Defend Yourself in Court

Unless you are involved in a small claims dispute or going against another person who is unrepresented, defending yourself in court is a very difficult and risky decision. Most people who represent themselves in court, particularly when they go against an attorney, do not win their case. If you have no choice but to represent yourself, you must prepare your case, familiarize yourself with court procedures, present evidence and witness at trial and file court motions. While it is difficult to represent yourself, there are many things you can do to give yourself the best opportunity to win your case.

Steps

Navigating the Legal Process as a Pro Se Defendant

  1. Understand the legal names for parties involved in a case. You must learn all of the legal names of the participants in a trial. The judge or opposing attorney will refer to people by these names. The participants include the following:
    • Pro Se litigants are individuals who are a named party in the civil lawsuit or criminal case but are not represented by an attorney. If you are preparing your own defense in a case, you will be known as the pro se defendant.[1]
    • The plaintiff is a person who files a civil lawsuit (a case for money damages) against another person or business. If you are involved in a civil as opposed to a criminal case (discussed below) the plaintiff is the person(s) suing you. The plaintiff may or may not be represented by an attorney.[2]
    • The prosecutor is the attorney that represents the state in a criminal case.[3]
    • In a civil lawsuit, a plaintiff sues a person that they believe has harmed them in some way and that harm has caused damages. There are a variety of civil lawsuits that could be brought such as a personal injury lawsuit, a divorce proceeding, a discrimination case, or a breach of contract case.
    • In a criminal case, a prosecutor presents evidence to the jury to try and prove that a person accused of committing a crime actually did commit the crime. A jury or judge hears all of the evidence and the defense and decides whether the prosecutor presented enough evidence to demonstrate that the accused committed a crime.[4]
  2. Familiarize yourself with court rules. Each state court and federal courts have procedural rules that all parties must follow when bringing a case to court. Below is a list of potentially relevant procedural rules and where to locate them.[5]
    • If your case is in federal court you will need either the Federal Rules of Civil Procedure or the Federal Rules of Criminal Procedure and the Federal Rules of Evidence. You can find these rules at http://www.uscourts.gov/rules-policies/current-rules-practice-procedure.
    • Federal courts also require that you review and follow and rules of procedure for the specific federal district court where your case is being heard. These rules are located on district court websites. You can locate the relevant district court website here: http://www.uscourts.gov/court-locator. Once on the relevant website search for “rules of practice” or “civil procedure rules” and you should be able to locate the rules.
    • If your case is in state court, you can locate the relevant rules by conducting an internet search with your state name and “rules of civil procedure” or “rules of criminal procedure,” and “rules of evidence.”
    • You can locate local court rules by calling the court clerk where your case is being heard. In a civil case, you can find the name of the court on the first page of the Complaint that you received from the plaintiff. Also, you can conduct an internet search for the court’s name and “rules of civil procedure” or “rules of criminal procedure,” and “rules of evidence.” Most courts provide this information on their website.
  3. Request an attorney if you are in criminal court. The Sixth Amendment entitles criminal defendants to have an attorney assigned to them if they cannot afford an attorney on their own. If your criminal case carries a potential prison sentence of six or more months, you are entitled to have an attorney appointed to you. If you have the option to have an attorney appointed to you, rather than you defend yourself, you should request an attorney.[6]
  4. Determine whether you can afford to retain an attorney in civil case. One of the reasons people choose to defend themselves in court is because they cannot afford to hire an attorney. If this is why you are planning to defend yourself, you should determine whether there any ways to retain a low-cost or free attorney to assist you in preparing your defense or handle the entire case themselves. Below are some ways to locate potential attorneys:
    • Contact your state bar association and ask about how to locate and pay for an attorney when you cannot afford an attorney. The American Bar Association has compiled a list of state-by-state resources that can direct you to attorney referral sites, such as contact information for state bar associations. The ABA provides this information at http://apps.americanbar.org/legalservices/findlegalhelp/home.cfm
    • Contact legal aid in the area where your case was filed. Legal Aid societies often provide low or no-cost representation for individuals who cannot afford to retain an attorney on their own. You can locate Legal Aid societies by conducting an internet search for the name of the state where the case is pending and the words “Legal Aid.”
    • You can also contact local law schools and see whether they have a law clinic that would represent you for free.

