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Introducing Basic Legal Information By Carl R. Frederick

Important No matter if you hire a lawyer or are doing it yourself (pro se) you need to know the basic information provided herein.

A note about myself – Carl R. Frederick – and the information provided
I am an experienced financial analyst and consultant and have my own financial and business consulting firm founded in 1971. I am providing this information Free of charge and at my own expense. I have no arrangements or pending relationships, direct or indirect, to be compensated for providing this information. At my own expense I have taken over $15,000 of CLE (Continuing Legal Education) courses so as to be well informed in addition to my experience in 48 of my own legal cases – only lost 4 and have 1 new one pending. Additionally I have helped to educate and/or inform thousands of persons who have had legal problems to do their own legal work. Those who have followed the directions from inception have a better than an 80% prevail rate.

This site is especially set-up to help individuals understand the law, properly engage attorney assistance and/or represent themselves. We are the American Pro Se Association (APSA).

If you have been served with a Summons & Complaint or an Order to Show Cause you MUST respond as provided by the court rules within the time specified by those court rules.

Dealing with legal disputes

Determining Method of Representation

When To Represent Yourself:

  • The amount of money in a civil action is small and it is a simple matter
  • It is a parking ticket with no other consequences the dollar value involved and consequences of losing is less than the attorney fees
  • It is a civil action and you simply do not have the money to retain an attorney

When to hire an attorney:

  • A substantial amount is involved in the form of a tort damage and you can engage a qualified attorney on contingency.
  • A substantial amount is at stake and you can afford representation.
  • The law requires representation by an attorney – such as for a corporation.
  • A criminal issue is involved that could result in a serious item on your record or you could do jail time.

Engagement of an Attorney:

  • Find one you really can relate to and has knowledge of the particular area of the law involved.
  • If you are consulting with the attorney to help you represent yourself make the appropriate arrangements – get his phone number, pager and otherwise you won’t be able to reach the attorney when urgent.
  • If a contingency case – such as automobile tort injuries – avoid signing with a “claims staker type” firm. (These are firms who sign up as many contingent cases as possible, do minimal work, and then when near trial time pressure you to settle because your case is “not that strong”) They are in the business not of really working to get the most for you but to get their percentage off a large inventory of cases (That they staked claims to).
  • If you are engaging an attorney make sure there is nothing in the engagement agreement that can prove to be a problem later on and make sure your have the following:
    • Agreement that attorney will provide you all papers and correspondence and documents prior to filing and copies of other documents upon his immediate receipt
    • His home, cell and pager numbers and agreement he will return calls within three days – or if at trial then on Friday or Saturday.
    • What his charges are and how they are calculated – Get some capitation
    • In writing exactly who in the firm is going to work with you and who is going to be the trial attorney.
    • Do NOT give an attorney or anybody your only copy of anything
    • Give the attorney a typed, dated, summary of the case listing attached exhibits and what they are supposed to establish – Have a second copy for him to sign that he received said materials – and the date.
    • Agreement that even if you are behind in paying him he will turn over the file to you or another attorney should the relationship end. This is VERY IMPORTANT as in some states the attorney can hold the file until paid unless contracted otherwise and if your case goes longer or something else happens where you are unable to pay — you do not need your life held hostage for money you don’t have.

Basic Books You Need To Own (Not Library)

General Comments: Unfortunately the vast majority of Courts hide behind the empty excuse that they can not give legal advice when telling you what books as a minimum you need is far from rendering legal advice. Of course you will need to reference special books and case law in a law library either conventional or electronically (such as CD-ROM law or Internet) but it is really important that you have to read and reference at your PC the following:

  • A law dictionary – paperback by Barrons Educational will be adequate and can be purchased in most books stores.
  • Represent Yourself In Court – Read, re-read, and consult with Nolo’s book which can be purchased in most books stores, on the Internet and from Nolo at 800-992-6656.
  • Court rule book – for the court you are in – Annotated is far better than a plain rule book and well worth the $20 or so premium many times over.

Finding the Right Court Rule Book: The following is a summary from the unique database maintained by the American Pro Se Association (APSA).

Annotated Court Rule Books: These are BY FAR the BEST and provide commentary, caselaw citations and other guidance. Always get annotated versions when you can. The annotated Court Rule books can be purchased from the publishers as follows:

For: AL, AR, AZ, DE, DC, GA, HI, IL, IN, NE, NV, PR, RI,
SD, TN, UT, VA, WA, WV The Michie Co. (Lexis) 800-356-6548

For: AZ (Civil Cases Only) West Publishing 800-328-9352

For: NJ Gann Law Books 973-263-1200

For: Federal* (1st Choice) Jones McClure Publishing 800-626-6667
(2nd Choice) The Michie Co. (Lexis) 800-356-6548

For: TX Jones McClure Publishing 800-626-6667

* Both Michie (Lexis) and West Publishing have limited annotated paperback or loose leaf products that deal in a more limited manner with Federal Court Rules. In the case of West Publishing it is entitled Federal Civil Rules Handbook – and may need to be in conjunction with the basic West Publishing Federal Rules unannotated version below. With the Jones McClure Federal Rules you will also want the companion Federal Forms volume.

Plain Court Rule Books: Unfortunately all states do not have a publisher of a paperback annotated court rule book and you are stuck with the basic court rules which can be purchased from the following publishers.

