How to Represent Yourself At Trial

Welcome!

This hub is intended to be a companion to my prior hub on How to File Your Own Lawsuit. This part focuses strictly on the trial, which - because it can be so involved - seemed to justify having its own hub. Again, this is a hub that assumes that you are a pro se litigant (meaning that you are representing yourself) getting ready to go to trial. Hopefully, it will answer many questions you have regarding trial procedure.

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Pretrial Issues: Witness List, Exhibit List and Motion in Limine


First of all, I need to point out that television legal dramas have done a grave disservice to the practice of law. They would have you believe that you can run down to the courthouse, file your lawsuit, and be in trial the next day. It simply does not work like that.

From the time you file your lawsuit, it will almost assuredly be the better part of a year (and probably longer) before you actually find yourself at trial. (The exception to this, of course, is small claims court, but even then you will probably be waiting months before you have your trial.)

Regardless, now that I have set the record straight on how long it will be before you actually get to trial, let's zip ahead and assume that you have a trial date and the court has informed you and the Defendants that you will definitely be going to trial on the scheduled date. (If you remember our scenario, your car was struck by a guy driving his employer's truck while on his way to a job site. You suffered a broken foot and are suing the driver of the truck and his employer for $100K in damages and asking for $100K in punitives.)

However, prior to trial actually starting, you have to have a pretrial conference with the judge, at which you and the Defendant will try to hash out any remaining issues, which may include the following:


Winess List: Unlike Perry Mason and a lot of other film and television dramas, there is no calling of a last-minute surprise witness in real life. Before even the pre-trial conference takes place, you will be required to exchange your witness list - the list of people you may call to testify at trial - with the Defendants. If a person does not appear on your witness list, guess what? You don't get to call him at trial! (Moreover, any witness you intend to call had better be somebody you previously identified as a potential witness during the discovery process. Otherwise, they will never see the inside of the courtroom, because the other side will object to their testimony as unfair surprise and the judge will agree.) If either side has a problem with a witness, they can file an objection and/or motion to strike to try to prevent the witness from testifying.

Exhibit List: Like the Witness List, you will exchange your list of exhibits with the Defendants. (Exhibits refer to the documents, photos or other physical evidence you will use to help prove your case.) Moreover, just as you are prohibited from bringing in a surprise witness to testify, you are also forbidden from producing previously-undisclosed evidence as part of your exhibit list. If you never mentioned or produced it before, you can't do it now. But even if it was previously disclosed and produced, it may still be objectionable for some reason, in which case an objection and/or motion to strike the exhibit would be filed with the court.

Motion in Limine: This particular motion is one in which you ask the court to order your opponents not to mention certain information because it may prejudice the jury, is irrelevant, is inadmissable, or the like. For instance, the Defendants here may request that the jury not be informed that the company involved is a subsidiary of a billion-dollar corporation, that they have insurance to cover any damages, or that they were sued in a similar case last year. All of those things might prejudice a jury. On your part, you might not want the jury to know that you've had similar 7 lawsuits (based on car accidents) in the past 3 years and that you've collected $500K during that time in settlements. Basically, the motion in limine can be asserted regarding any matter you don't think the jury needs to hear.

Most trials are scheduled to begin on a Monday. The pretrial conference typically takes place the Friday before, and that's when issues related to exhibit lists, witness lists, motions in limine and so on will get resolved.

Video: How To Introduce Exhibits in Court

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Voir Dire and Jury Selection

Many lawyers will tell you that the case is not won during trial, but during jury selection. These are the people who will be deciding your case, so who you chose to have on your jury is crucial. Not every juror is good for your case. For instance, if you have a potential juror who thinks most people who file personal injury suits are faking, you don't want him on your jury.

Depending on how complicated your case is, the size of your jury pool may vary. Even though you only need a jury of 12 people (and perhaps an alternate), high-profile cases may have a jury pool that consists of hundreds of people. Normally, a jury pool of about 30-40 people will suffice for a civil trial with damages in the range discussed here.

Voir Dire is a term that refers to the lawyer's examination of potential jurors prior to trial. In fact, this is really the only time that you will get to interact with the people who will be on your jury. In most instances, you will have been given a lot of information about them (name, address, occupation, etc.), so what you're trying to do is find out who is bad for your case. You get to ask them questions and find out how they feel about the law, lawsuits, what have you.

