This article mainly addresses situations in which a party to a contested legal action opts to represent himself/herself, instead of retaining legal counsel, and it addresses certain aspects in the litigation process that can result in default rulings against the "pro se" litigant.
First, [ANSWER]. Whenever there is a civil litigation action (i.e., lawsuit, divorce action, custody action, legitimation, modification, or any other civil action), once the Defendant is lawfully served, the Defendant has thirty (30) days in which to file an Answer. In your typical lawsuit such as a personal injury case, or a lawsuit for damages or breach of contract, etc., if the Defendant fails to file an Answer within thirty days after being served, the Plaintiff can seek a "default judgment" against the Defendant. Now, there are provisions in the law that address a motion to open the default, but that will be addressed in an upcoming blog article. For simplicity, when the Defendant is in default for failing to file an Answer (timely), at the trial of the case, the only issues to be heard are the damages or relief being sought by the Plaintiff.
If the Defendant does file an Answer, it is common to include a Counterclaim along with the Answer (hence, "Answer & Counterclaim"). In the Counterclaim, the Defendant is seeking certain relief from the Court, and here is one example as to why a Counterclaim should typically be filed along with an Answer.
In this example, the Mother of the minor child files a Petition to Modify Custody. The Defendant is served and then files an "Answer & Counterclaim". In the Defendant's Counterclaim, the only relief the Defendant is seeking is "Attorney's fees".
At some point during the litigation, the Plaintiff decides to dismiss her action. In this example, the Plaintiff did not want to respond to the discovery requests served upon her by the Defendant. So, she wrongfully assumed that she could simply make the whole case go away by filing her dismissal. However, when there is a Counterclaim filed and the Plaintiff dismisses his/her claim, the Defendant still maintains the right to go forward on the relief he/she is seeking in the Counterclaim. Accordingly, in this example, the Plaintiff dismissed her Petition to Modify Custody. However, the Defendant was able to make his request for Attorney's fees since that request was made in his Counterclaim.
Second, [IN COURT]. Now, you would think that any individual "lawfully" served with a Complaint/Petition would make it a point to appear in court as required. But that is not always the case. For example, the parties are engaged in a contested divorce action. The Wife as the Plaintiff, has the Defendant/Husband lawfully served. The Defendant/Husband wrongfully assumes that the Court has no jurisdiction over him (even though he resided within the State for years and the State is where the marital residence was located). And, of course, the Defendant has decided to represent himself (pro se). So, the Defendant fails to file an Answer & Counterclaim, and also fails to appear in court for any hearing, including the trial of the case. Accordingly, the Judge grants the divorce and awards the Plaintiff/Wife the marital residence (100%) and all marital property therein, in addition to 60% of the Defendant/Husband's 401(k), investments, retirement, etc. The hammer fell hard upon the Defendant because he failed to file an Answer and failed to appear in court.
The Defendant (ex-Husband) then retains an Attorney to file a Motion for Reconsideration, Appeal and/or Motion To Re-Open. However, when the hearing is scheduled, again, the Defendant (ex-Husband) still fails to appear in court. Needless to say, the Judge ruled against him.
Third, [ON TIME]. In addition to not filing an Answer, and not appearing in court, cases have been lost by the Defendant arriving to court late. There have been numerous cases in which Mothers have lost custody of their children merely as a result of not appearing in court on time.
In this example, the parents of the minor child were never married. So, the Father files a "Legitimation" action seeking to legitimate the minor child in addition to seeking primary physical custody.
On this particular day, the Judge had a light calendar (only a few cases). Court started at 9:00 AM, and the Judge was promptly on the bench at 9:00 AM. The Judge called the calendar to obtain announcements as to what relief the Plaintiff was seeking and to obtain time announcements from the litigants as to how much time was needed to conclude the case.
When the Plaintiff's case was called, he announced that he was seeking to legitimate his minor child and was seeking primary physical custody. The Judge inquired as to whether the Mother was present. The Plaintiff indicated that the Mother was not present.
On a side note, virtually all judges tend to prioritize the cases based on the time announcement (civil actions). The shorter cases typically go first. Most shorter cases typically include either "uncontested" actions where there is an agreement in place or cases in which one of the parties fails to appear.
In this example, since the Defendant/Mother was not present, the Plaintiff announced that the time required to present his case was minimal. Accordingly, the Judge heard the Plaintiff's case and issued an Order granting the "Legitimation" and granting primary physical custody to the Plaintiff/Father.
The Defendant/Mother finally arrived for court an hour later. The Plaintiff had already left the court building. The Judge refused to re-hear the case.
Fourth [WITH REPRESENTATION]. There is an old saying in the practice of law, "Any man (or woman) who represents himself has a fool for a client". Obviously, no explanation is necessary. Consider the above examples: In the first example, if the Plaintiff/Mother had legal representation, her counsel would have informed her that she would still face the risk of having to pay Attorney's fees to the Defendant due to the fact that the Defendant filed a Counterclaim along with his Answer. And her legal counsel could have helped her work through her discovery responses.
In the second example, if the Defendant had retained legal counsel during the course of the divorce proceeding, he would have learned from his legal counsel that, in fact, jurisdiction was proper in the State of Georgia. His legal counsel would also have insisted that the Defendant appear in court to protect his interests. Thus, he probably would not have lost 100% of the marital home, its furnishings, martial property, and 60% of his 401(k), investments, retirement, etc.
In the third example, if the Defendant/Mother was represented by legal counsel, the Judge would have permitted the Attorney to attempt to contact the client to ascertain the client's whereabouts, and may have permitted a continuance of the case, instead of the Mother's loss of custody.
Of course, all of the above examples could have had different outcomes if the Defendant had legal counsel during the litigation of the case.
Thus, in conclusion, if a litigant insists on proceeding "pro se" (i.e., without an Attorney), it is imperative that an Answer (preferably with a Counterclaim) be filed within 30 days of service, that the litigant appear in court, and that the litigant is on time. Otherwise, the case may be lost without the opportunity of having your side heard by the Court.
If you have questions about a litigation matter, either contested or uncontested, complete our contact form or call Trial Lawyers USA, LLC for a free consultation. (678) 882-7355. You may also e-mail: [email protected] Anthony Van Johnson, Esq.