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Represent Yourself in Court: If You Don't Go to Trial
by Paul Bergman and Sara Berman-Barrett
Copyright © 1993 Nolo Press
Over 90% of all lawsuits filed are resolved without trial. If you can
arrive
at a fair resolution with your adversary without going to trial, you can
save
time and money.
Here are the typical non-trial situations.
Hearings: A Little Less Sticky
Depending on what kind of dispute in which you're involved, you may find
yourself
in a hearing rather than a trial. For example, you'll probably have a
hearing if
you are seeking an increase or a decrease in spousal or child support
following
your divorce, or you need to prove how much money you are entitled to
after a
defendant has failed to answer your complaint.
A court hearing is usually a short and narrowly defined proceeding in
which you
are not entitled to a jury. A judge conducts the hearing and makes a
ruling. The
other person in the dispute may not even be present in court. However,
many of
the courtroom procedures and rules of evidence are exactly the same in a
hearing
as in a trial. And you still must offer evidence in a way that persuades
the
judge or hearing officer to rule in your favor.
Arbitration: Another Trial Alternative
Arbitration is an alternative to trial that is often perceived as
quicker and
less costly than trial. In arbitration, a privately agreed-to
arbitrator, not a
judge, rules on the case. There is no jury, procedures are more informal
and the
arbitrator is not strictly bound by rules of evidence. Arbitrators
generally
charge by either the full or half day; you and your adversary split the
arbitrator's fee.
If you have a legal dispute, you may well find yourself involved in an
arbitration rather than a trial. One reason is that in many states,
judges have
the power in certain kinds of cases to order you and your adversary to
arbitrate
a dispute. A second reason is that even though you didn't realize it,
you may
have signed an agreement that provides for binding arbitration of all
disputes
arising under the agreement. For example, if you are a condominium owner
who has
made a complaint against your condominium association for unreasonably
restricting your right to remodel your unit, the condominium
association's set of
rules to which you agreed may set out that all such disputes must be
arbitrated.
Arbitration proceedings are similar to trials, but generally more
informal. As in
a trial, you and your adversary present evidence to the arbitrator
through your
own testimony and the testimony of witnesses. Like a judge, an
arbitrator
evaluates the credibility and legal significance of evidence to decide
whether
you win or lose.
Also, because most arbitrators are lawyers, their actions during a
hearing tend
to be strongly influenced by their legal training. The rules and
procedures they
follow generally closely resemble those used by judges in trials.
Mediation: Trying to See Eye-to-Eye
Another popular method of resolving disputes outside of court is
mediation, which
is generally more informal and less costly than arbitration. Mediation
is a
voluntary process in which you meet with your adversary in the company
of a third
person, the mediator. The mediator, who has no power to impose a
solution,
usually tries to facilitate settlement by clarifying each person's
position,
encouraging cooperation and suggesting possible solutions. Professional
mediators
charge for their services, typically by the hour. Normally, those
involved split
the mediator's fee.
Even though mediation may be informal, to use it to arrive at an
acceptable
solution you will probably need to demonstrate both to your adversary
and to
yourself that you have strong evidence to support your legal position,
and that
the evidence is admissible in court should mediation fail. Otherwise,
you may
make an unwise and unfair settlement just because you are afraid to go
to trial.
Negotiation: Walk a Mile in Other Shoes
The most ancient way to settle a dispute is negotiation, in which you
sit down
with your adversary and try to resolve your differences. Whether or not
your case
goes to trial, you will almost certainly find yourself negotiating some
or all of
the issues that are important to you.
Against this background, it doesn't normally make sense to interpret
your
adversary's offer to "talk settlement" as a sign of weakness. Nor should
you be
reluctant to be the one to suggest a negotiated settlement. In fact,
judges,
arbitrators and mediators routinely urge adversaries to explore
settlement even
if previous attempts have failed. A wise person never closes the door to
a reasonable settlement.
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