Disclaimer: This post is not legal advice, you should consult a lawyer as to your specific situation.

Served

A knock comes at your door. You get up. You find a slouchy somewhat unkempt man at your door. You crack the door to ask what’s up while taking care not to undo the chain. He says your name. You dimly reply, “Yeah, That’s me.” He shoves an envelope through your door and mumbles something about service. You go back to the sofa. You open the envelope and see a bunch of officious looking papers with a bunch of legal terms. Your heart starts racing. This is bad.

Why the Post

A fair portion of the panic common in the general population when they’re served with their first lawsuit comes from a general lack of knowledge about the basics of what a lawsuit represents and the first steps to take to deal with it. I’m hoping this ebook (now a free blog post)  will be a short to the point guide that will get you started in tackling the problem. It’s not intended to be a guide for representing yourself in court, but it should get you started on  making an informed decision on if you want to represent yourself. It’s also not intended for divorce or family law matters, though many of the procedures are very similar. I’m working on a guide specifically for that.

How Law Works Generally

Finality

 

Finality is one of the most valued aims of the legal process. While it may seem like there are a number of technicalities and appeals that’s not really true. If you think the legal system is designed to arrive at the truth or some other goal then you’re missing the point, at least in the civil context. What it’s designed to do is provide a final dispute resolution where both sides have had the opportunity to present all the evidence.

Unless you are in one of the newer limited small claims court then appeals will be only be a limited set of legal issues. The actual facts determined by the either the judge or jury will be entitled to a great deal of deference. In addition, once the trial is over no new evidence may  be presented absent very unusual circumstances.

I mention finality first because once you understand the importance the legal system places on finality you’ll understand the entire process much better.

Jurisdiction

A court has jurisdiction if it’s allowed to hear the case and has authority over the parties. There used to be a large and somewhat confusing number of courts so jurisdiction used to be a bigger potential issue. Now courts generally will divide into jurisdiction based upon amount in controversy or location.

Jurisdiction related to locational boundaries is still a big issue. Basically, if you are sued by someone in Michigan in a Michigan court and you are in New York then the court may not have jurisdiction. If the court didn’t have jurisdiction then you could let a default judgment be taken against you and then if they came after you in New York then you could defend by saying the court didn’t have jurisdiction.

Now if you were wrong and the court did have jurisdiction (say due to some ad you forgot you ran in Michigan) then you’d lose on the jurisdiction issue and you would have waived any other defense.

The moral of this is be really careful before allowing a jurisdiction defense. If a lawyer is advising you to allow a default judgment to be taken against you then I’d get it in writing and I’d never do so without the advice of a lawyer.

Jurisdictions and Court

As a defendant the court will be selected for you. State courts are traditionally more laid back procedurally and have much more variation as to judges. If you are sued by someone in a different state for over $75,000 then be sure to ask your lawyer about transferring to Federal Court. If you are pro se a consideration for Federal Courts can be the electronic filing system which is handy to use but can take a little learning.

Lawyers are licensed by state and the laws can differ significantly between states so an attorney in Tennessee can’t necessarily advise you about a case in California. It’s also why there aren’t very many really great guide on how to represent yourself. The actual laws will tend to be different in every state.

Local Practice

Local practice are “rules” that aren’t written down but seem to be followed. They can be fairly innocuous such as judges won’t order sanctions for late discovery the first time a motion to compel is filed to toleration for clearly erroneous/fraudulent service of process if someone isn’t represented by an attorney.

Lots of local practice can be figured out with a phone call. Such as books for setting a case for trial that a clerk will tell you about when you ask how one sets a case for trial.

Not having to figure out local practice is one of the upsides of hiring an attorney. It’s also something to be aware of when an attorney tells you can’t get sanctions for certain things that seem to be indicated in the rules.

Burden of Proof

Burden of proof is the level of evidence it will take to create a verdict. The plaintiff will typically bear the burden of proof in most civil cases. Unfortunately, it’s typically by the “preponderance of the evidence” which can be almost nothing as a practical matter. Sometime I’ve heard it described by a judge as a feather tilting the scales in one direction.

