Useful Guide to Filing a Lawsuit . . . and More
One of the basic aspects of our legal system is that everyone has the right to bring a lawsuit. That right is virtually unrestricted. And, to top it off, you are not legally required to engage the services of a lawyer when you file suit.
Any legally competent person (that is, an adult who is not crazy or incapacitated) can bring a lawsuit in propria persona, or in pro per or in pro se. These are defined, respectively, as for himself, in his own behalf and in person.
You can learn all about this and much more by reading a new book, “Everybody’s Guide to Municipal Court” by Roderic Duncan. Duncan is a Superior Court judge in Alameda County and served on the Municipal Court in the Oakland area for 12 years.
The book was written to inform consumers about the excellent forms published by the state to help “pro pers” sue, and to serve as an instruction manual on how to use them, according to Duncan. Actually, the forms have been available since 1982, but no one has ever promoted them and they are underused, says Duncan.
The book describes the steps to take when you sue, defend and conduct your own trial in cases involving up to $25,000, the Municipal Court limit in California. If you want to sue for more, you must use the Superior Court. But even if your case involves more, you can opt to sue in Municipal Court and accept the $25,000 limit.
But, of course, you don’t always have to sue when you have a claim. You can, and should, try to settle. Most disputes get settled without a lawsuit. And even most lawsuits that are filed get settled without a trial.
One chapter in the book is entitled, “Can’t We Settle This Somehow?” The author urges litigants to use a state form called a “case questionnaire”--appropriate for both sides--to begin settlement discussions.
It forces plaintiffs to itemize what they think the case is worth, the nature of the claim and the evidence to support it. “If everyone had to fill out one of these at the beginning of every lawsuit (and if the defendant then had to file an answering one), think how it would enhance early settlement,” says Duncan.
If you do reach a settlement, Duncan suggests that you consider having the written agreement reviewed or even drawn up by a lawyer. “If neither party has a lawyer, you can hire one and split the cost,” he writes.
Having a lawyer on tap can be helpful, but watch out for a couple of things. It may be difficult to find a lawyer to represent both of you in the drafting of a settlement agreement.
Traditional legal rules call for separate lawyers for each party and often one lawyer cannot or will not represent both parties. The newer rules of professional conduct of the American Bar Assn. allow for such “intermediary” representation, but California has not formally adopted such a rule.
Judge Duncan correctly points out a danger in hiring a lawyer to draft the settlement agreement--many lawyers will carry the engagement beyond the needs of the parties and “will include pages of unlikely issues. This can cost a lot and may jeopardize the settlement.” True, but an aggressive, involved client can set the parameters of representation, and establish a fee in advance.
In any event, if you are on your way to court--by yourself--you’d better stop at a bookstore. This useful guide won’t replace a lawyer, but at $29.95, it’s a lot cheaper.
