Document Hamiltoncounty_doc_61fc7c41e3

1 The Pro Se Handbook A Guide to Representing Yourself in the Hamilton Circuit and Superior Courts A public service of the Hamilton Circuit and Superior Courts and the Hamilton County Bar Association February 2024 ---PAGE BREAK--- 2 ATTENTION! This Handbook is provided as a public service to alert you to some of the problems that you can expect to encounter while representing yourself in the Hamilton Circuit and Superior Courts in a civil matter. THIS HANDBOOK IS NOT INTENDED TO BE A SUBSTITUTE FOR THE ADVICE AND ASSISTANCE OF AN ATTORNEY. On the contrary, one of the most important messages of the Handbook is that your chances of obtaining a good result are better if you are represented by an attorney than if you are representing yourself. THIS HANDBOOK DOES NOT CONTAIN LEGAL ADVICE FOR YOUR CASE. This Handbook does not tell you how to solve your legal problems. THIS HANDBOOK MAY BECOME OUT-OF-DATE. The law is constantly changing. The statutes, ordinances, or court rules that are referred to in this Handbook may have been changed or repealed since the Handbook was written, or there may be new laws or rules that apply to your case. There is no substitute for checking to make sure that the sources of law that you intend to rely on—for example, statutes, ordinances, regulations, court rules, and court decisions—have not been changed since you last looked at them. THIS HANDBOOK MAY CONTAIN INNACCURATE LEGAL INFORMATION. The Hamilton County Courts are not responsible for this Handbook’s completeness, adequacy, or accuracy. IT IS YOUR RESPONSIBILITY ALONE TO VERIFY THE INFORMATION THAT YOU FIND IN THIS HANDBOOK AND TO MAKE SURE THAT THERE HAVE BEEN NO RECENT CHANGES IN THE APPLICABLE RULES OR LAWS. If you find any errors in the Handbook, or if you would like to suggest any improvements for future editions, please contact the Court Administrator at [EMAIL REDACTED]. ---PAGE BREAK--- 3 Table of Contents 1. General Information 1.1 The Decision to Represent Yourself 1.2 Where to Find an Attorney 1.3 About this Handbook 1.4 Who can act pro se? 1.5 The Court Rules and the Law—Where to Find Them 1.5.1 Court Rules 1.5.1.1 Indiana Court Rules—State 1.5.1.2 Hamilton County Local Rules 1.5.1.3 The Rules of Evidence 1.5.2 The Law of Your Case 1.5.2.1 Statutes, Regulations, and Ordinances 1.5.2.2 Case Law 1.5.2.3 The Federal and State Constitutions 1.6 Other Sources of Useful Information 1.6.1 The Clerk of Court 1.6.2 Indiana Practice 1.6.3 Indianalegalhelp.org and mycase.in.gov 1.6.4 The Office of the Attorney General 1.6.5 The Indiana Supreme Court 1.6.6 Public Library 1.7 Always Give Proper Notice to All Parties 1.8 Always be Prepared and On Time 2. Civil Cases 2.1 Procedure Before Trial 2.1.1 Commencement of the Lawsuit in Circuit or Superior Court 2.1.2 Civil Trial 2.1.3 Discovery 2.1.4 Civil Motions 2.2 Trial 2.2.1 An Overview 2.2.2 The Right to a Jury Trial 2.2.3 Jury Instructions 2.2.4 Jury Selection 2.2.5 The Trial Record—What You Need to Do 2.2.6 Suggestions for Witnesses 2.3 Procedure After Trial ---PAGE BREAK--- 4 2.3.1 The Trial Court’s Decision 2.3.2 Notice of Appeal 2.3.3 Return of Exhibits 2.4 Special Types of Civil Cases 2.4.1 Family Law Cases 2.4.2 Domestic Violence Cases 2.4.3 Name and/or Gender Marker Changes 2.4.4 Probate Cases 2.4.5 Guardianship Cases 2.4.6 Small Claims Cases 3. Criminal Cases 4. Traffic Cases 5. CONCLUSION ---PAGE BREAK--- 5 REPRESENTING YOURSELF IN THE HAMILTON CIRCUIT AND SUPERIOR COURTS The Pro Se Handbook 1. General Information This Handbook is designed to help you to represent yourself in court (especially in the Hamilton Circuit and Superior Courts). The legal term for representing yourself is acting pro se, which means acting for oneself. If you decide to represent yourself, you may hear lawyers or court personnel refer to you as pro se. 1.1 The Decision to Represent Yourself As a pro se litigant, the first thing to do is to ask yourself, “Am I sure that I want to represent myself?” In answering that question, you must keep this in mind: YOU WILL BE HELD TO THE STANDARDS OF A LAWYER. You should follow all the rules that apply to lawyers. If you fail to follow the rules, you may be subject to the same penalties as if you were a lawyer. Although the court personnel, such as the court’s staff and the clerk’s office, can answer some questions about the court’s procedures, the law prohibits court personnel from giving you legal advice. There is an old saying: “The person who represents himself has a fool for a client.” There are at least two reasons for this saying. First, you will find that the legal process is complex and difficult to understand. The person on the other side of your case will probably be represented by a lawyer. Without a lawyer, you will be at a disadvantage. Second, you have a personal interest in the outcome of your case, which will deprive you of the objectivity you need to present your case effectively in court. ---PAGE BREAK--- 6 You improve your chances of winning your case when you have a lawyer to represent you. You should make the decision to represent yourself carefully. 1.2 Where to Find a Lawyer If you cannot afford to hire a lawyer, of if you don’t know which lawyer to ask to represent you, there are several places where you might be able to get help. In sections 1.6.3 and 5.1, this Handbook lists some of the places where you may find a lawyer or you may look at the Hamilton County Bar Association’s member directory on their website, www.hamiltoncountybar.com. Also, you may visit the Indianapolis Bar Association or Indiana State Bar Association’s websites. Before you decide to represent yourself, you owe it to yourself to see if it is possible for you to obtain representation by a lawyer. Many lawyers will give you a free consultation in person, over the phone, or via an online platform like Zoom. 1.3 About This Handbook Although this Handbook is designed to help you, it does not contain everything you need to know. Far from it. What happens in a courtroom is governed by many different things, including court rules, the practices of the particular judge, and the law that applies to the case. This Handbook is intended only to answer a few of the questions commonly asked by persons acting pro se and to suggest some sources of additional information. The Hamilton County Courts are not responsible for this Handbook’s completeness, adequacy, or accuracy. IT IS YOUR RESPONSIBILITY ALONE TO VERIFY THE INFORMATION THAT YOU FIND IN THIS HANDBOOK AND TO MAKE SURE THAT THERE HAVE BEEN NO RECENT CHANGES IN THE APPLICABLE RULES OR LAWS. This Handbook contains no information about cases in the U.S. District Courts, U.S. Bankruptcy Courts, Indiana Supreme Court, Court of Appeals of Indiana, Indiana Tax Court, Juvenile Courts, or City/Town Traffic Courts. ---PAGE BREAK--- 7 1.4 Who Can Act Pro Se? In a civil case, you will almost always be permitted to represent yourself, but you must be prepared and on time. Also, you must comply with the court rules. Just as a lawyer may be penalized for being late or unprepared, you can be penalized if you are late or unprepared. If you are a corporation, however, you must be represented in court by a lawyer. A non-lawyer employee, officer, director, or shareholder of a corporation is not permitted to represent the corporation unless it is a small claims case and the claim does not exceed $6,000. The reason for this is that representing another person or entity in court is practicing law, and only lawyers are permitted to practice law. If you are the defendant in a criminal case, the situation is more complicated. The court cannot allow you to represent yourself unless your decision not to have a lawyer has been made freely and voluntarily and with full knowledge of the importance of the decision. Therefore, the judge will question you about why you want to represent yourself to make sure that you fully understand what you are doing. This is done for your protection. 