Defending Yourself in Civil Court

  1. Provide an answer to the complaint. A civil action begins when someone files a complaint and serves you with a copy. If you have been served with a civil complaint, you will have to quickly determine if, and how, you plan on responding. As soon as you receive a copy of the complaint, review it. It will detail the claims being made against you. In addition to the complaint, you will also receive a summons, which is a document telling you that you have been sued and it gives you information on how and when to respond.
    • In general, you will have 30 days to respond to a lawsuit, starting with the day you were served with the complaint.
    • In order to respond, you will have to file an answer. If you do not file an answer in time, you risk having the court rule in favor of the plaintiff in what is called a default judgment.
    • To file an answer, contact the court in which you have been sued in and ask for an answer form. You can usually find them online but if not, you can also visit the courthouse in person and obtain one.
    • The answer will contain straightforward responses to the plaintiff's claims. For each paragraph of the complaint you will deny the claims made, you may agree with the claims made, or you may state that you do not have enough information to provide an answer.
    • Once you complete the answer, you will pay a filing fee and serve the other party with your answer. In California, the filing fee for a contract dispute involving $25,000 or less, the fees will range from $180 to $300. To serve the other party, you will have someone that is not a party to the lawsuit give a copy of your answer to the other party.[7]
  2. Consider filing a cross-complaint. In addition to filing an answer, you may want to also file a cross-complaint, which is like filing a lawsuit against the person that just sued you. A cross-complaint can only be filed if the claim you are making is related to the lawsuit that has been filed against you. You must file your cross-complaint at the same time you file your answer. If you do not do this, you will waive your ability to raise your claim later.[8]
    • To file a cross-complaint, find the appropriate form in the same way you found your answer form. A cross-complaint form will usually ask you to state the cause of action and why you think you deserve to have a court rule in your favor.[9]
    • For example, if you have been sued for injuries you are alleged to have caused in a car accident, but you also received injuries that you think were the fault of the other party, you can file a cross-complaint alleging that they should be liable for damages as well.[8]
  3. Research the relevant law. In order to defend yourself in court, you must understand the legal claims or charges against you and prepare your legal defense. This requires that you research the law related to your case and strategize on how best to defend yourself based on the legal claims against you. You can gain access to legal resources in the following places:
    • You can use local law libraries open to the public. To locate a local library, conduct an internet search for the name of your city or town and law library and “open to the public.” You can ask the law librarian to direct you to the legal resources you need.
    • You can search for local state laws and statutes online at: http://www.findlaw.com/11stategov/indexcode.html.
    • You can also use free online legal research websites to locate legal information to assist in your defense.
  4. Conduct discovery. As soon as you file your answer, a legal process called discovery will begin. During discovery each party will have the opportunity to request information from the other party in order to learn about the strengths and weaknesses of the case. During discovery you can collect facts, get witness statements, find out what the other side is going to say, and see how good your case is and how good their case is.
    • You can collect informal discovery by conducting your own interviews, gathering documents from public agencies, and by taking photographs.
    • You can also conduct more formal discovery by taking part in:
      • Interrogatories, which are written questions directed to the other party that they must answer.
      • Depositions, which are formal interviews between you and someone else important to the case.
      • Requests for the production of documents, which are formal requests for particular documents.
      • Requests for admissions, which simply ask the other party to admit or deny a specific statement.
      • Subpoenas, which are court orders requiring the other party to provide you with certain information.[10]
  5. Attend all required court appearances. Before your actual trial, you will be required to attend at least one pretrial conference. In some states (i.e., California), this court appearance is called a case management conference (CMC). At your CMC, you and the other party will meet with the judge and discuss how the case is going to be handled. At the CMC you should be prepared to discuss:
    • The possibility of a settlement;
    • Your readiness to schedule a trial date;
    • How discovery is going or has gone; and
    • Your willingness to concede certain issues that are not in dispute.[11]
  6. Oppose any motion for summary judgment. In most cases, the opposing party will file a motion for summary judgment, which argues that the undisputed facts of the case require the judge to rule in their favor without the necessity of a trial. You will need to respond to this motion quickly. For example, in Nevada, you will have ten days to respond to a motion for summary judgment.