There are numerous exceptions such as strict liability for say demolitions so ask your lawyer about the applicable standard of proof or research it if you are proceeding pro se. Extraordinary or punitive damages frequently require a higher level of proof.

Have you actually been sued?

While having someone personally give you some papers is a pretty much 99% indication that you’ve been sued there are also ways you can be sued and not get personal delivery. You may have consented to arbitration in an agreement that allowed you to receive papers by mail. Similarly if you are being sued in a state that you don’t currently reside it’s possible that there’s a rule allowing you to be served by mail.

However, receiving some papers in the mail with the name of a court doesn’t actually mean you’ve been sued either. It’s possible a lawyer has prepared the papers and is sending them to you to prove that they’re serious. While there might be ethical rules concerning this, it might not be entirely clear. The best thing is to call the clerk of the court that’s on the paper and ask if their was a case filed with either your name or the opposing party.

Lawyer

A lawyer is someone who is licensed to advise people on legal issues and to represent others in court. They’ve probably attended three years in law school, though in very rare cases their are alternate archaic (1800’s) licensure avenues someone might have taken in certain states.

A law license is a general license authorizing practicing in all subject areas with the exception of patent, which has a separate bar.

Paralegals are not lawyers and paralegal certification are issued by private organizations. There are odd paralegal certifications I’m aware of in Texas, but they don’t give the paralegal any right to practice law.

The Initial Consult

The initial consult will set the tone for the lawyer client relationship in most cases. In order to have a productive relationship you need to bring all the paper related to the incident. Most important will be the complaint. In cases where there is a written contract/agreement, you are completely wasting your and the attorneys time if you don’t bring it.

In rare cases ,such as a boundary dispute or say an assault and battery, there won’t be much critical paper. For contract cases what’s written down will dictate 90%+ of a typical case. The contract essentially forms the law of the case.

Typically, the attorney will ask you to describe the problem and possibly interject questions if there’s a critical point. Then they’ll start describing what needs to be done. At some point they start describing billing arrangement if they start to take the case. Don’t be afraid at the point at which it seems the attorney is controlling the conversation to ask questions. Good questions will frequently include some of what the attorney previously said.

It’s a good idea also to write down questions you want to ask in advance.

Hiring a Lawyer is not All or Nothing

A lot of people I talked to over the years thought of hiring a lawyer as an all or nothing proposition. That’s really not true. Even if you’re 99% sure you are going to represent yourself you can still benefit greatly from a consult with a lawyer. If you go that route I’d suggest avoiding free consults and go with someone who’ll charge and give you a straight hourly consultation. Free consults tend to be more sales pitches than true consults in many cases. One of the best of parts of being a lawyer is giving sage advice and wisdom. It’s the carrying out part that can drag out. A really good consult can give you a great headstart on the roadmap you’ll need to represent yourself.

Just tell the lawyer you’ll probably have to represent yourself due to monetary reasons. Unlike insurance agents say, lawyers have a large incentive to avoid making sales to financially unstable clients. This will lead to most lawyers giving very good consults to clients who might end up representing themselves provided they know they probably won’t be taking the case and can tailor the consult that way.

There’s also the possibility of a limited scope representation or coaching agreement. These have become more in vogue in recent years; however, you’ll have to shop hard for a lawyer willing to do this since they are notorious for coming back on the lawyer when something goes wrong, even if they gave ample warnings and disclaimers that coaching is still far from having a lawyer handle all of it.

Firm Size

The majority of lawyers practice either as solos or in very small sub 5 lawyer firms. Small firms usually are more of expense sharing/reciprocal referral arrangement than a cooperative business arrangement. Larger firms may be more or less cooperative enterprises, but a strong element of rewarding rainmakers will be present in all law firms and it’s not unusual to find keep-kill arrangements in firms of many more people.

