You will likely find yourself in a probate case by sheer happenstance: someone close to you died. The same goes for a guardianship case: the capacity of your relative or friend is suddenly at issue.
If you are like most people, then that probate or guardianship case will be your first, and only, brush with the judicial system. Because you are involved through no fault of your own, you may think that an informal approach is appropriate. No need to spend money frivolously on an attorney when you can just show up in court and tell the Judge your opinion, right?
Be careful. You are about to become the dreaded “pro se litigant.”
You Can Represent Yourself
The Rules of Civil Procedure state that any party to a suit may appear and prosecute or defend his rights therein. You can also stick your head into quicksand. You will get about the same results.
If you represent yourself in court, then you are held to the same standards as a Texas licensed attorney. Otherwise, you would be given an unfair advantage over parties who are represented by counsel.
You must comply with all the applicable laws and rules of procedure. The Texas Rules of Civil Procedure apply to probate and guardianship proceedings, but only to the extent they do not differ from the procedure established by the Estates Code. That is just the starting point. Most courts also have local rules that must be followed, and almost all courts routinely enter scheduling orders, with more deadlines, in contested matters.
Pleadings, motions, and other papers that are filed with the clerk in a case must contain certain information or they can be stricken. Some types of pleadings are required to be verified or supported with an affidavit to be effective. When you sign a pleading, then you are certifying to the court that you have read it, and that to the best of your knowledge, information and belief formed after reasonable inquiry the instrument is not groundless and brought in bad faith or groundless and brought for the purpose of harassment.
Representing Yourself in Court is a Serious Deal
If you sign a document in violation of this rule, then the court can, on its own initiative, assess sanctions against you. It is not a valid defense for you to say that you were ignorant of the rule.
Outside the courtroom, you could be served with a discovery document. This might come in the form of a request for production of documents or things, a request for admissions, interrogatories, or even a notice to take your deposition. Every type of discovery document has built-in deadlines which, if missed, could mean you waived a valid defense or claim. You could even be liable to pay the other side’s attorneys’ fees and costs.
Once you are in a hearing, you are held to the rules of courtroom etiquette and procedure. You are also held to the Rules of Evidence, which govern how testimony and exhibits are introduced and authenticated. Your opinion, however well-considered, is probably not admissible evidence.
Then there are the appeals. It is a quirk of probate and guardianship cases that some court rulings must be appealed while the case is still pending. You are held to those appellate deadlines. Miss them, and you lose.
You, as a pro se litigant, will get the same amount of justice as any other party. Now if only you knew how to avoid the quicksand…
Hammerle Finley Can Help
If you need legal assistance, schedule a consultation with one of our experienced attorneys to discuss your options.
Attorney Virginia Hammerle has practiced litigation and estate planning for 40 years. She is founder and managing attorney for Hammerle Finley Law Firm.