    • In order to respond, you will need to file your own motion explaining to the court why the motion should not be granted. You must be able to show that factual questions exist and are in dispute, and that a judge or jury should decide these issues at trial. Your motion should contain enough information to convince the court that a judge or jury could potentially rule in your favor at trial. To do so, you should present evidence supporting your story from information you have gathered during discovery.
    • You can usually find an opposition motion form on your court's website. Fill out the form completely and accurately and attach any necessary documents.[12]
  7. Try to settle the case outside the courtroom. Before your trial date, meet with the opposing party and try to come to an agreeable solution so you do not have to go to trial. In California, for example, there can be mandatory settlement conferences aimed at resolving the dispute. Settlement conferences can also be voluntary.
    • During a settlement conference, you and the other party will meet with a neutral third party. During your meeting, you will discuss a possible settlement with everyone. The neutral third party will not make a decision but they will help assess the strengths and weaknesses of your case.
    • Settling a case can save you time because you will not have to go to trial. Also, coming to an agreement will save you money because you will not have to pay court fees, witness fees, and you will not have to take as much time off of work. Finally, settling before trial will give you more control over the outcome because you will not be leaving the decision up to a judge or jury.[13]
  8. Prepare for trial. If all else fails you may have to go to trial. Before your trial date, be sure you prepare adequately and are confident in your game plan. To prepare:
    • Be sure you have prepared your evidence, which will be in the form of witness testimony or exhibits. When preparing your evidence, make sure you organize it in a way that makes it easy for you to introduce it in court. Have everything in the order you are going to bring it to the court's attention. Also, make sure you have prepared your witnesses so they know what you are going to ask them and what the other party might be expected to ask.
    • Also, be sure you know the rules of evidence. While no person, attorneys included, no every possible rule out there, you should try and understand the basics so you are ready for court. The rules of evidence dictate how, why, and when evidence can be introduced in court. They are there to make sure the court only gets reliable, relevant, and accurate information.[14]
  9. Go to trial. When the day of your trial arrives, get to the courthouse early and get settled in. When your case is called, step to the front of the courtroom and be ready to go. In general, you will be required to conduct the following:
    • An opening statement, which is your opportunity to lay out the facts of your case and tell the judge or jury what you will prove during the trial. You should plan and write your opening statement as part of your preparation for trial. View sample opening statement at http://www.nysd.uscourts.gov/file/forms/representing-yourself-at-trial. In addition, outline the evidence they will see and the witness testimony they will hear.
    • A Cross-examination of witnesses. The Plaintiff must provide you a list of witnesses before trial and you should prepare to cross examine them at trial. During cross-examination, you want to make juries question the believability of witnesses.[15] When cross-examining witness, it is important to remember the following:
      • Ask direct and leading questions so that a witness has little opportunity to explain his or her answers.
      • Do not appear to “badger” the witness or it may make the jury more sympathetic to the opposing side.
      • If a witness changes their testimony, use their deposition testimony to show that they are providing inconsistent testimony. This may make the jury discount the entirety of the testimony as unreliable.
      • If the witness is hostile to your case, then you must highlight their bias so that the jury understands that their testimony may not be completely reliable.[15]
    • A presentation of your defense. After the plaintiff is finished putting on their trial, you will have a chance to call witnesses and introduce evidence that supports your position. The plaintiff must prove his or her case in order to win and therefore, the burden is on the plaintiff to present enough evidence to meet legal requirements and convince a jury.[16]
    • Objections. During trials, the opposing attorney may try to present evidence or question a witness in a way that is not permissible under court rules. You should make an objection to this type of evidence. You do this by stating, “I object” and then give the legal basis for your objections.
    • Give a closing argument. After you finished your defense, you will have a chance to make closing remarks to the jury. Since the Plaintiff must prove their case to win, you should restate your story of what happened and refer to the evidence that supports your story. Your closing argument should be brief and directly on point so the jury can easily follow your argument. At the end, ask the jury to find you not responsible.

