General Overview

Since the legal process can be complicated and quite difficult to navigate for a person without formal training, many parties seek the advice and counsel of attorneys-at-law to assist them with legal matters. Attorneys undergo three years of intensive legal training and must pass a specific bar examination in order to be licensed to practice law in a particular State. Even after three years of legal training, many young attorneys who are fresh out of law school find that it takes considerable time to understand the intricacies they will encounter. Persons who are not trained in the practice of law often can find the complexities of the legal system overwhelming and they are cautioned to seek the advice of qualified attorneys when they find themselves involved in legal matters.

Only attorneys licensed to practice law are able to appear before the courts of this State to represent parties with legal needs, although the laws of this State do allow most people to represent themselves under most circumstances. Litigants who choose to represent themselves in legal matters are said to be proceeding pro se, and the failure to understand the rules and procedures involved in the litigation process can have serious consequences. There is an old adage that a lawyer who represents himself has a fool for a client, and this is something that parties choosing to represent themselves should consider seriously as they determine what is in their best interests when they become involved in the legal process.

1. Applicable Law. As anyone who lives in this country is aware, there is an elaborate system of federal, state and local laws that govern the rights of members of our society. The highest law in the land is the United States Constitution, which creates the executive, legislative and judicial branches and the separation of their powers. The fifty states have their own constitutions and lesser laws which apply in conjunction with the federal laws, and local jurisdictions have ordinances and other regulations that govern the everyday conduct of the citizens of this State.

2. Court Decisions. In addition to constitutional, statutory and administrative laws, the body of law applicable to legal matters includes decisions by the courts that apply the law to particular sets of facts and circumstances. In making decisions, courts are bound by legal precedent and cases decided by the courts that interpret and apply the laws and other court decisions determine the outcome of legal matters. Understanding the significance and applicability of various court decisions is a complicated matter that often requires the expertise and experience of a practicing attorney.

3. State and Federal Systems. There are federal courts which apply and enforce the laws of the United States, and there are state courts which apply and enforce the laws of the State of Georgia. Federal district courts are courts of original jurisdiction in the federal system.

4. Courts of this State. There are a number of different courts in the State of Georgia and each of them have jurisdiction over certain matters. This jurisdiction can be either concurrent or exclusive, and the limitations of the various courts may be tied to the dollar amount in controversy, the parties seeking relief and/or the type of relief being sought. In general, juvenile courts have jurisdiction involving children aged 17 or younger, probate courts have jurisdiction over estate and guardianship issues, magistrate courts have jurisdiction over amounts in controversy of $15,000.00 or less, state courts have jurisdiction over misdemeanors and matters other than those reserved exclusively for the superior court, and the superior court has jurisdiction over most matters, including exclusive jurisdiction over certain types of matters, including felonies (other than for juveniles), in cases respecting title to land, in divorce cases, and in those cases seeking equitable relief. Within the limits of cities, there may be municipal courts, traffic courts or recorder’s courts and each of these courts has jurisdiction over specific limited matters. In addition to courts, there are administrative bodies and tribunals that have the power to decide certain matters.

5. Appellate Courts. Appellate courts have jurisdiction over appeals from decisions of the lower courts. There are specific rules regarding appellate procedures, including the jurisdiction of the various courts. Georgia has a Court of Appeals and a Supreme Court. The United States has Circuit Courts of Appeal and a Supreme Court. The Georgia Supreme Court is the highest authority for matters involving the laws of the State of Georgia and the United States Supreme Court is the highest court for matters involving the laws of the United States and certain conflicts between the several states.

6. Types of Relief Available. The types of relief that are available in the courts of Georgia are remedies at law, which involve the award of monetary damages, or remedies in equity, which involve other action of the court, such as injunctions or declaratory relief. An injunction is an order by a court that prohibits the doing of something and declaratory relief involves a court making certain determinations regarding the law when the matter is unclear.

7. Litigation. Litigation is a formal process through which grievances between parties are resolved in the courts based on a specific set of rules. These grievances can be based on the criminal laws of the state or the civil laws of the State. There are rules of civil and criminal procedure that apply to the conduct of the parties before the courts and there are rules of evidence which determine what information may be presented in court to the trier of fact.

8. Legal Advice. None of the personnel who work in the legal system may give legal advice and parties seeking legal advice must enlist the help of attorneys-at-law, who have specialized expertise and experience. While court personnel will strive to be as helpful as possible, they may not get involved in legal matters on behalf of litigants and must always err on the side of not providing legal advice.