1.5 The Court Rules and the Law—Where to Find Them In representing yourself, one of the most important things that you must do is become familiar with the court rules and the law that applies to your case. If you fail to follow the court rules, you may lose your motion or trial. 1.5.1 Indiana Court Rules—State There are two kinds of court rules that you need to be concerned about. First, there is the Indiana Rules of Court. These court rules are the same throughout the state. In other words, these rules do not change from one county to another. Thus, the Indiana Rules of Court will govern a civil case tried in Circuit or Superior Court in Noblesville, Indianapolis, or anywhere else in the state. However, the Indiana Rules of Court does consist of several sets of rules, depending on what your case is ---PAGE BREAK--- 8 about. For example, there is one set of rules for civil cases and another set for criminal cases. There is still another set of rules for small claims cases. The Indiana Rules of Court are published every year in paperback books and can be found in every law library in the state. The nearest law library to Hamilton County is at Indiana University’s Robert H. McKinney School of Law, 530 W. New York Street, Indianapolis, Indiana 46202. The public library may also contain the other legal materials described below. When you are reading the Indiana Rules of Court, make sure that you are looking at the current edition. The year is printed on the cover. The Indiana Rules of Court are also available online at www.in.gov/courts/publications/rules. 1.5.1.2 Hamilton County Local Rules In addition to the Indiana Rules of Court, most courts have local rules. These rules sometimes contain additional requirements not found in the Indiana Rules of Court, or they may tell you how to comply with the Indiana Rules of Court in that particular county. You will find the local rules for Hamilton County in Indiana Rules of Court—Local (Vol. III). It is important to follow a court’s local rules. To find the local rules of a particular county, go to a law library (or possibly a public library) in the area and ask for a copy to review and photocopy or check online. Hamilton County’s local rules can be found online at www.in.gov/courts/publications/local-rules. Additionally, individual judges are often going to have their own ways of doing things. If you know which judge is going to be presiding over your case, it can sometimes be helpful to talk to the judge’s staff to find out how the judge likes things to be done in his or her courtroom. It might also be helpful for you to sit in on someone else’s case in that judge’s courtroom so that you can see how the judge operates. 1.5.1.3 The Rules of Evidence ---PAGE BREAK--- 9 There is a special set of court rules that are extremely important in all trials (except in small claims court). These court rules are the Rules of Evidence. The courts follow the rules of evidence to determine which kind of evidence to permit at trial and which kind of evidence to exclude. The Rules of Evidence are part of the Indiana Rules of Court. As we discussed in Section 1.5.1.1, the Indiana Rules of Court, both State and Local volumes, are published every year. Although the Rules of Evidence apply to most court proceedings, there are some proceedings to which they do not apply. For example, they do not usually apply to small claims court or to some parts of criminal cases, such as preliminary hearings and sentencing. Before your case goes to trial, it might be helpful for you to make a list of all of the facts that you intend to prove at trial, together with all the evidence that you intend to submit to the court in order to prove those facts. Once you have made that list, you should read over the Rules of Evidence to see if any of your evidence is prohibited by the rules. If it is, then you will have to find some other evidence to take its place. Otherwise, you will not be able to prove that part of your case. Although the Rules of Evidence are complicated and can be frustrating to try to understand, even for lawyers, there is a good reason for every one of them. They are designed to make it more likely that the truth will come out at trial. 1.5.2 The Law of Your Case Besides knowing the court rules, you must also know the law that applies to your case. The law of your case will depend on what your case is about. Unfortunately, it is often difficult to find out what the law is. One of the reasons for this is that the law is created by all the different branches of government—namely, the legislature, the executive (for example, the governor or a state agency), and the courts. The legislature might pass a law, called a statute, and a state agency might ---PAGE BREAK--- 10 then adopt regulations to enforce the statute. Later, the courts might be called upon to decide what the statute or the regulations mean in a particular case. In addition, all statutes and regulations must be consistent with the state and federal constitutions. After deciding what a particular statute or regulation means, the courts sometimes decide that it is unconstitutional for certain reasons, including but not limited to, that it violates an individual’s constitutional rights. Besides the federal constitution, federal law also consists of federal statutes and regulations and the decisions of the federal courts, but those are beyond the scope of this Handbook. Finally, there are many cases for which there is no statute or regulation that applies. Those cases are decided by the courts on the basis of what is called the common law, which consists of the decisions of other courts in earlier, similar cases. Therefore, in order to find out what the law is in your case, you have to find out whether the state legislature has passed a statute or the city or county council has passed an ordinance that applies to your case; whether a government agency has adopted regulations to enforce the statute; whether the courts have interpreted the statute, ordinance, or regulation; whether the statute, ordinance, or regulation is consistent with the state and federal constitutions; and if there is no applicable statute, ordinance, or regulation, whether earlier decisions of the courts in similar cases have established rules of common law that apply to your case. If that sounds like a lot of work, you’re right. What now follows is a discussion of how to find out what the law is. This will be a very brief and incomplete description. Long books have been written about how to find out what the law is—for example, Effective Legal Research by Price, Bitner, and Bysiewicz—which you might be able to find in your local law library or public library. 