Should I be self-represented in my lawsuit?

When it comes to Small Claims court, then yes, definitely you should represent yourself. Small Claims court was designed to be accessible to non-lawyers and legal representation is not allowed in small claims court proceedings. In a regular more formal courtroom you may want to represent yourself depending on the resources you have and what your alternatives are. Hiring a lawyer can be expensive. Knowing whether it’s worth it to hire an attorney can help you decide whether to represent yourself at trial or choose another way to resolve the matter.

For more information about making that decision go to:

http://www.courts.ca.gov/

http://www.selfhelpsupport.org/help/

http://www.lawhelp.org/

http://www.lawhelpcalifornia.org/

http://www.nolo.com/legal-encyclopedia/

http://aallnet.org/

Should You Settle Your Lawsuit out of Court?

Unless you have filed a lawsuit to make a very important point concerning an issue critical to society at large, it is almost always a good idea to settle out of court. Parties to lawsuits are encouraged and urged to settle their differences even from the very beginning of litigation.

The following points should be carefully considered when you are contemplating settling your lawsuit out of court instead of going to trial:

• Amount the lawsuit is worth;
• Length of trial;
• How long it will take to go to trial;
• Possible delays in getting to trial and/or length of trial;
• Your honest assessment of the chances of winning at trial;
• Whether there are similar cases achieving positive or negative results;
• If there could be unfavorable publicity for either side if there is a trial;
• Potential disclosure of trade secrets or other confidential business information;
• Weaknesses in your evidence;
• Weaknesses in other side’s evidence;
• The possibility of having to pay the other side’s attorney’s fees if you lose.

You should also consider several points regarding settlement and the obtaining and enforcing of a judgment:

• Your ability to obtain a judgment;
• Your ability to enforce a judgment;
• The other side’s ability to pay a judgment if obtained prior to trial and ability to pay after an expensive trial;
• Whether there is a possibility of arriving at a partial settlement;
• The likelihood of the other party also having a desire to settle out of court;
• The minimum that you would accept to settle out of court;
• The possibility of settling out of court for something other than money.

(Above information from http://www.allbusiness.com)

For more information:

State Bar Association of California at http://www.calbar.ca.gov/

What alternatives are there to litigation?

In general, any method of resolving disputes that is an alternative to going to trial is called Alternative Dispute Resolution (ADR).

What is ADR?

To view videos about different types of Alternative Dispute Resolution, click here.

Alternative Dispute Resolution (ADR) processes are alternative methods to help people resolve legal problems before going to trial. ADR involves an independent third person, called a “neutral”, who tries to help parties resolve or narrow the areas of conflict. The use of ADR early in a case can result in the more efficient, cost-effective resolution of disputes with greater satisfaction to the parties.

For more information about alternatives to litigation: http://www.calbar.ca.gov/

Superior Courts in California, including Sonoma County, encourage people to use alternative ways to settle their dispute other than going to trial. Some of the alternatives in Sonoma County are:

• Negotiation
• Mediation
• Arbitration
• Neutral Evaluation
• Settlement Conference

Negotiation

In negotiation, those involved in the dispute (and/or their attorneys) directly communicate with each other to try to reach an agreement. If no agreement is reached, those involved may try alternative ways of resolving the dispute or may proceed to litigation.

Mediation

Mediation is a voluntary and confidential process where a trained impartial mediator helps people in conflict to communicate respectfully and effectively with each other. The mediator facilitates communication by helping people define issues, remove communication obstacles, and explore potential solutions. Mediators do not decide how to resolve the matter but rather, they help the people involved come up with their own ideas about what would work best for them.

In mediation, you can meet together with the other side or separately. It is up to you. The entire process proceeds by agreement. No one will be forced to meet with the other party personally if s/he does not feel safe to do so.

The mediator acts as a communication facilitator, whether you meet together or separately. It is the mediator’s job to help both of you to be really clear about what you want, and to have sufficient information to evaluate for yourselves what solution will be in your best interest.

