If you can afford it, you probably should hire an attorney to handle a legal dispute if something important is at stake. Attorneys have received specialized training in the nuances of their profession and should have a strong understanding of the strategies available to you. However, if you need or want to handle the process on your own, you should explore this section to find out about key issues that you may encounter and decisions that you may need to make.
For example, an important part of preparing your case involves learning about the elements of your claim. Each type of legal action has specific components, known as elements, and the plaintiff must prove each of them to establish the defendant’s liability. Otherwise, the defendant can get the case dismissed at the outset. Even if you are the defendant rather than the plaintiff, you should understand the elements of a claim against you. This will allow you to craft a defense that attacks the weakest parts of the plaintiff’s case. If you are bringing a counterclaim against the plaintiff, the counterclaim will have required elements as well.
Discovery is the legal term for the process of gathering evidence, which will unfold if the case survives any initial motion to dismiss. The parties can gain access to a broad range of information and materials through discovery, which covers anything that is relevant to the lawsuit. Gathering evidence will help you prepare for trial by learning more about the opponent’s position and the statements that opposing witnesses will make. It also can help you get a clearer sense of the strengths and weaknesses in your own position. As a result, you can evaluate settlement offers more accurately. (Most cases that advance past an initial motion to dismiss are resolved through a settlement rather than a trial.)
There are some limits on discovery of which you should be aware. Certain personal relationships that involve an expectation of confidentiality receive legal protections. Information disclosed to your spouse, doctor, or attorney likely will be protected. Other information that normally would be private also may receive protection or limited protection. If your opponent is abusing the discovery process to harass you, you can ask the court to intervene on your behalf. Read more here about gathering evidence.
Choosing Between a Judge and a Jury
In most civil lawsuits, you have a right to a jury trial, but you may want to think carefully about whether to exercise this right. Both parties must agree to waive the right to a jury, however, so you will need to proceed before a jury if your opponent decides not to waive the right. Sometimes people who are proceeding without an attorney prefer to have a judge hear their case rather than a jury. This allows them to avoid the cost and complications associated with the jury selection process. A judge who is hearing a case involving an unrepresented litigant may take time to make sure that they understand the proceedings and may not hold them accountable for failing to strictly adhere to court rules. Also, a judge may disregard improper evidence even if the unrepresented litigant does not object to it.
On the other hand, some people who proceed without an attorney feel that a jury will be more sympathetic to their case than a judge. The people on the jury may have a more similar background to you than a judge, and a case that has emotionally resonant elements may benefit from being heard by a jury.
Handling the Courtroom Setting
While most cases do not reach a trial, you should know how to handle a trial in case settlement negotiations break down. A trial can be a complex process that involves presenting evidence, examining and cross-examining witnesses, and making opening and closing statements about your case. You can put together a “trial notebook” in advance to keep track of the strategies that you will use in presenting your case and challenging the opponent’s positions. During the proceeding, you should put aside any personal animosity toward your opponent and behave in a professional manner. In other words, you should not let your emotions dictate your behavior but instead proceed rationally. This can affect your credibility before a judge or even a jury. Read more here about ways to prepare for a trial and handle the pressure of being in court.
Collecting a Judgment
Many people do not realize that collecting a judgment can pose serious challenges if a defendant is facing financial trouble. If you are suing a defendant who has minimal income and assets, you should be aware that you may not be able to recover a judgment from them even if you prevail in the lawsuit. However, you can keep renewing a judgment to preserve your ability to collect it if their financial circumstances improve. There are many potential ways to collect a judgment, including garnishing a debtor’s paycheck, collecting from their bank account, attaching the assets of a debtor’s business, or putting a lien on their property. Federal and state laws allow a debtor to exempt certain essential property, however, and they limit the amount of income that a creditor can garnish. If the debtor files for bankruptcy, the situation may become even more complicated.
One reassuring point for people pursuing a judgment against multiple defendants is that one defendant may be liable for paying the entire judgment if the other defendants cannot pay their shares. Whether this rule applies depends on the state and the type of case. Read more here about collecting a judgment.
Legal Matters Outside Court
Not every legal issue that you encounter will involve battling an opponent in court. You may be able to resolve important matters by completing forms or drafting agreements. Again, if you have the resources, you still may want to consult an attorney to make sure that you are taking the necessary steps to meet your objectives. However, you can accomplish tasks like starting a business or making a will or trust without getting a court involved. Many states have a simplified divorce process that consists mostly of submitting forms and requires minimal court time. You can buy or sell a home by completing the appropriate paperwork without ever going to court. People who are seeking public benefits usually can apply directly to the appropriate government agency, although they may go through an administrative hearing that is similar to a trial if they receive a denial. These are just some examples of legal matters in which litigation may not be necessary or relevant. Read more here about handling legal matters outside court.