Traditionally larger law firms tend to be more prestigious/charge more. Typically they will have large corporate or organizational clients with multiple legal issues that hire them as much for responsibility avoidance as legal acumen. In the event of a seriously adverse result it’s much easier to avoid job related consequences if you hired a highly rated firm.

Larger firms also typically will be more oriented to defensive clients. It’s very typical that larger firms will operate with partner/junior associate teams which can be a situation ripe for billing for meeting or supervisory work.

If you end up going with an attorney that will be utilizing a partner/junior associate combo be very aware that you will probably spend more money to defend. I generally wouldn’t go with a larger firm unless it would be a complex case that will generate a great number of documents that will require the manpower a larger firm can provide. If you can find a senior associate at a larger firm and have them be primary on the case it can be a good compromise.

Remember that typically big firms deal with sophisticated clients who have multiple legal issues and can control costs more effectively since they know what to look for.

Factors in hiring a lawyer

The golden rule for hiring lawyers is “Don’t be the smallest case a lawyer has.”

Here are some other factors you might want to take into consideration.

1. Litigation Experience – This is experience going to court and actually trying cases. Time working for a bankruptcy lawyer or doing real estate closing doesn’t count. I’d consider the two year mark to be the point at which you’ve learned the basics. Most lawyers in private seem to be consider the 10 year point to be about the peak with exceptions. After 10 years a large percentage of lawyers will be burnt out.

2. Experience with your specific subtype of cases – Again this is hard to quantify. Handling even one case of a type will substantially increase the ease of handling new matter. The vast majority of litigation types are contract disputes concerning performance of two parties who each says the other side screwed them somehow. In those cases any litigation experience should be applicable. Cases that don’t fit into the general litigation framework will be cases where specific areas of law are implicated. If you are say sued for music piracy or a boundary dispute it can make sense to look for someone who’s handled that sort of case before. However, outside of top 10 major metro areas you might not find anyone that specialized.

If you can’t find someone who’s handled your type of case before I’d suggest going with a younger attorney starting their practice who has time to research the area.

3. Location – While it’s nice to have an attorney with an office five minutes away from you for the optimum in cost control you want an attorney with an office as close to the appropriate court house as possible. Time is money and even if it’s not reflected in the hourly you are going to pay for it somehow.

4. If you sign as their client will you get their cellphone number? – This is as close to magic litmus test for hiring a lawyer there is. Most serious problems with attorneys (And clients, incidentally.) will involve unreturned phone calls. If you can bypass the receptionist then an attorney is at least reasonably confident they won’t be doing that’ll cause you to panic and keep calling.

5. Just flat out ask if the attorney feels comfortable they will have enough time to handle your case.

6. Ask what the attorney’s game plan would be for trying the case. One of the first steps should be filing written discovery. Mentioning depositions before doing written discovery is a bad sign because written discovery can end a case in its tracks and is typically much less costly than a deposition.

7. Make sure the attorney goes over billing with specific care. Not doing so is a warning sign that the attorney doesn’t expect you to make continuing payments and will blow out your retainer and withdraw. Not being strict on collections can also be symptom of a high rate of unpaid bills which usually leads to a burned out attorney with focus problems that underperforms on all their cases. Retainers should be in writing.

8. Ask about research. Most cases will benefit from several hours of research. Except for collection cases there always seem to be angles that you can use to try to position a case better. However, research can equally be a timesink. The best compromise is usually ask for a reduced rate for research.

9. Status updates. Monthly billing and status updates are ideal even if nothing has happened.

10. Do they seem to be indicating that it will be a smooth process with a few risks. While leading to potential problems down the road promising unrealistic results is a surefire way to sign more clients. Litigation is an adversarial process and at the end of the day little is absolutely predictable. Even with seemingly slam dunk cases most lawyers will remain cautious in case the client is omitting something or something is being overlooked.

