From the Law Office of Christopher Loizeaux

Posted by: Christopher Loizeaux on February 19, 2013

How to Represent Yourself in Family Court

    HOW TO REPRESENT YOURSELF IN FAMILY COURT

    Introduction

    I have been a family law attorney for 17 years.  I am 62 years old.  This is my second career, the first being, for all practical purposes, “non-profit.”  In other words, I was a professional musician – the non-famous variety.

    Thus, I came to the practice of law with a good deal of life-experience that had nothing to do with law.  This is unlike most lawyers, especially those I term, “genetic” lawyers (i.e., daddy is a lawyer, granddaddy was a lawyer, etc.), who begin their practices in their early 20's, and even though they have mature and learn from experience, everything they learn about life after law school is viewed through the prism that is the profession of law.

    I found real life experience outside the legal community useful in interacting with judges and other attorneys.  I was able to utilize my experience of being on a stage and performing for audiences, to learn how to effectively present a case to the judge.  I was also able to utilize intuitive skills to read people, opponents and opponents’ attorneys, and judges alike, in ways that many of my more legally experienced colleagues cannot.

    If you are reading this, you are likely faced with a family law case, with little to no legal training or experience.  You may not have sufficient resources to hire a lawyer.  You know there are a plethora of books published (most notably by Nolo Press) on the nuts and bolts of preparing, and even litigating, a case as a self-represented party.  Paperwork (what we call “pleadings”) is very important.  But what do you do when all the paperwork is done and on file, the hearing is scheduled, and its time to walk into court to talk to the person in the black robe and debate your case with your opponent?

    That’s what this topic is all about.

    Judges

    Judges (collectively called the Court), are human beings.  They can make mistakes.  They can jump to conclusions based on first impressions.  They can hold grudges.  They can be unfair.  However, they MUST be given the benefit of the doubt, and treated with respect to their faces, in the courtroom, even when ruling against you.  Despite writing this last sentence, I must add that the vast majority of judges are intelligent, thoughtful, and try very hard to be fair, especially in an age when more and more family court litigants are self-represented.

    Family law trials and hearings do not involve a jury.  In family law, the judge is the “trier of fact” not 12 of your peers.  In jury trials, the judge is mostly the referee between the lawyers, who are doing their utmost to convince ordinary citizens like you that their case is better than their opponents, and the judge rarely speaks, except to admonish the attorneys, rule on legal objections and on motions made pre-trial.  Judges also referee which instructions will be given to the jury after the evidence is finished.

    In family law, judges act as both jury and referee between the litigants, whether represented by lawyers or not.  They decide what the facts are, based on the evidence presented, and also rule on objections and legal motions.  When you represent yourself in court, you are acting as your own lawyer, and you are expected to (or, perhaps, it is hoped that you) comport yourself like a lawyer, and you are expected to know the relevant substantive law, and procedures.

    Law and Procedure

    Much of family law is based on common sense.  For example, if children are involved, their interests come first.   “Best interests of the child” is a phrase that most decent people can understand.  Kids need protection, not only from the harsher elements of society, but, sometimes, even from their parents when the parents are unable to see beyond their own angst and anger with each other.  Another example: California is a community property state.  Everything earned or acquired or spent or incurred as debt during the marriage (with certain specific exceptions), belongs to the marriage and is divided equally, or equally in-kind.  I get into these basics in other content sections of our website, but I want to get to the basic number one in-court rule here, which applies both to what you write in your pleadings, as well as how you behave in court:

    Be reasonable.

    This rule applies even though your opponent may not be reasonable.  Remember the hoary old saying, “two wrongs don’t make a right”?  Well, it is real-world practical advice when preparing and presenting your case.  Do not be tempted to misbehave, exaggerate, lie under oath (God forbid!), etc., just because your soon-to-be-ex-spouse is doing so.  Those litigants who behave this way in and out of court, eventually damage their own cases, while wreaking havoc on their lives and others’ lives, even if they may gain the initial upper hand.  Its just like being a kid – you lie or cheat, your parents eventually find out.

    Behave in court. 

    Act like an adult.  Everyone gets their turn.  Don’t talk over your opponent.  Do not wear your favorite holey biker t-shirt.  Dress nicely, though you don’t have to dress like its your first communion in church.  But, back to behavior and procedure.  The moving party (he or she who filed the motion, now called “Request for Order”) gets to go first.  Some counties still have true “Order to Show Cause” hearings (What the Request for Order used to be called), where the attorneys or self-represented parties submit their declarations and argue for 20 minutes, then the judge makes a decision.  Some counties have trials or contested hearings for everything, including motions, and you get to put on witnesses, as well as testify under oath, yourself.

    So, the moving party gets to argue first (or present evidence if its an evidentiary trial).  Do not be tempted to jump in and shout, “That’s a lie!” in the middle of their argument or testimony.  You will be told to be quiet and sit down, you will get your turn.  Take lots of notes, instead, either for your own argument, or for cross-examination of your opponent’s witness.  If taking notes during a direct exam of a witness, don’t bother to write down the question, it takes too much time, just write down the witness’ answer.  Of course, if you are the moving party, and go first, be prepared to go!  If arguing, refer to relevant portions of your declaration, or your witness declarations, and argue why the court should do what you are asking.  If asking a witness questions on direct exam, ask open-ended questions for the witness to answer, do not lead the witness.  When it is time to cross exam an opponent, or his or her witness, then you may ask leading questions, that call for a yes or no answer.  Example, “Isn’t it true that you left our two year old child sitting outside on the porch for an hour unattended while you surfed the web?”  If you don’t get the answer you’re looking for, move on, do not belabor the point.  Witnesses and parties often deny things you know are true, and expect that to happen.  Taking the oath is not a truth serum.  Be prepared, if you can, to present “rebuttal evidence” like a witness who saw the kid on the porch in the cold.

    Now, rarely, you may find a judge who is not fair or reasonable.  You still need to behave.  Many courts do not provide court reporters anymore, but even if one is not taking down every word, you can still object to something the judge is doing (like not allowing your witness to testify) and ask that the court clerk, who prepares the minute orders, note in the minutes, your specific objection for the record.  Sometimes when a judge is reminded that you are “making a record” he or she will back off a bit, not wanting to risk an appeal.

    Again, your best bet is to be unfailingly polite.  Yes sir, yes ma’am, your honor, are all proper ways to address the court.  Some lawyers who are around a long time and know all the judges, many from when they, too, were mere lawyers, will call the black-robed one “judge.”  That’s probably not a good idea for a self-represented party.

    Next time, I will talk about Evidence ...