ADVISORY POST: What People Representing Themselves Need to Know
Top 4 Things People Representing Themselves Need to Know
Written by: Stefano Ceroni
Because so many Arizona Family Law divorce cases are handled without attorneys, I decided to make a list of the top 4 things all people representing themselves need to know to be successful in their cases. I have to admit there were some selfish motivations that played a role in my decision to create this list.
Not only do I frequently retain clients that were previously representing themselves, but I also am forced to negotiate with and litigate against “pro pers” (people representing themselves) on a regular basis.
With that said, I have become privy to a number of common mistakes pro pers make when it comes to handling their divorce and child custody cases.
If you are a pro per, the first thing you have to be aware of is your inherent emotional attachment to the case. And, although this is not always a bad thing, it can often get in the way of you effectively presenting and defending your interests. Moreover, as a pro per, you lack the formal training and experience that comes with being an attorney. As a result, you are always at a disadvantage when it comes to some of the more formal processes such as motion practice, legal writing, rule interpretation and the submission of relevant evidence.
More noticeable, however, is the unreasonable and irrational behavior that many pro pers fall prey to when they fail to have the support and advice of legal counsel. During an emotionally charged litigation, attorneys succeed not only when they destroy the opposing party’s credibility, but also when they effectively control their own clients from behavior that would have otherwise worked against them.
With that said, let’s get to that list.
In no particular order, here are the top 4 things all people who are planning on representing themselves in a divorce or child custody case need to know to increase their chances of getting the results they want:
Pro Pers are Held to the Same Standards as Attorneys
That’s right. It doesn’t matter that you didn’t (a) drop $150,000 on three years of law school; (b) memorize Title 25 of the Arizona Revised Statutes or (c) even understand what full and proper disclosure means. According to the law, a pro per is held to the same standard as an attorney. What does this mean? Well, it means that pro pers will not get sympathy from the judge when they miss a filing deadline, fail to properly respond to a pending motion, fail to follow proper discovery rules or fail to follow proper procedures in the courtroom.
You would not believe how many times I have heard a pro per say to the judge, “Your Honor, I’m not an attorney, how was I supposed to know?” Sorry folks, this excuse does not work, and you should not rely upon it. If you are going to represent yourself, take it seriously! Read the Court’s Minute Entries, look at the Arizona Family Law Rules of Procedure and for goodness sake, take full advantage of the available resources that are at your disposal.
For example, you can contact the Judge’s assistant or the Maricopa County Clerk’s office to help you understand your obligations. You can also consult with an attorney about what you need to put in your Joint Pre-Trial Statement. You can even download motion templates from the self-help website if you are unsure about how to file a particular petition. With that said, the first thing all pro pers should realize before deciding to go at it alone is that they have no excuse for not following the same rules that attorneys do.
Do Not…And I Repeat, DO NOT File 104 Motions In Your Case
This rule touches on the old truism that “less is more.” A common mistake that many pro pers make is that they file a motion seeking a modification, enforcement, contempt or clarification on everything from baseball practice to unpaid $3.00 late fees. Why is this bad? Well, for one thing, judges have better things to do than micro-manage every little detail, discrepancy and fight in yours and your ex’s lives. And, when a judge is forced to have a 7th Return Hearing on your Motion to Enforce the provision in your decree that phone calls should occur at 7:00 as opposed to 7:30, they are not going to be happy to see you.
What pro pers often fail to understand is that some judges, at least based on my own experience, do not like being on the family law bench. The reason being, they don’t like getting involved in your family business, and they don’t like making orders about how people should parent. Judges recognize that the law is not suited to make a determination on whether a 5 year old daughter should be in counseling or whether your 12 year old son should be taking advanced math classes. As a result, judges are extremely reluctant to resolve these issues, no matter what the justifications are.
So, when parents force judges to hear their petitions because they cannot resolve these issues on their own, judges can get angry. And, when judges get angry, they usually decide to award something that neither party likes. So, before you tell yourself, “Ah, the judge will definitely punish my ex for paying my spousal maintenance 7 days late,” remind yourself of this: the judge really doesn’t want to see you or your ex ever again.
Take Perspective and Keep Your Own Emotions in Check
This tip is by far the hardest for pro pers to follow and, unfortunately, it is often the one that hurts their cases the most. A judge may forgive you if you submitted your exhibits 2 days late. A judge, however, is not going to tolerate you being rude, defensive, argumentative, uncooperative or for not being accountable for your own behavior.
The problem is this: when a party chooses to represent him or herself, their own perspective often blinds them. Nobody ever thinks they are the unreasonable one, or they are the worse parent, or they are the one who did something wrong. It’s always the other guy, right? Wrong. There is rarely ever a divorce or custody case where one party is like St. Theresa and the other is like Charles Manson. Generally, both parties minimize their own wrongdoings and exaggerate their ex’s. In reality, both parties are usually as capable of and as culpable for causing the current issues that are the subject of debate.
So, what do pro pers need to be cognizant of? For one, they need to be aware of their own faults. All pro pers must recognize that the judge is always skeptical of both parties. They have been around the block and seen enough cases to know that what you tell them during your 3 hour trial isn’t necessarily the truth, the whole truth and nothing but the truth. Give them this credit. Acknowledge when you did something wrong, even if you felt it was insignificant or justified. Judges want to see people take accountability for their actions. If you get defensive with a judge, you can bet your butt s/he will take it personally.
The Last Point
Don’t ever argue with the judge or with your ex or with the other lawyer in the courtroom. For one thing, it is completely unprofessional, and it is not the place to be unleashing your pent-up vendettas. For another thing, it makes you look about as crazy as the other party is trying to portray you to be. Why give them the ammunition? The key is this: you need to stay as calm, cool and collected as possible.
Now, I’m not saying it is wrong to be emotional or to even get upset. This would be impossible to control. Instead, I’m saying keep your emotions in control and try to understand that the more compromising and reasonable you are in court, the more likely the judge is going to believe that you are that way all the time.