Ratings and Such

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Traditionally, the leading indicator of law ratings was the Martindale ratings. This achieved it’s rankings by asking other lawyers what they thought of other lawyers. This led to a you scratch your back I scratch yours thing going on. Lawyers in larger firms tended to benefit in this system. There were minimum time periods for achieving the ratings and if someone got the rating near the minimum I felt it was a good indication they were at least somewhat awesome.

Now people are using AVVO which uses self reported data and recommendations by other lawyers. This is of course gameable in the extreme so I wouldn’t put alot of credence in it. (A lot of obvious recommendation clubs go on.)

A large number of negative reviews can be a red flag; however, due to the nature of the law any lawyer who’s sufficiently aggressive and willing to advocate a non slamdunk case is going to have bad results.

What kind of lawyer to hire?

Since you are being sued that limits the kind of lawyer you should pick. You should know that a law license gives an unqualified ability to practice all kinds of law except patent which has a separate bar.

Lawyers can focus their practice in specific areas and in some cases get recognized speciality certificates. However, aside from very large top 10 metropolitan areas you are unlikely to find attorneys with specific focus in something narrow like say easement or nuisance law.

What you’ll be looking for very specifically is called a litigator. This is the traditional lawyer who goes to court and tries cases. Frequently they will call themselves general practice lawyers, business litigators, or commercial litigators.

I really suggest you don’t ask if a lawyer focuses or specializes in your area of what you are being sued over. Most people go far too exact and as a result just end up going with the first lawyer who says “YES, I specialize in that!”, irrespective of the accuracy in that statement. The best the to do is ask if the lawyers has ever handled a case like the one you’re trying to find representation for.

The easiest way to find one is to search for someone who advertises a focus in anything business, contracts disputes, or has the word litigation anywhere except in reference to domestic stuff (Though domestic work is a court heavy litigation subfocus and many domestic lawyers handle general litigation.) Also, if there isn’t a focus on certain areas such as personal injury, disability, workers compensation, real estate, or bankruptcy, then there is a high probability the lawyer will handle general litigation.

In the unlikely event you are being sued for personal injuries and don’t have insurance paying for and finding the defense then calling a plaintiff side personal injury lawyer (one with a smaller ad) and seeing if they would consider respresenting a defendant can be a good strategy.

If you are being sued for a debt then bankruptcy attorneys traditionally will frequently defend those areas as a related practice.

If you worked for the government and are being sued for say violating civil rights then there may be experienced attorneys who typically defend these cases on behalf of governments at medium to larger size firms. Look for representation of the government. Also, similar to personal injury work calling firms that prosecute these cases can be a way to find personal representation. (Obviously, not the one that’s suing you.)

Lawyers are trained to represent both sides of an argument and most will try ones on the opposite side of their usual argument with a special attentivenes. They probably have a mental list of things I’d do if I was on the other side that they’ve been saving up for years.

Should You Represent Yourself?

There’s an instinctive response in lawyers to shudder when someone mentions representing themselves in court. This includes lawyers representing themselves. However, virtually every lawyer I know has either had a case against a credible pro se litigant or has seen one beating up on an ill prepared actual lawyer while sitting around in court waiting for their case to be called.

That’s because the main impediment to representing yourself in court isn’t knowledge based. It’s the difficulty in viewing your situation in an unemotionally biased and logical fashion. I hate to do this because it’s a bit trite but here are some factors that I think might be relevant.

• Do you enjoy complex board games other than trivia?
• Have you taken calculus level mathematics?
• Have you taken statistics?
• Do you enjoy reading?
• Have you never committed any kind of violence due to emotional provocation?
• Are you somewhat of an asshole and proud of it?
• Do you rarely scream or raise your voice?
• Do you have any experience with public speaking?
• Do you have lots of free time?

An answer of yes to any of the above indicates that representing yourself might be credible.

How to go about representing yourself

If you’ve decided to represent yourself then here are some suggestions on how to go about it. There are a number of books on representing yourself. I find these to usually be somewhat dangerous in that they’re usually overly general and tend to oversimplify the process. I think this is partially due to the trying to address generally what are many separate but related processes in various courts. Also, trying to sound simple and straightforward probably increases book sales.

