Answers, Declarations, and Motions Practice – Some Do’s and Don’ts

by Katy Sheehan on March 25, 2009

in Resources and Links, Why You Need Legal Services

I regularly volunteer at my local legal clinic and help people with a wide variety of legal issues ranging from filling out divorce papers to helping someone prepare to represent themselves pro se at a hearing in front of a judge.

There are a few mistakes I’ve seen people make on a regular basis which are easily avoidable and which greatly affect the outcome of their case.   One major misconception people have is that they can present any relevant evidence at a hearing or at trial.  The correct thing to say is that people can present any relevant evidence at a hearing or trial that they have already filed with the court in their answers, declarations, affidavits, and exhibits supporting their argument. This may seem unfair but the idea is that you can’t present evidence without giving the other side the opportunity to investigate and prepare a response.  The benefit is that you are afforded the same opportunity to see your opponent’s evidence, not to mention the court has time to look carefully at your arguments.

There is a strict schedule which governs how and when to file your answer, declarations, affidavits and responses to your opponent’s evidence.  The schedule depends on the Court Rules of the District, Superior, State, Juvenile or Municipal Court.  Most District and Superior Courts publish Court Rules on their website but they may not be current so call your county clerk if you have any questions or if you are unsure.

What I see happening at the legal clinic is that people put their head in the sand and don’t file responses to their opponent’s allegations.  They think, “This will all come clear when I present my evidence at the hearing.”  However, the problem is that courts depend almost exclusively on the record of the case.  If you have not created a record by filing an answer or declaration or an affidavit then you don’t have any evidence to support your arguments and all the court will base their decision upon is what your adversary has filed.

If you find yourself in this position, where you have missed deadlines to submit evidence, then it might be prudent to ask for a continuance.  If you are representing yourself pro se (and this is the first continuance on this issue) the courts are usually more lenient and open to your request.  The down side is that you will probably end up having to pay the other side’s attorneys’ fees for the hearing.  Depending on what your case is about, this might be a small price to pay.   You must decide what your chances of winning will be if the court depends only on your opponent’s evidence.

I get a lot out of my time at the clinic because I like working with the clients and I always learn from fellow volunteer lawyers.  Any interested lawyers should contact their local pro bono lawyers org.

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{ 1 comment… read it below or add one }

cheryl m., greenville, nc, usa March 26, 2009 at 10:34 am

Congratulations, Katy and Charlene!!!! You are creating something wonderful for others and yourselves and it is good…in all ways…Best wishes from North Carolina! Peace and love, Cheryl

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