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MESSAGE TO THE DIY LAWYER: STOP PRESENTING THE WRONG EVIDENCE (OR DON’T BLESS JUDGE)!!

Today was a good DIY Lawyer day.  Actually every day I wake up and get up is a pretty good day, but today was a little better than usual in dealing with do-it-yourself lawyers, because one of my prospective clients previously handled a matter on his own which allows me to illustrate the point — “don’t bless the judge.”

My new client is a well-presented and handsome black man who happened to have his own business and was unfortunately going through a contentious divorce (“contentious divorce,” is that redundant or a double negative?)    While telling me about the problems that required my attention, he related to me his prior effort to represent himself in family court which eventually had him in shackles and  jail because he failed to adhere to an order that made little or no sense and was impractical from his point of view.   The order required him to pay a mortgage on an upside down house that was in foreclosure, many months behind in payments.   His position was that, in addition to not being able to afford the monthly payments, it made no sense to give his wife — they still lived together — a month’s mortgage money when the bank would not accept it while the owners were nearly a year in arrears.  Add to that the house was not worth keeping since it was valued at $30,000 less than the debt.

He did not pay it and found himself in jail.  However, his failure to follow the Judge’s order was probably not the real reason he was “in jail with criminals.”  It probably had more to do with the record he created or the evidence he provided the Judge when he responded to the court’s ruling with great displeasure.  In other words, our DIY lawyer  had “blessed” the judge.

For those who are uninformed, to “bless” is simply a less vulgar way of “cursing out” someone.  It is a strong verbal expression of anger and displeasure without the “mofos,” “shits,” “#*@(#Y@” and other expletives.  Needless to say,  “cursing” or “blessing” the judge out, no matter how much you dislike the ruling, is a very bad idea for at least five several reasons:

1. Power relationships.  As I have been drilling into my kids since they were old enough to disobey orders, be sure that you understand and are able to manage the power relationships of every situation.  In the case of my kids, “I am in power, they are not.”  In the case of being pulled over by a police officer in the middle of the night on a dark road, he has the gun, the motorist does not.  In my client’s case, the judge is the only one in the courtroom who has the power to give the order.  You must manage that relationship, not destroy it.

2. You’ll be back.  Especially in cases of preliminary or pendente lite orders you will possibly be back before the same judge and you have already made an impression on her that she will not forget.  Judges understand frustration in marital matters, but few judges, at least the human ones, are likely to accept a verbal beating without flexing a little power relationship muscle.

3.  No need to break the record.  Most non-lawyers believe the prime objective in Court, especially in emotionally charged matters,  is to get what you want or some close facsimile thereof.  Consequently, if they don’t get what they want, which is often to address or redress an emotional grievance, they become very angry and sometimes they cannot contain themselves.  Such individuals would do much better if they understood that they are in part of a process and the more important thing is to create a favorable record that can be used throughout the process.  Court hearings are recorded. As your own representative, the best thing you can do in court is present the facts, evidence and your positions coherently, clearly and with decorum.  No need to create a record that shows you as an angry fool, in part because someone else who can help you may be watching, which brings us to the next point.

4. It’s all appealable (or almost all anyway).  Remember, I said “manage” power relationships, not “concede” to them.  All judges, even Supreme Court judges have bosses or higher ups.  If you really believe you’re wrong or that a ruling is so “incorrect” you, more often than not,  have the option to appeal to a higher court or you can file a motion for reconsideration with the same judge.  (Not to mention that if the judge is clearly biased, injudicious or unjustly disrespectful their are often administrative avenues for redress).  The record created in a lower court is the best weapon and the only evidence you have to get someone to overrule the previous judge.  The DIY lawyer does not need or want a record where he is shown as irrational, disrespectful or intemperate.

I believe in giving judges who rule against my clients a second chance to get it right which is why I frequently employ motions for reconsideration to point out something a judge has missed or not properly considered.  More often than not, the judge will rely on the record that was before her previously. You don’t want your record to say “remember me” in a personally bad way.

5.  Don’t Give Away Your Slight Advantage.  I have always found it harder to deal with a well organized, smart and polite pro se than a run of the mill attorney.  I don’t mind dealing with crazy irrational pro se litigants because they are my best evidence that their position is “whacked” or “out of whack” with reality.  However, the pro se litigant has an advantage because a judge will bend over backwards to make sure that he has his say and fully understands his rights.  Judges are rightfully far more lenient to the DIY Lawyer and that is an advantage when creating a record because the polite litigant is far more likely to be able to shape the record.  So instead of expressing anger over a ruling, it is much better to politely urge the court to explain the ruling.  Encourage the judge to put the factual and legal basis for the ruling on the record.  For the next judge or group of judges who  address your matter, the judge’s reasoning (or lack thereof) is sure to be a better ally than your “blessings.”

About the Author
Rhinold Ponder is the managing partner at Ponder Tuck Ponder, an aggressive firm which emphasizes litigation in consumer issuers and bankruptcy protection for debtors. Rhinold is also an accomplished artist and speaker on issues of consumer rights. He also operated The DIY Lawyer blog which focuses on redistributing justice and democracy by empowering through information sharing and education.

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