RISKS OF SELF – REPRESENTATION

 

“A pro se litigant in a civil case is required to follow the same rules of procedure and evidence which are binding upon a litigant who is represented by counsel. Our legal system cannot function on any basis other than equal treatment of all litigants. To have different rules for different classes of litigants is untenable. A party in civil litigation cannot expect the trial judge or an attorney for the other party to advise him or her of the law or court rules, or to see that his or her case is properly presented to the court.” Mangiaracina v. Gutierrez, 11 Kan.App.2d 594, 595-96, 730 P.2d 1109 (1986).

Risks and Responsibilities of Proceeding Without Professional Legal Representation
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1.  Warnings about using court forms.

• State laws and court rules can be very complicated. If you do not follow the rules, procedures and other requirements, you could lose your case.
• It is always best to talk to an attorney about your problem before filing a case or before responding to a case filed against you. You should also talk to an attorney if you do not know which form to use, what to write on a court form, or what to do with the form.
• Using court forms does not guarantee that you will get what you want.
• Carefully read the instructions for each court form before you fill it out.
• Be sure you fill out the forms completely and accurately.
• When you sign a court form, you are telling the court that everything you wrote on the form is true and accurate.
• A judge can penalize (punish) you if you intentionally provide false information on a court form.
• It is illegal to sign another person’s name on a court form or other paper filed in court.
• If you file a court form or other document at the district court clerk’s office, you must always deliver a copy of that form or paper to the other person or persons involved in the case or the other person’s attorney. You can do this by mail or in person.
• Always keep a copy of any papers you file at the district court clerk’s office.

2.  Judges and court staff cannot give you legal advice.

• Under state law and rules, judges and court staff cannot give legal advice. For example, judges and court staff cannot tell you whether you should file a case, what you should put in your written documents, or what you should say or ask in court.

Why? Because:

• Judges and court staff must not take sides in any case. It would be unfair for judges or court staff to give one person an advantage over another person in a court case.
• If court staff gives you advice and it turns out to be wrong, you could lose your case.

3. Court staff cannot:

• Interpret the meaning of laws or court decisions.
• Perform legal research for a person involved in a court case.
• Predict the outcome of a case, a paper filed, or some other action in a case.
• Recommend whether you should file a specific paper.
• Recommend what words or phrases you should use in a paper.
• Recommend persons you should file a lawsuit against.
• Recommend types of claims or arguments you should include in papers or at trial.
• Recommend how much money you should ask the court for.
• Recommend questions you should ask witnesses or other parties.
• Recommend ways to present evidence in papers or at trial.
• Recommend how to defend against arguments made by the other party in papers or at trial.
• Recommend when or whether you should ask to reschedule a hearing or trial.
• Recommend when or whether you should agree to settle a case with the other party.
• Recommend whether a party should appeal a judge’s decision.
• Fill out a form for a person involved in a case.

4.  Court staff can provide this kind of help:

• Provide forms that the Kansas Supreme Court has approved for helping self-represented court users.
• Answer questions about where to write in particular types of information on court forms but not what words to use when filling out the forms.
• Define terms commonly used in court.
• Provide phone numbers for lawyer referral services.

5.  You cannot talk to or communicate with the judge about your case unless all parties and attorneys involved in your case are present:

• Under this rule, you cannot communicate with the judge about your case by e-mail or regular mail unless you send copies of your e-mail or regular mail to the other people involved in your case.
• Under this rule, you cannot talk with the judge about your case on the telephone or in person unless all other parties and attorneys involved in your case are on the phone at the same time or are in the same room together.
• This rule is important because it prevents a person or an attorney from giving information to a judge that the other side does not know about, which would be unfair to the other side.
• If you want to give information to the judge that you think is important for your case, or you want the judge to take some action related to a case, you must:
  • Put the request in writing; and
  • File it in the clerk’s office; and
  • Provide copies of the same document(s) to the other parties and attorneys involved in your case.

