Bada-bing! Don’t like it? Pffffft . . . Sue me . . .

This is a high level overview of what is required to file a lawsuit. Since this blog is going to be around for a while, we’ll get to the nuts and bolts later. However, before you start, there are some basic considerations.

In order to sue someone, you have to meet three basic requirements: standing, jurisdiction, and justiciable controversy.

A lot of lawyer talk that is really pretty simple when you break it down.

1. Standing: Generally, you can’t sue on someone else’s behalf (exceptions include a parent suing on behalf of a child or a guardian suing on behalf of someone who is mentally incompetent).

The legal argument is you have to have a real injury (typically physical or economic), that was caused by the other party, and can be made right by an action of the court (money damages, an injunction, etc.).

Volumes have been written about that sentence. If you are feeling particularly masochistic, this is one of the landmark cases defining ’standing.”

2. Personal Jurisdiction: Courts have their own sphere of influence or ‘turf.’ You have to have to be within the court’s sphere (or jurisdiction) to sue someone there. This is most important in terms of where the defendant lives. Thousands of hours of sweat, argument, and billable hours has been expended on this point.

However, a few basics:

a) You can sue someone in the state and/or county in which they reside. You can sue a business in the state and/or county where they are headquartered or physically located. Simple as that. Especially if you live in the same county or state.

b) If you want to sue someone or a business that is located out of state, you have to depend on your state’s ‘long-arm statute.’ A colorful phrase meaning the legal circumstances under which you can reach out of your state and haul someone into court. While most states have analogous statutes, there are some twists. So, double check your state’s specific statute before you sue. Here is an amazing compilation of the state statutes.

Use this as a guide only. Jurisdiction is incredibly complex and you should consult with an attorney before suing a person or business that is located in another state. Jurisdiction has another part - subject matter jurisdiction. We’ll save that for another post.

3. Justiciable Controversy: Fancy phrase that means you have to be arguing about something that the court can fix. It also has to be a real and immediate question. In other words, you can’t sue over something that might happen in the future. The court will not issue an ‘advisory opinion.’ This short case has a great discussion of the topic.

Really simplistic example: You want to put up a new fence. It is going to cost $3000. You see that you neighbor has let a tree near the fence line get weak and overgrown. You are worried that if you build the expensive fence that the tree might fall on it. Can you sue your neighbor to make him cut down the tree?

Based on these facts, the answer is ‘no.’ You haven’t built the fence and the tree hasn’t fallen down. Unless your town has some sort of ordinance requiring tree maintenance, that tree stays right where it is until it comes crashing down.

To sum it up. You want to sue me for the rotten joke at the beginning of this post. You have to show how I injured you with my humor. You have to find me and figure out the right court to file your case. Now you have to prove that posting bad legal humor in a blog is a real controversy that is amenable to being resolved by the court.

Got it? That’s okay, neither did I at first. As we get into the guts of preparing a lawsuit, we’ll talk about each subject more in depth.

Atticus Finch nonwithstanding, quite often civil legal practice is anything but ‘civil.’

The exchange between lawyers in pleadings can get very contentious.  It’s not right, and not recommended.  However, despite most lawyer jokes, we are human and we get mad at our opponents.

However, nothing makes a lawyer lose their typically well-balanced cool temperment faster than a snarky, self-important, pro se opponent . . . .

Hey, isn’t that the whole point?  Isn’t making the other side sweat a good thing?

No.  You make the other side uncomfortable with your insightful legal and factual arguments, not with your vitriol and rants.  The most common is to call the other lawyer a ‘bully’ and accuse them of unethical conduct when they argue their case and point out the (usually) considerable flaws in your documents.

Torqueing a lawyer with personal attacks is usually just a guarantee that the attorney will drop everything and double their efforts to discredit and beat you.  We spend three years in school learning this stuff.  We know what we are doing.

So, how should a pro se litigant approach their pleadings?  The key words are simplicity, sincerity, and tone.  A simply written and sincere sounding document with a reasonable and professional tone will take you a long way. 

This is a fantastic article on what I mean by ‘tone.’  The author differentiates ’street talk’ from ‘law talk.’    She sums it up in a great phrase:

“So, you have to decide what your goal is: (1) To post your complaint on the web in all its vitriolic splendor and go down in a blaze of glory or (2) to win your case.”

So, before we even start talking about the techniques and skills needed to properly write the documents, you need to think about your tone and how you want the court and your opponent to perceive you. 

A great case cite that sums up the court’s opinions on personal attacks in pleadings.

“Frankly, resorting to the use of such statements [odiums, sarcasm and vituperative remarks] is an indication of a lack of confidence in the law and the facts to support the position of the one using them.”  State ex rel. Dyer v. Union Elec. Co., 312 S.W.2d 151, 154 (Mo. Ct. App. 1958).  Read the whole article.