The most effective way to reach resolution together with the other side is to consider you interests. Think about your interests as your needs, concerns, desires and fears about the situation and how you would like to meet these interests.

California Evidence Code Section 1115 defines “mediation” to mean:

“… A process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement.”

Features of Mediation include:

• Mediation is completely voluntary. The parties to the conflict decide when to start and end the process.
• It is a non-adversarial process.
• Confidential and private: what is said in mediation stays in mediation.
• Mediators do not make decisions about the outcome, but rather facilitate discussions using active listening.
• Mediation is available anytime: before, during, or even after litigation.
• The parties participate in the process and speak to each other either directly or through the mediator.
• The parties collaborate and control the outcome of the mediation, finding mutually satisfying agreements based on their underlying interests.
• Outcomes may be binding or not binding, depending on the parties’ wishes.
• If there is no settlement in mediation, you can still go to Court if that’s what you want to do.

Arbitration

Arbitration has been defined as:

The “voluntary submission of a dispute to a third person or persons for decision.” In arbitration, a neutral arbitrator reviews presentations from both sides and makes a decision. Such presentations could include documents and witness testimony related to the dispute. The arbitrator’s decision may or may not be legally binding. If the decision is binding it is generally final and cannot be appealed (challenged). If the arbitrator’s decision is not-binding parties could proceed to litigation if they do not agree with the decision.

Features of Arbitration include:

• Arbitration can be either binding or non-binding.

• Arbitration is voluntary but may be required as a contractual obligation

• Arbitration is confidential, although the outcome may not be.

• Much like a judge, an arbitrator’s job is to listen to the evidence, make findings, and render rulings and awards.

• Arbitration (like litigation) is an adversarial process.

• Not appropriate in early intervention or post-litigation

• Concerned with legal rights and responsibilities, not based on underlying interests

• Limited rights to appeal decision

• Limited discovery

Neutral Evaluation

In neutral evaluation, each side makes a brief presentation to a neutral evaluator. The neutral evaluator then offers an evaluation of the dispute, but makes no decision about the outcome. An evaluator’s neutral perspective can sometimes help those in the dispute to reach an agreement. Negotiations may follow such an evaluation, with or without the evaluator’s assistance.

Settlement Conference

The settlement officer in a Settlement Conference assists the parties in a case that is in litigation, by providing an evaluation of the strengths and weaknesses of each side and helping both sides to negotiate a settlement. The settlement officer does not make a decision in the case.

RECOURSE Mediation

RECOURSE Mediation Services uses an interest-based process of mediation in which the mediators help parties to negotiate with each other based on discussions of the interests of each party.

It can be characterized by:

• Approaching conflict as a mutual problem.
• Open, self-disclosing discussion of actual interests and needs of the parties.
• Finding common ground, mutual understandings.
• Generating possible options/solutions to meet the parties’ interests and needs.
• Evaluating the possible options.
• Reaching agreement.

Consequences of Interest-Based Negotiation and Mediation:

• The parties’ real interests and needs are identified (vs. assumptions)
• Trust and communication are fostered between the parties.
• Mutual education, awareness-building takes place
• Solutions that meet more of each party’s needs and interests can be developed.
• Parties can feel more empowered to solve their own problems collaboratively in the future.
• Relationships are preserved and possibly strengthened.

In some cases, parties want to be separated for part or even all of the mediation process. This is known as the ‘caucus’.

It may be appropriate to caucus when the dispute is not arising out of a personal relationship. The closer the relationship, the more you should resist the caucus because the parties will have to deal with each other in the future and should be practicing how to resolve difficult situations directly so that they can use those techniques in future conflicts.

Sometimes people want to caucus because of very strong feelings. The mediator’s job is to ensure respectful communication despite strong negative feelings on both sides.

