Representing Yourself in
Federal District Court:
A Handbook for Pro Se Litigants
PRESENTED BY
Access to Justice Task Force
This is an informational handbook. This handbook is a guide for self-represented litigants. It is
not legal advice and should not be considered as such. Do not cite to this handbook in your filings
with the Court. The Court will not consider this handbook as legal authority. Do not contact the
Clerk’s Office with questions about this handbook. The Court will not answer questions about the
handbook’s content or how it may pertain to an individual case. Those seeking guidance
concerning a federal action should consult with an attorney.
Special acknowledgement and appreciation is extended to the United States District Court for the
Northern District of New York and the United States District Court for the Northern District of
California, for permission to adopt portions of their pro se litigant handbooks. This handbook may
serve as a form for district-specific handbooks.
v2019-2
INTRODUCTION
This Handbook is designed to help people with filing civil lawsuits in federal court without
legal representation. Proceeding without a lawyer is called proceeding “pro se,” a Latin phrase
meaning “for oneself.” Representing yourself in a lawsuit can be complicated, time consuming,
and costly. Failing to follow court procedures can mean losing your case. For these reasons, you
are urged to work with a lawyer if possible.
Do not rely entirely on this Handbook. THIS HANDBOOK IS MEANT TO BE USED
FOR INFORMATIONAL PURPOSES ONLY AND DOES NOT CONSTITUTE LEGAL
ADVICE. This Handbook provides a summary of civil lawsuit procedures and may not cover
all procedures that may apply in your case. It also does not teach you about the laws that will
control your case. Make sure you read the applicable federal and local court rules and do your
own research at a law library or online to understand your case. This Handbook identifies the
location of resources you can access, free of charge, to do research.
The United States District Court Clerk’s Office staff can answer general questions, but they
cannot give you any legal advice. For example, they cannot help you decide what to do in your
lawsuit, tell you what the law means, or even advise you when documents are due.
Warning to Incarcerated or Detained Persons: Please note that some parts of this
handbook will not apply to actions filed by incarcerated or detained persons. Detained litigants are
often required to comply with different statutes and Court rules. These rules may include—but are
not limited to—the use of Court-approved forms where applicable and the exhaustion of
administrative remedies prior to filing suit.
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Tips For Pro Se Litigants
There is a lot to learn in representing yourself in federal court, but here are some key pointers.
1. Read everything you get from the Court and the other side right away, including the
papers you get from the Clerk’s Office when you file. It is very important that you know what is
going on in your case and what deadlines have been set.
2. Meet every deadline. If you do not know exactly how to do something, try to get help and
do your best. It is more important to file/submit required documents and responses on time, than to
do everything perfectly. You can lose your case if you miss deadlines. If you need more time to do
something, ask the Court in writing for more time as soon as you know that you will need more
time it and before the deadline has passed.
3. Use your own words and be as clear as possible. You do not need to try to sound like a
lawyer. In the documents you file with the Court, be specific about the facts that are important to
the lawsuit. When you cite a case that you believe supports your position, explain to the Court
why that case applies or is similar to your case.
4. Always keep all of your paperwork and stay organized. Keep paper or electronic copies
of everything you send to and/or file with the Court. Also, keep everything you receive from
the Court, the other side, or anyone else relating to your case. When you file a paper in the
Clerk’s Office, bring at least the original and two copies so that you can keep a stamped copy for
yourself. Know where your papers are located so that you can use them to work on your case.
5. Have someone else read your papers before you submit/file them. Be sure that person
understands what you wrote; if not, rewrite your papers to try to explain yourself more clearly. The
judge may not hear you explain yourself in person and may rely only on your papers when making
decisions about your case.
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6. Be sure the Court always has your correct address and phone number. If your contact
information changes, contact the Clerk’s Office in writing immediately. Always include your case
number on any paperwork that you submit to the Court.
7. Omit certain personal identifying information from documents submitted to the
Court for filing. All documents filed with the Court will be available to the public on the Internet.
Protect your privacy and that of other individuals you refer to in your documents by not including
in documents you send to the Court any of the following: social security and taxpayer identification
numbers, names of minor children, dates of birth, and financial account numbers. If your lawsuit
involves a minor, you must identify them by their initials only.
7. Check the Court’s website. Courts will sometimes have a specific webpage for pro se
litigants that includes useful forms and other helpful information specific to that Court.
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BEFORE FILING A LAWSUIT
There are six important questions you should consider before you file a case in federal
court. This list does not include every important thing to think about – there may be other
important considerations that are not listed here. However, these six questions are essential to
every lawsuit filed in federal court. You should also be aware that even if you can answer “Yes”
to each question, and you believe you should win your lawsuit, there is always a possibility that
you may not ultimately win.
SIX QUESTIONS TO ANSWER
1. Have I explored alternatives to suing?
2. Have I suffered the type of injury or harm that a Court can help me with?
3. Does the federal district court have jurisdiction to hear my claim?
4. Which District is the proper one to file my action?
5. Will my claim be timely if I file it now?
6. Have I exhausted all other available remedies?
1. Have I explored alternatives to suing?
Even if you do have the right to sue, you should carefully consider alternatives to suing.
Lawsuits can be costly, stressful, and time-consuming. Instead of filing a lawsuit, you can try other
alternatives or solutions. Some alternatives to bringing a lawsuit include:
Gathering Information. Sometimes things are not what they seem at first. Sometimes
things that appear to have been done on purpose were done unintentionally. Fully investigating
what happened may help you decide whether a lawsuit is advisable.
Working Things Out. Consider talking directly to the people who you think might be
responsible for causing the problem. Sometimes people are more likely to respond in a positive
way if they are approached respectfully and given a real opportunity to talk about the problem,
rather than if they first they hear about the problem through a lawsuit.
Going to Governmental or Private Agencies. Consider whether there are other processes
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you could use, or agencies you could ask for help, with your problem. Sometimes there is a
governmental or private agency that can address your problem or lend assistance to you. Examples
of such agencies include:
• The Equal Employment Opportunity Commission (or an equivalent state, county or city
agency) to address employment discrimination;
• The local police review board or office of citizens’ complaints to hear complaints about
police conduct;
• A consumer protection agency or the local district attorney’s office to investigate
consumer fraud;
• The Better Business Bureau or private professional associations (e.g., associations of
contractors, accountants, securities dealers, architects and engineers, etc.) to hear business-
related complaints.
Using a Small Claims Court. In some cases, you may have the option of filing a case in
small claims court, which is designed for people without formal training in the law. These courts
are part of any state court system. There is no equivalent to the small claims court in the federal
courts.
Alternative Dispute Resolution. Dispute resolution services—such as mediation— may
be faster and less expensive than taking a case to court. Mediation encourages parties to
communicate clearly and constructively to find common ground or to identify solutions that can
serve the parties’ real interests. Many counties have free or low-cost agencies that can assist you
in finding a provider of alternative dispute resolution services. Go to page 38 for more information
about Alternative Dispute Resolution.
2. Have I suffered the type of injury or harm that a Court can help me with?
You cannot sue someone just because you are angry at him or her, nor can you sue someone
simply because he or she has committed some illegal act. In order to bring a lawsuit that the Court
will not dismiss right away, the person you are suing must have caused you to be harmed or
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wronged in some real, concrete way.