For: Federal West Publishing 800-328-9352
NY, OH, PA Gould Publishers 800-847-6502
All States West Publishing 800-328-9352

Local Federal & State Rules: In many courts there are additional local rules as well as the basic rules. All Federal District Courts have their own local rules – sometimes they provide a copy for the asking at little or no cost – other times you may be referred to a publisher. You need to ask the court clerks office about local rules. Gann publishes excellent Local Federal Court Rule books for NJ and PA.

State Local Rules: In some states the state courts’ local rules are real important – notably in PA where the local rules are numerous and very important. In NJ the state court system is one unified court with one set of rules – obviously this is a more desirable system to deal with for both lawyers outside a given county
as well as pro se parties.

In general book stores do not carry court rule books because they change and become obsolete every year. Sometimes a legal book store near a large court system with a nearby law school may occasionally have the current rule book in stock.

Court Rules, Statutes and CaseLaw on the Internet: An increasing number of states and/or their law schools etc. are putting some of this information on the Internet where it can be obtained for Free or at a nominal cost. The problem is that it is not uniform – one state may have all of its statues up with an index so one might find what they need. Virtually no state has adequate caselaw and search engines up so far. The Federal code and CFR’s can be found on the Internet.

Warning: Appellate Court is NOT a second chance to present your case. Only evidence properly submitted in the trial court may be raised in Appellate Court. Appellate courts generally do not care if the result is unjust – they address basically two issues:

  • Did the trial judge’s finding of facts match the evidence or was it materially wrong on important points.
  • Did the trial court judge make a material mistake of law.

Danger: A frivolous suit, defense or appeal can result in the loser paying the other sides attorney fees and costs. ALWAYS check with an attorney and follow his recomendation before filing any papers.

Serving and Answering Complaints: Basically most courts require both a summons and a Complaint and that they be served in one of several specific approved ways.

Motions: A motion is how one asks the court for something. A motion consists of several parts: It must be served and answered as per court rules.

  1. Notice of Motion – Tells adverse party(s) what and time to be decided.
  2. Affidavit or Certification in support of motion with facts
  3. Certificate or Certification of Service – certification and proof of service
  4. Form of the Order – That you want the judge to sign.
  5. Exhibits supporting the motion and affidavit.
  6. Legal Brief – Not necessary for most motions – but required for certain ones.

 

Answering & Filing Complaints & Orders To Show Cause.

Most jurisdictions require a Summons to be served with a Complaint – some require an effort at personal service. However all allow for alternate service if the party appears to be avoiding service of difficult to serve. Often this only requires sending by mail to the last know address. The important element is avoiding service only delays things – typically for a week or two.

An Order to Show Cause requires an prompt response — sometimes within 24 hours and does not have to be served with a Summons.

TIME to ANSWER – is VERY IMPORTANT:

If you get either one you need to properly answer at once. Failure to do so will result in loss of rights you otherwise had – and often will result in an entry of Default and a Default Judgement. This means you forfeited and lost. The consequences will be similar or worse to going to court and losing the case.

Answering either type complaint (regular or Order to Show Cause) consists of:

  1. Answer to the counts by number
  2. Affirmative and Separate Defenses
  3. Counter-Claims
  4. Cross-Claims – If other parties are involved
  5. Third-Party Claims – If you need to bring in additional parties.

The Only Five Answers YOU should make in a complaint – Exact words – Nothing Else!

  • Admits (Such as your address is ___)
  • Denies
  • Admits in part and otherwise denies.
  • Denies generally but admits in part.
  • Defendant is without sufficient information with which to form an answer and otherwise leaves Plaintiff to strict proof at trial. (This is my favorite)

Affirmative and Separte Defenses are those which the law has provided for – If you claim them in your Answer – Otherwise you forfit your right to those defenses. These are defenses that even if you did what the Plaintiff claims you did you are still not liable under the law. A partial list follows (You need to refer to the appropriate section of your court’s rule book:

  • Plaintiff fails to state a claim upon which recovery can be granted
  • Failure or defect of process or service
  • Statute of Limitations
  • Latches
  • Fraud
  • Pari Delecto
  • Violation of Statutes or Regulations
  • Accord and Satisfaction
  • Breach of Contract
  • Force Majore

As to CounterClaims, Cross-Claims and Third-party claims. Drafting these is quite different from the “boiler plate” steps provided above for the 1) Answer and 2) Affirmative and Separate Defenses portion. You will need to consult with a reference for your jurisdiction as to “causes of action” Draft this as best you can with very wide margins and triple spacing. Then consult with an attorney who will edit and advise you on how to change it. Meanwhile we are working on how to better direct you in the creation of the draft – but you will Always need to have this aspect reviewed by an appropriate attorney BEFORE filing. We can send out a sample of a complaint with these elements as an e-mail attachment for those needing a basic outline for creating their draft to take to an attorney for review.

The SUMMONS: Most jurisdictions have their own form of summons — often a sample or model language is provided in the court rule book. Additionally some stationary stores and similar places provide pre-printed summons forms.

The rules of answering and of serving papers are spelled out in your court’s rule book. It is important to read, understand, and properly comply with those requirements.

RECAP: Civil Court is NOT about fairness, justice or the truth! Hopefully those principles will prevail but administratively the civil courts run by rules and focus on moving cases through and out of the system. It is an adversarial – advocate approach to resolving disputes – like two boxers in the ring – as contrasted to some concept of focusing on “justice”. Therefore if you fail to know and implement them you will lose – the system and its personnel only function as providing the forum for the adversaries to do battle – not in adjusting things to favor justice.

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