SECRET LEGAL WISDOM

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Identify Exactly What You Want The Court To Do

 

In most cases, you as the plaintiff will file a complaint seeking monetary compensation for whatever losses you feel you have suffered, but there are situations when you might ask the court to order a defendant to do something, such as having a dead tree removed that is threatening your property, or getting rid of a nuisance pet that barks incessantly at night.

 

This is your “prayer for relief,” in which you spell out the remedy that you want the court to grant. You need to take care to lay this and the rest of your complaint out in proper legal terms lest your case be discredited.

 

Your complaint will in most cases include a caption, the allegations and the prayer for relief. The caption is the heading of the complaint and it appears on all the pages. It details the name of the court of venue, the case number. It includes the names of all plaintiffs and defendants in the case and may include the judge’s name. The allegations section lays out in clear language what the defendant did or didn’t do that caused harm and details the extent of the harm caused.

 

“Your complaint must outline a set of facts that, taken together, constitute something that is actionable,” [1] Schachner writes. “Your complaint must contain enough facts and legal theory to clearly establish your legal right to redress.”

 

Prepare your complaint carefully. Verify all of the facts and statements in your complaint. Remember that it is a legal document and can be used against you if your allegations or supporting facts fail to prove true. Here is a list of frequently encountered errors that can become pitfalls if not corrected before the complaint is filed:

 

·                   Omitting or improperly listing all parties

·                   Failure to include the exact name of all parties

·                   Failing to name the right court in filings

·                   Filing claims using improper forms / format

·                   Mistaken jurisdiction, venue

·                   Exaggerated or otherwise unsupported damage claims

·                   Failing to include appropriate allegations and background facts

·                   Improperly filed “prayer for relief”

·                   Expired statute of limitations

·                   Omitting required court attachments

Judge Or Jury?

 

Very early on in this process you will probably have to choose whether you want a jury trial or a judge to decide your case. Many states take away the option for cases involving child custody and child support, traffic violations and cases in which you’re not seeking monetary damages, requiring that these disputes be decided by bench trials.

 

But all things being equal, which one should you choose, is there an advantage one has over the other?

 

In my nearly thirty-years on the bench, I have seen only a handful of cases in which I thought a pro se would’ve been better served by a jury, but I realize that as a former Maryland Circuit Court judge, some may regard my opinion as less than entirely objective on the issue., so let me explain myself.

 

It is generally more difficult to get the courtroom protocol right in a jury trial, which makes it harder for the pro se to present the case. The judge does not feel he can be as relaxed with the rules in a jury trial out of fear that the pro se would gain some advantage in the jury's eye. Whereas, in a bench trial the judge can be more free to loosen the rules a little, because he knows he himself won’t be prejudiced.

 

Additionally, there are some solid practical reasons to opt for a bench trial. As the Web-based legal resource Nolo writes, the pro se, “is almost always better off trying [his or her] case before a judge than a jury. By not going before a jury [the pro se] does not have to worry about … depositing jury fees with the court or, preparing jury instruction.” [2]

 

I would add that the process of jury selection and simply timing your request for a jury within the proper court approved window are two additional pitfalls the pro se can avoid by opting for a bench trial.

 

If you do select a jury – or have one thrust upon you at the request of your opponent, entirely within his rights – keep in mind that jurors are usually not as adept as a judge would be at ignoring improperly obtained or otherwise inadmissible evidence. And remember the law of scarcity, jurors have a tougher time disregarding testimony under objection and discerning the merits of different types of evidence.

 

Conventional legal thinking has it that bench trials are better for cases based on technical legal issues where jury trials might be better for more emotionally compelling cases. Whether judge or jury is selected, a good rule to keep in mind is that in a jury trial the jurors decide the merits of the facts, while the judge decides the law. In a bench trial the judge decides both the merit of the facts and the applicable law.

 

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