The person bringing the lawsuit, called the “plaintiff,” must be asserting his or her own
personal legal interests. Typically, a person may not sue to assert the rights of a third party. In
other words, a plaintiff normally must assert that he or she has suffered the injury, or that a distinct
group of individuals of which he or she is a part, has suffered the injury. A Court generally will
not address a “generalized grievance,” which is an injury that is shared in “substantially equal
measure by all or a large class of citizens.” 1 Further, the plaintiff must have actually suffered the
harm already, or else the plaintiff must be about to suffer the harm “imminently,” meaning that the
plaintiff will actually suffer the harm in the immediate future. Lastly, remember that some cases
(such as False Claims Act claims) cannot be handled without an attorney.
3. Does the federal district court have jurisdiction to hear my claim?
The United States District Court is a federal trial court. Federal courts have “jurisdiction,”
meaning the legal authority, to hear only certain types of cases. As is the case in all federal trial
courts, a federal district court is generally authorized only to hear cases that fall into the following
four categories:
1. Those that deal with a question involving the United States Constitution;
2. Those that involve questions of federal law (as opposed to state law, unless there is
a state law claim related to a federal claim being made, in which case the court may
agree to consider it);
3. Those that involve the United States as a party, whether as a plaintiff or defendant;
4. Those that involve a dispute among residents of different states with an amount in
controversy exceeding $75,000. 2
1
Warth v. Seldin, 422 U.S. 490, 499 (1975); see U.S. v. Hays, 515 U.S. 737, 743 (1995).
2
It is important to note that in cases invoking diversity jurisdiction with multiple defendants
or multiple plaintiffs, no single defendant can be a resident of the same state as any single plaintiff.
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If your case does not fall under any of these categories, you should not file it in a federal district
court.
4. Which District is the proper one to file my action?
If you decide that your claim may be brought in a federal district court because there is
either a federal question, the United States is a party, or when the dispute is between residents of
different states and the amount in controversy is more than $75,000, you must then determine in
which federal court to file. To decide a case, the court you select must have some logical
relationship either to the litigants or to the subject matter of the dispute; this is called venue.
Generally, you may only file a lawsuit if the actions or inactions that you believe violated your
rights occurred within the boundaries of that District Court. If you are unsure, call the District
Court Clerk’s Office for guidance.
5. Will my claim be timely if I file it now?
Usually a claim must be filed within a certain period of time after an injury occurs or is
discovered. This time bar is called the “statute of limitations,” and the length of the statute of
limitations varies depending on the type of claim. Some federal and state statutes set forth a
specific limitations period that may differ from those listed above. Whether your claim is barred
by the statute of limitations is a legal question which may require you to do some legal research.
You should make sure your claim is not time-barred before you file a lawsuit.
6. Have I exhausted all other available remedies?
You should be aware that, in some instances, it is necessary for you to pursue certain remedies
before you can properly pursue a claim in federal court. Two common instances are discussed
below.
Administrative Grievance Procedures
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People frequently want to appeal the decision of a governmental agency that affects them.
For example, a person may want to appeal the decision of the Social Security Administration that
denied him or her social security benefits.
If you want to appeal the denial of a benefit that is provided through an agency of the
United States government, you must pursue all the administrative procedures established by the
agency for appealing its rulings before you file a lawsuit. Only after you have exhausted your
administrative remedies, and you still believe you are entitled to a benefit that you have not
received, may you initiate a lawsuit in a federal district court.
Employment Discrimination Claims
A person who believes he or she has been illegally discriminated against by an employer
may wish to bring a lawsuit against that employer under Title VII of the Civil Rights Act of 1964,
the Americans with Disabilities Act, or the Age Discrimination in Employment Act. However,
before a person can bring such a lawsuit, he or she must first file a complaint with either the Equal
Employment Opportunity Commission (“EEOC”) or the state Division of Human Rights.
In conclusion, it is important that you consider all of these questions before you file a case.
After all of these factors have been considered, you must still follow the procedures set out by the
particular district court you decide to file your case. Many of the specific procedural rules for your
district court are set forth in the Local Rules, which are available online or in the Clerk’s Office.
FINDING AN ATTORNEY
Bringing a lawsuit can be time consuming and complicated. While it is possible to navigate
the federal judicial system on your own, having an experienced attorney to help you can improve
your chances of doing things properly and getting a result with which you are happy. While some
lawyers are expensive to hire, there are several options for hiring a lawyer that will cost you little
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or no money. In general, the options are: (1) hiring a lawyer who will work on a “contingency”
basis; (2) finding a lawyer to take on your case “pro bono” (meaning at no cost to you); and (3)
asking the court to appoint counsel for you. These options are discussed in more detail below.
It is important to note that in a criminal case, a defendant is entitled to legal counsel by the
United States Constitution, and one is provided if the criminal defendant is unable to hire a lawyer.
However, a party to a civil case is not entitled to an attorney paid for the by the government, even
if he or she cannot afford one.
Counsel Performing Work On A Contingency Basis or Pro Bono
There are several options to find a lawyer to represent you even if you cannot afford to pay
for legal services. For example, some attorneys may be willing to accept a reduced fee or lenient
fee payment schedule to take on your case. Some attorneys also offer “limited representation,”
meaning that they may help you evaluate your case, or draft a pleading, without requiring that you
hire them for the entire case. Other attorneys may be willing to accept your case on a contingent
fee basis, which means the attorney would receive a fee based upon a percentage of your recovery
if you win your case and would receive nothing if you do not win. If you would like assistance in
finding an attorney who may consider taking your case on a contingency or “limited
representation” basis, there are lawyer-referral services that may be able to help you. For a list of
the Lawyer Referral Services located within the Federal District you wish to file your claim, check
your district court’s website.
In addition to lawyers who will work for reduced fees or on a contingency basis, many
lawyers offer “pro bono” legal assistance. This means that a lawyer will represent you, but will
not charge you any money for their time or work, and (generally) will not take a portion of anything
you recover. If you prefer to have an attorney represent you, but you are unable to pay to retain
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one, you should consider contacting a local legal services office or state bar association. You may
also call law firms and ask whether they have a pro bono practice and if you would qualify for
such assistance.
Appointment of Counsel by the Court
If your income, financial resources, or circumstances make it very hard for you to hire or
otherwise find a lawyer, the Court may find that you are “indigent,” which means that you do not
have the resources to pay for an attorney. Typically, the Court is asked to make this finding when
a pro se litigant files a document with the Court known as an application to proceed “in forma
pauperis.” Information regarding the in forma pauperis application and the effects of being
permitted to proceed in forma pauperis are discussed later in this Handbook.
If you are granted in forma pauperis status, you may request, by submitting a written
motion, that the Court appoint counsel for you if you are otherwise unable to obtain a lawyer.
Before you submit such a motion, you must try to obtain counsel on your own.
The Court considers requests for counsel in light of a number of factors set forth by the district
court’s Local Rules. Usually, the Court must determine whether the party’s legal position in the
lawsuit is of substance. If so, the Court will then consider several other factors, including how
complex the legal issues are in the particular case and the indigent party’s ability to investigate
and present his or her case.
