Monthly Archives: May 2018

Motion for Summary Judgment

Whether you are the plaintiff or the defendant, you have the right to file a motion for summary judgment when you represent yourself in court.

In a motion for summary judgment, you ask the court to rule in your favor.  This is done before a trial has been held.  In your motion for summary judgment, you argue that the other party cannot win the case or one of the causes of action in the case because facts do not exist in the court record to support their claim.

If there are relevant disputed fact issues, you will not win on a motion for summary judgment.  The facts must be undisputed, and you must win because the law provides that you win under the undisputed facts.

If the other party files a motion for summary judgment, you should be able to defeat it by arguing that there are material disputed facts.

Motions

In litigation, there are a lot of motions.

A motion is a legal procedure used to bring a limited issue before the court for a decision.  Motions may be made at any point, but the filing of motions is regulated by court rules.

The party making the motion is called the movant.  The party opposing the motion is the nonmovant.

 

Request for Admissions

Another form of discovery in a civil case is a request for admissions.

A request for admissions is a set of statements asking a party to admit or deny the statements or allegations made in the statements.

In federal court, request for admissions is governed by the Federal Rules of Civil Procedure Rule 36.

Conduct Discovery

As a party in a lawsuit, you have the right to request documents in the possession or control of the other party.  You obtain these documents by filing a Motion to Request Production of Documents.

Discovery requests can be drafted fairly broadly, but they must be specific to the case and limited in time.

The other party can also request documents in your possession or control.

Be sure to preserve any evidence that could relate to your case.

Organize Your Evidence

Think about the evidence that could apply to your case, and then gather hard copies.  Then organize it.

An Excel spreadsheet is an excellent way to organize your evidence.  I create an Excel file named Evidence-2018-05-11.  (2018-05-11 being the date you create the file.  If you always use yyyy-mm-dd as the date naming convention in your files, it will enable you to find documents chronologically and identify the most recent version.)  [Evidence-Sample-2018-05-11]

Give consistent names to documents.  For example, always write “Letter to _____ about _____.”  “Letter from _________ about ______.” Email, Fax, etc., etc.  be consistent so you can sort your spreadsheet to find all evidence of specific types.

Date each document.  If time of day is important, you should use yyyy-mm-dd-mm-ss.  When I don’t know the exact time, I guess or put 00-00 for minutes and seconds.

Identify the Issue that the evidence applies to.

Insert the filename.  Then you may wish to add a note as to the importance of the document.

To get the filename, you need to put all of your evidence into a folder on your computer.  You will likely have some documents in digital format.  Find those, and put copies in your Evidence Folder.  You will need to rename these files.

Then scan all paper documents, and give each document a proper filename.

Your filenames should all be chronological.  This enables you to sort your Evidence Folder and your spreadsheet to get a history of the documents applicable to your case.  You must be consistent to find things easily.

Your file names should start with yyyy-mm-dd-mm-ss-(what it is, such as letter)-brief description.  So, for example, a letter to Barbara dated April 6, 2013 about settlement would be: “2013-04-06-Letter-to-Barbara-settlement.xls”  If I wanted to have evidence identified by time of day, I would put “2013-04-06-00-00-Letter-to-Barbara-settlement.xls” as I don’t know the time of day she wrote the letter.

Right-click on the filename in Windows Explorer as if you were renaming the file, and simply copy the filename.  Then paste it into the Filename filed on your spreadsheet.

Scan the documents needed, and ensure that all evidence is properly named in your Evidence Folder.  As additional evidence is identified, add each document to your Evidence Folder in the same manner.  When you receive documents from the other side, add that evidence as well.

Thinking long and hard about what evidence may exist is extremely important.  You need to prove your case.  It is also extremely worthwhile to gather evidence that proves the other side lies and cheats, when applicable.

Identify people who may be witnesses to the issues in dispute.  Talk to them to see what they saw or heard.

If the lawsuit is about a contract dispute, the contract itself is a critical piece of evidence.

Communications between you and the other party may be evidence.

Store the original copies of your evidence in a safe place.  And, as discussed above, scan your paper documents so you have digital copies.

File Your Complaint or Your Answer

You must file your complaint or petition in the appropriate court.  Most courts will require you to pay a fee, while some will not.

Check the website for the Clerk of Court for the court that you have determined is the court where your lawsuit should be filed.  The Clerk’s web page should have a section for forms and fees.  Identify the form that you will need to file with your complaint or petition.  The form should indicate whether a fee is required.  If you have questions about forms or fees, ask someone in the Clerk of Court’s office.

You might want to visit the office of the Clerk of Court in person rather than do this online or by telephone.  The staff will never give legal advice, but they should answer questions and help you with basic procedural matters.