Representing Yourself in Criminal Court

  1. Actively take part in your arraignment. The first time you will have to represent yourself in criminal court will be at your arraignment. At your arraignment the court will tell you what the charges against you are, what your constitutional rights are, and that you have the right to an attorney. Once the judge has said their piece, you will have the opportunity to respond to the charges by entering a plea. You will have to respond by saying not guilty, guilty, or no contest. Most often you will want to plead not guilty and force the prosecution to go to trial and prove their case. However, in some situations, especially if you have negotiated a favorable plea agreement, you may end up pleading guilty or no contest.
    • If you have been in jail awaiting your arraignment, you will also have the opportunity to discuss bail options. The judge will generally have the ability to release you on your own recognizance, set bail and send you back to jail until you post the required amount, or refuse to set bail and send you back to jail without the possibility of being released.[17]
  2. Request evidence from the prosecutor. After your arraignment, you will exchange information with the prosecution. This process is called discovery. The prosecution is usually required to provide you with certain information to ensure a fair trial and balance the scales because you will inevitably have a harder time finding information that the prosecution might hold. In general, you as the defendant will have to request the information. You should be sure to request any oral or written statements you may have made, your criminal record, any reports, expert witness names and contact information, and you should request to examine any object or document the prosecution might have.[18]
    • However, because you are representing yourself, you may be limited in the amount of information you can see. Prosecutors are required by law to protect the identity of witnesses while they are preparing their case so the witnesses are not put in jeopardy. This is one of the reasons you should seriously consider getting an attorney. If you have an attorney, the prosecutor will be required to release information to them that they may not have to release to you.
  3. Investigate your case. After you have received all of the documents you requested, you should begin the process of investigating your case. If you are not in jail, you can call, email, or talk to people in person to try and gather more information about your case. If you are in jail, you will need the assistance of someone else. While you may be able to send letters and make phone calls, investigating a case while you are locked up can prove difficult.
    • As a criminal defendant, you have to be careful not to be seen as intimidating or threatening witnesses or victims. In fact, if you are going to try and interview witnesses or victims, you should hire a professional to do so.
  4. Research the relevant law. In order to defend yourself in court, you must understand the legal claims or charges against you and prepare your legal defense. This requires that you research the law related to your case and strategize on how best to defend yourself based on the legal claims against you. You can gain access to legal resources in the following places:
    • You can use local law libraries open to the public. To locate a local library, conduct an internet search for the name of your city or town and law library and “open to the public.” You can ask the law librarian to direct you to the legal resources you need.
    • You can search for local state laws and statutes online at: http://www.findlaw.com/11stategov/indexcode.html.
    • You can also use free online legal research websites to locate legal information to assist in your defense.
    • If you are in jail, you can ask to access the jail's legal library, if they have one. If they do not have any legal books at jail, you may need to ask for help from someone that is not in jail.
  5. Attend all required preliminary hearings. In a majority of misdemeanor cases there are very few preliminary hearings, if any. Most of the time a trial date will be set and you will go straight to trial unless you negotiate a plea deal. In most felony cases, you will take part in at least one preliminary hearing before going to trial. At this preliminary hearing the judge will decide if there is enough evidence against you to make you appear in court for a trial. If the judge decides that there is not enough evidence, your case will be dismissed and you will be released. If the judge decides there is enough evidence to make you stand trial, you may be arraigned again and a trial date will be set.[17]
  6. Submit motions to exclude evidence. Before your trial date, you will have a limited amount of time to review the evidence against you and submit motions to the court to exclude any evidence that was gathered illegally. To do this, you must write and file a motion to suppress with the court. The judge will read your motion and decide whether to grant or deny it.
    • In general, evidence can be suppressed if it was gathered in a way that violated your constitutional rights. For example, a murder weapon cannot be introduced in court if it was found during an illegal search or seizure (i.e., the police did not have a warrant). However, there are a number of exceptions to this rule and if the prosecution can convince the judge that an exception exists, the evidence may still get in.[19]
  7. Negotiate a plea agreement. As a last ditch effort to avoid trial, you may want to negotiate with the prosecution about a possible plea deal. A plea deal is made when you and the prosecution agree to certain terms that you will submit to the court. For example, you may agree to plead guilty to a single charge and in return the prosecution will drop any other charges they have against you. In another example, you may agree to plead guilty to a lesser charge in order to avoid going to trial on a more serious charge.
    • By pleading out, you can avoid the time and cost of defending yourself at trial, the risk of a harsh punishment, and the publicity that may come from a trial.[20]
    • However, if you are truly innocent and you feel that you can prove it, you should not agree to a plea deal.
  8. Go to trial. The last phase in your criminal process will be the trial. You will be considered innocent until the prosecution proves otherwise, which they will have to do at your trial. Also, during your trial, you will have the right to remain silent and not testify against yourself. If you choose to remain silent, the prosecution will not be able to use it against you. At the beginning of this process, you will have the option of requesting a jury trial or waiving that right and having a judge decide your case.[17] Once the trial begins, you will conduct yourself and go through the same tasks as if you were in civil court. This means you will be able to provide an opening statement, cross-examine witnesses, present your defense, object when necessary, and make a closing statement.