1.5.2.1 Statutes, Regulations, and Ordinances ---PAGE BREAK--- 11 As we discussed in the previous section, the legislature passes statutes and government agencies adopt regulations to carry out those statutes. The statues passed by the Indiana General Assembly are collected in a series of books called the Indiana Code or I.C. for short. There is an edition of the I.C. called the Annotated Indiana Code, which also contains a brief summary of court decisions (also called cases) that have interpreted the statutes. If you can, you should use the Annotated Indiana Code. In the back of each volume of the Annotated Indiana Code is a small booklet, called the pocket part, which contains the most recent version of the statutes and a summary of the most recent cases. The law is constantly changing. For that reason, it is absolutely essential that you check the pocket part to make sure that you have the most recent information. If the legislature has been in session since the pocket part was published, even the pocket part might not be up-to-date; there are paperback volumes at the end of the Annotated Indiana Code that describe the legislature’s most recent actions. To find the particular statute that you are looking for, the best place to start is usually the index, which consists of several volumes at the end of the Annotated Indiana Code series. The index is arranged alphabetically by subject. Like almost all of the books described here, the Annotated Indiana Code can be found in the nearest public law library. The nearest law library to Hamilton County is at Indiana University’s Robert H. McKinney School of Law, 530 W. New York Street, Indianapolis, Indiana 46202. The librarian at the law library might be able to help you find the books that you are looking for. You can also access the Indiana Code online at the Indiana General Assembly’s website, www.iga.in.gov. The regulations that have been adopted by the different state agencies, such as the Department of Labor, are collected in a series of volumes called the Indiana Administrative Code or the IAC for short. The IAC is regularly updated by the ---PAGE BREAK--- 12 Indiana Register. Both the IAC and the Indiana Register contain indexes to help you find the relevant pages. You can find the IAC online at www.iac.iga.in.gov/iac/. If your case involves the law of a county or city, rather than the law of the state, you will have to check the county or city ordinances, which are similar to state statutes, but have been adopted by the county council or city council, rather than by the state legislature. The best place to find county or city ordinances is either the local public law library or the office of the county or city clerk. 1.5.2.2 Case Law The law that applies to your case is also determined by what the courts have decided in earlier cases. Like the state statutes and regulations, the decisions of the Indiana courts are published in a series of volumes. The decisions of the Indiana Supreme Court, Indiana Court of Appeals, and Indiana Tax Court are published in a series called the Northeastern Reporter. The series of books can be found in a public law library. If your case involves a state statute, the easiest way to find the decisions that apply to your case is to check the Annotated Indiana Code (discussed in section 1.5.2.1 above), which will give you the volume and page number of each decision summarized. Another way to find relevant cases, especially if no statute or regulation applies to your case, is to use a publication called the Indiana Digest, which is yet another series of volumes. Like the Annotated Indiana Code, the Indiana Digest contains summaries of court decisions. Unlike the Annotated Indiana Code, the Indiana Digest is organized by subject matter and does not contain the state statutes. The Digest can also be found in a public law library. Once you have found one or more court decisions that seem relevant to your case, it is important to make sure that those decisions have not been modified or overruled by any later cases. The way to do that is by using a publication called ---PAGE BREAK--- 13 Shepard’s Citations, which can also be found in a public law library. You will probably need to ask a law librarian to explain how to use Shepard’s Citations. It is a good idea to make photocopies of any statutes, regulations, ordinances, or court decisions that you think are important to your case, since it is usually necessary to refer back to them later. 1.5.2.3 The Federal and State Constitutions The United States Constitution is the supreme law of the land. Consequently, all statutes and regulations must be consistent with the U.S. Constitution. This is true regardless of whether those statutes or regulations have been adopted by the U.S. Congress, by the legislature of this or any other state, or by any government agency. The Constitution of the State of Indiana is the supreme law of this state. All state statutes, local government ordinances, and state or local government regulations must be consistent with the state constitution. If a statute, ordinance, or regulation appears to hurt your case—especially if it seems to violate your individual rights—you should check to see whether it is constitutional. You should check both the state constitution and the federal constitution, because all laws in this state must be consistent with both. Both the Indiana State Constitution and the U.S. Constitution are printed in special volumes of the Annotated Indiana Code (discussed in section 1.5.2.1). The Annotated Indiana Code contains not only the not only the text of the state constitution but also brief summaries of court decisions that have interpreted each provision of the state constitution. In the back of each volume of the Annotated Indiana Code is a small booklet, called the pocket part, which contains any recent amendments to the constitution (although the constitution is rarely changed) and a summary of the most recent cases interpreting it. ---PAGE BREAK--- 14 Although the Annotated Indiana Code also contains the text of the U.S. Constitution, it does not provide summaries of the cases that have interpreted the U.S. Constitution. You may find summaries of cases that have interpreted the U.S. Constitution by checking a series of volumes called the U.S. Code Annotated (USCA). The USCA can be found in law libraries. The USCA has several volumes that contain the text of the US Constitution and summaries of cases that have interpreted it. Each volume also has a pocket part in the back, which you should check for the most recent cases. 1.6 Other Sources of Useful Information 1.6.1 The Clerk of Court A good source of information is the Court Clerk’s Office. You should keep in mind, though, that the court clerk’s staff and court personnel are prohibited from giving legal advice, such as interpreting the law or court rules or filling out legal forms for you. The Clerk’s Office can be helpful in explaining some court procedures, as long as it doesn’t require them to interpret the court rules for you, or in telling you where to go for additional information. The Hamilton County Clerk’s Office is located at 1 Hamilton County Square, Suite 106, Noblesville, Indiana 46060. 1.6.2 Indiana Practice Another useful publication is a series of volumes called Indiana Practice, which can also be found in most law libraries. Volumes 21 and 22 of the series discuss practice and procedure in civil cases. Volumes 16 and 16B discuss practice and procedure in criminal cases. Each volume may contain a pocket part inside the back cover, which you should check for the most up-to-date information. 1.6.3 Indianalegalhelp.org and mycase.in.gov Two websites are particularly helpful as you represent yourself in court. The first is Indianalegalhelp.org. It contains numerous court forms, including ---PAGE BREAK--- 15 commonly-used forms such as a motion to continue. The second website that you might find helpful is mycase.in.gov. This allows you to see the status of your case at any time and to see the date and time of your next hearing. Forms specific to the Hamilton County Courts can be found at www.hamiltoncounty.in.gov/192/Court-Forms. 