I Have Been Served with a Summons! What Can I Do?
I Have Been Served
If you have been served with a summons and complaint, you have some weighty choices to make. Do you represent yourself (pro se) or use a lawyer? Here are the usual options:
1. Do nothing and let the other side get a default judgment – on their terms, uncontested.
2. Find a lawyer and pay lots of money and trust that he will handle the case in your best interest.
3. File some papers, go to court, tell your story and hope for the best.
4. Do some focused study of the judicial system specific to your case and win, whether you
(a) Represent yourself as pro se litigant, or
(b) Use a lawyer.
In order to help decide which of these options is best for you and your case, let’s consider each in a little more detail. Then I’ll give you my experience, having gone through it successfully myself.
Option 1: Do Nothing and Let the Other Side Get a Default Judgment
This one is rather self-explanatory. The attorneys will do their thing. With no answer, response or counterclaim from your side, the judge will do whatever they ask according to the rules. It’s just a matter of time before they get a default judgment. And that judgment will be "with execution", meaning they can take any and all legal actions to collect, such as asset levy, seizure and garnishment.
Option 2: Find a Lawyer and Pay Lots of Money and Trust that He Will Act in Your Best Interest
There are many attorneys who love true justice, have good hearts, good intentions and can be very helpful. But it’s difficult to know if you've found one of these until it’s too late. There are reasons why (color of) law is such a hated profession and why there are so many lawyer jokes. Therefore, much caution is needed in dealing with attorneys in general.
Some things to keep in mind when hiring a lawyer: An attorney is an officer of the court. His first duty is to the court, not to his client (Corpus Juris Secundum, volume 7, section 4). That’s why they are called attorneys, their job is to “attorn” or to turn you over – to the government or the bank. If it’s another individual, without an attorney, that’s coming against you, then you can start on a more level playing field.
If you’ve observed a court case before, you may have noticed that the two attorneys who have never met before have an instant camaraderie, even though they are supposedly advocates for opposing sides. They will have discussions with each other which are not privy to either party they represent. They can decide how long they will drag on the case, which side will win, and by how much. The longer the case goes, the more the fees they collect – but only to the extent that each client can or will pay. Who’s going to win and when is up to the two attorneys, provided their clients give them free reign as they usually do.
Your odds of winning actually depend on you more than on your lawyer - how you keep him acting in your best interests as your hired adviser. If you don't have the time or tenacity to go pro se and stand on your own in court, and you want “council” to speak for you and prepare and file papers, please consider Option 4(b) further below.
Option 3: File Some Papers, Go to Court, Tell Your Story and Hope for the Best
Hope will not get you anywhere in court. The use of the word “court” in this setting is not insignificant. It is not a coincidence that a “court” is where you play games like tennis, basketball, racquetball, handball and volleyball. When you go to a legal court, you are playing a game with words. One side puts some words together, and sends them to the other side. Then the other side then sends some words back, and so on. Conduct of the parties is also involved. The judge is the referee.
Just like the games played with balls, this game in the courtroom has rules – lots of rules. It’s easy to learn the rules of ball games, and most people know them quite well. The rules of a legal court are many, and most attorneys don’t even know all the rules. That’s why they often have to prepare for each case, and even each appearance by reading more rules. If you tried to play a game on a basketball court without knowing the rules, you’d have little chance of winning. Likewise, even more so in a legal court. If you’re going to win the game played in the courtroom, you need to know the rules – at least the ones pertinent to your particular case.
In light of the above, you may want to consider Option 4(a) or 4(b) below.
Option 4: Do Some Focused Study - Specific to Your Case - and Win
This option has two choices:
4(a) Represent yourself as pro se litigant
4(b) Use a lawyer.
Both methods can be very successful and each will be considered in detail.
There are reportedly more than 40,000 new laws on the books each year. They aren't really laws - they are rules, regulations, statutes, codes, policies and orders etc. For simplicity, and in light of the game being played in the “court”, let’s just call them all “rules” here. According to Harvey Silverglate, author of “Three Felonies A Day” there are enough of these rules to make the average middle class American guilty of three felonies a day without even knowing it. But relatively speaking, you just have one little case where you have allegedly breached one, or a few of these rules. The number of rules that you need to know in order to win your particular case in its particular jurisdiction and venue is like a needle in a haystack.
So the question is, how do you find that needle? You need the equivalent of a metal detector, and you need it whether you use an attorney or not.
Keep in mind that you only need to know the rules and procedures that apply to your court case. There is a three day Court Self-help Study Course that will pinpoint which rules you need to know for your case and how to find them (see the heading "Resources for Your Court Case" below). You can narrow it down even further, by studying only the rules you need for the part of the case you’re in at the time. This way, you can spread your studies out over time as the case unfolds and not overburden yourself.
