In this hyper-litigious world, scrapes with the law are inevitable. There are codes and statutes for everything under the sun, and violating them, often unintentionally, is commonplace. As a result, at some point or another you’ll find yourself either considering hiring an attorney, or opposed by one.
Sometimes there are two attorneys involved, with one on each side, and other times there are no lawyers involved.
The contents of this article, while not legal advice and intended for informational and educational purposes only, is most relevant to situations where you would like to defend yourself without the aid of attorney against the opposing party’s attorney. This dynamic is most common in minor civil cases such as landlord/tenant disputes, traffic violations, credit card issues, and other such matters.
Although I haven’t taken a poll, suffice it to say that most people are not comfortable dealing with attorneys. All too often, whether it’s your own attorney or the opposing party’s attorney, the relationship ends up costing you dearly.
Well, I’m here to tell you that the news isn’t all gloom and doom. If handled with proper aplomb, acting as your own attorney may not only prove to be empowering but (dare I say) fun, if you keep these 6 effective, field-tested guidelines in mind:
- Know Your Statutes and Codes
- Learn the Basics of Contract Law
- Practice Conditional Acceptance
- When Given an Order, Present a Bill
- Avoid the Temptation to Create Controversy
- Be Fearless
1) Know Your Statutes and Codes
If you’re planning on defending yourself without the aid of an attorney, if you want to even the playing field, you must know the language of the statutes inside and out, and know exactly where the weak points are. By weak points I mean specific language found in statute that is ambiguous enough to be spun in such a way that doubt can be cast upon your opponent’s claims, while simultaneously bolstering your claims.
Your first step in building your case is to carefully read and contemplate every word of every line of applicable code in order to find precisely where in statute those doubts can be cast. Be prepared to look up even the most seemingly innocuous words in your trusty law dictionary (I like Black’s Law). Once you start doing this, you’ll likely come to the same realization that I did, namely that there’s ample exploitable ambiguity contained within the legal definitions of most words.
There are a lot of exotic theories out there on the web, and I’ve tested out a number of them myself, but what you want to keep in mind is that lawyers and judges have little time or patience for convoluted theories, so if you enter the fray half-cocked, your goose is cooked. So the best way not to get off-track is to stick to the specific language of statute and code.
Here in the United States, and in many other countries around the world, it’s important to remember that Statutory Law is a subset of Contract Law, and so when differences arise as to interpretations of statute, the question of who is right and who is wrong will likely be determined according to the rules of Contract Law.
So what is Contract Law all about anyway?
2) Learn the Basics of Contract Law
Nearly all civil disputes today are based on principles of the law of contract or agreement found in the Uniform Commercial Code (UCC), which is also available online. It is therefore important to base your legal claims on issues of contract rather than constitutional rights or other such nebulous arguments that a judge will likely toss out as inapplicable. Just because you don’t want to go to court, you still have to frame your claims and organize your correspondence as if you were going to court in case that becomes necessary.
Contract Law in many ways is so simple and obvious that it’s often overlooked. In a way, it hides in plain sight.
Try to think of the law of contract as rules governing fair trade. We all grow up learning the basics of trading. Someone has something you want, so you try to figure out what they want, and if you can provide that thing they want, you offer to make a trade that benefits both of you.
If you don’t have exactly what the other party wants, you offer what you do have, and then perhaps the other party offers something a bit less than what you want, and you negotiate. On and on it goes, offers and counter-offers, more offers and counteroffers – until a settlement of some kind is reached.
Sounds simple right?
At its core it is in fact quite simple, and that’s why the law of contract is the legal equivalent of a computer operating system. Contract Law is the “Windows” of the American Legal System, with the key difference being it rarely needs to be upgraded. Why?
Since failure to adhere to the rules of contract is bad for business, attorneys and judges are loathe to cross that line. In other words, they profit from these fundamental rules of business. So just in case you hadn’t noticed that law is big business, understand that it’s not in a judge or attorney’s interest to go against the rules that keep them fat, happy and lazy.
By keeping within the boundaries of contract law, and making substantive arguments according to specific language found in statute, attorneys will likely be left with no choice but to back off and settle with you out of court.
3) When Given an Order, Present a Bill
A good way to induce an attorney to settle and provide a useful deterrent from the necessity of having to go to court is to present them, or threaten to present them, with a bill or invoice in exchange for fulfilling their orders. This is well within the rules of contract law. How?
Both parties have equal protection under contract law as you both continue to make offers and counter-offers, but if one party makes demands, the other party can bill for being obliged to render services according to those demands. It’s not a punishment; it’s just a natural remedy for the fulfillment of an order.