1.6.4 Attorney General’s Office The Indiana Attorney General’s Office publishes consumer education materials and has various links on its website, www.in.gov/attorneygeneral/, related to consumer problems. 1.6.5 Indiana Supreme Court For general information about Indiana’s courts, the Indiana Supreme Court’s websites, www.public.courts.in.gov and www.in.gov/courts, are designed to provide citizens with information about Indiana courts and resources for interaction with the Indiana courts. 1.6.6 Public Library Depending on the nature of your case, your local public library might have helpful information. The Public Library has computers that you may use to download forms and other information from websites listed in this Handbook. Ask a librarian if you can’t find what you’re looking for. 1.7 ALWAYS GIVE PROPER NOTICE TO ALL PARTIES Whenever you file a document, any document, with the court, you must mail or deliver a copy of the document to all other parties in your case—that is, to all other persons who are named in the lawsuit, either on your side or the other side. If a party is represented by a lawyer, you must mail or deliver that party’s copy of the document to the lawyer. When you have provided notice according to the court rules, you have given proper notice to the other parties. ---PAGE BREAK--- 16 The court rules and certain statutes explain exactly how and when to give notice to the other parties. The method and timing of giving notice can be different for different kinds of cases. In most cases, the court rules do not permit you to give notice to the other parties by delivering the documents to them yourself—some other adult must do it for you. You may use a commercial messenger service to deliver your notices. It is extremely important that proper notice be given; otherwise, the court might refuse to grant your request or a higher court might reverse the action of a lower court, if the lower court took action without proper notice. If you are beginning a lawsuit, you must provide written notice to an opposing party by service of process. Service of process is the formal notice to the other side to respond to your lawsuit. The court rules, Rules of Trial Procedure 4 and 5, Indiana Rules of Court—State, explain how and when to serve process. Service of process is the most important notice in the lawsuit, so make sure it is done correctly. You may use a commercial messenger service to serve process or deliver notices. A commercial messenger service will provide you with an affidavit of service upon completion of service of process for filing with the Clerk of Courts. 1.8 ALWAYS BE PREPARED AND ON TIME The state court system is expensive to run, and the cost is paid almost entirely by our tax dollars. If someone shows up in court late or unprepared or fails to provide the opposing party with proper documents in advance according to the court rules, the court proceedings may be delayed. When court proceedings are delayed, tax dollars are wasted. Therefore, ALWAYS BE PREPARED AND ON TIME. If you are going to be late, call the court staff using the numbers below: Circuit Court [PHONE REDACTED] Superior Court No. 1 [PHONE REDACTED] Superior Court No. 2 [PHONE REDACTED] Superior Court No. 3 [PHONE REDACTED] ---PAGE BREAK--- 17 Superior Court No. 4 [PHONE REDACTED] Superior Court No. 5 [PHONE REDACTED] Superior Court No. 6 [PHONE REDACTED] Superior Court No. 7 [PHONE REDACTED] 2. Civil Cases There are two general kinds of cases: criminal and civil. Criminal cases are cases in which a defendant is being prosecuted by the state or local government for allegedly committing a crime. All other cases are civil cases. Civil cases most often involve claims for money damages or disputes over property. In this Handbook, several special kinds of civil cases are discussed separately. Those are family law cases, name and/or gender marker changes, domestic violence cases, small claims cases, probate cases, and guardianship cases. They are discussed in section 2.4 of this Handbook. Sections 2.1 through 2.3 of the Handbook apply to civil cases (except small claims cases), not just to the special cases discussed in section 2.4. 2.1 Procedure Before Trial 2.1.1 Commencement of the Lawsuit Most civil lawsuits begin when the plaintiff files (in the Office of the Clerk of Courts) and serves upon the defendant a summons and complaint. This procedure is called service of process and is described in the court rules, Rules of Trial Procedure 4 and 5. Indiana Rules of Court—State, which explain how and when to serve process. The summons commands the defendant to respond to the claim in writing in court. The complaint contains a statement of the plaintiff’s claims against the defendant and the request for relief. After the plaintiff arranges for service of process, the defendant must respond to the plaintiff’s claims within a certain number of days. The exact number is stated in the applicable court rules and in the summons. Generally, the defendant must ---PAGE BREAK--- 18 respond within twenty (20) days of receiving the summons and complaint. The defendant does so by filing a notice of appearance or an answer with the court clerk and serving a copy of it on the plaintiff (or, if the plaintiff is represented by a lawyer, on the plaintiff’s lawyer). The notice of appearance shows the appearance of an attorney on behalf of the defendant or it shows the individual acting pro se. The answer contains a statement of the defendant’s responses to each of the plaintiff’s claims. The defendant may include with the answer a counterclaim containing claims that the defendant wishes to make against the plaintiff. The defendant does not have to file a counterclaim against the plaintiff unless the defendant’s claims are based on the same dispute that plaintiff’s claims are based on. This is explained in Rule 13 of the Rules of Trial Procedure, Indiana Rules of Court—State. The defendant must include any counterclaims he or she has against the plaintiff if the claims arose out of the same transaction or occurrence. If the defendant fails to assert such counterclaims in his or her answer, then the defendant may lose the opportunity to assert those claims at a later date. Therefore, if the defendant has a claim that arose out of the same incident as the original claim against the plaintiff who has filed suit, then the defendant must file a counterclaim. Finally, if the defendant has filed a counterclaim, the plaintiff must respond to it by filing and serving a reply. If the defendant fails to file an answer with the Clerk of Court and serve it upon the opposing party or attorney within 20 days, the plaintiff may bring a Motion for Default against the defendant. The Motion for Default is a civil motion, which requires notice to the attorney or Defendant, if he or she filed a notice of appearance, but which does not require a notice to the Defendant, if he or she filed no notice of appearance or answer. There are special kinds of civil cases—such as family law cases, probate cases, and guardianship cases—that are commenced by filing a petition, rather than ---PAGE BREAK--- 19 a complaint. You should check the applicable statutes and court rules for details, as well as whether an online form may be available. 