Who’s Who in the Court Process

If you decide to represent yourself in court, you’ll need to know who the people involved in the U.S. court process are.

• Plaintiff: The person who started the court case. Sometimes the plaintiff is called the claimant, complainant, applicant, or petitioner.

• Defendant: The person served with the court case. Sometimes the defendant is called the respondent.

• Stenographer (also called a court clerk): The person who records and transcribes the trial. This is done in case an error is made and an appeal is filed. It is usually possible for a party to listen to the recording of a hearing or to order a transcript of the hearing.

• Interpreters: Interpreters are often available if you (or someone else) are not comfortable proceeding in English.

• Probation officers: In Massachusetts, probations officers are part of the Probate and Family Court and will help the Court to resolve disputes without a trial as well as providing some investigative services for the Court.

Clerk: In some jurisdictions, a Clerk-Magistrate is empowered to hear and decide certain kinds of cases such as small claims cases. They should be afforded the same courtesy and respect as a judge.

Registrars and registry staff: When you go to a courthouse, each court will have its own registry where papers are filed and kept. For example, Housing Court in Massachusetts has registries for each of its divisions. The Probate and Family Court has registries for each of its divisions.

The staff who accept court papers for filing at these court registries are the gatekeepers for the court and if your papers are not in order, they may return them unfiled. Often, court staff can give you information about forms that you need to file. (Note that they cannot give you legal advice.)

Tip: Treat registry staff, no matter how they treat you, with respect and courtesy. Sometimes registry staff can seem impolite. Trust me that keeping the registry staff on your side is a point in your favor. After all, they might share a lunchroom with your judge’s clerk, or even your judge. Treat them well.

Judge: The judge is in charge of the court proceedings. A judge decides what evidence will be allowed, what motions may be heard, and how the case proceeds. At trial, if there is no jury, the judge applies the law to the facts he or she believes and makes the decision on the case.

CourtJudges are supposed to be impartial. This means, they should only decide the case on the evidence presented before them and not some preexisting bias they may have to one party or the other. Judges, like umpires or referees in sports games, make decisions on how the hearing or trial progresses. A judge might help you with the rules of court. However, a judge also might choose not to help you.

One thing a judge can never do is give advice about your case. Only lawyers can provide legal advice. How willing a judge is to help you with court rules and procedure often depends on the judge you happen to get. Some are more willing than others to be helpful to a pro se litigant. In my experience, the trend is towards judges increasing in helpfulness to unrepresented persons.

Usually, you cannot choose your judge. Judges are usually assigned to your case based on the scheduling needs of the courthouse.

Judges belong to a particular court. For example in Massachusetts, a judge will belong to the Superior Court, District Court, Housing Court, Probate and Family Court, Juvenile Court, Land Court, Boston Municipal Court, Appeals Court, or  Supreme Judicial Court. (A judge cannot sit on more than one court.) There are also federal judges who sit on the federal appeals courts and federal district courts for Massachusetts.

Judges cannot:

• Deny your right to be heard. They can limit presentation of argument and evidence to what is material, relevant, and admissible.  While judges will want to keep the process moving along, they have to give you a chance to try to prove your case.

• Talk to one side without the other being present unless there are exceptional circumstances at hand. This is called ex parte communication. It is considered unfair. When a case is, for example, very urgent, judges can hear from one party during an ex parte hearing. An ex parte hearing happens when one side does not give notice of a hearing to the other side either because the other side cannot be notified or because there is some emergency situation and notice would defeat the purpose of the relief sought (e.g., if notice would cause the other side to destroy evidence), or it is impractical because of the urgent nature of the situation (e.g., the other side is on the way to pick up the children and take them out of the jurisdiction).

• Refer you to a specific lawyer or recommend a specific lawyer to you.

• Give you legal advice.

• Violate the ethical rules judges are required to follow. For example, in Massachusetts state court judges are bound by the Massachusetts Code of Judicial Conduct.

COVER representing yourself in court USAIn a jury trial, the jury, not the judge, is the “trier of fact.” The jury decides what evidence and witnesses to believe and makes the decision in the case.

For more tips on how to be your own lawyer in a civil case, read Devlin Farmer’s book, Representing Yourself in Court. It’s available on our website, Amazon, Barnes & Noble, and in better bookstores across the country.

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