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While you might think this sounds outrageous, it really isn’t. Presenting a bill for the service of having fulfilled an order is such common practice that we can easily overlook the fact that it has its origins in contract law. Here’s a classic example courtesy of of Robert Menard of the World Freeman Society:
You’re sitting in a restaurant. A server comes to take your order. When you’re finished eating, the server presents you with a bill for having taken your order. Contract Law works the same way.
This is important to remember when an attorney tries to get you to do something you don’t want to do. He or she can face consequences not only according to statutory law, but contract law as well by having to pay a legitimate bill in exchange for your fulfillment of his or her order.
While you probably shouldn’t expect to collect on such a bill, by making the attorney aware that it’s within your rights to do so can often provide powerful incentive on their part to come to a settlement.
4) Avoid the Temptation to Create Controversy
Always keep in mind that your objective is not to win an argument, but to come to a mutual agreement through civilized correspondence. The idea then is not to create a situation that requires you and your opponent to go to court, where both your fates can be somewhat arbitrarily determined by a judge, but instead to negotiate among yourselves a fair agreement that honors the needs of both parties.
Most people who watch a lot of television courtroom dramas mistakenly believe they have to present their case by “making arguments.” This is the last thing you want to do! Since arguments create controversy which requires adjudication, never frame your position as an argument.
Instead of making arguments and/or demands, make offers and claims. These offers and claims should all be ones that you can back up according to statute and contract law. If you can’t do that, don’t create controversy by making them, since any claim you put in writing requires, according to contract law, an answer. Why?
Contract Law works according to the honor system. To not answer an offer is considered a dishonor. When offers are dishonored through failing to answer, a judge can answer for you by making a summary judgment in favor of the dishonored party.
Sometimes you do actually have to stir the pot and create a little controversy in order to get the negotiation process started. That’s OK if you’ve done your homework and have a strategy in place to achieve your objective. Just know that your offer will require an answer from the other party, so if you start making unsubstantiated claims in that offer, a decent attorney will call your bluff and put you at a disadvantage that you need not be in. You don’t want that to happen.
The good news is that lawyers often underestimate the layperson’s ability to fully understand his or her rights, and as a result, they tend to overplay their hand by making claims they cannot actually back up.
5) Practice Conditional Acceptance
The best way to avoid creating controversy that requires going to court is to accept the attorney’s claims on condition that he or she can prove that claim according to statute and Contract Law.
In Contract Law, this is called Conditional Acceptance, and it is a strategy that is not only useful in legal disputes but can be applied to a wide range of situations including political diplomacy, philosophy and personal relations.
Instead of fighting, accept upon proof of claim. If the other party can convincingly prove his or her claim, then fine. They win. But if they can’t, and they shouldn’t if your claims are substantive, then they’ll have no choice but to come to terms.
Never forget that as long as you are accepting an offer, even if it is only in part, you are not creating controversy. Only unresolved controversy might necessitate an unwanted trip to the courthouse.
6) Be Fearless
Try not to take it personally or fill yourself with self-doubt if and when the attorney attempts to belittle and dismiss your interpretations of the law as inaccurate and irrelevant. Their objective is to make you feel that you’re going to get yourself into trouble by daring to play their game without the assistance of your own attorney. They want to induce you to give in, out of fear, to their unreasonable demands. They’re likely bluffing, so don’t fall for it!
Also, don’t be surprised when attorneys try to turn the tables on you by claiming that what you know to be substantive facts based on the actual language of the statute and are misguided or misinterpreted based on what he or she will claim to be public policy and/or personal experience. This is just another bluff. Hold these attorneys’ feet to the fire by asking them to cite specific case studies and/or examples of public policy that they are referring to.
Guess what? They won’t be able to do it, because the only claims that hold up in court are substantive ones based on what’s actually present in the statute and applicable to contract law. There is nothing else.
Those familiar with the American justice system understand that it is not immune to corruption. Although it’s unlikely that you will encounter gross miscarriages of justice over minor civil cases, since there’s usually very little profit in such minor cases, whenever possible, try your best not to put your fate in the hands of a judge.
There may arise situations where you where hiring the right attorney makes sense, but in most minor civil cases, as long as you’re willing to do your homework and adhere to these simple, common-sense guidelines, let your opponent waste his or her resources on expensive attorneys. You don’t have to.
This article is solely for informational and educational purposes and is not legal advice. Individual results may vary, depending on the diligence of the party applying the material.
Committed to raising the curtain on illusion in order to reveal the beauty of unadorned truth wherever he can find it and communicating it to whoever dares to listen, with an appetite for ceaseless exploration, Balzac invites readers to join him on a fun-filled journey of investigation into the strange and wondrous worlds of art, history, philosophy, psychology, politics and the law.