2.1.2 Civil Trial Upon filing a civil case n Hamilton County, the Clerk of Court assigns the case to a trial judge. The trial judge will set conferences, hearings, and trial dates on his or her own motion or upon the request of any party. 2.1.3 Discovery The court rules provide you with an opportunity to find out the facts that the opposing party intends to prove at trial and the evidence that the opposing party intends to submit to the court in order to prove those facts. In the same way, the rules provide the opposing party with an opportunity to find out about your evidence and the facts that you intend to prove. This process is called discovery. The court rules provide several different methods of discovery. The most common and least expensive form of discovery is interrogatories, which are written questions that you submit to the other party, who must answer the questions in writing. Another common form of discovery is called the deposition, where a party may subpoena any person with knowledge of relevant facts (including persons who are not parties to the lawsuit) to appear at a particular time and place, and question that person about what he or she knows. Since the questions and answers of a deposition must be recorded in some way, and since they are usually recorded by a paid court reporter, depositions can be expensive. The court rules that regulate the discovery process are the Rules of Trial Procedure Rules 26 through 37, Indiana Rules of Court—State. If you must respond to discovery, you should answer deposition questions or interrogatories completely and honestly. For interrogatories, you should supplement your answers as you obtain new information. ---PAGE BREAK--- 20 Discovery supplements other exchanges of information already required in the process leading toward trial. Discovery is one of the most important parts of a civil lawsuit. It helps to prevent either party from surprising the other at trial with evidence that has been kept secret. As a result, trials go more smoothly and most cases are settled even before trial begins. 2.1.4 Civil Motions Before the actual trial of a lawsuit, one or more parties may ask the court to take some action or make some decision about the case. For example, the plaintiff might want the defendant to reveal certain information that the plaintiff requested during the discovery process. The defendant might that the plaintiff is not entitled to that information. In order to resolve the dispute, the plaintiff must make a motion to the court, asking the court to order the defendant to reveal the requested information. Civil motions must have separate sections to state the following: the relief requested, a statement of the facts, a statement of the issues, the evidence relied upon, the legal authority for the motion, and must have an attached copy of the proposed order. You must file the motion with the court clerk, together with a document, called a Chronological Case Summary, or CCS for short, which contains a brief summary of the motion and the documents that have been filed. Rules of Trial Procedure Rule 6, Indiana Rules of Court—State, requires that you file most civil motions with the court and arrange for delivery to the opposing party at least five court days (not counting weekends, holidays, and not counting the date of service, but counting the date of the hearing) before the date of the hearing. Generally, the court will hear civil motions without oral argument, except for summary judgment motions, family law motions, ex parte motions, and dispositive motions. A dispositive motion is a motion which ends all or a substantial part of the ---PAGE BREAK--- 21 case in favor of one party. If you want oral argument for a civil motion, you must request it. In most cases, you must file the original motion and any attached documents with the Clerk of Court, an deliver one copy to the opposing party or the attorney for the opposing party, if he or she has an attorney. Once it is filed, the judge can read the motion. For motions for which the court allows oral argument, you should be sure to show up early for the hearing and tell the courtroom staff that you are there. Then, listen for your case to be called by the judge. If the party making the motion fails to show up at the time of the hearing, the court will strike the motion from the court’s calendar and the moving party will have to request the hearing again. If the party opposing the motion fails to show up, the court will not strike the motion, nor will the court automatically grant the motion. Instead, the judge will decide what action is appropriate. 2.1 Trial 2.2.1 An Overview In order to find out how trials are handled in a particular court, it is essential that you read and become familiar with all the applicable court rules. Most courts require each party to prepare a written document called a trial brief, which should clearly and briefly state the facts that the party intends to prove and the legal arguments that support the party’s position. More information regarding trial briefs can be found in books such as The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts, by Bryan Garner. Most courts hold a Pre-Trial Conference, during which the judge sets the time for submission of trial briefs about five days in advance of trial. In addition, in jury trials, each party must present the judge with proposed instructions for the jury. ---PAGE BREAK--- 22 The first step in the actual trial is for each party to give an opening statement about the facts that the party intends to prove. You should use the opening statement only to give the judge or the jury a preview of the evidence that you intend to present during the trial. You should not try to argue your case during opening statement; your argument comes at the end of the case, after all the evidence has been presented and the judge has instructed the jury. The plaintiff is permitted to give an opening statement first, followed by the defendant. After the opening statements are given, the plaintiff begins presenting evidence. The most common types of evidence are witnesses and exhibits (for example, photographs, relevant letters, bills, and other documents). Generally speaking, a witness will be permitted to testify only about what the witness knows from his or her own personal knowledge, not about what someone else may have told the witness. However, there are exceptions to this rule, as explained in the rules of evidence (see section 1.5.1.3). After the plaintiff has questioned a witness (direct examination) the court will permit the defendant to ask his or her own questions (cross-examination). If any of the answers that the witness gives on cross- examination require further explanation, the court will permit the plaintiff to ask additional questions, which are within the scope of cross-examination (re-direct examination). The court will then permit the defendant to ask further questions (re- cross examination)—and so on, until the witness’s knowledge has been thoroughly explored. If you want to object to a particular question that is asked by the other side, you must do so before the question is answered, and you must be prepared to tell the judge the legal basis of your objection. For example, you may object to a question on the basis that it calls for hearsay evidence. You are not permitted to wait and see if you like the witness’s answer before making your objection. ---PAGE BREAK--- 23 Prior to the Pre-Trial Conference, a party must submit a list of exhibits to the opposing party. Later, at the Pre-Trial