Since we're trying to weed out people that may be bad for our car-accident case (or identify those that might be good for us), some of the things you might ask are: Who thinks we have too many lawsuits? Who believes that people who bring personal injury lawsuits are faking it? Who here has ever been in a car accident where the other driver was at fault? (Also, don't forget to follow-up your questions - e.g.: Why do you think that? How did that make you feel?)

Jury Selection occurs after both sides have had an opportunity to speak with the jury pool, so that voir dire is complete. Each side is typically given a number of peremptory strikes, meaning that you can strike any potential juror for any reason at all without question. (Needless to say, these should be used against individuals that you absolutely do not want on your jury.) After you use all of your peremptory strikes, you can still challenge potential jurors for cause - in other words, you have a definitive reason for challenging them. Maybe their husband works for the company you're suing, maybe she thinks all personal injury lawsuits are phony, what have you. The judge will either dismiss the juror if he agrees with you or - if he disagrees - leave them on the jury. The first twelve people who are not struck either by peremptory challenges or for cause will become your jury.

(Oddly enough, the people that are struck most often from jury pools as being undesirable jurors? Lawyers!)


Opening Statement


Your opening statement is where you first get to explain to the jury what the case is all about. This is your first opportunity to sway them to your side. However, you are not allowed to argue in your opening statement (although you can in your closing at the end of trial); you can only state what the evidence will show.

For instance, you can't say, "The defendant wildly and recklessly ran through a red light..." That's argument. What you can say is, "The evidence will show that the light was red. The evidence will also show that defendant drove into traffic despite the red light..." In short, as long as you at least preface each statement with "The evidence will show..." (in your head at least, if not out loud), you should be fine.


Trial: Questioning Witnesses

The questioning of witnesses usually falls into two categories: questioning your own witnesses (known as direct examination) and questioning the other side's witnesses (known as cross examination). As Plaintiff, you will get to put on all your witnesses and evidence first (this is called presenting your case-in-chief), and afterwards the Defendants will get to put on their case-in-chief.

Direct Examination: The main thing to remember about direct examination is that you aren't allowed to ask your own witnesses leading questions. A leading question is one which gives an indication of what the answer should be, such as, "And that traffic light was red, wasn't it?" By contrast, a non-leading question would be, "And what color was that traffic light?" Besides, on direct examination your witness is the star, so you want all eyes on them. Thus, you don't want to ask just yes-or-no questions; you want the witness explaining things to the jury.

Cross Examination: This is when you ask questions of your adversaries' witnesses. Unlike on direct examination, when crossing, you are the star and you want the jury focused on what you are doing. Thus, you don't want their witnesses explaining anything to the jury, so all you want are yes-or-no answers to your questions. That being the case, feel free to ask all the leading questions you want.

Practice Tip: All good lawyers know that there is one inviolable rule when it comes to questioning witnesses: Never ask a question that you don't already know the answer to. It will kill you. Even if you think you've got the witness by the short hairs and you just need that one extra question to hit a grand slam home run, let it go. Here's an example of a case where a lawyer asked that one extra question (that he didn't know the answer to), and it cost him dearly:

Lawyer: You didn't see the fight that allegedly started between my client and the plaintiff did, you?

Witness: No.

Lawyer: And you didn't see how the alleged fight ended between my client and the plaintiff, did you?

Witnes: No.

Lawyer: And you never saw my client strike the plaintiff, did you?

Witness: No.

Lawyer: In fact, you never saw my client harm the plaintiff in any way, did you.

Witness: No.

Lawyer: And you certainly never saw my client bite the plaintiff's nose off, did you?

Winess: No.

(At this point, the lawyer should stop. He's gotten everything he needs out of the witness, but he decides to go for the kill.)

Lawyer: So what makes you think he bit the plaintiff's nose off?

Witness: Because I saw him spit it out...



Trial: Objections

One area in which you will seriously have to be on your toes is in relation to trial objections. Basically, you have to be paying close attention to what the other side is saying, and you have to have a working knowledge of what the appropriate objections are so you'll know how to stop them when they're doing somethng wrong. To that end, you will find the most common trial objections noted below:

Leading: You make this objection when opposing counsel is asking his own witness a leading question, like "You didn't mean to hit him with that bat, did you?"