When it may be useful to meet separately during mediation:

• To clarify details/personal data in greater privacy – ensure that the party “saves face”.
• To build trust.
• To be an agent of reality.
• To talk through consequences of proposed solutions and/or no solution.
• To let people cool off and reflect.
• To learn what people want, need and are willing to give.

RECOURSE provides day-of-trial mediation at Small Claims, Civil Harassment (civil restraining orders) and Unlawful Detainer (landlord-tenant evictions) calendars. We also provide mediation services for self represented litigants in Family Law andGuardianship matters.

Small Claims

When you are thinking about filing a small claims case, consider mediation first.

Mediators will help you communicate with the other person in a respectful and effective way. All decisions in small claims cases involve money – but for most people the situation is rarely only about money. Relationships suffer when people take each other to court, even if the matter is for a small amount of money. Mediation allows people to work out agreements with each other and talk about the full context of the situation, not just the money, if they want to do that. It is an opportunity to be heard.

Even if you win a judgment against the other side you will have to collect the money yourself. Many people think that the court can force the other side to pay what is owed to you but a judgment is simply a legal right to collect money. And you are the one who has to collect it, through garnishing wages or other means. Some judgments are difficult to collect.

If you mediate with the other person you may be able to negotiate a payment plan that makes it more likely that you will collect your money. The benefit to the other person is that they may be able to avoid a judgment on their credit if you can work out an agreement that meets both of your interests and is legally binding.

You are far more likely to be happy with the outcome if you have had some control over what happens rather than leaving that decision to a judge.

For information about how to prepare your small claims case and how to collect a judgment contact the Sonoma County Small Claims Advisor (Assistance by phone: 707-565-6457).

For hours and other information see Resources Section below.

www.empcol.edu/small-claims-advice/

To view a helpful video about small claims:

http://www.saccourt.ca.gov/small-claims/resolving-small-claims-cases.aspx

For a useful pdf brochure about small claims:

http://www.calbar.ca.gov/Public/Pamphlets/SmallClaims.aspx

More information about small claims:

http://www.dca.ca.gov/publications/small_claims/index.shtml

Civil Restraining Orders (Civil Harassment)

When you are self-represented and seeking a restraining order against someone, think of what you want to achieve by obtaining a restraining order.

What it will do

• It will limit the person’s contact with you and court approved protected people within the conditions set out in the restraining order only
• You can call the police and have the party arrested if s/he violates the terms of the restraining order
• The order will require that the party turn over his or her guns to the local police for the period of the restraining order
• It will give the other person an incentive to behave because they know they can get in trouble with the law if they violate it.
• ‘Permanent’ means 3 years and if you want it to be extended then you have to file a motion before the 3 years expires.
• It will cut you off from communication and contact with someone who you may have to deal with, say, at work, in your family, or a neighbor – thus making it almost impossible to clear up any misunderstandings that may exist between you.
• Make the person who the order is against, give up military or police service for the period of the restraining order, and possibly make it so that that person may not get his or her job back.
• Make you pay attention to the movements of that person for the duration of the order to see if they are in violation

What a restraining order will not do for you

• It will not make the person behave if he or she is determined to continue with the behavior
• Cause the person to be arrested if the police officer determines that he or she has not violated the order.
• Cause the person to get help for his or her substance abuse or anger problem.
• Automatically get that person out of your life because you have to keep an eye over your shoulder and be able to prove that they have violated the order when/if they have

Why you might want to mediate rather than litigate

You may not be successful in getting a permanent restraining order. Many people think that they can automatically get a permanent restraining order because the police have told them to file for one, or because the court granted a temporary restraining order. Both assumptions are incorrect. The burden of proof is higher for permanent restraining orders.

