First Appearance – Understanding the Process
The first court appearance after your arrest, summons or citation is called an arraignment. You will be told what charges have been brought against you and you will be asked to enter a plea of guilty or not guilty. The first appearance is not just another formality. Most people are frightened when they get a summons to court, or a notice of impending arrest. The simple act of entering a plea in court is a formal process. In many jurisdictions, you must enter a plea at the first appearance. If you plead guilty, then this hearing is the most important of all. In Virginia, you would only enter a plea of guilty on an infraction. An infraction is a non-criminal offense . Typically, it is for a traffic infraction and you may leave the court having already paid your fine and received the necessary paperwork enabling you to keep your license active and driving. If this initial hearing is your arraignment and you are pleading not guilty, then the judge will certainly send you on for a court date to determine your guilt or innocence. If the offense is a criminal one and the judge feels there is sufficient evidence at the first appearance, you may be detained and your case will be heard for disposition at a later date. Also, it is at this time the court will decide if you will be granted bail, what type of bond and how much, or if you are to be held in custody until your detention hearing and court disposition on charges.
Legal Consequences of Attending Without a Lawyer
A few years ago, I represented a man in a restraining order case. In that case, he decided to represent himself at his first court appearance. Although he had been served with the court papers at least a week prior, the fact that he had him mom sign some documents at the police station, made him think he did not need a lawyer. Big mistake. The client signed a document that prevented him from seeing his daughter for six months, even in situations that would have otherwise been appropriate. He lost temporary custody, the right to get help from the state for schooling, and visitation with his daughter. All because, without legal counsel, he did not understand the implications of signing the order and believed that it was temporary and would be revisited once the case went to trial. Surprise to him. The court and the judge were not out to "get him," but simply to adhere to the law and the manner in which the court system handles certain types of cases when certain legal documents are signed and filed.
The law has strict requirements and limitations on cases, including language that can create huge problems if not properly represented. For example, a to whom it may concern document may be valid in other situations, but in a restraining order case, it is a document with an enormous amount of weight. Sign one of these without understanding the legal impact of it and you may create unnecessary obstacles that can haunt you later trying to fix. Paying for a good attorney ahead of time, or simply knowing what you need legally and what you’re getting into can help you avoid future headaches, and prevent you from signing documents that could end up changing your life in a negative way.
Even a simple hearing has specific legal requirements and will have enormous legal implications that will follow you when you appear as a pro se individual. Pro se representation should be the last choice and should be based on a complete understanding of the issue as well as the risks and responsibilities inherent in it. Especially in cases where people’s rights and freedoms are at stake, legal representation to understand these issues and get the proper protection from the law is an absolute must.
The Benefits of Retaining an Attorney Early
A first court appearance can be daunting, even for the most educated, capable defendant. For example, if you are charged with a crime, such as driving under the influence of drugs or alcohol (DUI), you might not know what a plea deal is even if you are eligible for one. An attorney can help to explain the legal system to you in a way that is meaningful and easy to understand. For this reason alone, it is beneficial to have a lawyer present when you first appear in court.
Another reason to hire legal representation during your first court appearance is to optimize your chances at negotiating a plea deal. Sometimes, this does not happen until an arraignment; however, your attorney has a chance to explain your case to the judge during the initial appearance afterward. While this may seem like an awful lot to expect from a first appearance, it is also important that your lawyer is present during this hearing so that you are protected every step of the way.
A third reason to hire a lawyer for your first court hearing is for protection. Your rights are given power by the constitution – a stronghold that does not always apply in the real world. Sometimes, judges are not forthright with the consequences of pleading guilty – and to be sure, the punishment is severe in most cases. Having an attorney means that you have someone on your side that understands the intricacies of the legal system and the law.
Cost Considerations: Balancing Speed vs. Financial
An experienced attorney will cost money. There’s no denying the fact that hiring a lawyer is expensive. A company’s budget is tight. Times are tough out there and cash flow is crucial. When first faced with the possibility of having to hire a lawyer after serving an answer or complaint in your case, it’s natural to start adding it up and figuring out if you really need a professional or if you can handle the case yourself. You know your case better than anyone else and these "cost vs. benefit" analyses often come down to the particular circumstances and facts involved.
