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Why Not to Represent Yourself if Sued in a Civil Case


Story by Andrew Myers |

Answer the Papers

Rules of Civil Procedure vary from state to state and even from court to court. However, the papers that are dropped off almost always tell you how much time you have (often 20 to 30 days) and where to file the answer. Always answer the complaint. You must also at this time raise all legal defenses that are available to you. If you do not raise these defenses, they are considered to be waived.

In the movies and TV dramas, court cases are made to look like exciting nail-biters in which no one knows what will really happen until that very last witness comes in with the missing piece of the puzzle that miraculously solves the case. This makes great drama. But, civil cases aren’t done this way. The secret to defending yourself if you have been sued is to make sure that you use the discovery tools explained below as soon as possible after you get notice of the suit and long before the actual trial. Discovery tools are what civil attorneys do with much of their time.

Once a civil case is brought, each party may send the other party a list of written questions which must be answered by the other side, under oath, within a certain period of time. The scope of the questions is not even limited by relevance, but by the much broader legal standard that they be reasonably calculated to lead to the discovery of evidence admissible at trial. There are limited objections that can be brought. But, generally, courts are not amused by those who get into discovery disputes unless there is clear abuse. Carefully crafted interrogatories can help determine whether the other side has the facts to suppport the legal relief they seek.

Requests For Production of Documents
Civil court rules allow the parties to the suit to send lists to each other of pertinent documents, and to request that copies of those documents be produced within a limited period of time. These rules also allow for production of documents “and things”. So, for example, in a products liability case, the manufacturer can ask for production of the faulty product. (Do not let them do this outside of your attorney’s conference room, under supervision.) The rule allows for the arrangement for the inspection of a premises. So, in a property dispute or an injury case, one party can ask for the right to go and inspect the area without fear of being arrested for trespassing. However, most often these rules are used to get copies of documents that may shed light on the case.

Before the trial, the parties may call each other and the witnesses to a deposition, where the individual will be sworn in and asked a series of questions. A stenographer is brought in to reduce the testimony to a written transcript, which is usually also available in an electronic format. This helps the litigants to not only obtain information, but also to “size up” various witnesses to determine how they will appear in court if the case proceeds to trial. How to take a deposition and how to answer the questions are matters far beyond the scope of this outline, but should be explored in depth before one even thinks of going to a deposition.

Requests For Admissions
This is one of my favorites, and is often overlooked. Civil rules allow the parties to ask other parties to either admit or deny certain facts, and to either admit or deny that certain documents are genuine. This can save time and money in later fights over whether certain documents should be allowed as evidence at trial. These requests can also be used to narrow issues. For example, in an accident case, why spend a lot of money bringing in the experts if you can get the other side to admit that there was a traffic signal and that it was operating properly at the time of the accident. Also, if a party is not in good faith in denial of a request, then the costs incurred to prove that document or that issue can be awarded by the court later.

Requests for Production of Documents, summarized above, only apply to direct parties to the lawsuit. If you need documents from non parties, a subpoena is needed. Subpoenas are most frequently used to obtain things like hospital records, employment records, bank records, and existing inventory and financial records from various businesses. Caution: different jurisdictions have different statutes and rules establishing subpoena requirements, and in many places only an attorney can issue the subpoena. Finally, the subpoena must be served by a properly authorized process server. Nothing will be ignored more quickly than an improper subpoena. If they’re nice about it they may give you a phone call before tossing it.

Litigation is more than just piles of paper. Volumes and volumes of manuals exist spelling out sample “discovery” requests in a wide variety of legal claims. But, a skilled civil litigation attorney selects precisely the right questions to determine if the opposing party can establish facts that will support all elements of their legal claims or defenses. Every legal cause of action is made up of individual elements. Discovery requests are targeted to these elements. If any af the elements are not there, then a motion for summary judgment may be appropriate to either throw out the case or to strip away claims and defenses that can not be established.

Motion for Summary Judgment
A motion for summary judgment can not be ignored. This motion makes a claim to the court that there are no material issues of genuine fact, and that therefore, the party bringing the motion is entitled to a final judgment in their favor as a matter of law. The party targeted by the motion must respond with an affidavit showing that yes there are factual issues that are important to the case and therefore the motion should be denied and the case should proceed to trial. An accompanying memorandum of law can also give the court a good legal argument, citing case law, statutes, regulations or anything else that would justify denial of the motion for summary judgment. However, the affidavit establishing facts is absolutely crucial.

This is the Nuts and Bolts
The above summary outlines the pre trial process that civil attorneys spend much of their time pursuing. People have come to me after they’ve ignored legal papers and a judgment has entered. At this point, the above tools are out of reach. Due to strategic considerations mentioned in step 8, it is highly unwise to “do this at home”. Even in a simple situation perceived as “hopeless”, well placed discovery can force the other side to prove their claims. Put them to the test. They may stumble. This is where missing pieces to the puzzle are found in reality in the legal system. And although it may not make for exciting TV or movies, this is where cases truly are made or are broken.

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Story by Andrew Myers |
Personal Injury Lawyer – North Andover, MA


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