I personally respect Nolo’s Represent Yourself in Court: How to Prepare & Try a Winning Case. However, again I still feel it could be misleading at points. It would still be a good start if you want a one size fits all guide.

The best way to go about it first to read all the applicable rules of civil procedure for either the state or federal rules that are applicable. The specific court you are in will also have it’s own set of rules along with possibly individual judges.

Most lawyers use practice guides or Hornbooks for specific areas of the law. (The casebooks consisting of topically related cases are generally only used in lawschool.) If your case fits in these areas then you should try to read at least one of those handbooks. West Publishing has a line of books called Nutshells that are usually decent.

If you can find a case similar to your own on the court docket you’re in then looking at the underlying documents can give you a great idea of what you’ll need to do.

Rather than using an all encompassing guide you might want to find books specifically on each stage you need to do. These will generally be like hornbooks and aimed at lawyers so they don’t pull punches or try to oversimplify things with general rules when the actual answer is really a balancing test.

Using the internet and just googling whatever step you are at can also work surprisingly well for less complicated entirely written steps. Put in something specific like “preparing answers to interrogatories” will likely bring up a practice guide that will get you started.

Law libraries might have what you need. However, they tend to be light on practice guides at times and heavy on the less used scholarly tomes.

Timing and Deadlines

The images of lawyers pulling all nighters is not one that’s based in fiction. There are lots of deadlines and dates in the legal system. Lawyers tend to do things at the last minute since the case might settle at anytime thus negating all the work you just did and many documents will require input from the client or other parties such as getting a transcript from a court reporter.

Get to court dates on time. There may be a local practice of always starting fifteen minutes late, but unless you’re a lawyer you won’t know that. Worst case scenario is literally losing your case.

If you’re in a wreck or something serious then call the judge’s (not court) clerk and opposing counsel and beg for a continuance. No matter how serious not making a court date is always going to be a very real risk.

Dates are very hard to change once set and you never know when the court will try to set a hearing so try to keep your lawyer as informed as possible about your schedule for as long as two years out.

Other dates such as discovery can be available for an extension. If you think you’re not going to be able to get it done in time then tell your lawyer as soon as possible. If you are representing yourself then call the other lawyer.

Why Everything is Taking so Long

The court system is notorious for moving slowly. Lawyers will put things off that they don’t have to do immediately. It can be a real mess. The best thing to do is try to get a scheduling order in place that sets specific deadlines for certain things. Also, try to get some written discovery in as soon as possible. This can usually be served upon filing of an answer in a case.

Without a scheduling order very little will happen for generally the first year or two. At some point the judge will notice a case has been on the docket for awhile and will make the parties enter a usually very short scheduling order and everything will be oriented towards hurrying up.

Why Does It Costs So Much?

If an attorney is not leaving their office generally the costs won’t be excessive. The real time is expended when the attorney leaves their office. Depositions are the first major expense hurdle since they take time and involve court reporters.

Court can be exceedingly expensive since courts will generally schedule a large number of matters at the same time and then here them in sort of a random fashion. So even five minutes of lawyer talk on a simple motion can involve hours (in some cases days even) of waiting that has to be billed for.

If the lawyer bills in quarters then phone calls can also really add up.

If you’ve hired a bigger firm then be prepared for excessively ornate writing that takes a long time to prepare as well as time to consult and file review between lawyers at the firm. Larger clients like insurance companies with regular legal needs know how to protect themselves, but as an irregular client gouging should be expected as the price of hiring a prestigious larger firm partner.

Evidence

Presenting admissable evidence can be one of the most tricky elements of the legal system. I think probably about eighty percent of the value of a lawyer is figuring out which evidence is admissable and getting it admitted into the court record.

Generally the court will require the best evidence to be admitted which can be tricky in that a copy of a document might not be admissable.

