Save yourself some time and money

By Bob Leonard, Jr.

            This afternoon I had a former client call me.  I had not visited with this client for two to three years. 

            I helped the client get his divorce several years ago and had only heard from him once since soon after the divorce was final.

            My former client had a question about how to interpret the children's possession schedule in his divorce decree.  It was a fairly simple question and the call did not last very long, but during the conversation he said something that started me thinking.

            My client told me that after he remarried, he and his new wife went over his former divorce decree and read it carefully.  He said that he discovered two provisions in the possession schedule that significantly benefited him but he did not know that they had existed.  Although it is my practice to explain possession schedules to my clients, sometimes we do that at a time that they are not ready to pay attention and sometimes we might miss small points.  My client benefited from reading his possession schedule and you can benefit from what he learned.

            Most questions that people ask me after a divorce, having to do with property issues or children's issues, are answered clearly in the divorce decree.  Frequently, clients simply don't read what they already have.

            Save yourself some money and read your decree or other court order thoroughly after you get it.  Do not hesitate to go back every year or so and reread it and familiarize yourself again with the important points.  By doing this you will be able to handle many items yourself without having to consult with an attorney.  Of course, if you are unsure of the interpretation, your attorney should be happy to help you.

Don't Be A Fool

By Bob Leonard, Jr.

There is an old saying that a person who represents himself or herself in court has a fool for a client and a fool for a lawyer.  Much of the time, that refers to lawyers who think that they can adequately represent themselves, but it also applies to non-lawyers.

            This is the second in a series of articles that I am posting concerning mistakes that lay people (non‑lawyers) make in dealing in legal matters.  It is not my intention in these postings to urge everyone to hire a lawyer for every possible legal circumstance.  There are many things that lay people can do for themselves.  This particular post, however, is an exception.  Here I will discuss lay people representing themselves before and during trials and I will discuss things that absolutely should be left in the hands of a lawyer.  In our next post, I will get back to those things that lay people can do and mistakes that they can avoid on their own.

            Even for attorneys, the trial process can be tricky.  To go through a trial, a person must be familiar with most of the hundreds of rules of civil procedure and rules of evidence.

            Judges frequently say that they expect people that are representing themselves (that is people that are appearing "pro se" to be familiar with and follow all of the rules of the court.)  This would include not only those rules of civil procedure and evidence that apply statewide, but also local rules that may apply only to that one court.  In addition, it is common for attorneys to discuss the principle that you should "know your judge."  What that means is that an attorney needs to be familiar with the thinking of every particular judge before whom he or she appears and what they want to see in the way of evidence and what they will tolerate in their courtroom. There is no way that a layperson can get that knowledge; many experienced attorneys struggle with it every day.

            The problem that lay people have representing themselves at trial actually starts well before the trial.  The rules that I mentioned before have deadlines that start to click in months before the actual trial.  If you miss one of those deadlines, you may be unable to obtain evidence that you desperately need to win your case.  Even if you are able to meet all of the deadlines, there are certain processes that you must undertake to make sure that your evidence is admissible in court.  All evidence must be authenticated and the rules for authentication are not only tricky, but they frequently trip up experienced lawyers.  You cannot wait until the eve of trial to have your evidence authenticated; in fact, some evidence virtually cannot be authenticated unless you take certain actions at least two weeks before trial.  Where lawyers focus on the "themes" of the case and what they need to do in order to prevail, lay people are focused on what they perceive is their particular issue which may not be relevant at all.  The detachment and objectivity of a lawyer can help protect his or her client in ways that the client can never understand.

            Once you get to trial, the rules become even more important.  There are certain procedures that you must go through in putting on evidence and taking care of those procedures, frankly, takes experience.  There are objections that you can make to the presentation of evidence if you understand the correct way to make those objections.  If you don't understand that, then evidence might come in against you that is not truly proper.

            Also, if you don't properly preserve the right to appeal each individual point where the court mistakenly ruled, then you cannot win on that point on appeal.  Generally, laypersons representing themselves have the deck stacked enormously against them.  If all of the facts are in their favor and if all of the facts are virtually undisputed, they are able to prevail.  Every attorney has at least one story about where he or she got beat by a pro se party.  The times that that happen, however, are heavily outweighed by those where an attorney beats a pro se party even though the pro se party has the best "story" to tell.  That happens every day.

            There is one exception to all of the above.  Sort of.  That is the small claims courts or the justice of the peace courts.  Those are designed specifically for lay people to represent themselves in small matters, generally those involving less than $10,000.00.  Even there, however, the same rules of the court generally apply and if the lay person doesn't take the right action, then he or she may end up not being able to properly present the case or not being able to appeal it should they lose.

            If your case means anything to you, you should not be handling it yourself.  People that would never think about performing surgery upon himself or herself or having a non‑doctor do so, frequently think that they can represent themselves in legal matters and prevail.  That is almost never true.

Paying Attention Can Protect You

By Bob Leonard, Jr.

            Lawyers frequently see laypeople (non-lawyers) make mistakes that could easily be avoided.  Sometimes these mistakes lead to expensive and heartbreaking results.  This is the first in a series of articles that I will do over the next few months about mistakes that laypeople make in the legal arena.  I hope that you can benefit from these.

            Perhaps the biggest mistake that non-lawyers make is to ignore legal notices.  You may receive a summons that you have been sued.  It is not unusual for you to have only a few days until the first hearing in that matter.  If you were to go and get an attorney to represent you immediately then you would have up to two weeks to find documents and prepare them to make them admissible in court, find and discuss the case with witnesses that will help your case, and generally prepare for your argument in court.  If you wait until a day or two before the hearing, it is possible that none of that can happen on time.  When that happens, you will go to court with no ammunition while your opponent may have been preparing his case for months. 

            Another way that laypeople make the mistake of ignoring what is going on about them, has to do with ignoring correspondence.  As an attorney, I have often sent certified and regular mail to opposing parties who were not represented by attorneys.  It is not unusual that the opposing party refuses to pick up the mail.  If there is a hearing or trial setting, and if I can show that I sent the letter to the correct address and that the other party did not respond to it, then it might be possible for the other party to get a default judgment in that case.  Basically, a default judgment means that I get to write the order any way that I want to.  Losing in court is bad, but losing 100 percent of a case is rarely the result if you show up.

            Another area where laypeople put their heads in the sands like an ostrich and refuse to participate is in cooperating with their attorneys.  An attorney may send the client a questionnaire, discovery answers to reply to, documents to read, or requests for information about witnesses.  It is not unusual for the client to wait until the last possible minute to respond to the attorney, if they do it at all.  That could be incredibly dangerous for the client since, again, the attorney will not be able to adequately represent them. 

            Being on top of your legal situation, responding to all correspondence, and timely responding to your attorney, will protect you from the disaster that could otherwise await you.  Pay attention to your case and you will be far, far better off.