In a world in which the legal system seems to be difficult to access, in addition to being overly expensive, some people are turning to different options. Such options include a-la-carte legal services, or bundled services, in which common citizens can get legal advice from lawyers but then represent themselves, or “pro se” as it’s known in the world of law, in court.
How do you as a citizen present your case in court? Nadia Nedzel, a professor of law at the Southern University School of Law, Baton Rouge, Louisiana, explains how in a recent podcast produced by FreeCourt, a newer service that helps you resolve complaints with small businesses with the power of crowd-sourced justice.
Started by real estate investing expert Jason Hartman, FreeCourt is designed to help you as a consumer better understand your rights, options and recourse whenever you might have a legal dispute.
Through its podcasts, which are co-produced and hosted by Hartman, you can listen to experts explain legal terms and proceedings and explore new products and services so that you can be an empowered citizen in the legal system.
In the recent podcast featuring Nedzel, who’s the author of two books, including the globally hailed textbook “Legal Research and Writing for International Graduate Students,” she and Hartman explain not only how to go about presenting your case in court. They also delve into such matters as how to go about finding an a la carte lawyer, how mediation or arbitration can serve as alternatives to court, and how the concept of “IRAC analysis” is vital to preparing and presenting your case.
In addition to authoring her two books and a number of scholarly legal articles on the rule of law, Nedzel specializes in and teaches contract law, in addition to sales and lease law and international law, at Southern University.
How to Present Your Case in Court
In opening the podcast, Hartman reiterates the FreeCourt position that people find the legal system to be broken and that they’re looking for such options as a la carte services and FreeCourt to help them out.
He asks Nedzel: “If someone gets into a dispute, and they want to understand how to present their case, even if it’s in small claims court, for example, how should they think in a legal manner, in a way that’s going to appeal to a judge or a mediator or an arbitrator? I guess it comes down to legal reasoning, rather than ‘he or she did this or that to me, I’m angry,’ that’s not going to help, is it?”
“No, it’s not going to work well,” Nedzel replies. “I agree with you that things are changing rapidly and that this gives the consumer a lot more choices.”
“In terms of legal reasoning, what a judge is going to try to figure out is what area of law is this problem in? Did somebody do bad to someone—a tort? Did you run into the back of somebody’s car? That would be what we would call a tort. Or, did you break a promise that you made? And that would be contract, and there are different rules that apply to those.”
Once thinking about your problem and determining in which area of law it occurs, you can find many resources to research, even just with Google or some other popular search engine, “to get an idea of the shape of the animal you’re dealing with,” Nedzel says.
“Because what the judge is going to first do, after he decides what area of law it is, is then think of these generic rules: Did somebody make a promise? Is it the kind of promise that a court should enforce? And, if so, what remedy should be given—assuming that you’ve proved the other person breached or didn’t do what they promised to do?”
Show the judge the area of law under which you think your dispute falls one step at a time, and allow him or her to ask questions. During your research, anticipate what questions the judge might ask and research the law further to figure out which answers to those questions “are going to help your case the most.”
Nedzel says the fact that there are some “unbundled,” or a la carte, lawyers who can help you and talk you through this legal reasoning online “is an interesting development that’s just starting now.”
Mediation or Arbitration Could Be Alternatives to the Dispute
“There are other ways to resolve disputes that I strongly urge people to look into,” Nedzel tells Hartman in the FreeCourt podcast.
“One of them is if you can’t negotiate it yourself, then sometimes you can get a mediator, who’s very often a lawyer, who’s trained in helping people build a bridge to each other, resolve the problem themselves.”
What’s the advantage of that?
“Well, it’s your resolution then,” Nedzel says. “You own it. It’s not inflicted on you by a third person who may or may not understand your problem or the facts of it very well.
“Because, let’s face it, a judge can only figure out what’s going on to the best of their ability. They weren’t there. They’re just listening to what you said and what the opposing party said and trying to figure it out … figure out who’s telling the truth the more accurate way.”
“And, did somebody leave something out? If you were working with a third person (in mediation) to solve a problem, the two of you are more likely to be able to figure out what’s important to you and what can you give up in terms of reaching a compromise. So, mediation is a good resolution factor that consumers can use.”
Arbitration is another possibility, she says, but she notes that both parties must agree to such an “alternative dispute resolution.”
“I hate the ADR world,” interrupts Hartman, explaining he has been down that road in past court disputes.
“I think you’re right … mediation is a great thing,” he adds. “I think arbitration is a scam). You know, I’ve kind of come down on both sides of that. But mediation, for sure, I think everybody ought to engage in mediation. A lot of times you can solve problems that way.”
When Studying Your Case, Use What’s Known as ‘IRAC’ Analysis
When you’re first researching your dispute and trying to determine under which area of law it might fall, a basic tool to use “is something we call IRAC analysis,” Nedzel notes.