There’s some sort of trick to most forms of getting evidence in a court hearing. Questions generally can’t contain the answer in the question. (ie be leading). You have to lay a foundation for physical evidence.

Evidence in a hearing must be relevant, but this just means that it makes the facts at issue more or less likely. You will occasionally run into judges who try to effectively impose a slightly higher standard of relevance which can be annoying.

I also think it can be very unnatural for certain people how courts treat evidence.

I think the top 5 problems lay people and many lawyers have to tackle in evidence are .

1. Hearsay
2. Understanding when testimony is narrative.
3. Laying foundation for physical evidence.
4. Experts.
5. Making sure they’ve disclosed it appropriately.

Hearsay

I think for certain people who think in terms of group dynamics and other people hearsay can be the most difficult topic in law.  Basically hearsay is a statement of what someone else said. The general theory of the legal system is you should get the person who actually said something to say it in court.

Sometimes the other side will ask why you or someone else did something and the answer will be someone else told you some fact. You will sometimes be able to get this in the court record. However unless the other side was clearly asking for what was the content of hearsay conversations, eventually judges will get mad at you. The best practice is to just say I did that based on conversations I had with other individuals.

The difficulty comes in avoiding testifying in the narrative.

Jury Trial

You will probably have a right to request a jury trial. Jury trials are now very rare except in criminal law and only a few lawyers have done them. Becoming a certified civil trial lawyer can take six cases. Jury trials tend to take longer and be more expensive.

One of the downsides to representing yourself is that jury trials will be much harder to conduct. You will need to file more motions in limine to exclude before trial (with a judge trial it’s easier for them to disregard testimony), judges will be stricter with evidence rulings, and you’ll need to come up with satisfactory jury instructions which can require a good deal of legal argument.

If you are being sued by a corporation and you are local that can be a good reason to ask for a jury. If you are relying on a highly technical defense then juries can be bad. However, overall I really don’t think a jury will usually change the outcome of a cases. At the end of the day both judges and juries can be really random within any given set of facts.

Lying and Hiding Evidence

Unfortunately lying and dirty tricks are a fact of life in the legal system. The legal system concerns itself with what can be proven and gives everyone’s testimony at the presumption of truth at least initially. In addition, clients frequently will “fail to find” evidence that might be damaging to their case.

There’s no deus ex machina that will magically punish them for misbehavior however. It has to be proven. If you’re lucky or well organized you might catch the opposing party, but don’t expect miracles in terms of sanctions unless you can clearly demonstrate a pattern. Perjury prosecutions are notoriously rare unless there’s clearly irreconcilable under oath testimony in different proceedings.

On the other hand, the oath in a courtroom can have absolutely magical effects. The traditional law school ethical fact pattern where the client gives testimony that you know to be false has never happened to me in practice. However, clients contradicting hours of tedious preparation and losing their cases happened with a shocking regularity.

Testifying in the Narrative

Testifying in the narrative extremely disfavored, but some judges will allow it. Basically it’s telling a story instead of series of pointed questions. A question such as “What happened next” calls for a narrative response. Most judges will not allow it since it makes it difficult to voice objections. It also serves as a vehicle for the inclusion of hearsay since most good stories include a “Joe said” and a “Jane said” and will also include a “everyone knows” that should involve an expert.

Unfortunately, the practice of law has taught me that some people can have widely differing way of viewing the answer to a question. This can include anything tangentially related as part of an answer. So an answer that includes a car not braking can lead to a discussion about spouses not getting things repaired and lead to what seems as an effective ramble to 99% of the population, but will seem perfectly natural to the one testifying. Also, people can categorize by emotional import rather than typical language related relationships.

“Experts”

An expert witness is someone with specialized knowledge that can assist a judge or jury in determining an element of the case.

The major factor for litigants to understand is that experts are extraordinarily expensive. Experts work on a high hourly that includes the copious waiting around time involved in the legal system, seem to take their time reviewing evidence, and seem to talk with an extreme amount of verbosity that drives up the cost to transcribe their testimony. I’d say including an expert will add a minimum of two thousand dollars to the cost to prosecute a case. There is no upper end and if a case involved say patents or engineering several hundred thousand dollars wouldn’t surprise me.

