Litigation is expensive and many litigants try to avoid the cost of hiring an attorney by representing themselves. The importance of having a litigation attorney advising you in some capacity cannot be stressed enough.
Due to the intricacies of the law and the rules litigants must follow regardless of whether they are represented or not, minor mistakes in self-representation can be disastrous and end up costing far more than hiring a qualified and experienced attorney. Not every case requires an attorney’s active involvement, but there is significant value in meeting with a licensed attorney to evaluate your case and help guide your self-representation.
The Top 10 Mistakes Made in Self-Representation
We understand that there may be financial reasons that cause people to consider representing themselves in court. You may represent yourself, but you don’t have to do it alone. With the above aside, if you decide to provide your own representation in court, please consider this list of the 10 most common litigation mistakes made by self-represented individuals.
10. Relying On the Internet
While there is a lot of useful information available on the Internet, there is also a lot of incorrect information. Especially since the advent of AI technology, misinformation on the internet has become even more prevalent. Even websites for the courts, at times, contain out-of-date and therefore, inaccurate information or forms. Local rules and state statutes are constantly changing and updating, and many local courts lack the resources to update their website information and forms immediately
Additionally, the Internet cannot teach a person how to handle the intricacies of a matter that generally takes years of experience to fully understand. The Internet can provide broad, basic information. However, no two cases are the same. The advice and coaching of an experienced attorney who has reviewed the unique elements of your situation are truly necessary for an unrepresented party to properly handle a lawsuit.
Have you been involved in a case that was lost because of a simple litigation mistake? If so feel free to comment below.
9. Failing to Respond to Requests for Admissions
Requests for Admissions are questions served on the opposing party that require the opposing party to admit or deny certain facts. Any party in a lawsuit can serve Requests for Admission to the other side once the requesting party has completed their initial disclosure requirements. Generally, the facts that the opposing side must admit or deny are critical to the case. If a party fails to respond to the Requests for Admissions within the required time, the admissions are deemed admitted. This can be extremely damaging to a party’s case or defense. While it is possible to salvage a case after this mistake, it can be costly and there is no guarantee of success.
8. Pursuing Red Herrings
Most court cases can be broken down into a few critical issues. However, there may have been a number of issues or disputes that occurred between opposing parties to a lawsuit prior to the lawsuit being filed. These prior disputes or issues may have little to nothing to do with the lawsuit. As such, the court will have little interest in hearing about them.
A party who has little experience with lawsuits and appearing in court may believe it is necessary to go into the details of these irrelevant issues or disputes. In reality, harping on these items only hurts their case because it draws attention away from the critical issues. It also hurts the party’s credibility when they finally get around to addressing the critical issues.
7. Making Decisions Based Upon Emotion
Litigation can be an emotional process. Studies have shown that people do not think as clearly when emotions are high. This can lead to poor decision-making. If the other side is represented, that attorney may use emotions to their advantage, particularly in a deposition or when you are testifying in court. Heightened emotions can undermine your ability to rationally consider a settlement offer from the other side. They can also undermine the quality of your argument in a motion, or the evidence you present to the Court.
The most successful parties in litigation are not always the ones who have the best case. Instead, it is generally the party that uses a cost-benefit analysis to make decisions during the course of the litigation. By making a cost-benefit analysis the party can decide what work should be performed, what motions should be filed when to settle the case, and what needs to be presented to the court in order to maximize the effectiveness of your argument.
6. Failing to Make Proper Disclosures
The disclosure rules require each party to disclose the legal basis for their claim or defense, the names of all witnesses, and a list of documents that will be presented. Initial disclosures are mandatory before a party can proceed with any discovery in their matter. The disclosures must be updated as new witnesses and documents are revealed. If documents and witnesses are not timely disclosed, they may not be used at trial.
Proper disclosure also means Bates labeling and organizing the documents so that it is clear to the court and the other side that documents to be presented at trial or a hearing have been disclosed. Bates labeling refers to the placing of a sequential number scheme somewhere on each and every document. Then each time a new document is disclosed it should be accompanied by a disclosure statement that lists the document and the corresponding number.
