A Cynic’s Guide to Civil Litigation; Chapter 1 - Thinking About Repping Yourself?

“What are you up to?”

“Prepping for trial on that hot tub burn case.”

“What’s this?”, he asked, rifling through the pages of a deposition transcript he had lifted from the table.

Straining to look up, I said, “Transcript of the testimony of the cousin.”

Now sitting on the opposite side of the table while still reading the transcript he asked, “Under oath?”

“Yep. And they all had a chance to review the transcript before it was finalized. You’ll see errata sheets with any changes at the back.”

“Where did you get this?”

“From his deposition. The stenographer.”

“Who took his deposition?”

I tapped at the front of the transcript without looking up, “I did. Took all of them.”

A few moments passed and he asked. “How many of these do you have?”

“Five sets. Five witnesses. Five sets of transcripts. They’re in the file binder marked witnesses.”

He picked up the witness file and rifled through the transcripts before pulling them out, pushing some of my work aside, and spreading out all 9 volumes across the table. I wasn’t offended being pushed aside. I knew what was coming. I had worked with my dad for over a decade. I had second seated him in many criminal trials. I knew he was “file challenged”. “Second seating” for him meant finding paper during the trial and putting the file back together at the end of each day. I had become tolerant of the mess he would make. He could be very distracting and challenging but that was ok. I had and expected to learn a great deal from him.

I was focusing on my opening statement. If he was reading, he wasn’t bugging me.

“Who’s your judge?”

I answered without taking my eyes up from the computer.

“How did you get them to a deposition?”

“In civil practice, it’s up to you. If you want to take a deposition, you take a deposition. They have to be there. If you want docs, you ask for them. Usually, you get answers to interrogatories before you depose anyone.”

He had never had a civil case in 45 years of practice. I doubt he knew the burden of proof. I could see he was only half-listening. He was buried in a transcript.

A good half hour passed. He asked when the trial started.

“One week”, I answered.

I stopped prepping my opening. I knew what that question meant. I knew his schedule. He had decided to take over the case. I had just been relegated to second chair. I began working with him and answering his questions. The clients would be thrilled. They had Joe Balliro as trial counsel. It was fine with me. My father was thrilled. He had much more to work with than he had in all the criminal trials he had tried over 35 years. With the prior testimony of all the witnesses he would rip them apart on the stand because he knew what they would say. The judge wouldn’t mind. He would be thrilled as well. Opposing counsel – well his stomach would flip a few times. Should be interesting.

“I’ll help you out with this. Ok?”

“No problem dad. Always appreciate the help.”

Contemplating Legal Action?

If you are thinking about going after someone or some company on your own or you can’t afford to hire a lawyer, this little excerpt from my daily practice with my father should get you to grasp few realities. If I didn’t know what I was doing all those months before my dad took my case, I would not have had those transcripts because, like my dad, I would not have known I could depose the witnesses. Mistakes are deadly and costly. Regret does not help. Regret repairs nothing. The law is unforgiving. You will not be able to fix mistakes.

This book will help you understand the process, but it might get you in deeper shit. If your motivation is to save some bucks, or you just don’t trust anyone, especially lawyers, then I can’t warn you off. If you have decided to investigate going it alone… investigate. Read this book. But, keep an open mind, and wallet. You will need both.

First, let’s get real. No matter how much you dislike or distrust lawyers, lawyers are necessary. What they take from you, what they do and how they do it is regulated by your local Bar Association, the guys that license lawyers, or lawyers are regulated by statutes that limit how much they can take from you in certain kinds of practice, like medical malpractice. There are a few layers of protection for you.

Lawyers go through quite a bit of training. More than most, less than others. Lawyers go to law school and get a degree. Doesn't mean we are good at our job, but at least it's an education. It takes a couple of years of practice to be any good. Law school doesn’t help much. Back when my dad was in law school the whole education thing was shorter. It was the years of working under a mentor that was important. We look to mentors, bosses, or others who have been practicing for a while for our on-the-job training. We work for law firms or others, like prosecutors, who will allow us to do increasingly difficult assignments. We may strike out on our own right after graduation if we are comfortable practicing in a particular niche. We work for law firms as paralegals during law school and get familiar with whatever we want to do when we “get out”, so we have some experience if we go at it solo.

Lawyers should know what they are doing. It is not a job where you magically know everything. Experience is very important. That is why lawyers have specialties. It is too time-consuming to learn everything, so we pick something and try to get good at that specialty.

