Make Your Case: Finding Your Win in Civil Court

By Tanya Acker

“Tanya Acker lays out a common sense approach to deciding when to go—or not to go—to court. Make Your Case is straightforward and an invaluable resource from someone with the legal insight to tell it like it is.”
—Judge Judy Sheindlin

Tanya Acker, co-star of the nationally syndicated and Emmy-nominated show Hot Bench, demystifies civil litigation—from common lawsuits to new cases emanating from Covid-19 and looting (tenant vs. landlord rent disputes, small business damage, and more)—and lays out an expert's guide to legal proceedings inside the courtroom and out, giving readers professional insider information they need to find THEIR WIN in a lawsuit.

Millions of people end up in civil court each year. They assume going to court is the next logical step in their fight, but they often have little idea about how the court system works or what they can reasonably expect of it. They make poorly informed judgments about whether court is the best option for solving a problem, what kind of solutions it can provide, and why it proceeds in the (sometimes) counterintuitive way it does.

They think “winning” is only about the judgment or verdict rendered by judge or jury. Those “wins” are great—but if you don’t know what the process can exact from you or why it works as it does, that blind procession to victory can end up costing you your real win.

In Make Your Case, Tanya Acker cuts straight to the essentials, providing curated, targeted information based on her extensive experience regarding exactly what people want to know: what happens during court proceedings and why, and how to best prepare for it—or how to avoid court entirely and find a better way.

Be smart. Be ready. Make your case.

• Language: English
• Publisher: Diversion Books
• Release date: Oct 6, 2020
• ISBN: 9781635766882

Book preview

Praise for Make Your Case

by Tanya Acker

"Tanya Acker lays out a common sense approach to deciding when to go—or not to go—to court. Make Your Case is straightforward and an invaluable resource from someone with the legal insight to tell it like it is."

—Judge Judy Sheindlin

"Civil court can be your first line of defense or your last avenue to justice in our legal system. That’s why it’s important that you know the process, the players, and the politics. Tanya Acker’s Make Your Case offers the kind of knowledge and insight you won’t find outside of law school. A must-read for everyone because you never know when you’ll need it."

—The Honorable Anthony Daniels, Alabama House Minority Leader

"Whether you want to get the guy next door to stop dumping his garbage on your lawn or vindicate your constitutional rights against the President of the United States, with Make Your Case, Tanya Acker has you covered."

—Rebecca Buckwalter-Poza, Award-Winning Attorney, Political Strategist, and Journalist (who sued the President of the United States and won)

"Do not go to court without first reading this book! Smart, funny, readable, and filled with information and advice that only someone who has seen court from many different angles can offer, Make Your Case prepares you for what to expect at every stage of the litigation process. After reading it, you’ll know the questions you should be asking your legal representative—and yourself. I’ve spent most of my career teaching law, and I learned something from practically every page."

—Omar Dajani, Professor of Law,

McGeorge School of Law, University of the Pacific

"An extraordinary clinic for non-lawyers and lawyers alike on what realistically to expect when you’re compelled to enter the uncertain, often scary, and frequently expensive arena of litigation. Tanya Acker’s Make Your Case is an invaluable compass to help you get your bearings as you attempt a journey toward your ‘win.’"

—Chad Hummel, Co-Leader of the national trial practice at

Sidley Austin LLP, Fellow of the American College of Trial Lawyers

Make Your Case

To Mom, Dad, Randy, and the Constitution.

You all are the greatest.

Copyright © 2020 by Tanya Acker

All rights reserved, including the right to reproduce this book or portions thereof in any form whatsoever.

For more information, email [e-mail]

Diversion Books

A division of Diversion Publishing Corp.

www.diversionbooks.com

First Diversion Books edition, October 2020

Paperback ISBN: 978-1-63576-701-8

eBook ISBN: 978-1-63576-688-2

Printed in The United States of America

1 3 5 7 9 10 8 6 4 2

Library of Congress cataloging-in-publication data is available on file.