Benefits of mediation over litigation

• Your interests and needs get addressed in ways that they won’t at court
• You may have a preferred solution that the other person does not agree to – the restraining order. The mediator uses his or her listening skills to help you explore addressing your true needs and concerns. For example, you want to address the matter of property damage resulting from the behavior but a protective order won’t deal with that – you’ll have to spend more time taking person to small claims. If you do negotiated agreement can address all concerns related to behavior/incident(s). Perhaps, at the end of the mediation, you will decide that you want to continue pursuing the restraining order. Over half the parties at court pursuing restraining orders, however, with the help of the mediator, find solutions that work and that they determine are in their best interest – thus, avoiding the cost and strain of trial.
• Privacy – All discussions during the mediation are confidential. If you do not resolve your dispute, and choose to proceed with litigation, nothing that was said in the mediation can be repeated. You can speak freely about your feelings, concerns, suspicions etc.
• The parties reach their own solution – The mediator will not impose a solution on the parties. The solution is based on the interests and needs of the parties. The solution is customized by them to their specific situation. Solution is more mutual and feels fair to both sides rather than a guaranteed loser at trial. You walk away with something – rather than gambling on judge’s decision and not getting anything.
• No financial cost – mediation on the day of trial is free in Sonoma County, compared to the potentially very high costs of litigation – or the cost of doing nothing.
• Less emotional cost – Parties who represent themselves at court are required to act at their own attorneys. The mediator’s role is to listen and understand – being heard feels good and relieves stress and fear; can level playing field a little and relieve feelings of intimidation if other side has attorney.
• Clear, respectful communication – If you have a relationship any kind of relationship with the other party and either will have to or want to deal with them in the future, mediation can provide the opportunity for understanding, better communication or even reconciliation. Both sides have a voice through the assistance of mediator who can help you hear each other and get your message through to the other person
• Quicker resolution – Parties are often able to resolve their conflict in one session, though more sessions will be scheduled, if needed.
• Effective – The parties know more about their conflict than anyone else does. Developing their own agreements offers satisfaction and success.
• Agreement options – Any written agreement made at the conclusion of mediation may be legally enforceable. And you will have different options for agreements:
• The person may agree to the restraining order. If that is the case, after the mediation, that person will just tell the judge, and you will have your order. Incentive for defendant can be inclusion of language in the order that states ‘no admission of wrongdoing on either side’ despite stipulation (can be face-saving).
• The person may not agree to the restraining order, but may agree to have a private contract with you, subjecting him or her to the same conditions as the restraining order. In that case, the mediator will write up the agreement. The case will be dismissed, but if the person violates the agreement, you can refile and use violation of the contract as part of your proof. If there is a violation of the contract, the person will not be arrested for that, since there is no restraining order in effect. You can always call the police, however, if you are in genuine fear for your safety, whether there is a restraining order or not.
• You and the other person clear up all misunderstandings and informally agree on a course of future conduct. In this case, you will tell the judge that you are dismissing your case. If the person ignores your agreements, or acts in a way that genuinely puts you in fear for your safety, however, you can always refile for a restraining order.

Landlord-Tenant Eviction (Unlawful Detainer)

If you are self-represented in an Unlawful Detainer (UD) matter you can benefit from mediation whether you are a landlord or a tenant.

If you are a tenant, contact Legal Aid of Sonoma County

www.legalaidsc.org

Phone: (707) 542-1290

To view a helpful video about Unlawful Detainer matters:

http://www.saccourt.ca.gov/ud/resolving-eviction-cases.aspx

UD matters can involve technical legal requirements, and self-represented litigants are well advised to understand their rights and responsibilities.

For a listing of housing-related resources that can help you understand your rights and responsibilities, see below.