If you are granted permission to proceed in forma pauperis, and you decide to make a
motion for the appointment of counsel, you must include with your motion details of your efforts
to obtain counsel by means other than court appointment. In addition, you generally must include
communications from the attorneys that you contacted regarding your case and what they indicated
were their costs and/or other reasons for why you did not retain them. Failure to include
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documentation that substantiates your attempts to obtain counsel on your own could result in the
denial of your motion for appointment of counsel.
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BASIC PROCEDURES FOR FILING A LAWSUIT
Preparing the Complaint
Before you bring a lawsuit, you should become familiar with the rules that explain the
Court’s procedures for preparing and filing a complaint. These rules are the Federal Rules of Civil
Procedure (FRCP), and they apply in every federal court in the country. A party can be sanctioned
(penalties imposed) for violating the FRCP.3 You can review the FRCP in any law library or on
the website for the District Court where you will be filing your complaint. In addition, you must
follow your particular District Court’s “Local Rules,” also found on the website for the District
Court where you are filing your complaint.
The first step in filing a lawsuit is to prepare a complaint. Most district courts have forms
for preparing a complaint, including a general form for pro se cases, and specific forms for prisoner
pro se cases, employment discrimination cases, and Social Security disability appeals. These
forms are usually available on each District Court’s website under the “Forms” tab on the
homepage. If you choose to prepare your own complaint, the following information should be
included.
1. Caption
A complaint caption or heading specifies the Court in which the suit is brought and the
names of the parties. The top of the first page should contain the case caption, which includes the
name of the Court, the names and addresses of all parties, and a blank space for the case number.
The case number will be assigned once the complaint is filed with the Court. The case caption
should appear as follows:
3
For more information about sanctions, see Federal Rules of Civil Procedure 11 and 37.
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IN THE UNITED STATES DISTRICT COURT
FOR THE ____________ DISTRICT OF [STATE]
[Plaintiff’s Name :
123 Street Name
City, State Zip Code], : Case No. ________________
Plaintiff, :
vs. : COMPLAINT
[Defendant #1’s Name :
456 Street Name
City, State Zip Code] :
[Defendant #2’s Name (If applicable) :
789 Street Name
City, State Zip Code], :
Defendants. :
You should list on page 1 of your complaint the name and address of the person filing the
complaint (the plaintiff), and the names and addresses of all individuals or entities against whom
you are seeking relief (the defendants). 4
In certain kinds of cases, the parties are entitled to a jury trial. The best way to ensure your
right to a jury trial is to make the demand when you file your complaint by either writing the words
“Jury Trial Demanded” on the first page of your complaint or, if you are using a form complaint
available from the Clerk’s Office, by checking the option for a jury trial on the first page of the
form complaint.
4
The name and address of each plaintiff and defendant may also be stated in numbered
paragraphs in the complaint.
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2. Body of the Complaint
The body of the complaint should contain numbered paragraphs which provide the
following information.
a. Jurisdiction. The complaint should state why the Court has jurisdiction over the case. As
discussed previously, a District Court has limited authority to hear cases. It can only hear
cases over which the district court has jurisdiction. Pro se litigants often file the following
types of federal cases: a denial of civil rights under 42 U.S.C. § 1983; employment
discrimination under 42 U.S.C. § 2000e, et seq.; and inmates challenging the conditions of
their confinement. The first numbered paragraphs should also state why the court you are
filing in has proper “venue” for this claim.
b. Numbered paragraphs. The complaint must contain numbered paragraphs, with each
paragraph containing a statement of those facts that are alleged to have caused the damage
claimed. These allegations, or claims, should be concise and clearly written. There should
be a separate numbered paragraph for each factual allegation made. Each paragraph should
specify to the greatest extent possible: (i) the alleged act of misconduct; (ii) the date on
which the misconduct occurred; (iii) the names of each and every individual who
participated in that misconduct; (iv) the location where the alleged misconduct occurred;
and (v) the connection between the misconduct and your causes of action. The statement
of facts should include a description of what the defendant(s) did or failed to do and how
those acts or omissions caused injury or damage, as well as a description of any injury you
sustained and what medical treatment, if any, was required. It is important to be as specific
as possible in stating the facts. Names, dates, and events should be described accurately
and as succinctly as possible. Failure to allege facts demonstrating that each defendant was
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personally involved in and/or responsible for the alleged incident or harm may result in
dismissal of that defendant or the case. In short, these numbered paragraphs must state the
facts supporting the claim; what happened, where it happened, when it happened, how it
happened, and who was involved.
c. Legal basis. The complaint must also state the legal basis for the claim. This would be a
description of how you believe the defendant(s) violated your rights, and a statement of
which of your legal rights you believe the defendant(s) violated. If you are filing your
lawsuit on the basis that the defendant violated a law, you must identify that law in your
complaint. For example, if you believe an employer discriminated against you, you must
cite to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq..
d. Relief sought. The complaint must state or describe the relief which is being sought. You
must state what it is that you wish the Court to do. This could be requesting that the Court
award money damages or issue a court order prohibiting particular conduct, directing that
certain action be taken, and/or directing something the plaintiff wants the court to do to
correct the situation. This information is contained in a closing or final paragraph, which
is not numbered (note: this is the only paragraph in the complaint that is not numbered),
outlining the relief you are asking to Court to provide.
e. Signature. The individual(s) filing the complaint must sign and date the complaint, and
underneath the signature(s), type or print their full names, addresses, and phone numbers. 5
If there is more than one plaintiff, the complaint must contain an original signature for each
5
Your signature, address, and phone number must always appear on all documents filed
with the Court.
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plaintiff. By signing or filing the complaint you are certifying to the Court that the
statements you have made in the complaint are true, and that you are not filing the
complaint for an improper purpose such as to harass the defendant(s).
Privacy Protection
Certain sensitive information about individuals involved in the claim cannot be included
in documents filed with the Court. If personal information is necessary for the complaint, personal
identifiers must be redacted (blackened out) as follows:
• minor children must not be identified by their full names, but by their initials (e.g., A.B.,
C.D.);
financial account numbers must be redacted except for the last four digits (e.g., xxxx-xxxx-
1234);
• Social Security and taxpayer-identification numbers must be redacted except for the last
four digits (e.g., xxx-xx-1234); and
• dates of birth must include the year only (e.g., X/X/1980).
Filing the Complaint
Once you have prepared the complaint, you must file the complaint in the District Court
Clerk’s Office. The following procedures regarding copies of the complaint, filing fees, the civil
cover sheet and the summons forms must be followed.
1. Copies
You must file the original complaint with the Court and provide the Court with a copy for
each defendant you name. If the defendant is the United States, an agency of the United States, or
an officer or employee of the United States who is being sued for acts or omissions related to
his/her employment, you must provide the Court three (3) copies of the complaint. You should
also keep a copy of the complaint for your own records.
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2. Filing Fees 6
Generally, you must pay a filing fee when you file your complaint, and this fee must either
be paid in full at the time you present your complaint to the Court for filing or, if you are unable
to pay the fee, you must submit an application to proceed in forma pauperis, along with your
complaint (discussed below). The current filing fee for a complaint is $400.00, and payment is
due when you file the complaint. 7
3. Civil Cover Sheet
In addition to the complaint you must also complete a Civil Cover Sheet. This form is used
to help the Clerk’s Office open your case and gather statistical information. The form is also
available on the District Court’s website or in the Clerk’s Office.