The other side may object at trial to the introduction of a document on the basis that it has not been disclosed. There should be no difficulty in proving that it has been disclosed if it is Bates labeled and reflected on a disclosure statement. If either of these items is missing, it may be difficult to show that it has been disclosed and the court may preclude the document from being used. Arguing about the proper disclosure of a document also takes up valuable time in court proceedings and may be viewed unfavorably by the judicial officer.
5. Failing to Properly Respond to Dispositive Motions
The two most common dispositive motions are motions to dismiss and motions for summary judgment. Both of these motions seek a partial or full resolution of the issues in the case. A motion to dismiss is generally based solely upon the law. A proper response will give a legal basis for the denial of the motion.
A motion for summary judgment is generally based upon facts and law. A motion for summary judgment must be accompanied by a separate statement of facts. If facts set forth in a separate statement of facts are not properly controverted, they will be deemed admitted. Having the facts deemed admitted can be very damaging to a party’s claims or defense. Failure to properly respond to a dispositive motion could result in the Court dismissing your complaint or granting summary judgment in favor of the requesting party.
4. Not Being Fully Prepared to Present Their Case
Preparing for a trial is no simple task. Courts assign each side a specific amount of time to present their case. If you spend too much time presenting irrelevant information or evidence, you may be unable to present crucial evidence or testimony. Exhibits must be identified, marked and organized so that they are easy to locate and present in the most effective order for your case. Opening statements, direct examinations, cross examinations, and closing arguments must be outlined so your position is clear and concise to the Court.
Finally, each side needs to be prepared to present and argue any outstanding legal issues. Not putting in the time to prepare and “winging it” will not work. Even if a person has a strong case, they may very well lose at trial if the presentation is lacking or unclear to the Court.
3. Failing to Update Their Contact Information with the Court and the Opposing Side
Every party to a lawsuit is responsible for keeping their contact information current with the court and opposing counsel. However, parties sometimes move and fail to update their contact information with the court. Important documents may be filed with the court and mailed to the party at their address of record. However, if the address is not current, the party may not receive the documents.
This may result in that party not timely responding to the documents. The court will generally not accept the fact that the party failed to update their contact information as a defense for failing to timely respond to discovery or motions. As outlined above, failing to properly respond to Requests for Admission, a Motion for Summary Judgment, or a Motion to Dismiss could be ruinous for your case.
2. Not Fully Knowing the Law that Applies to Their Case
Legal research can be complicated. The key to legal research is knowing where to look and what to look for. The law that applies to a particular case is generally found in statutes, regulations, and published cases.
Arizona Revised Statutes and the Arizona Administrative Code can be found on the internet at Arizona Revised Statutes and Public Services, Table of Contents, respectively.
Case law can be found in online databases that generally have a cost associated with them. It can also be found at a law library. Case law research at the law library will generally require the assistance of a librarian as there is a three-step process to finding relevant case law.
There is also a wealth of case law and relevant application available on the web, often in blogs like this one from law firms. However, it is vital to make sure that when you research case law, you keep in mind that the information you find on the internet may 1) not be accurate, 2) not be applicable in your jurisdiction, and 3) out of date.
In order for a party to represent themselves without the assistance of an attorney, they will need to know how to perform the necessary legal research to locate the law that applies to their case. Otherwise, they risk chasing their tail and spending valuable time presenting irrelevant facts or case law to the Court.
1. Failing to Sign the Answer
This is probably the single most common, yet easiest mistake to avoid. An answer to a complaint must be signed by each and every defendant or by their attorney. It is not uncommon for a married couple to assume that one spouse can properly sign the answer. This is not true. If only one spouse signs the answer, then a default judgment may be entered against the other spouse’s sole and separate property.
This mistake is also commonly made when a corporation or LLC is a defendant in the superior court. A corporation and LLC may not represent itself in the superior court. This means it must hire an attorney who must sign the answer. If an owner and employee signs and files the answer on behalf of an entity in a superior court, a default judgment may be entered against the entity.
We hope this helps you avoid some of the most common mistakes of a self-represented litigant. Our office has extensive experience working with self-represented litigants who wish to avoid the expense of a dedicated attorney of record on their matter. You may engage our firm for periodic meetings with an attorney to offer guidance and answer questions and even draft individual litigation documents on your behalf.