While there certainly are times when defendants are able to successfully represent themselves and at least mitigate the amount paid out in settlements or judgments, in today’s world it is important to recognize the fact that the money spent on an attorney could result in a much smaller settlement or judgment against you (or none at all). While the cost of hiring a lawyer can seem high when compared to the definite value of his or her services, that cost is almost always way less than the possible judgment, including treble damages for willful violations, attorneys’ fees and costs, court costs, and potential liability if it turns out that a jury finds in plaintiff’s favor.
To put it simply, regardless of the circumstances of your case, it is always cheaper in the long run to pay a defense lawyer to fight for your company’s interests than it is to pay for an adverse judgment by default, a verdict after trial, or even a mediated settlement. It is this very possibility which has caused many businesses to view expensive lawyers as their best friends. If your company is facing litigation, the cost of hiring an attorney today could literally save you millions of dollars tomorrow.
When You Absolutely Need an Attorney
There are certain scenarios in which having a lawyer present at your first appearance is almost imperative. A fair number of immigration issues fall into this category, and asylum seekers, in particular, have a very strong reason to have an attorney on hand to help them navigate this complicated process.
However, not all asylum seekers have the wherewithal to pay for an immigration attorney, meaning they face the challenge of navigating the legal system with the barest of assistance. A related issue involves family-related immigration cases such as those involving green card applications or visa renewals, where undue delays can place significant strain on individuals, couples and families . Because even the smallest error can result in long delays or even rejection, working with an attorney is always the safest course of action.
Finally, there are criminal cases that simply require a certain level of representation for the sake of the client’s legal security. A fairly straightforward assault case, for example, can hold significant consequences for anyone who fails to appear in court. A skilled criminal defense attorney can steer a client away from imprisonment or other unnecessary punishment.
While there are many other circumstances in which having an attorney by your side is recommended, these are a few of the most important. A lawyer can do a lot of good to help you navigate your first court appearance.
Alternatives to Using a Lawyer
The previous sections have addressed why hiring a lawyer is the best option for your trial, this section will cover alternatives that may be available for specific circumstances.
In most criminal matters, if you are low income, a public defender will be provided to you by the court. However, the courtroom may not be a good fit for you and you may have a good reason for wanting to represent yourself. For example, having a family member represent you for an upcoming misdemeanor trial that you can afford.
First and foremost, a case must have merit to be worth going to trial, so if you are a pro se representative for your own case, the first logical step is to go through all of the motions of getting a fair trial: find out if your case can be dismissed, take a plea deal if that is offered, and if not, apply for a waiver of any court costs you may owe.
If your trial proceeds as any other does, you will need to show up on time and organized and go through the typical motions leading up to a trial. Be aware that a judge generally will not give you advice in court as a pro se defendant and you will need to be prepared for that. A good practice to follow is to write out questions you have ahead of time and bring those to court if you need to get clarification on any matter. Prepare for the case as you would if you had a lawyer with you.
If you want to have an attorney, but do not have the funds to afford a private lawyer, you can contact legal aid, who may have lawyers that work pro bono on your case, or lawyers that have moved to your area to help out in cases that need a lawyer.
Appear Without an Attorney for Court
If you are going to court for a minor matter or for something where you can represent yourself, you may want to appear without a lawyer. Here are some tips:
Go to Court to Observe: One of the best things you can do is to go to the courtroom where your case will be heard and watch how cases are presented. Even in family or criminal court, see how things are handled. This is a far cry from law school – and just observing what happens in court can make you feel much more confident.
Dress for Success: Dress as if you were meeting the most important client in your firm. Always wear professional or business-like attire. Never wear jeans or shorts. This is not a vacation!
Be On Time: Nothing creates a worse impression than being late – whether in court or anywhere else. Be there – on time!
Address the Judge as Your Boss: In most cases, you should refer to the judge as "Your Honor." However, if you are dealing with a Commissioner (in Family Court) or Master (in Civil Court), the accepted form of address is "Your Honor." You should also be polite to the commissioners or masters. If you are on a waiting list to speak to the judge, you cannot approach the clerk to tell the clerk anything about your case. This is not permitted.