This doesn’t mean you have to gloss over or shy away from the other side’s wrong-doings.  If their arguments are conclusory and self-serving, then say that.  Also point out the places where this happens and why your position is correct.  Don’t call the other side or their attorney ’self-aggrandizing,’ or my new word of the week ‘puerile.’

If they lied, say they lied and then include a cite and an exhibit showing how they didn’t tell the truth.  Don’t just call them a ‘liar’ and leave it unsupported.  Do that, and I guarantee, the lawyer on the other side will make you their personal project.

Attorneys are not immune to this temptation.  In a very contentious case, I went through the opponent’s pleadings and pointed out every factual inconsistency, every omitted fact, and every bit of self-serving ’spin’ on the facts.

My opponent waved his metaphorical hand and encouraged the court to ignore all of my ’sophomoric rigamarole.’  He didn’t explain or correct anything.  Just tried to attack me.  Sounds like a perfect example of using venom to “[indicate] a lack of confidence in the law and the facts to support the position of the one using them.”

By the way, I won that argument.  There are three ‘R’s’ in the legal world - ‘research, writing, and rhetoric.’  Only when you do the first two correctly does the third work in your favor.

Back to the quote at the beginning of this post.  Now is when you decide if you are one of the cats or the special guest ‘fish.’

Every individual has a constitutional right to represent themself in court.  However, just because you can, doesn’t mean you should . . .

“Pro Se” is latin (so much legal stuff is in latin) loosely translated as ”for himself.”  However, at least one pundit has said it also means “you lose.”

When I worked for Legal Aid, I often counseled people on how to represent themself in court on simple matters.  The two key words are ‘counseled’ and ’simple.’  You need to talk to someone, listen to them, and know when you are in over your head.

Sometimes it may be necessary for you to appear in court for yourself.  You are either sued or need to sue someone else.  Your success of failure depends on how you act, how you present yourself, and how you write.  It is the ultimate case of “you never get a second chance to make a first impression.”

Some basic advice:

1.  I don’t care who you are and how much you Google.  Legal procedure is complicated.  You don’t know one-tenth as much as you think you do. 

You need to consult with an attorney at least once.   Shop around.  Most attorneys will do an initial consultation for a very low cost.  Most state and/or county bar associations also have a referral service where you can meet with an attorney for a very small fee.  I have used this service when I needed to go into another state or practice area.  It is worth every penny. 

Also, every county in the United States has a legal aid office.  These non-profit organizations can only represent a handful of clients.  However, most offices have counseling services that can point you in the right direction.  They do not counsel on civil matters that concern money and damages [ie - a car accident].  They concentrate on family law, landlord/tenant, and some consumer law [creditors/bankruptcy].  To find your legal aid office, start here. 

A few hints to make the most of your consultation.

a)  Write down your questions.  What is the case about?  What side are you on?  Do you know what judge you are assigned to?  Can it go to small claims court? 

b)  Be shameless.  After the attorney has told you what you need to file, ask him if he has a generic form pleading for you to copy.  Attorneys swap forms and pleadings all the time.  Offer to pay a small charge for his time to search and print it.

c)  Don’t abuse your contact with the attorney.  Many lawyers will continue to answer questions by email or phone.  However, if you get too familiar or obnoxious, instead of a friendly answer, you’ll get a curt letter and a bill.

2.  Your pleadings are your life in court.  Even though pro se parties are given great leeway in the form and style of pleadings, you are still required to state your case and follow the rules of legal procedure.  Be warned, you are bound by all the rules of ethics that bind attorneys.  Most importantly are Federal Rules of Civil Procedure, Rule 11 and 28 U.S.C. 1927.  If you sign it, you live or die by it.  Therefore, refer back to #1.  Consider having an attorney proofread and comment on your pleadings.  They can’t write them for you, but they can tell you if it is sufficient.

More about how to write your own legal documents later.  For now, know that you need to speak with a lawyer at least once before you go to court.

Yes, I am a real lawyer and I have the student loans to prove it!  I also practice in a very small town where the line between real life and the court is very thin.  I counsel my clients in the potato chip aisle at Wal-Mart because that is where I am most likely to see them.

After ten years, more cases than I want to remember, and experience that ranges from Legal Aid to Federal Court, I’ll tell a few stories, dispense a little general advice, start a few conversations, and hopefully make you smile along the way.

Disclaimer:  Nothing replaces the advice of a living breathing lawyer that practices where you live.  My advice and answers will be general and point you in the right direction.  However, before you make a final decision, you should consult with a local attorney. 

That said, let’s have some fun!