Tips

  • Be polite and forthcoming throughout the proceedings. Never lose your temper with the prosecution or their witnesses, no matter how frustrated you might get. Be professional whenever there are eyes on you.
  • Do not discuss the details of your case with anyone.
  • Always make your deadlines. Be early to court appearances and get your paperwork filed in a timely manner.
  • If you have trouble understanding dense legal language, you can pay a lawyer for a consultation to help you understand your situation, even if you don’t hire them for your case.

Warnings

  • Representing yourself in court is a very risky decision that very rarely works in the defendant's favor. Make sure you understand the gravity of your charges before making your decision. If the potential punishment is harsh, you should always hire legal counsel.
  • If the legal system tends to lay the same punishment out for everyone charged with the crime (speeding tickets, for example), it may be a waste of money to hire a lawyer. However, if there is a great deal of sentencing variation for your charge, strongly consider hiring a lawyer who would be better prepared to defend you.

Related Articles

Sources and Citations

  1. ↑ https://www.nycourts.gov/publications/GuideforProSes.pdf
  2. ↑ http://thelawdictionary.org/plaintiff/
  3. ↑ http://thelawdictionary.org/prosecutor/
  4. ↑ http://thelawdictionary.org/article/what-is-civil-court/
  5. ↑ http://www.utd.uscourts.gov/forms/prose_guide.pdf
  6. ↑ http://www.nolo.com/legal-encyclopedia/defendants-rights-during-court-trial-29793.html
  7. ↑ http://www.courts.ca.gov/partners/documents/civ-contractaction.pdf
  8. ↑ 8.0 8.1 http://www.courts.ca.gov/1322.htm
  9. ↑ http://www.courts.ca.gov/documents/pldpi002.pdf
  10. ↑ http://www.courts.ca.gov/1093.htm
  11. ↑ http://www.courts.ca.gov/1323.htm
  12. ↑ http://www.clarkcountynv.gov/Depts/lawlibrary/Documents/Opposition%20to%20Motion%20for%20Summary%20Judgment.pdf
  13. ↑ http://www.courts.ca.gov/selfhelp-adr.htm
  14. ↑ http://www.courts.ca.gov/1094.htm
  15. ↑ 15.0 15.1 http://www.azalaw.com/pubs/zavitsanos/D.pdf
  16. ↑ http://www.nysd.uscourts.gov/file/forms/representing-yourself-at-trial
  17. ↑ 17.0 17.1 17.2 http://www.courts.ca.gov/1069.htm
  18. ↑ https://www.law.cornell.edu/rules/frcrmp/rule_16
  19. ↑ http://criminal.findlaw.com/criminal-procedure/how-to-suppress-evidence.html
  20. ↑ http://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/pleabargaining.html
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