When you complete the form, you will need to include the county of residence of the first
listed Plaintiff and Defendant. You will also need to identify the basis of jurisdiction. Federal
question jurisdiction (the case involves a violation of federal law or the United States Constitution)
and diversity jurisdiction (the plaintiff and defendant are citizens of different states and the case
involves an amount of controversy greater than $75,000) are the two most common.
Complete the form as best as you can. If you do not know how to provide some of the
information required, then leave the space for that information blank. Note that the Civil Cover
Sheet contains instructions for completing the form on the second page. The District Court’s
website will also provide the “Nature of Suit” codes to assist you in completing Section IV.
6
These procedures for filing fees do not apply to incarcerated individuals. If you are
incarcerated, you will need to check the District Court’s website or with the Clerk’s office for
instructions on how to pay the filing fee.
7
You should check the District Court’s website for further information concerning whether
you can pay by cash, check, cashier’s check, money order, or credit card.
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4. Summons
All plaintiffs must complete and submit a summons form for each defendant at the same
time the complaint is filed. You need to prepare a summons for each defendant named in your
lawsuit. The summons form is available on the District Court’s website or from the Clerk’s Office.
In completing this form, you must: (1) fill out the case caption; (2) provide the name and address
where the defendant is to be served with the complaint; and 3) provide your name and address.
Do NOT complete the Proof of Service portion of the summons form until service of process
has been completed.
5. Filing
While you may be able to file your lawsuit in person with the Clerk’s office, most filing in
federal court is done using an electronic system. The judge may order that you use this electronic
system to understand what is happening with your case and to file documents. CM/ECF (Case
Management/Electronic Case Files) is the name of this electronic system. Members of the public
can gain access to this system using a system called PACER (Public Access to Court Electronic
Records). You can contact your District Court Clerk’s office to obtain information about how to
use PACER to file documents, access documents filed by others (including orders of the judge),
print, and download documents.
Service of Process
“Service of process,” is the procedure that officially notifies a defendant in person that a
lawsuit has been filed against him or her. When “served” the defendant receives a copy of the
complaint so that he/she knows what the lawsuit is about. Further, the summons (discussed above)
notifies the defendant when they must respond to the complaint. Under Federal Rule of Civil
Procedure 4, you must either obtain a waiver of service from each defendant or serve each
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defendant through formal service or personal service within 90 days after the complaint has been
filed in district court. Mailed summons are typically not allowed.
1. Waiver of Service 8
“Waiving service” means agreeing to give up the right to service in person and instead
accepting service by mail. If a defendant waives service, the plaintiff (you) will not have to go to
the trouble or expense of serving that defendant. If the defendant agrees to waive service, you need
to have the defendant sign and send back to you, a form called a “waiver of service,” which you
then file with the Court. To complete the “waiver of service” process, you must complete two
forms and set certain documents to the defendant(s). The two forms you need to complete are:
a. “Notice of a Lawsuit and Request to Waive Services of Summons”
b. “Waiver of Service of Summons.”
Both forms are available at the Clerk’s Office or on the District Court’s website.
The documents you need to send to each named defendant are:
a. A copy of the complaint you filed;
b. One completed Notice of Lawsuit Form;
c. Two completed Waiver Forms; and
d. One self-addressed stamped envelope (for the defendant’s return of the Waiver
Forms).
If a defendant sends back the signed waiver of service, you do not need to do anything else
to serve the defendant. You simply need to file the defendant’s signed waiver with the Court and
save a copy for your files. If the defendant does not return a signed waiver of service by the due
8
The waiver of service rule does not apply if the United States is named as a defendant.
20
date, you need to arrange to serve that defendant in one of the other ways approved by Federal
Rule of Civil Procedure 4 (see below).
2. Formal service (no waiver)
If the defendant does not return the waiver of service form within the specified time, you
must notify the Clerk of the court in writing, prepare a summons for each Defendant, and ask the
Clerk’s Office to issue the summonses you prepared. 9 You may ask the Court to order the
defendant to pay the costs you incurred serving that defendant. You must serve the defendant
within 90 days from the filing date of the complaint (or, if you applied for IFP, from the date the
Court ruled on your IFP application). If you do not properly complete service of process within
the 90-day deadline, your case may be dismissed. Be sure to carefully check the FRCP to make
sure you properly serve the defendant(s) you named in the complaint.
3. Personal service
Service of process may be accomplished by “personal service.” This means that the
summons and complaint are hand-delivered to the defendant. You, as the plaintiff, CANNOT
personally serve the defendant. However, another person can personally serve the defendant if
that person 1) is at least 18 years of age and 2) is not a plaintiff or defendant in the case.
Alternatively, you can hire a private process server to serve the defendant for a fee. In either case,
Federal Rule of Civil Procedure 4 requires you to file proof with the Court that the complaint has
been served on the defendant. The person serving the summons must leave a copy of both the
summons form and the complaint with the defendant. On the back of the summons is a section
9
The only exception to this rule is if you are incarcerated AND are suing a government
official. In that case, you should wait for the judge to complete a preliminary review, after which
you will receive an order from the Court and should follow the instructions in that order regarding
service.
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referred to as the return of service or “proof of service,” which must be completed by the person
who served the summons. The person who serves the summons must record his or her name, the
name of the person whom he or she served, and the date and time of the service. Service of process
is not complete until the original summons form, with the completed return of service, has been
filed with the court.
If the above service methods are not available, consult Federal Rule of Civil
Procedure 4 and any Local Rule applicable for your District Court.
If you name as a defendant the United States, a United States agency, or an officer or
employee of the United States (who is being sued for acts or omissions related to his/her
employment), you must serve the complaint and summons on three individuals:
1. the named defendant;
2. the Attorney General of the United States in Washington, D.C.; and
3. the United States Attorney for the District Court in which you are filing your
complaint.
The waiver of service rule DOES NOT APPLY to the United States. Formal service upon
the federal government or any of its agencies can be accomplished by certified mail (return receipt
required) with the properly executed summons.
Proceeding In Forma Pauperis (“IFP”)
If you cannot afford to pay the filing fee, you may request to waive the fee by filing an
application to proceed without paying fees or costs, or “in forma pauperis.” To apply for in forma
pauperis status, you must present the following documents to the Clerk’s Office:
1. Application to Proceed In Forma Pauperis;
2. Civil Cover Sheet;
3. Original complaint with copies for service on each of the defendants;
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4. All service forms, which includes the summons and USM 285 or Waiver of Service
of Summons (see below).
You can obtain an in forma pauperis application on the District Court’s website or from
the Clerk’s Office. The in forma pauperis application asks you to provide information about your
(and your spouse’s) finances (e.g., your income, assets and liabilities). In filling out the in forma
pauperis application, you must answer all questions truthfully and completely. You must also sign
the statement under penalty of perjury. In addition to waiving the obligation to pay the filing fee,
if you are granted permission to proceed in forma pauperis, you are also entitled: (1) to submit a
motion for appointment of counsel; and (2) to have your complaint served on the defendant by the
U.S. Marshals Service.
