side is offered a chance at questioning the witnesses and lawyers or self-represented litigants can object to questions believed to be out of bounds. However, since there is no judge or jury present the deponent must answer the question anyway. Later, the judge will decide if the question can be admitted at trial. Witnesses have the right to review their testimony to note whether they believe corrections should be applied to the transcript.

Keep in mind that materials generated in the discovery stage do not just automatically become part of the court record. If it becomes necessary to introduce elements or evidence obtained during discovery or one party or another wishes to have discovery materials appended to the court record, such as for an intended appeal, it may take a motion and order of the judge to do so.

Pre-Trial Conference  Since most jurisdictions conduct one form or another of pre-trial conference, it is helpful to examine the elements such a meeting might typically cover. The presiding judge meets with the litigants and gives each a chance to present the core substance of their arguments. The judge may seek to find areas and issues upon which the litigants agree and will likely ask whether the sides have their presentations in order and decide any pending motions or interim questions of law that require attention prior to trial. The judge may challenge intended evidence or witnesses and might lay down last-minute ground rules.

Likely, the judge will ask for an estimate of trial duration so the trial calendar has good estimates. The last item the court will bring up pre-trial will usually be the possibility of settlement and the judge might inquire whether trial might be avoided by compromise.

The purpose of the meeting is to streamline the trial process or avoid it altogether. The judge will likely generate a memo outlining items stipulated to by all parties, numbers and names of witnesses and other crucial details as the parties prepare for trial

Jury Selection (Voir Dire)

Choosing a jury right can make all the difference in the world. In fact, the process of empaneling a jury of one’s peers – also known as voir dire – is such an integral, yet subjective talent that some trial lawyers hire certain proven jury pickers to consult on the selection process for their trials. Likely though, any pro se litigant involved in a civil jury trial will be selecting jurors herself to serve on the jury.

As with most other areas of trial law, jury selection rules vary by jurisdiction. While we will be exploring jury selection in greater detail in later chapters, keep in mind there are generally two ways to challenge a prospective juror:

  1. For Cause:  Jurors can be dismissed if either side believes the juror to be hostile or some circumstance in a juror’s occupation or work or home history, or circle of influential friends or some other part of who he is may make him prejudicial in favor or against the defendant.

Prospective jurors can also be removed from a jury if they are found to have friendship or kinship to one of the parties, financial involvement with the litigants or some inordinate interest in the case beyond simple awareness. Jurors can also be dismissed because they have preconceived notions or strong opinions about its outcome.

  1. Peremptory Strike:  This challenge is granted as a matter of right – no explanation is required to justify this challenge. Such challenges are not allowed to simply exclude jurors because of their race or sex.

Occasionally, usually for constitutional rules, the court is asked to dismiss an entire jury. Courts usually set a limit on the number of peremptory challenges while no limit is applied to dismissals for cause.

Opening Statements

It is commonly understood that what an individual hears first concerning a subject of interest carves into the memory a lasting impression forming the framework upon which all the rest of the opinion on a given issue will hang. In fact, one experienced litigator, Weyman J. Lundquist, writing for the American Bar Association’s Litigation Manual, writes that, “opening statements determine the outcome of trials 50 percent of the time.” [3] Lundquist adds, “Studies indicate that it may be as much as 85 percent of the time. …Opening statements give the jury a basic feeling for who is right and why, who has the better facts, what is the logical result. The first impression is not often changed.”

In the hands of a skilled presenter, the opening statement can go much further than merely outlining a case on its merits. It can also create an atmosphere of favorable inclination toward the plaintiff. Or, for the defense, a strong opening statement can collapse the spirit of goodwill the plaintiff is working to create and cast the claims of the plaintiff in a skeptical light.

The plaintiff begins and the defense follows the plaintiff.

Plaintiff / Defense Presentation

Direct Examination:  On direct, the plaintiff calls witnesses who are supportive and presenting supporting documents and other evidence and expert witness testimony to lay in the factual flesh and blood of the claim. This phase may offer a handful of facts or thousands of them, depending on the case’s complexity, but all of them should actively relate to and reinforce the main themes of your case.

The plaintiff opens the examination phase of trial while the defense cross-examines witnesses.

Cross-Examination:  The objective of cross-examination, quite simply, is to impeach the testimony of the witness. One of the most effective tools to do that is the deposition. At trial, witnesses are cross-examined, illustrating inconsistencies between their direct testimony and their depositions to attack their credibility.

Inconsistencies in affidavits, sworn testimony and statements, claims, applications, all can impugn the testimony of a witness.

Objections:  Since the plaintiff presents direct examination first the defense is given first crack at objections. Objections can shift the pace of a trial and call a jury’s attention to key areas in a case and otherwise offer an opportunity to impugn a litigant’s evidence.

Types of objections include those on the grounds of hearsay, privileged information statutory exclusion, relevance/materiality.

Final Arguments

Like the opening statement, the closing argument is key a component to any effective trial presentation. This is the deal closer, when all of the different aspects of the case, the divergences, all the loose threads of evidence and testimony are bound together and wrapped into a strong, compelling argument. This is the time to sum up and reiterate for the last time the themes of the case.

The evidence is touched upon again – lightly – to reinforce its weight, but not to reargue its merit. The standards of proof are reinforced, to show how the weight of evidence exceeds that standard.

Lastly, the jury is empowered to decide the case and the litigant after a simple, yet compelling close, nods toward the panel and returns smartly to his seat to confidently await the outcome of deliberations.

[1] How and When To Be Your Own Lawyer, Robert Schachner, Marvin Quittner, Avery Publishing Group, Inc., 1993.


[2] How and When To Be Your Own Lawyer, Robert Schachner, Marvin Quittner, Avery Publishing Group, Inc., 1993.


[3] Litigation Manual, American Bar Association, Weyman J. Lundquist