CONTENTS

PREFACE

When the world shuts down, people in disputes with one another don’t just automatically stop fighting and make peace. Some do, but many don’t.

Many simply cannot. For many, a global pandemic, and the near shut-down of the world in an attempt to stem it, can make what were already difficult situations much worse. Expectations are frustrated. People are unsettled and redrawing their boundaries.

During that same period—now, as I write this—a broad coalition is engaged around an issue with which many of us have long been familiar: the fact that the world can be far more dismissive, officious, brutal, or deadly if you are Black. Many American and global citizens are grappling with questions about how well the system works or whether it even works at all. Brutally stark examples of how it does not always confer to everyone the presumptive benefits of freedom and liberty, or value African-American lives as highly as others, have led to an important conversation about fairness and how to ensure it.

This book presumes a lot, not the least of which is some basic faith in the civic institutions that are supposed to hold us together in times of crisis. It presumes that just because I say so isn’t a valid basis for compelling or restraining behavior and that those civic institutions can play a useful role in keeping just because I say so at bay when we’re not—let’s just say—being our best selves. A diverse group of people who have to share space, who aren’t always inclined to see things in the same way, and who are laboring under pressures that will themselves make history, need to know there is a platform for resolving disputes that is more likely than not to play fairly. Court is one of those institutions, and having more information about court can help mitigate both blind faith and hopeless despair regarding how the process works. Either can be fatal to your search for justice.

I hope this helps.

INTRODUCTION

Our Eternal, Timeless Brawls

"I HAVE NO PISTOLS! LET HIM FIRE!

STAND OUT OF THE WAY AND LET THE ASSASSIN FIRE!"

—Senator Thomas Hart Benton to Senator Henry Foote in 1850, as Benton strode toward Foote on the Senate floor in objection to Foote’s remarks, and Foote pulled a gun on him.

What is something that all of us—blue, red, purple, or otherwise—have in common? We file lawsuits. Millions of them.¹

We can fight with each other over just about anything. Someone lies or someone else thinks they did. Someone claims they’re owed money and someone else thinks they’re being extorted. Someone’s circumstances change and they find themselves unable to do something they previously thought they could. Someone thinks they delivered a masterpiece and someone else thinks their nine-year-old kid could have done better.

Plus, neither life, nor you, are perfect. You’ll enter into an agreement and not think of everything. You will think you’ve covered all your bases, but you may let some things slip, thinking that everyone is working on the same page and toward the same objectives. Maybe you’ll be too easygoing about something, or believe that the pressures you’re under require that you not make an issue of things you ordinarily do. You won’t always be on your "let-me-make-sure-there-is-absolutely-no-way-they-can-come-after-me" game. You’ll be surprised when you thought everyone was on the same page and someone conjures a way to cry foul, or actually has a way of doing so.

And all of that is just on a good day. Add to that a near shutdown of the world because of a global pandemic and you get mathematical magic—an already infinite number of reasons for disputes somehow seems to multiply:

Your state or local government issues a stay-at-home order, requiring that all but essential businesses cease operating. Your business is considered non-essential. You disagree.

Your state or local government does not issue a stay-at-home order but your boss refuses to let you wear a mask at work. You think he’s playing Russian roulette with your life.

The lockdown prohibits you from joining other congregants in your church for in-person services. You believe the order is unconstitutional.

The government denies you COVID-19 relief funds because your spouse is undocumented. You believe this is unconstitutional.

Your parent was in a nursing home where a COVID-19 outbreak took place. No one at the facility told you anything in advance and you don’t think they did enough to protect residents from harm.

Your company is forced to close down so you’re not getting a paycheck, which means you can’t pay your rent. You may get several months’ grace period, but it’s not like you’re going to grow new money after you haven’t been working for months. Oh, and the landlord still didn’t fix the pipes.

When you closed down your business, you weren’t able to earn money to pay for the supplies you ordered. You don’t need them anymore and the supply company won’t take them back. You have neither the ability nor the inclination to pay for something you don’t need.

Just a random sampling of the kinds of fights that can send people marching to the courthouse door—or, as circumstances may require, a video-conferenced version of one.