If your in forma pauperis application is approved, the Court will arrange for the Clerk’s
Office or the U.S. Marshal Service to complete service of process on your behalf. In in forma
pauperis cases, the summons will not be issued until after the judge reviews the complaint. If the
Court determines, based upon the facts stated in your complaint, that you will not be successful in
your case (e.g., you fail to state a claim upon which relief may be granted, your lawsuit is frivolous
or malicious, or the named defendant is immune from liability), the Court can dismiss your case
at that stage. See 28 U.S.C. § 1915(e)(2). Likewise, the Court can dismiss your complaint at any
time if you were granted IFP status and the Court later determines that your allegation of poverty
was untrue.
However, if after conducting a preliminary review of the complaint, the judge finds that
the complaint states a claim upon which relief may be granted, the judge will then order that a
summons form be issued against the defendant. The judge will also appoint the Clerk of Court or
the United States Marshals Office to make service. In all instances, however, you are responsible
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for completing and providing the Clerk’s Office with the appropriate service forms This consists
of the following service documents for each named Defendant:
1. A copy of the complaint you filed for each Defendant;
2. One summons form for each Defendant;
3. One U.S. Marshal Form for each Defendant. 10
Once the forms are properly completed and filed, the Clerk’s Office will officially issue
the summons (e.g., an authorized Court employee signs the form and embosses it with the Court’s
official seal). The Clerk’s Office will then deliver the summons and other materials to the U.S.
Marshal Service, which will serve the defendant on your behalf. You will be notified when service
has been accomplished.
Defendant’s Response to the Complaint
1. Answer
If service is made on a defendant by summons, the defendant has twenty-one (21) days
from the date of service of the complaint to file an answer with the court. However, if the defendant
is the United States or a federal official, the defendant has sixty (60) days from the date of service
to file an answer. In an answer, a defendant admits or denies each of the plaintiff’s allegations.
The answer can also include affirmative defenses. It is important that the defendant admit,
deny, or clarify each allegation made by paragraph number. Once the defendant files an
answer, the case moves to the next phase.
2. Default
If a defendant has been properly served with a complaint, but fails to file any response in
10
These forms can be found on the District Court’s website or obtained from the Clerk’s
Office.
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the required amount of time, then that defendant is considered in “default.” Once the defendant is
in default, the plaintiff can ask the Court for a default judgment, which means that the plaintiff
wins the case and may take steps to collect on the judgment against that defendant.
If a defendant is in default, the plaintiff should file a “request for Clerk’s entry of default”
AND proof that the defendant has been served with the complaint. If the Clerk of Court approves
the request, he or she will then enter default against the defendant. Once the Clerk has entered
default against the defendant, the plaintiff may then file a “Motion for Default Judgment”
supported by: (1) a declaration showing that the defendant was served with the complaint but did
not file a written response within the required time for responding; and (2) a declaration proving
the amount of damages claimed in the complaint against the defendant. There are special rules for
default judgments against minors and the U.S. government and its officers and agents, which are
explained in Federal Rule of Civil Procedure 55.
A defendant against whom default or a default judgment has been entered may make a
motion to set aside the default or default judgment. The Court will set aside an entry of default or
a default judgment for good cause or for one of the reasons listed in Rule 60(b), which includes
mistake, fraud, newly-discovered evidence, the judgment is void, or “any other reason that justifies
relief.”
3. Motion To Dismiss
In lieu of filing an answer to the complaint, a defendant may file a motion to dismiss, which asks
the Court to dismiss the case. The motion argues that there are problems with the way the
complaint was written, filed, or served. A motion to dismiss may be filed for any of the reasons
set forth in Federal Rule of Civil Procedure 12(b): lack of subject-matter jurisdiction; lack of
personal jurisdiction; improper venue; insufficient process; insufficient service of process; failure
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to state a claim upon which relief can be granted; and failure to join a party under Rule 19.
The motion to dismiss must state the specific facts and legal arguments supporting the
stated reasons for dismissal. A defendant may move to dismiss all the claims in the complaint or
just certain claims.
A court may deny or grant the motion to dismiss as to each claim that is the subject of the
motion. If the Court denies the motion to dismiss, the defendant must file an answer within
fourteen (14) days, and the case moves to the next phase. See Federal Rule of Civil Procedure
12(a)(4). If the Court grants the motion to dismiss without prejudice, the plaintiff may submit an
amended complaint that corrects the deficiencies identified by the Court within a time period
specified by the Court. Finally, if the Court grants the motion to dismiss with prejudice, the case
is over as to those claims.
a. Lack of Subject Matter Jurisdiction
The defendant argues that the Court does not have the legal authority to hear the kind of lawsuit
the plaintiff filed. In other words, the defendant contests that the case neither involves a violation
of a federal law or the U.S. Constitution, nor is between citizens of different states involving an
amount in controversy greater than $75,000.
b. Lack of Personal Jurisdiction
The defendant argues that the Court has no legal authority to hear the case because the
defendant has so little connection with the district in which the case was filed. The defendant
must show that it is not a resident of the state in which the case was brought and that it did not
even have “minimum contacts” with the state.
c. Improper Venue
The defendant argues that the lawsuit was filed in the wrong geographical location.
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d. Insufficiency of Service of Process
The defendant argues that the plaintiff did not prepare the summons correctly or did not
correctly serve the defendant.
e. Failure to State a Claim Upon which Relief can be Granted
The defendant argues that even if everything in the complaint is true, the defendant did not
violate the law. Each type of claim requires that the plaintiff allege and show facts to support
certain elements. For example, a negligence claim requires that the plaintiff allege and show facts
to support a duty, a breach of the duty, proximate cause, and damages. Here, the defendant is
asserting that the plaintiff did not plead sufficient facts to support all requisite elements of the
plaintiff’s claim.
f. Failure to Join an Indispensable Party Under Rule 19
The defendant argues that the plaintiff failed to sue someone who must be included in the
lawsuit before the Court can decide the issues raised in the complaint. A party must be included
in a lawsuit when: (1) a court cannot accord complete relief among the parties without the
additional party’s presence, or (2) the party’s absence impedes its ability to protect its interest or
leaves the party vulnerable to incurring inconsistent obligations because of the interest. See Federal
Rule of Civil Procedure 19.
Response to a Motion to Dismiss
If a defendant files a motion to dismiss, the plaintiff will need to file an opposition to that
motion. The response must specifically assert facts and law that explain why the motion to dismiss
should be denied. Any opposition to the motion to dismiss is typically due fourteen (14) days after
the defendant files the motion. Check the Local Rules for deadlines specific to your District.
To calculate the deadline, exclude the day that the defendant files the response, and
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beginning counting the next day. Count every day, including weekends and holidays. The
response is due on the fourteenth (or seventeenth, if mailed) day, unless that day is a Saturday,
Sunday, or legal holiday, in which case the response is due on the next day that is not a Saturday,
Sunday, or legal holiday. See Federal Rule of Civil Procedure 6.
If you need more time to file your opposition, you need to file a motion for extension of
time with the Court. If you can, contact the opposing side and get consent. If you get consent for
an extension, make sure that consent is reflected in your motion.