4(a) Represent Yourself as Pro Se Litigant
If you handle your own case in court, your focused study of the judicial system (see "Resources" below) will give you the confidence to speak in court with knowledge and authority, knowing the pertinent rules, strategies and tricks. You will also know that your pleadings, motions and other papers are prepared effectively, and filed correctly and timely. Whether you use an attorney or not, it will help you to catch, and take advantage of, errors made by the other side - and they will make errors.
Here are some advantages of going pro se – after you’ve done your focused study specific to your case:
(i) You’ll save lots of money.
(ii) You’ll save the agony of having to force an attorney to do what he doesn’t want to do; and the agony of having to contract with one of the most hated professions on earth. (You've heard the lawyer jokes. Even Jesus had nothing but unkind words for attorneys.)
(iii) Attorneys hate to deal with someone who’s not using an attorney. You may notice them using every trick, deception and coercion to get you to hire an attorney. This is because, with another attorney, there is camaraderie and professional courtesy and private discussions and deals, which make it much easier for them. (Professional courtesy is a courtesy that one gives to another in his own profession. For example, a police officer doesn’t give a speeding ticket to another police officer.) He can get away with anything as long as the other attorney doesn’t object. The judge is not allowed to help either party by pointing out what their attorney is missing or ignoring.
This gives you as pro se litigant a big advantage. You’ve got the attorney off of his normal turf – out of his comfort zone. He doesn’t know what will be coming at him; and he'll have a hard time being prepared. You will keep him on his toes and watch him dance as he tries to scare you into getting an attorney – oh, that would be such a relief for him. When he breaks the rules, you verbally put it on the record as an ace up your sleeve. When he misses something, you slip in and take your opportunity.
(iv) The judge also, would much prefer that you have an attorney. It makes things much easier for him. An attorney’s first duty is to the court, as referenced above, not to the client. Also, the judge has a working relationship with many attorneys that he knows, and at a minimum, has professional camaraderie with those he doesn’t know.
A non-lawyer, on the other hand, is acting in his own best interest and is unpredictable. He could force the judge to do some things very differently if he knows law well enough. For example, let’s say the judge is doing something that is not in your favor, and is also against the rules. An attorney might let it slide in the interest of ease for himself and/or the judge. But if you’re representing yourself, you could object and force the judge to obey the law that is in your favor.
(v) Judges aren’t 100% unbiased, no man is. Conduct plays a major role. If the judge sees you as a competent, confident righteous man, he will likely sway the proceedings in your favor. Judges are extremely knowledgeable about the rules, and even the laws that predate the rules. They know that when you allow an attorney to represent you, you are declaring yourself to be among the "Infants and persons of unsound mind" (Corpus Juris Secundum, volume 7 section 2,3). If you can confidently stand on your own as a man or woman, the judge will have respect for you, even though he may not show it at first.
(vi) There is something else that goes on outside of the public rules. It is on the private side. You are a living, breathing man (or woman) and not a “person” as the word is legally defined. The one acting as judge is also a living man or woman. And so the private side of the court (where the people function in their private capacity) is considered even though you are litigating your case on the public side. (If you want to learn more about the private side of the court, email me at email@example.com)
The point I’m making here is the creditor/debtor relationship. Everyone is acting either as a creditor or debtor at any point in time, and the judge has an eye on this as referee. I’m not talking about creditor/debtor in terms of someone owing money to someone else. There is another use of these words that doesn’t involve money or obligation. For example, if someone does a good deed, you might say “give him credit for that”. He is a “creditor” due to his good deed. In this aspect, you can determine if someone is a creditor or debtor by his actions:
- Assists others
- Solves problems
- Asks questions to guide the conversation toward resolution
- Seeks truth
- Speaks truth
- Exposes truth
- Seeks harmony
- Seeks peace
- Makes counteroffers
- Causes problems
- Has problems
- Blocks the truth
- Makes many statements
- Charges his brother
- Refuses or ignores offers
If you can show yourself to be more of a creditor than the attorney for the other side, most of the time, the judge will tend to sway the proceedings in your favor. Keep this in mind also in all your life, it is very powerful.
By the way, you may want to address the judge as “Your Honor” rather than “Judge” for three reasons: (1) it is the more honorable title, (2) as Jesus and other teachers have said, “give to the man demanding honor, such honor” and (3) he isn’t really a judge, but is acting as judge – but that is a subject for another article.