Often a landlord has legal counsel and the tenant does not, a situation that may result in an imbalance of power. Mediation can help level that imbalance in the following ways:

• Assist in clear, respectful communication between the parties
• Help parties address their true concerns and needs
• Help focus the parties so that they deal with the matter at hand. (UD matters concern rent and possession only. Security Deposit disputes are dealt with in Small Claims court)
• Provide parties with acknowledgement and validation in what is inevitably a stressful situation
• Explain to parties what options for settlement are available, including information about and consequences of those options
• Help parties to make informed choices
• Provide information when no settlement is reached (e.g.: Let self-represented landlords and tenants know proof requirements)

Family Law Matters & Guardianship

When you are self-represented in litigated conflicts that involve family members, mediation is the best form of dispute resolution because it is a process that can help preserve relationships.

Communication is essential between divorcing parents who must continue a co-parenting relationship, and between extended family members involved in guardianship matters. The court will look at resolutions that are in the best interests of the children involved. Mediation can help family members to set a new tone of respectful and effective communication with each other which will benefit all involved, particularly children.

Mediation is quicker, less emotionally draining and less expensive than litigation.

Understanding your legal rights and responsibilities in Family Law matters can be difficult if you do not have an attorney. Some attorneys will provide services on single issues without you having to pay a retainer.

For a helpful pdf document about Divorce and Custody:

http://www.calbar.ca.gov/LinkClick.aspx?fileticket=xaIjT88t5ig%3d&tabid=1327

For a listing of free or low-cost assistance, see below.

Resources for Self-Represented Litigants

In Sonoma County the following agencies and departments provide low-cost and often free services to self-represented litigants.

For a full list of service providers call 211 or go to:

www.211wc.org

General Resources

RECOURSE Mediation Services

2455 Bennett Valley Road, Suite B107

Santa Rosa CA 95404

(707)525-8545

www.recoursemediation.com

Email us at: info@recoursemediation.com

Hours: Mon – Thurs 1-6pm; Friday Closed

Sonoma County Law Library

http://www.sonomacountylawlibrary.org/

Located at 2604 Ventura Ave

Santa Rosa CA 95403

(707) 565-2668.

www.sonomacountylawlibrary.org

Hours: 8 a.m. to 5 p.m. Monday through Thursday.
Friday 8 a.m. to 4 p.m.

Disability Services & Legal Center

http://www.disabilityserviceandlegal.org/

For assistance for persons with disabilities. Independent living skills training, benefits counseling, personal assistant referrals, interpreting.

521 Mendocino Avenue

Santa Rosa, CA 95401

(707) 528-2745

Deaf and Hearing impaired assistance via text to (707) 636-3076 or (707) 528- 2745; to reach the Deaf Services Coordinator use 711 video relay, or videophone at 707-331-1156, or dawsons@sonic.net.

Council On Aging (for seniors over 60 years)

30 Kawana Springs Rd.
Santa Rosa, CA 95404

707-525-0143 or 1- 800-675-0143

www.councilonaging.com

Department of Child Support

http://www.sonoma-county.org/dcss/

Small Claims Matters

Small Claims Advisor

www.empcol.edu/small-claims-advice/

EmpireCollegeSchool of Law
First upstairs conference room on the left
3035 Cleveland Avenue
Santa Rosa, CA 95403
CLINIC HOURS AND
TELEPHONE NUMBER
Walk-in Hours:
Monday and Wednesday
from 3:30 to 6:00 p.m.

Assistance by phone:
707-565-6457
Tuesday and Thursday
from 3:30 to 6:00 p.m.

Bilingual assistance for
Spanish speakers
Walk-in: Mondays from
3:30 to 5:00 p.m.
Telephone: Thursday from
5:00 to 6:00 p.m.

Housing-Related Matters

Fair Housing

http://petalumapeople.org/housing.htm

1500A Petaluma Blvd. South,

Petaluma, CA 94952

Phone: (707) 765-8488; Fax: (707) 765-8482

Legal Aid (for help with UD, DV restraining order, guardianship)

Legal Aid of Sonoma County
144 South E Street, Suite 100
Santa Rosa, CA 95404

(707) 542-1290

www.legalaidsc.org

Hours: Monday – Thursday, 9.15 – 4.30 (Closed 11.30 – 1.15) and

Closed Wednesday at 11.30 and all day Friday.