IRAC is an acronym for issue, rule, application (or analysis) and conclusion. “It’s really the way every lawyer, whether they’re a lawyer or a judge, thinks about the law.”
As for the “I” in the equation, or issue, “First they try to say, ‘What is the legal issue,’ ‘what is the exact legal question we’re talking about,’” Nedzel says of her colleagues.
“Then the next thing they ask about is… what rule applies? What legal rule applies to this situation?”
“The third part is, we call it application, or analysis. How does that law apply to this specific situation? And we go through every little part of that law. Like there may be several elements. What do different words mean?”
“And then they reach a conclusion.”
“IRAC analysis is the basis for every single reasoning problem there is,” Nedzel adds.
“That’s how lawyers think about it in the United States, and that’s why my book has been so successful, because we’ve exported that way of thinking abroad. It’s the strongest way and the most logical way to think about law in the world, and the most efficient.”
Asks Hartman: How do you use IRAC when you’re presenting your case in court, before the judge, actually arguing your case?
Before you go to court, Nedzel says, there are two things you want to do: Again, research the law as much as you can on your own, and then break that research down into parts to show what legal rule—and this would be the “R” in “IRAC”—applies to the case.
As for the research you do on your own, Nedzel notes that most law libraries around the country offer free access to their resources. Those resources would most likely include the bigger law books that lawyers use called “treatises,” or, shortened versions of those books, which are called “hornbooks.”
“Every law school that has a law library that takes federal money has to let real people into it,” Nedzel says. And, “They all have reference librarians who’ll be happy to help you and point you in the right direction.”
There also are free databases you could search online. However, Nedzel says, “To be honest with you, the online databases that are free aren’t as easy to search as the ones the lawyers spend a lot of money on. So, that’s why I was saying a reference librarian might help you.”
Once you’ve researched the law, it’s time to break the rule of law, or the “R” in “IRAC,” into parts.
Nedzel uses one of her specialties, contract law, as an example.
“A contract has what we call four elements,” she says. “It has the consent. Did the parties agree? It has to have, in most states in the country, consideration. What did you get in exchange for the promise you made? We have to have mutuality. Each party has to promise something to the other party.”
After those elements of consent and consideration are the elements of capacity and lawfulness. “Both parties have to have the legal capacity to contract, and it has to be lawful,” Nedzel explains.
“There are only a few kinds of contracts that have to be in writing, OK?” she adds.
“As long as you have these four elements—consent, capacity, consideration and lawfulness—you have a contract.”
“Once you look at that, then you can start thinking about your problem. Did you have all of that—did they agree to the contract? Is each party getting something? Is there anything unlawful about it, and is anybody in terms of incapacity? We presume you’re in capacity. Unless you’re under 18 years old and have been declared incompetent, you have capacity to contract.”
Nedzel asks FreeCourt podcast listeners to assume that all four elements are in place, and “what happened is that somebody didn’t do what they promised.”
“That’s a breach of contract,” she says.
“What you want to show the judge, in that case, is establish first that you had consent, that you had capacity, that you had reciprocal promises, and then show the judge exactly what you promised each other. ‘This is what the promises were, this is the five things he was supposed to do and the five things I was supposed to do, and I did my five things.’
“Now we get into analysis. ‘I did my five things, he didn’t do number four of the five things.’ There’s a very logical explanation. You sort of eliminate the things that were not a problem and show the judge the one thing that was a problem, factually.”
The opposing party, of course, will get a chance to respond and try to explain themselves away to the judge.
“You have to think in advance: What is their excuse going to be?” Nedzel says. “What are they going to try to say? Are they going to say, ‘Well, she didn’t do number four, so I don’t have to do any of them’? Well, then you are going to have to prove that you did all of what you were supposed to do first.”
How do you prove that you abided by the contract terms?
“Well, judges love paper trails,” Nedzel says, “so, any paper that you can bring with you that establishes it. What do I mean by paper? Well, receipts that you might have been given, but also an email conversation, proof of texting back and forth. That’s all stuff that’s in writing and that all can be produced in court.”
Maybe Our Courts Have Their Minuses, But Hey…
Nedzel notes that Hartman opened their FreeCourt podcast by talking about the limitations of the judicial system.
“My book is aimed at lawyers of all different countries, and I’ve been to a number of different other countries and seen how their judicial systems work,” she says. “And while our judicial system, as you justifiably said, is complicated and sometimes hard to access, I think that’s improving over time.”
“But nevertheless, please remember that it’s bad, but for all the others. So many other countries are not nearly where we are in terms of having a functioning judicial system. The wheels of justice can grind very, very slowly—painfully slowly—but often than not, if you have a jury trial, the jury gets it right.”
“There’s a reason to have faith in it.”