Conference, the court may rule on the objections to the admission of an exhibit into evidence. Despite the pre-trial preparation at the Pre-Trial Conference, which may declare the exhibit admissible, you must still present the exhibit through a witness capable of identifying the document in his or her testimony. If you want an exhibit (a document, for example) to be considered by the court, you must offer the exhibit into evidence. Before doing so, you must lay a foundation for the exhibit by showing, usually through the testimony of a witness who is familiar with the exhibit, what the exhibit is and why it is important to the case. After the plaintiff’s evidence has been presented, the court will permit the defense to present its evidence. Just as the court permitted the defense to cross- examine the plaintiff’s witnesses, the court will permit the plaintiff to cross-examine the defense witnesses. After the defense has presented all its evidence, the court will permit the plaintiff to respond to the defense’s evidence by presenting additional evidence, if the plaintiff chooses, so long as it is not simply a repetition of the evidence that the plaintiff already presented earlier. After all the evidence of both parties has been presented, the judge will instruct the jury, if the trial is by jury. This can also happen after closing arguments have concluded. Each party is then permitted to give a closing argument. As its name implies, the closing argument is the place for telling the jury (or the judge, if there is no jury) why the case should be decided in your favor. The plaintiff argues first, then the defendant, and lastly the court will permit the plaintiff to make a brief reply, called a rebuttal, to the argument of the defendant. Then the judge or jury will consider the case and reach a decision. For a jury trial, the jury makes its decision by filling in a jury verdict, which is one of the jury instructions. For a bench trial, the judge makes ---PAGE BREAK--- 24 his/her decision with oral findings, conclusions, and decisions. The judge may ask the prevailing party to reduce his decision to writing and present the documents to the court for approval at a later time. If you want to find out more about trial techniques, a good reference book is Trial Techniques by Thomas A. Mauet, which can be found in some law libraries and bookstores. If you want to find out more about the practice and procedure in civil cases in the state of Indiana, you should look at volumes 21 and 22 of Indiana Practice, which can be found in law libraries. As we explained at the beginning of this Handbook, you will be required at the trial of your case to obey all the rules and standards that apply to lawyers. The sections below discuss some common problem areas for persons who are representing themselves. 2.2.2 The Right to a Jury Trial In many civil cases, each of the parties has a right to demand that the case be decided by a jury, rather than by a judge. In other words, if one of the parties demands a jury trial, and the case is one in which a jury trial may be demanded, then the case will be decided by a jury. It does not matter if the other parties do not want a jury trial. If a party demands a jury trial, a judge will still preside over the trial. The judge will rule on motions, decide which evidence is admissible, and instruct the jury about the law that applies to your case. But the jury will decide the case and determine how much money, or other relief, if any, to award a party. Generally, in dissolution of marriage, paternity, and juvenile cases, no party has a right to a jury trial. If you intend to demand a jury trial, you must follow the court rules for doing so. You should read Rules of Trial Procedure 38, Indiana Rules of Court— State. If you fail to follow the court rules for demanding a jury trial—especially if ---PAGE BREAK--- 25 you wait too long before making the demand—you risk losing your right to a jury trial. If you fail to make a jury demand on time, the court may conduct your trial without a jury. 2.2.3 Jury Instructions If your case is going to be tried before a jury, the jury will decide the case, but the judge will first instruct the jury about the law that must govern their decisions. These instructions will have an important effect on the outcome of the case. It is the responsibility of each party to prepare a set of proposed jury instructions and to present them to the judge before the trial. At the Pre-Trial Conference, the court will require that the parties exchange proposed jury instructions. During the trial, the judge will decide which instructions should be given. Before instructing the jury, the judge will tell the parties which instructions have been chosen and will give each party an opportunity to make objections to those instructions. You may not challenge a jury instruction on appeal unless you objected to it before the judge instructed the jury; you explained the basis of your objection; and, in most cases, you proposed a suitable alternative instruction. In many cases, appropriate pattern jury instructions can be found in a volume entitled Indiana Pattern Civil Jury Instructions, which can be found in most law libraries. You should check the pocket part in the back of the volume for the most recent versions of the instructions. If you cannot find an appropriate instruction in the Indiana Pattern Civil Jury Instructions, you will have to draft one yourself, based on what you think the law is. Section 1.5.2 of this Handbook discusses how to find the law that applies to your case. You should check the court rules, including any local rules, to find out how many copies of your proposed instructions should be given to the judge at the beginning of trial and in what form they should be presented to the judge. ---PAGE BREAK--- 26 2.2.4 Jury Selection If you are going to have a jury trial, one of the first steps at trial will be the selection of a jury. First, the judge will ask general questions of the prospective jurors. Next, under the judge’s supervision, each party will be given a chance to question each prospective juror briefly in order to determine the juror’s qualifications to serve in that particular case. Each party may question prospective jurors to determine if the juror can be fair and impartial in deciding your case. The questioning is referred to as voir dire. If the questioning reveals a specific reason why a juror is likely to be prejudiced in favor of one side or the other, a party may challenge that juror for cause; the judge will then decide whether the juror should be allowed to remain on the jury. There is no limit on the number of challenges for cause that a party may make, but challenges for cause should be made sparingly, because they are often rejected by the judge and they might leave the challenged juror feeling that you have attacked his or her integrity. For that reason, if a challenge for cause is rejected by the judge, the party who made the challenge should then use a peremptory challenged (explained in the next paragraph) to dismiss the challenged juror. In addition to challenges for cause, each party is allowed a limited number of peremptory challenges. Peremptory challenges dismiss a certain number of jurors from the jury panel without giving any reason. The purpose of peremptory challenges is to permit each party to dismiss jurors who that party has a feeling might be prejudiced or unfavorable to his or her case. The number of peremptory challenges each party is entitled to is determined by state statute. Under the Rules of Trial Procedure 47, Indiana Rules of Court—State, each party may have three peremptory challenges. However, before jury selection begins, you should make sure that you and the judge agree on the number of peremptory challenges to which you are entitled. ---PAGE BREAK--- 27 If a juror is dismissed from the jury after being challenged, that juror’s place will be taken by another prospective juror, who may then be questioned. Before making either a peremptory challenge or a challenge for cause, you should keep in mind that the juror who replaces the one who is dismissed might be no better, and could be worse. 