War Story

In my very first appearance, the Monday after being sworn in, I attended Superior Court with my brother-in-law to watch a 2:00 pm arraignment. It had to be the year 1987. The Judge was familiar with me because I had second chaired as a paralegal with my dad and the Judge knew my father. After the client was arraigned, the Judge asked if I would mind helping. My brother-in-law had to leave for another hearing. I stayed behind. A female defendant who had failed to self-surrender had been picked up the night before and held. She needed representation. It was a done deal. She would be going to prison. The only issue was if she would get more time. I was taken to the holding cell by a female court officer. I introduced myself and explained. She looked ill. She was going through withdrawals, probably heroin. She was a mess. She had been picked up “street walking” by an undercover cop. I waited in the courtroom until the judge came out. They brought the woman out and she sat in a jury seat. I noticed almost immediately that she had a sheer top on, was well endowed, and was also well exposed. I had not noticed in the holding cell because of the light. The clerk looked at me with wide eyes. I looked back quizzically. I tried to signal to the woman to use her arms to cover her breasts. She didn’t get it. She was too messed up. The judge looked up and at her. The Judge immediately said. “Go like this,” raising his arms across his chest. The women followed. Unfortunately, when she did, she revealed she had her arms in her lap to cover up a ridiculously short skirt and now that part of her anatomy was exposed. The Judge put his hand on his forward, shook his head, and asked the clerk to get something to cover her. The remainder of my first hearing was very short.

I worked for my family law firm when I was in law school. I wrote pleadings, briefs, and motions and generally did grunt work, but I was allowed into court with real lawyers, which was very valuable. I had some small trials, mostly criminal trespassing, or drunk driving. Most of the time I was appearing in our Appeals Court or the Supreme Judicial Court. This was an important experience. This appellate work gave me plenty of practice formulating arguments and answering questions. I also had my father, sister, and brother-in-law, all excellent trial attorneys, as mentors. I was very lucky.

I can tell which lawyer had a mentor which lawyer did not. I have represented attorneys who have suffered terrible sanctions, including disbarment, because they had no mentor. I have often asked why they didn’t call me or why didn’t they call the Board of Bar Overseers and ask. Oftentimes the answer is they did not know it was a problem. That kind of comment explains quite a bit. An experienced attorney would have seen the problem. I have been “saved” at least a half a dozen times by my mentors from things I would have done which in hindsight would have been remarkably stupid.

If we do not see the pitfalls of bad decisions before we commit them, what are the odds you will? Do not base your decision on a hate for lawyers. Just pick wisely.

It may not look like it, but lawyers do work for the money they get. You will find out just how hard we work if you represent yourself.

What we charge is dependent on different fee structures. But what we charge hourly is based on the amount of experience we have. Attorneys who had been banging at it for decades are more costly than someone who has hung up a shingle up for a couple of years.

There are several different fee structures lawyers can use, but ultimately the money we get paid is regulated by the Bar Associations, Courts, and even common practice. In civil practice, a lawyer can use a contingent fee agreement where the lawyer gets a percentage out your winnings, plus expenses, or an hourly rate, where you pay the lawyer based on an hourly rate and the number of hours dedicated to your case, plus expenses. There are also "hybrid" fee agreements that may be allowed where you pay some money and give some of your award to the lawyer. There are divorce fee agreements that do not allow for contingent fee agreements, medical malpractice fee agreements that are based on a percentage that decreases the more you win, and others.

The bottom line is that there are many different fee structures. Don’t be afraid to discuss fees with any attorney you are thinking of hiring or have hired. You have the right to be pushy. It’s your money.

Lawyers bring a lot of value to your case. Yet, unless your case is super complex, a person of average intelligence should be able to muddle through. If you are hell-bent on doing this yourself, you are much better off, the Court is much better off, and even the opposing lawyer is much better off if you have some guidance, such as this book. But I beg ya, please, do not tell a Judge that I told you to do something when the Judge is telling you it’s wrong. I don’t want to get hauled into a court in another state just to get pistol-whipped by a Judge I will never see again.

I do not suggest going at it alone. Hire a lawyer if you can. However, if you are going to strap on a six-shooter, get as much information as you can before you pull the trigger. Everybody has a friend or family member who is a lawyer. Give that person a call before you start. Representing yourself is going to be a lot of work. Invariably, some opposing attorney is going to try to take advantage of you, although the Judge may slap them down for being a jerk. Go into this with your eyes open and accept that at some point you may have to hire a lawyer to take over.

Think this through. Although the court system should be designed to allow you to represent yourself, it isn't. It is designed for Judges, lawyers, and staff. Normally you are a witness. You take the stand at trial, and your lawyer asks you questions. If there is an objection, your lawyer argues on your behalf.