>>IF YOU ARE REPRESENTING YOURSELF AT A HEARING OR TRIAL<<

6.  Be prepared.

• Keep your papers organized.
• Know what evidence you need to prove your case. If possible, talk with an attorney before you go to court. Ask the attorney how to present your case, what questions to ask in court, and other matters.
• Bring documents and witnesses that will help prove your claim or defend against the claim.
• Bring at least three copies of every document you want to use as evidence: one for you, one for the other party, and one for the judge.
• If a witness refuses to come to court to testify, you can have the court issue a subpoena (an order to come to court) before the day of the trial. Make sure to ask the clerk’s office for a subpoena several days before your hearing.
• Bring “physical evidence.” “Physical evidence” includes canceled checks, contracts, or invoices, photographs, and any other documents or things that you think are important to your case. If you ask for money for damages to a thing, bring the damaged item or, if that is not possible, bring photographs of the damaged item. If possible, bring a photograph of the object before it was damaged. It is also a good idea to bring defective parts, if they are related to the case.

7.  Be on time to court.

• If you are not in the court when your case is “called” and the other party is present, in the court, the judge might enter a judgment against you.
• If neither you nor the other party are on time, your case might be skipped – or dismissed. You might have to wait until the very end of the court session that day before your case is called again, or you might even have to come back on another day, possibly a few weeks later.

8. Know and follow court rules.

• Judges cannot make exceptions for people who are not represented by an attorney.
• If you do not follow the court’s rules and correct procedures, you could lose your case. Know the court’s rules!

9. Be courteous and respectful.

• Make a good impression on the judge. The best way to act in court is to be courteous and respectful to everyone. A judge can hold a person “in contempt of court” for bad behavior. This could result in a fine or time in jail!
• Wait for your turn to speak. Do not interrupt the judge or the other party. The judge wants to hear from each party and each person wants and needs an opportunity to speak without being interrupted. If you interrupt others in court, the judge will stop you and instruct you to wait your turn.
• Turn off your cell phone.

10. Dress appropriately.

• Courts emphasize civility and good manners. You should wear an appropriate suit or sport coat, if you have one. Otherwise, wear nice, clean, casual clothes and shoes. Look your best.
• Remove your hat or cap while you are in the courtroom or in the judge’s office.

11. Speak loudly and clearly.

• Many people are nervous when they are in court and they tend to speak softly. Judges and other parties in your case need to hear the facts you give correctly.
• The other party needs to hear you correctly so he/she can respond appropriately and accurately to your statements.
• The judge needs to hear you clearly so that he/she can make a correct ruling.

>>WHAT TO DO IF YOU CANNOT ATTEND A COURT HEARING<<

12.  You must inform the court AS SOON AS POSSIBLE and request a new hearing date.

• You must have a very good reason to reschedule any court hearing.
• To reschedule a hearing at the last minute, there must be an emergency.
• You should immediately call the district court clerk’s office where your hearing is scheduled.
• Calmly explain your problem and ask to reschedule the hearing or trial. Court staff will write down the request and contact the judge.
• The judge will decide whether your reason for changing the hearing or trial date is serious enough to grant your request. Just because you ask or need a continuance does not mean the judge will give you one.
• Give the clerk a phone number where you can be contacted that day.
• If something very important comes up two or more days before the hearing (that is, there is a death in the family or an accident that puts you in the hospital), you must send a written request for a new hearing date and time and file it with the district court clerk and send it to the other party or attorney.
• Do this as soon as you know you need to reschedule the hearing.
• Deliver a copy of your request to the other party.
• Also, it’s more likely a judge will agree to your request if you get the other party to sign a written agreement to change the hearing time or date and include it with your request for a new hearing date.
• The clerk will give your request to a judge. Because judges are busy, you probably won’t get an answer right away.

NOTE: If you do not show up for the trial at the time it is scheduled and the other party does show up, the judge may enter a judgment in favor of the other party.