2.2.5 The Trial Record—What You Need to Do The Court arranges for a transcript of all trials. In most Courts, the court reporter makes a record, word-for-word, of everything that is said during the trial. In order to help make a clear record, you need to do the following: A. Speak loudly and clearly. Identify yourself by name. B. When you call a witness, the first thing you should ask the witness to state his or her full name (spelling the last name, unless it is a common one). C. When you intend to offer an exhibit into evidence, hand the exhibit to the court reporter and ask that it be marked for identification. The court reporter will then write a number or letter on it, such as “Defendant’s Exhibit Number Always use that number when you are referring to the exhibit. The number will remain with the exhibit throughout the trial and any proceedings after the trial. D. Return the exhibit to the court reporter when the witness has finished testifying about that exhibit. Never remove an exhibit from the courtroom. The court reporter must maintain absolute control over all the exhibits; otherwise, a mistrial could result, causing the parties to begin the trial again on another day. E. Remember that an exhibit cannot be considered by the judge or the jury in deciding the case unless the exhibit has been offered and admitted into evidence. At any given time, the court reporter can tell you the status of any exhibit (that is, whether it has been admitted into evidence, been refused, or been withdrawn by the party who offered it). If you need that information, you should ask the court reporter ---PAGE BREAK--- 28 for it. The court reporter is not permitted to remind you that an exhibit has not been admitted into evidence. F. Use words, not gestures, to get your idea across. The court reporter cannot record gestures, and you may later need to rely on the written record to explain what you or a witness said. For example, a nod of the head is not enough; the witness should say yes. If a witness is trying to describe the size of something, the witness should use words such as inches, feet, or yards. G. Do not try to hand things directly to the judge. If you want the judge to examine or read something, hand it to the court reporter, who will then hand it to the judge. H. Before your trial or hearing, make an outline of what you intend to prove or the points you intend to make. Take the outline with you into the courtroom and refer to it when you need to. You might want to add this outline to your copy of your trial notebook along with questions for witnesses, outlines of your opening statement, and your closing argument. These techniques will make your presentation smoother and will reduce the chance of forgetting something. (This does not apply to witnesses; witnesses tend to be more believable if they can testify from memory). If you have time, it can also be helpful to rehearse your presentation at home or with a friend before you go to court. 2.2.6 Suggestions for Witnesses If you are answering a question, you should understand the question before you answer. When in doubt, you should ask to have the questions repeated or explained. When you answer a question, just answer the question that was asked. Do not add any comments that have nothing to do with the question. Otherwise, you are likely to irritate the judge or jury. 2.3 Procedure After Trial ---PAGE BREAK--- 29 Your job is not done when the trial is over. On the contrary, there are important things to be done after trial. The following list is not complete, but it includes some of your most important responsibilities. For additional information, you should consult the court rules. 2.3.1 The Trial Court’s Decision In order to be official, one of the parties must prepare a judgment based on the jury verdict or the judge’s decision. A judgment is not final until the judge signs it and a party files it with the court clerk. If the judge decided the case alone (a bench trial), the judge will often ask the prevailing party to prepare, in addition to the judgment, written findings of fact and conclusions of law, based on what the judge said in his or her oral decision. The parties may purchase a transcript of the judge’s decision from the court reporter to assist with the preparation of the Findings of Fact and Conclusions of Law and Judgment. A copy of the findings of fact and conclusions of law and judgment must be given to the losing party before being presented to the trial judge for approval. In that way, the losing party will have a chance to object to any parts that the losing party thinks are different from the jury or the trial judge decided. 2.3.2 Notice of Appeal If you want to appeal the decision of the trial court, you must file a written notice of appeal with the Clerk of the Appellate Courts, 216 State House, 200 W. Washington St., Indianapolis, 46204. It is not enough simply to tell the court or the other party in your case that you intend to appeal, even if your statement is recorded by the court reporter. The trial judge cannot provide legal advice to either party on how to appeal his or her decision. THE NOTICE OF APPEAL MUST BE FILED ON TIME. There are no exceptions to this rule. If your written notice of appeal is filed late, your right to appeal is lost forever. In order to find out the time limit for filing a notice of appeal, ---PAGE BREAK--- 30 you must check the Rules of Appellate Procedure. Under the Indiana Rules of Appellate Procedure 9, Indiana Rules of Court—State, the time for appeal from the trial court to the Indiana Court of Appeals is thirty (30) days from the date of the entry of judgment or other final order of the trial court. To be safe, figure out the time limit for your case before your trial is over. Then you will know how ahead of time how much time you have. Check the court rules for what the notice of appeal should say and upon whom you must serve a copy. There is a filing fee that you must pay when you file the notice of appeal at the Office of the Clerk of the Appellate Courts in Indianapolis unless you have obtained a court order excusing you from paying the fee. If you cannot afford to pay the fee, the court might excuse you from paying the filing fee. Again, you should check the court rules to find out how to ask the court to excuse you from paying the fee. The court rules that apply to your appeal are the Indiana Rules of Appellate Procedure that are available in Indiana Rules of Court—State, which can be found in most public law libraries. You should read the Indiana Rules of Appellate Procedure carefully from beginning to end as soon as you have decided to file a notice of appeal. 