If you cannot get the consent from the other time, file the motion for extension of time
before the response is due and show there is “good cause” for the extension. Federal Rule of Civil
Procedure 6(b). If a motion for extension of time is filed after the due date, you must show
“excusable neglect” for missing the deadline. Federal Rule of Civil Procedure 6(b).
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CASE MANAGEMENT PROCEDURES
What is a Case Management (Rule 16) Conference (“CMC”)?
A case management conference (“CMC”)—sometimes referred to as a Rule 16
Conference—is held shortly after the action commences. The purpose of the conference is for the
judge and parties to set the trial date, as well as other key deadlines for initial disclosures,
discovery, and pretrial motions.
Does Every Case Have a Case Management Conference?
No, some categories of actions are exempt from CMCs. Refer to the Local Rules for
your District.
How do I prepare for it (Rule 26)?
At least 21 days before the CMC, all parties and their lawyers MUST “meet and confer,”
either on the phone or in person, to try to agree on a number of issues. The purpose of the meet-
and-confer process is to save time by requiring parties to agree on as much as possible and to
understand each other’s positions. The parties should be prepared to:
1. Discuss the basis of the claims and defenses;
2. Discuss resolution through settlement;
3. Arrange for the initial disclosure of information by both sides as required by Rule
26(a)(1) including:
a. an exchange of names and contact information of individuals with
discoverable information; and
b. a list of certain documents described in FRCP 26(a).
4. Agree on a discovery plan;
5. Select an alternative dispute resolution (“ADR”) process: mediation, early neutral
evaluation or settlement conference (discussed later in this Handbook);
6. Prepare and file a joint written report outlining the discovery plan.
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Preparing the Discovery Plan (Rule 26(f)(2))
The proposed discovery plan is a written proposal on how the parties expect to conduct
discovery, i.e. a schedule of when and how the parties will exchange documents and conduct
depositions in order to learn the facts of the case. The parties must make a good faith effort to
agree on a proposed discovery plan for the judge to review and determine how discovery should
proceed. The plan should include each parties’ views and proposals about:
1. Changes that should be made in the timing, form, or content of disclosures under
Rule 26(a), including a statement of when initial disclosures were made or will be
made;
2. The subjects, timing, and issues for discovery;
3. Limitations on discovery imposed by Federal or Local Rules;
4. Other orders that the Court should consider under Rule 26(c) or under Rule 16(b)
or (c).
What is the Case Management Order?
During or after the CMC, the judge will issue a Case Management Order, which sets the
schedule for the rest of the case. The Case Management Order will govern the case unless and until
it is changed later by the judge.
A Case Management Order “shall not be modified except upon a showing of good cause
and by leave of the district judge.” Federal Rule of Civil Procedure 16(b). If you want to change
the deadlines set forth in the Case Management Order, you will need to file a motion requesting
that the deadlines be changed and show good cause for the request.
What happens at a Court hearing?
A hearing is a formal court proceeding in which the parties present their arguments to the
judge and answer the Judge’s questions about the motion or other matter being heard.
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Sometimes witnesses can be presented at these hearings. You should prepare for a hearing by
reviewing all papers that have been filed for the hearing and expect to answer questions about
issues that are being addressed at the hearing. Organize your papers so that you can find things
easily when you need to answer the Judge’s questions. Be sure to have a pen and paper with you
so that you can take notes.
How should I dress and behave when I come to Court?
1. Dress nicely and conservatively.
2. Be on time.
3. You should sit in the benches in the back of the courtroom until your case is announced.
The courtroom deputy may ask “counsel” to come forward and check in. You should
check in with the courtroom deputy at that time. If your hearing is the only one
scheduled, you may sit at the plaintiffs’ or defendants’ table in the center of the
courtroom. The courtroom deputy will tell you where to sit.
4. When the Judge enters the courtroom, you must stand and remain standing until the
Judge sits down.
5. When you speak to the Judge, call him or her “Your Honor.”
6. A judge might ask you questions about your argument in a motion. If the Judge asks a
question, always stop your argument and answer the Judge’s question completely. When
you are finished answering the question, you can go back and finish the other points you
wanted to make. Always answer the Judge’s questions completely and never interrupt
the judge when he or she is speaking.
7. If the Judge asks you a question when you are seated at the table or away from the
lectern, stand and walk up to the lectern before you answer the question.
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DISCOVERY
“Discovery” is a term that refers to the information that the parties will gather to support
their case. Federal Rules of Civil Procedure 26 through 37 govern discovery. Parties often need
to gather documents such as medical records, employment records, or business records.
Information can be obtained in the form of written questions, written document requests, or oral
questions. Discovery can begin only after the parties have met and conferred. Rule 26(d). Earlier
discovery can take place if the parties agree or if the Court issues an order allowing earlier
discovery.
Each party in an action will seek some discovery. This means that if you file an action,
you will need to obtain information from the party you are suing, as well as provide information
to that party. For example, if you file a personal injury action, your medical condition is at issue
and you will need to provide some of your own medical records to the opposing party.
Methods of Discovery Available
Interrogatories, requests for production, depositions, requests for admissions, and a mental
or physical examination are the most common methods for obtaining discovery. You will need to
read the federal rules carefully regarding each type of discovery request to make sure that you
comply with their specific requirements. This Handbook will give you a quick overview of the
methods of discovery and how they may be useful to your case.
1. Interrogatories (Rule 33)
Interrogatories are written questions sent by one party to any other party to the lawsuit and
must be answered in writing and under oath. Rule 33 of the Federal Rules of Civil Procedure
covers interrogatories in detail. If you are serving interrogatories, you may not serve more than
25 interrogatories without the Court’s permission.
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If you are answering interrogatories, you must answer any interrogatory with all non-
privileged information available to you without doing research. This means that if the answer is
contained in your business records or personal files, you must look for the answer. You may
object to an interrogatory seeking privileged information or that is overbroad, vague, or unduly
burdensome. You must explain fully the reason for your objection. If you later learn that your
answer is incomplete or incorrect, you must let the other side know and promptly supplement
your original answer.
The interrogatories must be answered within 30 days and must be signed in accordance
with Rule 26(g)(1). If you need more time to answer, you can request more time from the opposing
party. If the opposing party does not agree, you can request more time from the Court by filing a
motion.
2. Requests for Production (Rule 34)
In a request for production of documents, you can ask the opposing party for documents,
including electronically stored information (like e-mails) which you need to make or defend your
case. You may seek documents that you reasonably believe the other side has and contains
information relevant to the lawsuit.
If the person who has the documents you want is a party to the lawsuit, you must follow
Rules 34(a) and (b). Under Rule 34(a), any party can serve another party: (1) a request for
production of documents; (2) a request for production of tangible things; or (3) a request for
inspection of property. Each request for document production should be numbered separately and
signed in accordance with Rule 26(g)(1). There is no limit to the number of requests, as long as
they are not unreasonable or unduly burdensome.
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If you have been served with a request for production of documents, you must give a
response within 30 days (unless you obtain an extension from the opposing party or the Court).
If you object to a request, you must state the reason for the objection.
Rules 34(c) and 45 cover obtaining documents from persons not party to the lawsuit.
Under Rule 34(c), you can ask the Court to compel a person who is not a party to the lawsuit to
produce documents and items or submit to an inspection.