9. Identity of Parties. In civil matters, the complaining party is referred to as the plaintiff or the petitioner and the responding party is referred to as the defendant or the respondent. Under appropriate circumstances, parties besides the plaintiff and the defendant may be brought into an action and there are complex rules of civil procedure that govern who may be made parties to an action and under what circumstances. In criminal matters, the accuser is the State and the accused is the defendant. In all matters, the plaintiff or the accuser has to carry the burden of proof in order to prevail.

10. Legal Persons. In addition to natural persons, corporations, limited liability companies and other entities are considered legal persons who are separate and distinct from their owners. The Georgia Courts have determined that legal persons are required to be represented by attorneys-at-law under most circumstances.

11. Trier of Fact. Litigation may proceed before a judge sitting alone as the trier of fact or a jury of six to twelve persons, depending on the applicable procedural rules. Defendants accused of crimes have an absolute right to a trial by a jury of their peers unless they waive that right. Some civil matters are for the determination by a judge alone while others may be tried before either a judge or jury. Matters of law are determined by a judge and matters of fact are determined by a jury or a judge sitting as the trier of fact.

12. Uncertainty of Litigation. Litigation is uncertain and even the best set of facts may not be seen by the judge or a jury in the same way as it is seen by the parties or their attorneys. Even if a party obtains a judgment against the opposing party for everything the party seeks, there may be difficulties involved in collecting the judgment, as the other party either may have no assets or could file for protection from creditors under bankruptcy or similar laws.

13. Knowing and Following the Rules. In addition to statutes which govern civil and criminal procedure, legal procedures are governed by specific rules of evidence which determine the type of information and testimony that may be presented to the court. These rules are complicated and often difficult to understand and the failure to appreciate and follow them can cause parties to lose certain rights or advantages that they might otherwise enjoy. In some instances, the failure to apply and follow the rules can have grave consequences, such as being unable to advance certain arguments or losing certain rights. It is important for all litigants to know and apply the rules applicable to a particular set of facts and circumstances to be presented in court and attorneys have years of special training and experience in applying these rules. Parties who are not familiar with the rules of procedure and rules of evidence will find themselves at a distinct disadvantage in legal proceedings.

14. Public Nature of Proceedings. Most legal proceedings are by their very nature open to the public and it is recommended that all parties insisting on representing themselves observe some legal proceedings prior to appearing before the court. Being familiar with the legal process and the ways that attorneys and judges interact is critical for someone desiring to appear before the court and be heard.

15. Ex Parte Communications. Communications with the court outside of the presence of the other parties involved in litigation is prohibited except in rare circumstances. Parties communicate with the court through pleadings and other written communications and all parties are entitled to notice and right to be heard with respect to the subject matter presented.

16. Clerk of Court. The clerk of court is the custodian of all legal records maintained by each of the courts and parties are required to file pleadings with the clerk and send copies of those pleading to the other parties involved. The files that are maintained by the clerk of court are public records that may be accessed upon request.

17. Calendar Calls. Courts maintain hearing and trial calendars for proceedings that take place before them and provide written notices of those proceedings to parties who are required to appear. Parties may be directed to appear before the court and announce the status of their cases, including whether they are ready to proceed or whether they need more time, which may be given by the court in the exercise of its discretion. Failure of parties to appear at a civil calendar call may result in actions being taken against them, such as dismissal of their cases or the striking of their pleadings. Failure of criminal defendants to appear at a criminal calendar call can result in the issuance of a bench warrant and a subsequent arrest for failure to appear.

18. Hearings. Hearings are appearances before a court in which parties are allowed to present arguments and evidence supporting their positions. Hearings my be requested by the parties or required by the court and notice of hearings must be provided to all parties. There are specific rules which govern the presentation of evidence and arguments at hearings which depend upon the nature of the matter being addressed by the court.

19. Compelling Attendance by Subpoenas. A subpoena is a legal document that may be served on a witness in a matter that requires that witness to appear before the court at a specified time. Failure to subpoena necessary witnesses can cause a parties to lose the right to have those witnesses testify before the court. The failure of subpoenaed witness to appear is cause for continuance of a hearing.

20. Courtroom Decorum. Parties appearing before the court must proceed in a manner that is courteous, professional, respectful and deferential. Legal proceedings are serious business and everyone involved in the process must act with proper decorum. Failure to act in an appropriate fashion may limit a party’s ability to be heard by the court and in extreme circumstances, may subject a party to contempt of court.

21. Contempt of Court. Failure to follow a court order or to observe rules of procedure and decorum may subject a party to contempt of court, which may be punished by fines or imprisonment under appropriate circumstances. Parties must always keep in mind that the judge is the law for purposes of legal proceedings and it is important to give appropriate deference to the court’s decisions.