4(b) Find a Lawyer
If you hire an attorney, it's important to remember that he is working for you; you are his boss, paying his wages. He is your adviser which means you get his professional opinion, consider it, then make your decision on what is to be done in your best interest - he does not tell you what to do. You just need to know how to instruct him so that he is always acting in your best interest. A quick study of the legal system focused around your case will teach you how to maintain control of the attorney. (See the subtitle "Resources For Your Court Case" below.) Before you retain him, you may want to make sure he agrees to do the following.
- Provide you with a copy of everything that he intends to file with the court, and get your approval before filing it.
- Inform you of any and all communications he has with the other side and with the judge.
- Get your approval before initiating any such communications or any other action in your case.
This may not all seem necessary, but without it, you may get some unfortunate surprises after it's too late to change it.
Here are some advantages of using an attorney - after you’ve done your focused study specific to your case:
- If you’re just not ready to get up in front of the judge alone, it will keep you close enough to your comfort zone to be able to operate effectively.
- You won’t have to take as much time off of work.
- You’ll save time in not having to prepare and file the court papers.
- You will learn more about attorneys and their profession.
My Win Experience in Court
Yes, I've been served also. I actually shuffled through all the above options during my case except for number 1. I don’t recommend this, but you can learn from my experience. In the end, I settled in with option 4(a) and won!
A couple years back, I had a rental house where the tenants weren’t paying the rent. I couldn’t evict them because they were family. After a year of no rent and extensive destruction of the property, I was happy that it was foreclosure time, as this was my opportunity to cut my losses. Someone else was now going to be the bad guy and evict them.
I had a primary mortgage and a second mortgage on the house at the time. The house was eventually re-sold, so apparently someone had discharged both mortgages in order to get clear title. I even received a letter from Charter One, the bank holding the second mortgage, saying “Congratulations” that my “account has been PAID IN FULL” along with a zero balance statement.
A few months later, I started receiving monthly statements from Charter One showing the old full balance reinstated plus back interest! Calls to the bank were futile as they insisted that the paid in full letter and zero balance statement “were sent in error”. (I later noted that the bank did not say that the paid in full letter and zero balance statement were in error, but were sent in error. They were accurate, they just didn’t mean to send them to me.)
Then, a few months later, I was served a summons and complaint. At this point, I chose the above Option 3: File Some Papers, Go to Court, Tell Your Story and Hope for the Best. I looked up some stuff on the internet, talked to a lot of people who supposedly knew how to get around this kind of thing using law, and filed a response. This just got me into more trouble, further into the proceedings and with pending sanctions.
Then I switched to Option 2: Find a Lawyer and Pay Lots of Money and Trust that He Will Act in Your Best Interest. My attorney filed a motion, and the attorney for the bank decided to drop the request for sanctions and allow us to file a new answer. This part was in my favor - a slight turning back of the clock, and a fixing of some errors. This is the camaraderie and professional courtesy between attorneys in action. They now have the case in their hands and are working together.
However, I quickly learned that my attorney was getting me into more trouble even faster than I got myself into before. She let the scheduled date for discovery pass by, and so I lost the chance for any discovery at all. Meanwhile, the other side had about 20 pages of requests for discovery, filed timely - which I had to respond to.
So I got rid of my attorney and switched to Option 4(a): Do Some Focused Study of the Judicial System Specific to Your Case and Win – as Pro Se Litigant. To keep things simple, I studied only the rules and procedures pertinent to my case - and only the segment of the court process that I was currently in. (See "Resources" and "Strategies" below.) This limited my studies to something I could easily do well before the next papers has to be filed with the court.
I actually spent a little time considering Option 4(b): Do Some Focused Study of the Judicial System Specific to Your Case and Win – Find a Lawyer”. I discussed my case with three attorneys, and they all said I had no chance of winning it. They were just doing their “attornment”. Their recommendations ranged from declaring bankruptcy to negotiating a lower payment for a settlement. So I quickly switched back to representing myself as a pro se litigant.
My studies helped me to see that I wasn’t necessarily required to “answer” the discovery as long as I “respond” to it. I could see that the discovery requests from the other side were so poorly and generically written, that I was able to “object” to most of the requests and answer the remaining few in a way that gave no further information. I cited the applicable Michigan Court Rules that supported each and every objection – not one objection was denied by the judge. In order to remedy this, the other side would have to put in all new requests for discovery, but it was now too late for that according to the judges scheduling order. Nice, this evened the playing field – neither side gets discovery.
The objections played a big part in nullifying the discovery, and also in throwing wrenches into the rest of the intended proceedings. They are very important. Get to know them and you will be well-armed in the court and in your paperwork.