CRLA – California Rural Legal Assistance

725 Farmers Lane, #10, Bldg. B
Santa Rosa, CA 95405

(707) 528-9941www.crla.org

Sonoma County Task Force for the Homeless
3315 Airway Drive
Santa Rosa, CA 95403

(707)575-4494.

www.sonomacountyhomeless.org

Catholic Charities

987 Airway Court, Santa Rosa
Mail: PO Box 4900 Santa Rosa CA 95402
Phone: 707-528-8712

www.srcharities.org
Email: info@srcharities.org

Family Law & Guardianship Matters

(including Domestic Violence)

Sonoma County Superior Court

Family Law Facilitator/Self-Help Center

Civil and Family Law Courthouse
3055 Cleveland Avenue
Santa Rosa, CA 95403

Phone: (707)521-6500

www.sonomasuperiorcourt.com

Office Hours: Monday through Thursday mornings from 8 to 11:30
Monday afternoons from 1 to 4:30
You can also call in to (707) 521-6545 to arrange for services. You must leave a message and a telephone number that you will be able to answer when we call. Please spell your full name and give us your case number if you have it.

No habrá ayuda en español del 5 al 8 de Octubre a menos de que traiga intérprete.
Court Hours Mon-Fri 8:00 AM to 5:00 PM
Clerk Office Hours Mon-Fri 8:00 AM to 4:30 PM

Sonoma County Legal Services Foundation

Provides Modest Means legal services, supervised visitation, domestic violence services and youth and public education.

1212 4th St. #I, Santa Rosa, CA 95404

(707) 546-2924

YWCA

Help with domestic violence.

1421 Guerneville Road, Suite 200

Santa Rosa, CA 95403-7238

Hours of Operation: 9am – 5pm Monday through Friday

www.ywca.org

For information about Domestic Violence:

http://www.calbar.ca.gov/Public/Pamphlets/DomesticViolence.aspx

Family Justice Center

http://www.fjcsc.org/contact-us.html

(707) 565-8255

2755 Mendocino Avenue Suite 100
Santa Rosa, CA 95403

General Online Resources

There are many online resources for self represented litigants. This list is not exhaustive and RECOURSE is not affiliated with any website listed below, nor do we endorse or recommend any of these websites.

TurboCourt

For Legal paperwork assistance:

http://turbocourt.com/go.jsp?act=actShowStateGlobal&tmstp=1277481046908&id=1282396

Standard Legal:

Frequently asked questions about topics related to self represented litigants

www.standardlegal.com

Free Advice

Provides information on a variety of legal topics

www.freeadvice.com/

FindLaw

This site has information about legal concepts, case law and legal forms.

www.findlaw.com

Court Forms & Court Websites

California Courts Self Help Center:

Click on Legal Self-Help in the Featured Links section. You’ll find information and resources on many topics, as well as court forms.

www.courts.ca.gov

Legal Information Institute.

This Cornell Law School website lists both federal and state statutes and laws organized by topic.

www.law.cornell.edu

Legal Hotlines Technical Assistance Library.

This AARP website provides a list of Frequently Asked Questions and Answers from legal hotlines in each state.

http://www.legalhotlines.org/

Self Help Support

An online clearinghouse of information related to self representation

www.selfhelpsupport.org

American Bar Association

This website provides public resources on legal matters.

www.abalawinfo.org

Law Library of Congress.

This comprehensive website provides a wealth of information and tools for doing legal research such as law and legal research guides, links to research centers and networks,

www.loc.gov/law/

Women’s Law

Provides state-by-state legal information and resources for domestic violence victims.

www.womenslaw.org

Nolo.com

Provides links to legal research centers, court information, law dictionaries, legal research tips, and more. Sonoma County Public Library has many Nolo Press titles on a variety of legal subjects.

www.nolo.com