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Going It Alone in Court: When the Other Side Has a Lawyer

by Judge Roderic Duncan
Copyright © 1992 Nolo Press

It wasn't long ago that the standard advice to a person representing herself in a lawsuit was that if the other side showed up with a lawyer, the best thing to do was to run. Run home and hide under your bed. Run to the nearest lawyer's office and hire yourself a lawyer. Run anywhere, but don't stand and attempt to deal toe-to-toe with a professional who has been trained to fight legal battles in court.

Even an attorney who wrote a series of self-help books about handling legal matters without a lawyer had this advice in his 1986 book about representing yourself in a California Municipal Court: "If the defendant is represented by an attorney, you should employ an attorney to represent you, since you will not be able to 'compete' with an attorney at trial."

Today much knowledgeable advice is to the contrary. If your claim is not too complicated and you have good information, there is no reason to back down just because a lawyer shows up on the other side. Likewise, if a lawyer brings suit against you in certain types of simple lawsuits, you should consider defending yourself without paying the expense of a lawyer.

But why take on a task that even with good preparation is likely to be stressful? In a word, money. Lawyers routinely charge $150 to $250 an hour for their time, and that includes time spent talking to you on the telephone, researching your case in the library, driving to and from court and waiting (sometimes several hours) in the courtroom for the case to be called. It doesn't take a genius to understand that if you can do the job yourself, you can save buckets of money.

If you do decide to represent yourself in a lawsuit, here are a few tips for dealing with lawyers.

Before You Go to Court

Don't be intimidated by anger or theatrics. Most lawyers will treat you politely if you do the same. Those who insist on putting on a show every time they deal with their opponent usually do so, whether she is another lawyer or a pro per (person acting without a lawyer).

Describing a California lawyer recently, a legal newspaper said: "A good litigator knows that a civil suit is like a knife fight. The goal is not just to win but to come away from it having slashed away at your opponent, while losing as little of your own blood as possible." The story goes on to talk about how a litigator's every move must be designed to confuse and distract his opponent.

Nonsense. If you are unlucky enough to draw such a pretentious opponent, there is no reason for you to go along with it. Simply tell the lawyer you'll be glad to talk about settling the case any time, but that you are not going to sit still for a dog and pony show.

Whether you are suing or being sued, keep in mind that the lawyer probably has the authority to recommend an amount to settle the case with you.

If you have a good fact situation, you want to demonstrate through your court papers and conversation that you know enough about the legal system to get what you deserve. There is no need to be obnoxious. The opposing lawyer can make your life a lot easier by recommending a reasonable settlement at an early stage--something she won't do if you come on like Attila the Hun. That only gives the other lawyer the opportunity to recommend fighting instead of settling--which a lawyer who is getting paid by the hour may secretly like to do.

If you arrive at a verbal settlement of your case beware the lawyer who wants you to sign an agreement that is full of undecipherable legal language. At this stage it is often worth the cost to hire a lawyer to look over the document and advise you. Especially if yours is a good-sized settlement, the fee for a 30-minute consultation should be a bargain.

When You Get to Court

When you prepare any documents you will file with a court, be sure they are accurate, typewritten and mailed to the other side well before your court date. This is where a good self-help law book containing detailed instructions is invaluable. Lawyers love to find some minor error you made in a court document and then claim that since you were wrong about one thing, you are wrong about all.

And if you want to see a grown lawyer cry about how unfairly he has been treated (and a judge who used to be a lawyer sympathize), wait to give him your court documents on the courthouse steps. In most cases, you create a picture of strength by letting the other side see your argument ahead of time.

When faced with a pro per, some lawyers immediately start talking to the judge in lawyer-talk, referring to laws by their numbers and court cases using citations. Without apologizing, tell the judge you are representing yourself without a lawyer because you can't justify the expense and that you'll rely upon her to apply the correct law. In most routine cases this is exactly what would happen even if you hired a lawyer to pontificate for half an hour.

Do the best you can to explain the facts of your situation and to present any necessary witnesses, following the advice of self-help materials. Then sit down. Realize that it is not the length or poignancy of your story that will win your case--it is how your facts fit with the law of the state.

Once you're in court it can be intimidating to talk to the judge, who looms over you from the "bench" (it's just a desk on a platform). Just remember a few simple rules.

  • Call the judge "your honor," not "Judge Smith."
  • Don't interrupt your opponent or the judge--you'll get your turn.
  • Don't get up and repeat all that you said before. I sometimes have to tell pro pers (and some lawyers): "When you have an important point to make in a jury trial, it's okay to tell them three times. If you are in a trial before a judge alone, two times is enough."

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The selected articles originally appeared in the Nolo News and are Copyright © Nolo Press 1996 and reproduced here with permission. If you find them of value, we encourage you to visit Nolo Press at their web site http://www.nolo.com. If you wish to post them on-line or otherwise distribute them, first read Nolo's copyright policy.

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