Be Courteous – But Not Focused on Your Opponent: Priests have their own hierarchy, but other people do not. Calling your parent "Mr. Smith" or "Dr. Smith" (if they are a doctor) is not going to advance your case – and it will look silly. Likewise, don’t call your spouse "Mr. Jones," "Mr. and Mrs. Jones," or his or her first name. Be professional, call them by their first name or just "My Ex-Husband" or "My Ex-Wife."
Use The Podium: Do not sit at the council table. This is not a habeas corpus hearing. The podium is for you. You cannot sit or lean against the podium while speaking to the judge. Do not make gestures that are distracting. The judge should be able to see your face. If you have the file or documents in front of you, you should have no problem speaking to the judge while looking at the judge. If you have to look at the file or documents to read, you need to provide the documents to the court for the court’s inspection while you are addressing the judge.
Value of Documents Without an Attorney: Bring copies of documents you are going to show to the judge. If you are in Family Court, bring at least 5 copies with you. If you are in Circuit Court and there is a potential appeal of your decision, bring an original and 2 copies. If you do not have a copy of the pleadings or motions (which you can get at the courthouse), you should bring them. They are your legal papers. You will also need to have a stamp on your copy. If you cannot afford to buy stamps, ask the clerks for them (at the Circuit Court Clerk’s office). You should attach your exhibits to an affidavit (or certificate) and make sure you sign the bottom of them. The best thing to do is to hire a process server (served by a disinterested third party) or ask someone who does not have an interest in the case to cut out the forms for a small fee. You should attach copies of the attachments to the affidavit or certificate, sign them, and have them notarized. You can go to any bank and they can notarize them for free. If not, the clerks can, but they may charge 25 cents per page. It is best to prepare all of documents in advance and give them to the court so you do not waste the court’s time in having the court ask you to step aside so it can review them.
Practicing Your Presentation: While you will not ever receive a grade, you want to be confident and practice your presentation. Do not read off the paper – that looks horrible. To put it into marketing terms, you should not take a PowerPoint presentation and read it to the jury. You want to speak without looking down. So, you should write your notes out and practice at least 10 plus times before making your presentation.
Closing Thoughts – What’s Right for You
Whether or not to retain counsel for your 1st appearance is a decision that will be very fact specific to your circumstances. You should ask yourself if you are comfortable representing yourself. Many people will feel that they are in over their heads and not knowing what to do next. Perhaps you believe that your adversary will have an attorney and it would be unfair not hire an attorney also. A big factor for a lot of people is the cost in retaining an attorney. Unfortunately, many people are not in a financial position to make a $2000 to $5000 investment. If you have a case that is simple and uncontested, where you cannot afford to spend money on an attorney, the clerk’s office will often help direct you to information as to the forms and what to do. This is really the type of case that people represent themselves. But if you don’t feel that you can get yourself up to speed on the law, you need to meet with an attorney to understand how bad or how good your position is. Finding out if you should settle or proceed can be difficult without an understanding of the law. In other circumstances you may be making mistakes that are either costing you money and/or visitation time or jeopardizing your children’s future. You need to ask yourself whether retaining the right attorney will be cost prohibitive. Some attorneys, including my own law firm, provide a free hour long consultation. This is a great deal. You should ask yourself what is the harm with paying a $75 or so retainer to have your options explained to you . My advice is always to pay a little bit now to find out whether you have an interest worth pursuing. Then if you do retain an attorney, you will be that much further along and more knowledgeable on your issues. There are some people who ever so briefly speak with an attorney and do not hire him/her and then attempt to handle their own cases. This can be a terrible mistake. You do not know what you do not know and it can be very dangerous. You generally do not know what you are missing until it is too late. Even when people hire attorneys to represent themselves, they always believe that in retrospect that they should have spent a little more to get a better attorney. The best attorney is the one that has good credentials. You want to make sure that your attorney has a reputation and background that speaks for itself. You cannot tell if an attorney is competent by simply speaking to him/her a few minutes. You need to do more. You need to research what other people say about that attorney. Many people go on AVVO or GOOGLE or another review site and post what their experience was in dealing with a particular attorney. But nothing is better than obtaining the recommendation from someone you know who used an attorney and receive a positive review. That person you are asking may be completely satisfied or totally unsatisfied with the services received. Either way, your investigation of who to use for an attorney for your 1st court appearance is not complete until you have thoroughly investigated the attorney.