Some states require that a request a jury be made with your complaint.  This may be required in your complaint, or there may be a checkbox on the form that you file as a “cover sheet” to go with your complaint when it is filed.  If you want a jury trial, simply check the box and pay the jury fee.

I always ask for a jury trial because I don’t trust judges.

You must have your complaint served on the defendant(s).  Check the rules on how this must be done.

One of the fundamental procedural requirements in any court is that you must provide a copy of any document you file, either by mail or by personal service (through the sheriff or a process server).  Ensure that you comply with your state’s law on service of process.

If you are a defendant, the plaintiff must serve you with the complaint.  You must then answer the complaint within the period of time set by state or federal law.  Don’t be late as it could cause you to have a default judgment entered against you.

Draft Your Complaint or Your Answer

To initiate your lawsuit, you must file a petition or a complaint.

A petition or complaint (different states call them different things) is a short, plain statement sufficient to show that the plaintiff should be entitled to relief.  It sets out the facts according to the plaintiff and shows the relief requested.  It may express the plaintiff’s legal theories in support of the request for relief.

A plaintiff must have a good faith basis for filing anything in court.  The court can sanction you if you file anything in bad faith.  You could be ordered to pay a lot of money to the court or the defendant, so be careful.  Make sure you have a valid claim.

Many courts have forms you for pro se plaintiffs to adapt for their complaints.  There are also examples online.

If you are the defendant, you must answer the complaint filed by the plaintiff within a specified period of time after it is served on you.  As to each allegation, you may admit it, deny it, or state that you lack sufficient information to respond.

Read the complaint very carefully, and think carefully before admitting any allegations.

Evaluate the Strengths and Weaknesses of Your Case

Consider the strength of the evidence that you have.  Recognize that some evidence has greater value.  Focus on evidence needed to prove the elements of your claims.

In addition, you should make an appraisal of evidence that the other side may have.  Think about the kind of evidence needed to support their arguments.

Identify the Appropriate Court

If you are the plaintiff, you must identify the appropriate court in which to file your lawsuit.

Statutes (laws) limit the “jurisdiction” (power) that each court has.  Legal actions may be filed in state or federal courts.  The question of state or federal court will depend on several issues — the type of case, dollar amount sought in damages, and number and location of the parties.

You must also determine the appropriate state court or federal court in which to file.

As a general rule of thumb, you should file a case that involves state law in a state court.  State law cases normally include divorce, landlord-tenant matters, personal injury, and breach of contract cases.  State courts normally have the authority to hear lawsuits about events that took place within the state.

Federal courts have jurisdiction in a more limited type of cases. Common federal claims include violations of copyright and trademark law, unfair competition claims, and discrimination claims.  Federal courts also hear cases in which the parties are located in different states IF the amount in controversy exceeds $75,000.

If you file your case in the wrong court, your case will be dismissed.  You can file your case again in the proper court.  But the statute of limitations must not have expired.  Study this issue carefully, and file your lawsuit long before the statute of limitations could be an issue.

Once you have identified the appropriate court, you must identify the proper venue for the case.  Each state has a court in each county, but you must identify the right one.  An appropriate venue is one where an auto accident occurred, where a contract was executed or was to be completed, where the defendant does business or lives, or where other critical events occurred.

If You Plan to File a Lawsuit, Make Sure You Have the Right To Do So

If you plan to file a lawsuit, you need to first be sure that you have the right to do so.

Many companies have mandatory arbitration clauses or mediation clauses in their contracts.  These contracts provide that you cannot sue the company.  You must resolve disputes through arbitration or mediation, which are out-of-court methods.

Courts strongly favor arbitration and mediation clauses, and they routinely enforce them.

You must also ensure that the statute of limitations has not expired on your proposed claim.  The statute of limitations are laws passed by state and federal legislatures to set the maximum time after an event when litigation may be initiated.

You have already identified the statute or statutes that you will be suing about. Go to your favorite search engine, and search to find the statute of limitations for that particular law.  Type your state’s name and the law (e.g., breach of contract, trespass, harassment), and then type “statute of limitations.”  So, for example: “Florida breach of contract statute of limitations.”  One of the first-page search results will usually provide what you are looking for.  Here is the result of this search.

If the event took place within the last year, you should be fine.  From my experience, two years or longer has been the norm.

You only have a short period of time to file a lawsuit. The specific amount of time will depend on the kind of lawsuit you are bringing and the state you are bringing it in. This time limit is called the “statute of limitations.”

Statutes of limitations start running from the time the alleged injury occurs.

There are some exceptions to the start date for the statute of limitations period. For example, if the defendant hit you but an injury did not appear until later, then the statute begins to run from the date you became aware of the injury. This is known as the “discovery rule.”

Always file suit as soon as possible in the appropriate court.