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 VirtualCourthouse.com.
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.
A 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:
- 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.
- 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
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