Practice Makes Perfect

“I busted a mirror and got seven years bad luck, but my lawyer thinks he can get me five.”

-Steven Wright

The legal system is made up primarily of rules, statutes, and mountains of cases that interpret those rules and statutes. It can be very frustrating because different judges can read the exact same types of cases that have identical sets of facts, but justify their decisions based on their own beliefs as to what an outcome should be. This is why lawyers and clients are often left scratching their heads in confusion as they walk out of the courtroom.  

There are rules as far as the eyes can see. There are rules about state civil procedures, rules about clerk of court procedures, rules that individual judges use for handling cases, scheduling rules, rules for filing documents, and so on to infinity. Again, the level of information that has to be learned, often the hard way through mistakes, completely boggles the mind. 

This is why individuals so often become justifiably frustrated with the legal system (and distrustful of lawyers) because the abundance of rules, conflicting cases, and procedures make it virtually impossible for the average person to have any understanding as to what is actually happening with their case.  

On top of everything else, there are time deadlines for everything that are the equivalent of secretly placed land mines just waiting to blow people up. Many of these land mines can be fatal to a case. While there are numerous rules and procedures that exist, I have found that the following matters seem to constantly reoccur:

Corporations

Corporations cannot represent themselves in Florida. For some reason, this legal concept is often lost upon both lawyers and corporate owners.  If a corporation is sued, with the exception of professional associations and Small Claims cases, it cannot represent itself. A warning---all corporations, get yourself an attorney as soon as possible after you receive a summons indicating that you have been sued.

Ex-Parte Communications With Judge

An ex-parte communication occurs when a party to a case, or someone involved with a party, talks or otherwise has communications with the judge about the issues in the case without the other parties’ knowledge. Those representing themselves seem to violate this rule very often because they are not aware of the protocol dealing with judges. The correct way to communicate with a judge regarding an issue is to file a written motion with the clerk of the court in which your case is filed explaining what relief you are seeking and why you are entitled to that relief. Thereafter, you must schedule a hearing with the judge’s office. Judge’s often have different procedures for scheduling, so it may be helpful to call the judge’s office first. You must send a copy of your motion to every other party in your case. The following are basic rules that should always be followed concerning communications with a judge:

1. A party should avoid ex-parte communication on the substance of a pending case with a judge before whom the case is pending.
2. Before making an ex-parte application or communication to the court, a party should make diligent efforts to notify the opposing party or a lawyer known or likely to represent the opposing party and to accommodate the schedule of that lawyer to permit the opposing party to be represented in court. A party should make an ex-parte application or communication (including an application to shorten an otherwise applicable time period) only when there is a bona fide emergency that will result in serious prejudice to the party if the application or communication is made on a regular motion.
3. Parties should always notify opposing counsel of all oral or written communications with the court.

If an attorney or opposing party makes an ex-parte communication with the judge that is prejudicial to the other party, a motion should immediately be filed stating the objection to the ex-parte communication with the judge. This written objection may be very important in the event that an appeal is filed later (to preserve your objection).

Avoiding Clerk Defaults

This is another rule of civil procedure that is often violated by both those representing themselves and hyper-aggressive attorneys. Simply put, if a party is sued and files or “serves any paper” in response to a lawsuit (such as a letter regarding the lawsuit), the party who filed the lawsuit must file a motion and seek a court order granting a default, with a notice of the motion to the party who was sued. 

At any time that a motion for default is set for hearing before a judge, prior to a hearing on the motion for default, the sued party may file an answer and avoid entry of a default against them. This rule is especially important because if a party who is sued fails to serve or file any response to a lawsuit, a clerk may enter a default against the sued party without a hearing. 

This may later lead to a judge entering a final judgment of default against a defending party and lots of time, aggravation, and money attempting to set aside the default. Thus, if you are ever sued, immediately have your attorney file a timely response, or make sure that you send a written communication (via a method that you can prove you sent the document) so that you avoid entry of a clerk default. 

It is also a very good idea to file the written communication with the clerk of court so that you are covered both ways, with a written communication to the opposing attorney, and a document filed with the clerk identifying that you intend to defend against the lawsuit. 

Make Sure and Have a Court Reporter

One of the crucial mistakes that I have seen both as a trial and appellate attorney, is the mistake of a person not having a court reporter present during proceedings that take place in court. Even though paying to have a court reporter present at a hearing or trial can be expensive, the ability of an appellate court to review the decision of a trial court is limited to the “record” of the proceedings that occurred at the trial court level. 

The record, in a simplistic fashion, consists of all of the documents filed in a case, as well as copies of all transcripts of hearings and trials.

Failure to supply an adequate record leaves an appellate court with no alternative but to affirm a judgment, unless the error is so egregious that it can be determined by simply reading the final judgment (e.g. The final judgment indicates that the trial court applied the wrong legal test in reaching its decision.)

If the appellate court does not have a copy of the documents filed, evidence presented, and legal arguments made at the trial level, it us unable to determine what the trial court did incorrectly, if anything.   

Thus, if a hearing is important enough to attend, then it is important enough to bring a court reporter. There are certain rare circumstances where bringing a court reporter may not be a good tactical decision, but these often complex circumstances are better left to the instruction of a lawyer who should have a better understanding of the strategy needed for your particular case.

 While the above seem to be simple concepts, these matters are repeatedly misapplied by both attorneys and persons representing themselves. As always, the above information consists of basic summaries of common issues that arise in litigation.  If you are involved in a lawsuit in any manner, as always, your best option is to immediately hire an attorney to represent you---as misapplied rules and time limits can be damaging or even fatal to a case.  

 -Leonardo G. Renaud