3. Depositions (Rule 30)
Depositions are question and answer sessions that takes place outside the hearing of the
Court, but are recorded by a court reporter. The person being deposed is under oath (the
“deponent”), and that person may be a party, non-party eye witness, or expert witness. The
deponent answers all questions under oath, meaning that he or she swears that his or her answers
are true.
The party seeking to take a deposition should confer with opposing counsel and the
deponent to choose a convenient time and place for the deposition. The party asking for the
deposition must then prepare a notice of deposition and serve the notice on all parties. 11 You may
ask questions of the deponent about any non-privileged matter that is relevant to the claims or
defenses of any party. The party taking the deposition must pay the cost of the court reporter. After
the deposition, the parties must obtain a copy of the transcript from the court reporter themselves.
4. Request for Admissions (Rule 36)
In a “Request for Admissions,” one party can ask the other party to admit the truthfulness
of facts related to the lawsuit. The Court will consider anything admitted in response to a request
11
Specific instructions for a notice of deposition is contained in Federal Rule of Civil
Procedure 30(b).
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for admission as proven. Requests for admission may be served by any of the methods listed in
Rule 5(b) of the Federal Rules of Civil Procedure, including service by mail.
If you are responding to a request for admissions, you must admit or deny the request or
explain in detail why you cannot truthfully admit or deny it. If you do not know the answer, then
you must state that you do not have enough information to admit or deny the request, but you
must first make a reasonable search for the information. Remember, any matter that is admitted
is treated as a proven fact within the context of this particular lawsuit.
5. Mental or Physical Examinations (Rule 35)
When the mental or physical condition of a party, or a person under the custody or legal
control of a party, is at issue in a lawsuit, Rule 35 of the Federal Rules of Civil Procedure allows
the Court to order that person to submit to a physical or mental examination. The examination
must be done by a suitably licensed or certified examiner, and the party who requested the
examination must pay the examiner. The examiner is not responsible for treating the person and
any communications with the examiner are NOT confidential. Unlike other discovery procedures,
physical or mental examinations can be obtained only by filing a motion with the Court or by
agreement of the parties.
Discovery Disputes
Sometimes, the parties will disagree about the disclosures, discovery, or objections filed.
The Federal Rules require the parties to meet and confer to try to resolve the dispute before filing
a motion to compel with the Court. Under Rule 37(a)(2), a motion to compel a party to make
disclosures or to respond to discovery must be filed in the Court where the lawsuit is pending. A
motion to compel MUST include:
1. A certification that have tried in good faith to resolve the problem without help from
the Court; AND
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2. An explanation of the problem and what you want the Court to do; AND
3. If the problem involves discovery, the complete text of each disputed discovery request
immediately followed by the complete text of the objections or disputed responses to
that request; AND
4. An explanation of the facts AND law that make it appropriate for the Court to grant
your motion.
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ALTERNATIVE DISPUTE RESOLUTION
What is Alternative Dispute Resolution?
Alternative Dispute Resolution (ADR) can save time and money by helping parties work
out their differences without formal litigation. ADR can lead to resolutions that are better tailored
to the parties’ interests. Methods include mediation, arbitration, and settlement, among others. In
many courts, the parties are required to participate in some form of ADR before trial and such
requirements will generally be included in the Case Management Order.
What Are the Major ADR Processes?
1. Settlement Conference
In some jurisdictions, a settlement conference may be available to the parties. In a
settlement conference, a judge other than the assigned judge (usually a magistrate judge), helps
the parties negotiate a settlement of all or part of the dispute. Settlement conferences are generally
best fit for pro se litigants because a judge who has experience working with unrepresented parties
conducts the process.
2. Mediation
In meditation, a neutral third party meets with the parties to help them negotiate a mutually-
satisfactory agreement resolving all or part of the dispute. The process is informal and confidential.
Any decision to enter into a settlement agreement is voluntary, and the parties do not lose their
right to trial if they do not reach an agreement.
3. Arbitration
In arbitration, the parties submit their dispute to an arbitrator or a panel of arbitrators for
review, hearing, and adjudication in a binding decision. Arbitration is similar to litigation because
both parties present arguments and evidence, including witnesses, to a neutral decision-maker.
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Arbitration is an abbreviated, efficient means of resolving disputes, the outcome of which
contractually has the force of a mandatory, binding determination.
4. Early Neutral Evaluation
In early neutral evaluation (ENE), a specially-trained lawyer who is an expert in the subject
matter of the case gives the parties a non-binding assessment of the merits and may help with
settlement discussions. The goals are to promote communication and provide a “reality check”
about the claims and evidence, identify and clarity key issues in dispute, assist with discovery and
information exchange and motion planning and help with settlement discussions if requested by
the parties.
5. Limited Scope ADR Counsel (if available in your district)
Most cases are referred by the Court to go to ADR. In some jurisdictions, if you do not
have a lawyer, you may request that the Court appoint a lawyer to you for the limited purpose of
representing you at mediation. Although the scope of this representation is limited, the lawyer can
engage in settlement discussions with the other side, request additional discovery that would assist
in the mediation, and meet with you to prepare for your mediation.
Please refer to local rules for more information on ADR in this court.
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MOTIONS FOR SUMMARY JUDGMENT (Rule 56)
A motion for summary judgment asks the Court to decide a lawsuit without going to trial
because there are no disputes about the key facts of the case. When the parties agree on the facts,
or if one party does not have enough evidence to support his or her case, the Court can decide the
issues based on the papers that are filed by the parties. When the plaintiff files a motion for
summary judgment, the goal is to show that the undisputed facts prove that the defendant violated
the law. When defendants file a motion for summary judgment, the goal is to show that the
undisputed facts prove that they did not violate the law. The overwhelming majority of summary
judgment motions are filed by defendants.
Sometimes, a motion for summary judgment can address the whole lawsuit or individual
claims. If the summary judgment motion addresses the whole lawsuit and the Court grants
summary judgment, the lawsuit is over. If the Court denies a motion for summary judgment, it
means that there is a dispute of material fact, and the case will go to trial unless the parties settle.
A motion for summary judgment must include a statement of undisputed facts. Each fact
must be supported by admissible evidence, such as deposition testimony, affidavits, or relevant
documents. If you need specific discovery in order to provide more evidence to the Court showing
why summary judgment should not be granted, you can file, on or before the deadline for opposing
the motion, a request under Rule 56(d) of the Federal Rules of Civil Procedure for additional time
to conduct discovery. Your request must be accompanied by an affidavit or declaration clearly
setting out (1) the reasons why you do not already have the evidence you need to defeat summary
judgment and (2) exactly what additional discovery you need and how it relates to the pending
motion for summary judgment.
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TRIAL
If a case has not settled or been dismissed following a motion for summary judgment, it is
going to trial. You have to make pre-trial disclosures to the other party before trial, including
expert witnesses and reports and witness and exhibit lists. Read Rule 26(a)(2) & (a)(3) for more
detailed information. The following information is not meant to be all inclusive, and you should
always consult the Federal Rules of Civil Procedure and the Local Rules to make sure you
understand what the Court requires of the parties preparing for trial. You should also become
familiar with the Federal Rules of Evidence, which govern the admission of evidence at trial.