War Story

Sometimes we get sued by our clients. We try as best we can to avoid the actual unstable clients, but some hide their mental illness well. We had a client who was an internet priest. He had received his credentials from a well-known outfit that dispensed certificates of authenticity liberally. The client had been accosted outside his Roxbury storefront, his church, by the local police who had attempted to explain he had not obtained the proper licenses to open a retail establishment. He insisted he was not required to do so under the Freedom of Religion clause of the Constitution. The police differed in their opinion because he was selling gear associated with his church. He “tussled” with the police. He was charged with various misdemeanors. We explained our job was to keep him out of jail. He insisted we defend his right to Freedom of Religion and Speech. Inasmuch as it might provide a defense we intended to do so, but we also explained we were lawyers not marketing agents. The client was looking for martyrdom and PR. He took the stand against our advice. He was given 90 days. If he had let us do our job, he would not have suffered any jail. I am convinced he wanted jail. This client was delusional. No one cared. No PR. Not a single person attended his trial. Not a single person visited him in jail. Not a single prisoner was converted. After he was released, he sued us. Months and months later I was served a subpoena to appear in court and testify. I represented myself. “The lawyer that represents himself has a fool for a client.” Although the court was very patience with the pro se plaintiff/former client/internet priest, ultimately the judge ended his examination because he could not abide by the judge’s limitations on his questioning. He served me but wanted my father. He accused me of lying about having been served with his subpoena in hand. He accused me of being in a conspiracy against him because he was a black priest from Roxbury. He accused me of purposely destroying his church and failing to keep him out of jail. I had not been his lawyer. My father had been his lawyer. I had never worked on his case. I learned the case had been dismissed. He sued the judge. I learned that case was dismissed.

If you are representing yourself at your trial, on the stand you will ask yourself questions and answer them. If there is an objection, after you ask yourself a question, you cannot answer until after the judge makes a ruling. You will have to argue against the objection to your question. Be prepared to hear a lot of objections. It is surprising how many questions you might think you can ask but you can’t. It is truly more how you ask a question than what you ask. Not easy.

Be aware, representing yourself creates more work for lawyers, judges, court clerks, and staff. You will be filing a lot of paperwork in your case. Each state or local Court has a particular format and there are certain things that you need to include or put into these “pleadings”. (A “pleading” is just a fancy word for a motion or some other paper filed with the court.) If you fail somewhere along the way, the lawyer with Johnny Doe[1] will be forced to challenge what you did. Lawyers should be patient with pro se litigants. (representing yourself is “pro se”) I always try to be. But, if you do something wrong and it can hurt their client, they must react. That brings the clerk, the Judge, and others into the mix.

Here is an example. You get served with a civil case. You are being sued. Ugh. You can see on the summons; you have a certain amount of time to respond. (A “summons” is a piece of paper that tells you must do something within a certain amount of time or on a certain date.) You do a little research and learn you can sue the plaintiff back. You learn this is called a "counterclaim". This is great! The plaintiff is a louse anyway and deserves to get sued by you. You put together an answer and a counterclaim where you blast the plaintiff and his brother and sue them both. You file your pleading, and the opposing lawyer immediately files a motion to dismiss your counterclaim. Why would he do that? Your pleading doesn't follow the rules, it does not make any claim, it does not make legal sense, it defames his client, and the plaintiff’s brother is not a plaintiff in the case so you cannot counterclaim against the brother. By law, there must be a hearing in Court.

It is commonplace for opposing counsel to challenge any counterclaims or defenses even if you did everything correctly. In my example, you made some serious mistakes that require the Judge to get involved. Now the clerk is involved, the Judge must have a hearing, and the Judge could order you to pay the opposing lawyer for his time because what you did was so out of whack it wasted everybody’s time.

Most probably, the Judge will give you time to fix the problems with your counterclaims. But the judge can’t tell you how to fix your pleading. You file an amended answer and counterclaim. And, yes, opposing counsel files to dismiss again. Now you are going to have a second hearing and you are not past the initial pleadings in the case. Months will pass as you go through this process. Not a very efficient use of time, is it?

Let's assume you are past all the challenges against your counterclaims, and everything is fixed, and you are ready to go. You are well into the case when you learn that you should have moved to dismiss the complaint filed against you before you answered and filed your counterclaim. Now you are stuck with a claim that will hurt you.

The lesson here is that there is value in hiring a good lawyer. If you had to read the last few paragraphs a couple of times to understand, then you can imagine the amount of focus you are going to need when you represent yourself.

It is important to recognize that lawyers should know what to do with documents and records in your case. There are plenty of statutes and rules that regulate how you get documents and records, especially medical records, into the record. If you miss something, the judge could block all your medical records and bills at trial. You will have no evidence of treatment or the cost of treatment. The jury will have nothing to reflect on or to calculate how much money they will give you.

If you find you are constantly calling that lawyer friend or lawyer family member for advice on what to do, maybe it is time to consider getting a lawyer.

If after reading this, you want to take on the challenge - kudos. I wish you good fortune. Take a deep breath, pull out all your hair now so you do not have to do it later, and take a bow.