Asked and Answered: This is an objection which means that the witness has already answered the question. You usually make this objection when the opposing lawyer is cross-examining one of your witnesses, and they ask the same question more than once. (The other lawyer is most likely trying to get a different or more favorable answer - or could simply be trying to harass the witness.)

Irrelevant: This objection is made when the question isn't related to the facts or the subject matter of the case.

Hearsay: "Hearsay" is normally defined as any out-of-court statement that is offered for the truth of the matter it asserts. In essence, any time someone is about to repeat something they read, overheard, were informed of, etc., that's hearsay. (FYI: there are exceptions to hearsay, such as an "excited utterance" e.g., someone shouts out a statement in a moment of excitement, like "Look out! He's got a gun!")

Compound: This is an objection you make when the opposing lawyer is asking more than one question in a single query, for example: "Did you go to the gas station right after that and buy a Coke for a dollar?" He's asking (a) if you went to the gas staion, (b) if you bought a Coke there, and (c) if the Coke costs one dollar. That's a compund question, and only one part of it may be true (e.g., maybe what you bought was a Pepsi), so getting a yes-or-no answer could be misleading.

Vague/Ambiguous: A vague question refers to a query that is difficult to understand, like "You didn't never not know the he was never not going to be unable to perform his duties under the contract, did you?" An ambiguous question is one which can have more than one meaning or can be understood in more than one way.

Argumentative: This objection is made when the question implies or argues something: "What did you do after you wrongfully entered his apartment?"

Narrative or Calls for a Narrative: This is an objection that is made when the other side's witness is giving a long-winded answer, or the question calls for a long and extended explanation. A direct examination should be in the question-and-answer format, so if the other side's witness is just rambling on to the jury, object to it as a narrative.



As I mentioned, these are some of the more basic objections, but it's extremely difficult to be johnny-on-the-spot with these without a lot of practice and/or study. Also, should any of these objections be made against you and be sustained, you can usually fix them simply by rephrasing the question.

One thing to note: make absolutely certain that you get a ruling - that it is granted or overruled - for every objection you make. Judges will avoid actually making a ruling if they can, because if they don't rule on anything there's nothing to be overturned on appeal. In short, you have to make sure you get a ruling for all your objections on the record. By way of example, if you object to a question as "argumentative," the judge may simply respond with "Don't argue" and you'll sit down all smug and satisfied - but the judge hasn't actually made a ruling on your objection! Thus, when you argue on appeal with respect to that point, the appellate court will say there's nothing to address because the trial judge never ruled on that issue.


Closing Statements

Your closing statement is where you sum up all the facts and evidence that have been presented. This is the last time you get to address the jury directly, so this is where you have to pull all the facts together into whatever theory you feel best supports your claims. You can argue, tell anecdotes, etc. - whatever you feel helps your cause. The bottom line is that you need to persuade the jury with respect to why you should win this case.

Usually, you will have a limited amount of time for your closing. Plaintiffs present first, followed by Defendants. However, Plaintiffs also have the opportunity to reserve some of their time for rebuttal (meaning that a plaintiff can use some of his time to speak again - after Defendants make their closing statement - in order to address any arguments defendants may have made in closing).


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Jury Instructions and Judgment

The jury instructions (sometimes called the jury "charge") are simply the rules a jury must follow and the questions the jury must answer in reaching a verdict. Most states have their own "pattern jury instructions," so this is one of those things you will simply have to look up. Usually, both sides submit their proposed jury instructions to the judge, who then decides which instructions and questions will go before the jury. Please note: drafting the jury instructions is typically not something that you will be able to accomplish in one sitting. (if you do, it's almost a certainty that your jury instructions are terrible or flawed in some way.) It takes time and can be somewhat complicated, so do not wait until the night before it's due - or even the week before - to try to pull it together.

The way in which the jury answers the questions presented in the jury instructions will determine the outcome of the trial. Hopefully, if you've lined all of your ducks up in a row, you will have a positive result, with judgment being entered in your favor.

At this point, trial is over. However, there is still the possibility that one party will appeal. (They usually have about thirty days to do so.) It will probbaly behoove you to try to speak to the jury afterwards to see what they were thinking and what arguments swayed them. This will be useful in the future should you ever decide to represent yourself again.

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