1. Final Pretrial Conference
Prior to the actual trial, a pretrial conference is usually held between the judge and the
parties (or their counsel) to determine (1) what exhibits and witnesses each side might use during
the trial; (2) the approximate length of time that will be necessary for the trial and (3) the “ground
rules” the Court will utilize before, during and after the trial.
2. Motions in Limine
Parties may argue motions in limine at the pretrial conference. These motions request that
the Judge not allow certain facts to be admitted into evidence, such as insurance policies, criminal
records, or other matters which are either not relevant to the particular case or which might unfairly
influence the jury. Either party may file a motion in limine.
3. The Role of the Judge and Jury
If your case proceeds to trial, the parties will each get the opportunity to present their side
of the case, and the Judge and jury (if the trial is a jury trial) are responsible for entering a verdict
and judgment based on the evidence and arguments presented. It is the Judge’s duty to see that
only proper evidence and arguments are presented. In a jury trial, the Judge also instructs the jury,
40
which will be called upon at the conclusion of the jury trial to make decisions regarding factual
matters in dispute. A judgment will then be entered based on the verdict reached by the jury
If the parties have not requested a trial by jury, the judge becomes the trier of both law and
fact. At the end of the trial, the Judge enters “Findings of Fact” and “Conclusions of Law,”
sometimes in writing, based on the evidence and arguments presented. A judgment is then entered
based on those findings of fact and conclusions of law.
A jury trial begins with the Judge choosing prospective jurors to be called for voir dire
(examination). The Court will determine the number of jurors.
Peremptory Challenges: Each party will be given a number of peremptory challenges
which enable the party to reject (in most cases) prospective jurors without cause. This decision is
based on subjective considerations of the party when he or she feels a prospective juror would be
detrimental to his or her case.
Challenges for Cause: The plaintiff or defendant may also challenge a prospective juror
“for cause” when the prospective juror lacks a qualification required by law, is not impartial, is
related to either of the parties, or will not accept the law as given to him or her by the Court.
4. Opening Statements
After the jury is sworn in or “empaneled,” each side may present an opening statement.
The plaintiff has the burden of proving that he or she was wronged and suffered damages from
that wrong and that the defendant caused those damages. The plaintiff is allowed to present the
opening statement first. This may be followed by a statement by the defendant. The Court will
determine the time to be allotted for opening and closing arguments.
5. Testimony of Witnesses
After opening statements are given, testimony of witnesses and documents are presented
41
to the jury or the Court. The plaintiff presents his or her case first. After the initial examination
of a witness (also known as “direct examination”), cross-examination is conducted by the other
side. After a party has cross-examined a witness, the opposing side has the opportunity to conduct
“redirect” examination in order to re-question the witness on the points covered by the cross-
examination.
If a witness testifies as to a fact, and a statement or document in the case file contradicts
that testimony, the document can then be used to question the witness on the accuracy of the
witness’ statements. If the evidence shows that the testimony of the witness is false, the witness
is considered “impeached” by the cross-examination.
6. Motions During the Course of the Trial
Motion for Judgment as a Matter of Law: This motion is usually made by the defendant at the
close of evidence presented by the plaintiff. It is based on the premise that the plaintiff has failed
to prove his or her case. If this motion is granted, the trial is concluded in the movant’s favor. If
the Court denies the motion, the trial continues with presentation of the defendant’s side.
Motion for Mistrial: Either party can move for a mistrial if, for example, during the course of
the trial certain matters which are not admissible (such as those determined to be inadmissible in
a prior motion in limine) are presented by any witness, either purposely or unintentionally, in the
presence of the jury. If the Judge grants the motion for mistrial, the trial is immediately ended and
the jury is dismissed.
Objections: During the examination of a witness, one side may “object” to the questioning or
testimony of a witness, or presentation of evidence, if the litigant believes that the testimony or
evidence about to be given should be excluded. If the objection is sustained by the Judge, that
particular testimony or evidence is excluded. If the objection is overruled by the Judge, the
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testimony or evidence may be given despite the objection. Check the Federal Rules of Evidence
to make sure you know the proper grounds for making an objection.
7. Closing Arguments
Closing arguments to the jury set out the facts that each side has presented and the reasons
why each party believes the jury should find in favor of him or her. Time limits are sometimes set
by the Court for closing arguments, and each side must adhere to the specified time.
8. Charge to the Jury
After each side presents testimony and evidence, the Judge delivers the “charge” to the
jury, usually in the form of written instructions. Each side may present proposed written
instructions to the Judge for consideration. After the Judge has considered all proposed
instructions, the jury is given appropriate instructions which set forth the jury’s responsibility to
decide the facts in light of the applicable rules of law. The jury then returns a verdict in favor of
either the plaintiff or the defendant and assesses damages to be awarded, if any.
9. Judgment
Following the entry of the jury’s verdict, judgment in favor of the prevailing party is
entered by the Clerk. If costs are awarded to the prevailing party, it is necessary to prepare a “bill
of costs” for the approval of the Court. A bill of costs sets forth those costs that were incurred in
the suit. A prevailing party may serve a bill of costs within thirty (30) days after entry of a
judgment. If attorney’s fees are awarded, an application for attorney’s fees must be made by
motion filed no later than fourteen (14) days after entry of judgment. See Fed. R. Civ. P. 54(d)(2).
APPEAL
If you are unhappy with the ultimate disposition of your action, you may appeal that
determination to the United States Court of Appeals. Grounds for an appeal usually consist of
43
allegations that the Judge made an error either in interpreting or applying the law or in a procedural
ruling during the course of the case. Any error must have been sufficiently significant that the
Judge or jury reached an incorrect result because of the error.
In general, only final orders or judgments of the district court may be appealed. 28 U.S.C.
§ 1291. This kind of appeal is called an appeal as of right. Most orders issued before judgment
(“interlocutory orders”) cannot be appealed until a final judgment is entered. Some of the few
interlocutory orders that can be appealed are listed under 28 U.S.C. § 1292. A final order or
judgment is the document which announces the final decision with respect to your case (that is,
whether you won or lost) and closes the case with the district court. In order to appeal, a final
order or judgment should be entered on the docket of your case.
Timing. An appeal must be filed within 30 DAYS AFTER ENTRY OF JUDGMENT
(or order being appealed). Exceptions to this rule are few. If you plan to appeal, it is very important
to calendar this deadline and meet it. The process for starting an appeal is the filing of a notice of
appeal in the District Court together with a filing fee. The fee may be waived under certain
conditions. See Rule 24 of the Federal Rule of Appellate Procedure. The Clerk’s Office then
transmits the appeal and the case file to the Court of Appeals, which opens a new file with a new
case number; all proceedings on appeal are then handled by the judges and the clerk of the Court
of Appeals.
GLOSSARY OF COMMON LEGAL TERMS 12
ACTION: Another term for lawsuit or case.
ADMISSIBLE EVIDENCE: Evidence that can properly be introduced at trial for the judge or
12
This Glossary was borrowed from the United States District Court for the Northern District
of California’s handbook titled “Representing Yourself in Federal Court: A Handbook for Pro Se
Litigants,” drafted by Susan Y. Soong, Clerk of Court, 201