2.3.3 Return of Exhibits The procedure for getting back the exhibits that were used at trial is described in the court rules. Generally, the court reporter will ask you to fill in a written form to state what should be done with your exhibits after the expiration period for appeals. If you appeal the case, the court will have to keep all of the exhibits until the appellate court completes the appeal and any retrial, if one is ordered. You MUST arrange to pick up your exhibits after the trial is completed. 2.4 Special Types of Civil Cases 2.4.1 Family Law Cases ---PAGE BREAK--- 31 The term “family law” refers to matters such as divorce, custody and parenting time, paternity, and child support. You may find it difficult to represent yourself in a marriage dissolution, unless you have no opposition from your spouse. Even then, it would be for you to consult a lawyer. To assist you with dissolution of marriage, there are several sources of extremely useful information. First, the Indiana Supreme Court has a self-help legal center to assist people that can be found online at www.in.gov/courts/selfservice. You can also find information about pro bono or low-cost representation at the following agencies: A. Legal Aid of East Central Indiana; myjustice.org; [PHONE REDACTED] B. Indiana Legal Services (Indianapolis); www.indianalegalservices.org; [PHONE REDACTED] C. Indianapolis Legal Aid Society, Inc.; www.indylas.org; [PHONE REDACTED] 2.4.2 Domestic Violence For assistance with the filing of a request for a protective order, contact Prevail, Inc., 1100 South 9th St., Ste. 100, Noblesville, 46060. Their phone number is [PHONE REDACTED] or their 24-hour crisis line is [PHONE REDACTED]. Prevail is a victim awareness and support program providing 24 hour, 7 days a week services free of charge. 2.4.3 Name and/or Gender Marker Changes Indiana law permits you to change your name and/or gender marker by filing a petition, with a filing fee, in the court in the judicial district where you live. The court will not permit you to change your minor child’s name without the joint petition of both father and mother. The forms can be found at www.indianalegalhelp.org. ---PAGE BREAK--- 32 You can ask to have your name changed as part of a marriage dissolution in the court. In that case, you do not have to file a separate petition or filing fee for the name change. 2.4.4 Probate Cases Some Basic Facts About Probate. When a person dies, his or her real or personal property may have to go through a court-supervised process called probate. The technical legal term for the deceased person is the decedent. The purpose of probate is to transfer legal ownership of the decedent’s property (called the decedent’s estate) to the persons who are the beneficiaries of the estate. Who those beneficiaries are depends both on the decedent’s will, if there is one, and on the state probate statutes. The probate statutes are contained in Title 29 of the Indiana Code. If the decedent left a will, any person who has the will in his or her possession has a statutory duty to file the will with the Clerk of Courts. If the decedent’s estate has less than $50,000 worth of assets, not including the surviving spouse’s community interest in the assets, it may qualify for a simplified probate process. If the decedent’s estate includes real property, it will not qualify for the simplified probate process. Not all of the decedent’s property has to go through probate. For example, the following property does not: life insurance proceeds, when the decedent’s estate is not named the beneficiary; joint back accounts with right of survivorship, which automatically go to the surviving co-owner at death; and property that passes under a community property agreement. What to Do. When the decedent left a will, the named Personal Representative should file a petition with the Court requesting that the Court appoint him or her to serve as personal representative of the decedent’s estate. When the decedent left no will, the next of kin should file the petition. The personal ---PAGE BREAK--- 33 representative has the duty to distribute the assets of the estate according to the terms of the will or according to the laws of inheritance in the State of Indiana. After the court appoints a personal representative, he or she must provide notice by mail and publication to all creditors. The personal representative must resolve or pay the valid claims of creditors from estate assets. In addition to paying and resolving creditor’s claims, the personal representative must prepare and file an inventory of assets, must file tax returns, and must manage the estate assets during the probate process. After paying or resolving creditor’s claims, the personal representative must distribute those assets to the proper beneficiaries under the law or under the terms of the will. Finally, the personal representative must file a declaration of completion or a detailed final account that the estate is completely administered, providing a notice to all heirs, so that any heir may raise objections at a hearing before the court. 2.4.5 Guardianship Cases Some Basic Facts About Guardianship. If a person is unable to manage his or her own affairs, state law permits a court to appoint a guardian or a guardianship committee to manage that person’s affairs. The person who is the subject of the guardianship is called the alleged incapacitated person prior to a court decision on incapacity and the ward after a court decision of incapacity. What to Do. An interested party may file a petition for appointment of guardian. At an initial hearing, the Court will appoint a Guadian ad Litem to visit the alleged incapacitated person to determine whether the individual needs a guardian and whether the proposed guardian is suitable. The Guardian ad Litem must submit a report to the court to assist the court to decide upon issues of capacity and extent of the proposed powers of the Guardian. The guardian’s duties are similar to those of a personal representative. The guardian must prepare an inventory of the ---PAGE BREAK--- 34 ward’s assets, resolve the claims of any creditors, file any necessary tax returns, and manage the ward’s assets. The guardian must file an annual report with the court. 2.4.6 Small Claims Cases You should refer to the Small Claims Litigants’ Booklet regarding small claims. The booklet and applicable forms are available online at www.hamiltoncounty.in.gov/189/Courts. Small claims cases are heard in Superior Court 4, 6, or 7. 3. Criminal Cases If you are charged with a crime for which you could be sentenced to jail or prison, you have a constitutional right to be represented by a lawyer. If you cannot afford to hire a lawyer on your own, the court will, if you ask, appoint a lawyer to represent you. In order to show that you cannot afford to hire a lawyer, you will have to provide the court with certain financial information, such as your income and living expenses. Since the law provides a lawyer at no expense to an indigent, accused person in a criminal case, this manual does not furnish information for this area of law. 4. Traffic Cases Hamilton Superior Courts 4, 6, and 7 deal with traffic cases and with the appeals from the municipal traffic courts in the County. Information regarding traffic cases is available online at www.hamiltoncounty.in.gov/215/Traffic-Court or from the court staff in Hamilton Superior Courts 4, 6, or 7. Since practice in the municipal traffic courts is not the subject of this manual, it does not furnish information concerning these traffic cases. 5. Conclusion Before you make a final decision to represent yourself, we urge you to re-read section 1.1 at the beginning of this Handbook. Whatever you decide to do, good luck!