Unfortunately, it seems the legal system has gone expert crazy so it’s entirely possible you might have to hire an expert to determine some element of even a normal legal case like where a leak is coming from that might seem determinable by common sense.

So if you find yourself opposing an expert witness you’re probably going to have to pony up or lose your case, though there are exceptions. If the other side is propounding a case that seems the least bit technical in any arguable way then pointing out the lack of an expert is a good strategy. For example showing the extent of any sort of injury will usually require an expert even if it’s really common sense that someone was jogging 20 miles a day but couldn’t immediately after a car wreck and was in constant pain.

Small Claims and Other Limited Courts

There have traditionally been a number of limited courts in order to better handle the number of cases. They generally go by names like General, Inferior, Small Claims, etc. The courts will frequently be essentially defective in some constitutional way like not having discovery, a full record of the proceeding, non-lawyer judges, or not allowing lawyers to represent parties. They will usually remedy this by some provision for a de novo appeal.  A de novo appeal is unlike a regular appeal in that instead of addressing only certain issues there’s a complete do-over. (novo= new + latin)

I would note that these courts can have some of the shortest appeal deadlines of any courts and after the appeal deadline runs their judgments will generally be effectively more final then that of a regular court since there might possibly not be a record of what happened other than the final judgment.

Sanctions, Ethics Violations, and Nasty Stuff

If you look on the internet you may start thinking that you are entitled to sanctions against opposing counsel for filing a baseless lawsuit or discovery etc. This is usually under a rule 11.

As a practical matter it will be nearly impossible to make this work. Generally, the truly crazy cases tend to be pro se litigants which courts try to protect as much as reasonably possible. In addition, they tend to be uncollectible so getting sanctions would do you no good. It might enrage them so much they start to sound crazy and you end up getting a concealed carry permit.(I know lawyers this has happened too.) In addition, the standards for something actually being frivolous tend to be extremely high. You will generally do the same amount of work getting a case dismissed as getting sanctions.

Generally a lawyer will explain all of the above as gently as possible if you ask them to move for sanctions. It’s not just an admittedly very real aversion to trying to sanction other lawyers you’ll have to work with again, but a very practical view on the limited utility of sanctions. In addition, if you ask for sanctions incorrectly then that itself tends to be sanctionable.

If it is justified to ask for sanctions then a lawyer will generally bring it up on their on volition. If you are representing yourself pro se then I’d really think twice about asking for sanctions unless the opposing counsel has made repeated racial or religious slurs or done something demeaningly sexist like call you little missy. (I’ve read cases where lawyers did that to female judges! So don’t don’t be surprised at stupid behavior from anyone in the court system.) Note the biggest award for sanctions is usually attorney’s fees which aren’t available to pro se litigants.

Counterclaims

If you can sue the party that’s suing you then you might want to file a counterclaim. It might be mandatory that you do so or lose the claim. If you are representing yourself then I’d be more cautious in adding a counterclaim since prosecuting a claim can be more complex then being a defendant. Attorneys generally tend to be gung-ho about asserting counterclaims as they can be tactically beneficial and expand the opportunities for hourly billing.

Good reasons to assert counterclaims are: expanding scope of discovery, it’s a good counterclaim, in a collection case you might make it difficult to dismiss the case without prejudice and refile later, and finally that you may trigger a clause calling for payment of fees for defending the counterclaim on a case that was taken on a contingent fee.

However, asserting a highly technical counterclaim in say a collections case can just be a waste of time.

When you file a counterclaim you should generally ask yourself if you’d sue the other party in practice. Having money, a well paying job, or assets that can be easily collected on is a prerequisite to it being a good idea to file the vast majority of lawsuits. I’d also hesitate to file counterclaims against potential crazies since they can become incensed. Lawyer is MAD!