My next step was to study the pertinent Michigan Court Rules and local court procedures, as well as some case law and Michigan Compiled Law. Then I carefully read all of the pleadings and filings of the other side, to find out which of the rules they were breaking. This gave me much ammunition, due to their laziness and mistakes. I started a flurry of motions and other papers going back and forth - just like a racquetball game in a racquetball court, but this was a word game in a word court.
All along the way, I was reading the court rules and abiding by them, while the attorney for the other side was being lazy and doing what he felt like doing regardless of the rules – what he normally gets away with when there is another attorney that he’s dealing with. This went on all the way to the day of the trial. Throughout this whole flurry of motions and papers, the attorney was proving himself to be a “debtor”, and I was proving myself to be a “creditor” (see definitions above).
One thing that turned out too be very important was learning the “defenses to the cause of action”. I homed in on “Discharge” as my main defense to ”Breach of Contract “. I knew there had to be a discharge of the mortgage at some point in order for the house to be re-sold. So I went to the County Registrar of Deeds and sure enough, there was on file, a Mortgage Release, and I got 3 stamped copies.
Thankfully, I had previously included "Discharge" as one of my "Affirmative Defenses" along with the answer to the complaint. Otherwise, I wouldn't have been able to use it at this time.
I brought this defense of "Discharge" to the trial with me, and proffered it first in my opening statement. It was as if I was Neo in “The Matrix” when he dove into Agent Smith and obliterated him. The judge started questioning the attorney and the attorney started stuttering and making excuses and saying "This is the way we always do it."
I made a verbal motion to dismiss the case with prejudice (with prejudice meaning they can’t bring up the claim again) – to which the judge said
“Motion granted – Case Dismissed – With Prejudice”
and he later filed a 5 page Opinion Letter and Order stating his reasoning with supporting court rules and case law.
So if you've been served with a summons, based on my experience, you may want to consider Option 4(a), above, Do Some Focused Study of the Judicial System Specific to Your Case and Win – Represent Yourself as Pro Se Litigant and Option 4(b) as a second choice if that suits you better.
Resources for Your Court Case
Here is the Court Self-help Study Course that I used to win my case pro se.
If you’re in a State Court, you’ll need the rules for your state. These can be obtained for free at the government website for your State, such as courts.mi.gov for Michigan.
For Federal Rules see uscourts.gov/RulesAndPolicies
An excellent free source for both State and Federal, which is searchable, is Cornell Law
A good legal dictionary is also quite handy such as "Black's Law Dictionary".
If you're involved in a serious court case, you will need to plan your strategy. Below are the typical losing strategies - the path of least resistance taken by most; along with the the alternative winning strategies:
Respond to the Complaint with a Flurry of Motions
- takes control of the case
- creates more time for you to learn, adjust, strategize
- potentially get your case dismissed early on
Answer the Complaint with an Answer
- puts you in a subservient mode
gives them what they need to nail you
Respond to the Discovery with Objections and Statements
- takes advantage of the rules and your rights
- reduces or eliminates any substantial information they might get
Answer the Discovery with the Requested Information
- keeps you in a subservient mode
- gives them everything they ask for
Establish a Winning Record Before the Trial
- potentially gets the case dismissed
- compels an acceptable pre-trial settlement
- makes a strong case for appeal if necessary
Go to Trial
- this is what they want you to do
- puts you in their end game
- racks up their attorney fees that you may end up paying
If your issue is in Traffic Court, you're in a whole different ball game. It's a whole lot less time consuming. Traffic Court is a production-line slam-dunk money-machine for the local municipalities. However, there is very little preparation done by the officer or the judge on an individual ticket bases - and therein is your remedy.
You can start by carefully reading the Vehicle Code for your State, the Court Rules for your State and the rules for the local court you'll be at. It may help to read over the the strategies in 4a. above about going Pro Se. There is also some good information here at NOLO to help preparing yourself. Then go to the court, some days or weeks ahead of your court date and observe other peoples cases, looking for mistakes that will occur, and technicalities that you can take advantage of in your case. Look for the rules that they typically don't follow. You don't need to argue or fight. You can just get your case dismissed based on your knowledge of the Vehicle Code and/or the Court Rules and the errors they will make or things they won't be prepared for. This can be done by making the appropriate motion, objection and/or cross-examination as mentioned in the NOLO link above.
The Vehicle Code and Court Rules for your State can be found at your State's website as mentioned above under "Resources".
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Disclaimer: The above is not legal advice, but rather a summary of public rules and courtroom scenarios for informational purposes. If you desire legal advice, but also want to take advantage of some of the information, concepts or strategies mentioned in this article, you may want to consider Option 4(b) above. Anyone using any of the above ideas or concepts does so at his own risk, and may wish to do his own research.
© 2011 A Little TRUTH