As often as people may think they want to go to court, they sometimes can end up there with little idea about how or why it works as it does; or what they might expect when they get there; or how they might try to make the best of things if for some reason they end up there unwillingly. Some may be disappointed when it turns out that the process isn’t just about figuring out whether they’re right or wrong, but also about making sure they belong in court in the first place.

Some may think court forbidding. Others may over-romanticize it. But what would we do without it?

We’d eat each other alive.

You know this is true. We don’t share the same values, the same sense of fairness, or even the same ideas about what fairness means. We sometimes reject facts (this is especially true if they’re offered by someone who we consider to be on the other side). Our passionate disagreements sometimes erupt into consuming near-hatreds (or just hatreds) and even if they don’t become THAT bad, we still want a way to resolve them. We are a simmering cauldron of opportunities to fight.

While our courts aren’t perfect, they’re much better than the dueling grounds of the past. They’re far better than being left to the whims and mercies of someone else’s mood. While there is no doubt that resources give you a leg up, it’s also true that when those with few to none have sought refuge from the arbitrary and unfair conduct by others, court is and has been their last (and sometimes, their only) line of defense. Court has been where people from all walks of life have sometimes been able to get a fair shake, even when other institutions didn’t think them entitled to any fairness at all.

WHEN COURT COMES THROUGH

Sometimes court has failed us—like the time in 1857 when the U.S. Supreme Court ruled that African Americans weren’t fully human.²

But sometimes court has come through beautifully—like the time when a formerly enslaved African American woman could bring a lawsuit to recover her child after human traffickers—slave traders—had sold him illegally.

She was born Isabella Baumfree but later changed her name to Sojourner Truth. After she escaped her own enslavers, she learned that one of her children was going to be sold from the New York farm where he was being enslaved, to an Alabama plantation. (The families of enslaved African Americans were often ripped apart. In spite of efforts to sanitize the institution of slavery, it was, in fact, an inhumane and barbaric business.) In 1828, however, New York had banned the slave trade, so the sale was illegal. Isabella filed a lawsuit to court to get her son back.

She won.

That wasn’t the only time court came through for her. Later, when she was falsely accused of being a party to murder, she sued those who made the accusation and won $125 in damages.

Every kind of fight ends up in court—cases some think are important; cases some find frivolous; cases some think are light and funny and others that break our hearts. That certainly has been my experience on Hot Bench. Court is where people go for a fair shake.

Where would we be without it? Would we settle our fights by force—whether the physical kind or some other type? The force might be the kind that’s imposed by impassioned and concerned citizens speaking out on social media or other platforms. Or it might be the kind that’s wielded by packs of internet trolls.

Force sometimes may have its merits but it has its limits, too. What if your landlord could send a gang of thugs to force you to pay for damages in excess of your security deposit even though you claim those damages were only the result of normal wear and tear? Imagine what would happen if our disputes were decided by who received the most likes? If you lent money to someone, would you really want their repayment obligations to depend on the results of a Facebook poll? What if you were a generous lender who didn’t have enough likes? What would happen then?

Where would we be if we didn’t have some way of resolving our disputes that relied on something more than the whims and moods of the loudest and most insistent people? What would happen if you could only be assured of a just and fair resolution of your fight if your preferred political party, or your friends, or the people you know and with whom you have some acquaintance, were in power?

What happens if (when) they lose? Where will you be then?

If we don’t have a way of resolving our disputes that we can trust, we’re done. I know it’s a highly polarized time. But hasn’t it always been?

NINETEENTH-CENTURY FACEBOOK FIGHTS HAPPENED IN PERSON WITH GUNS AND CANES

In 1856, Representative Preston Brooks physically assaulted Senator Charles Sumner on the Senate floor with a cane, in response to a speech Sumner gave deriding the then-much-embraced institution of enslaving people. A few years before that, in 1850, Senator Henry Foote of Mississippi pulled a gun on Senator Thomas Hart Benton of Missouri—also on the Senate floor (noted in the epigraph above). In another instance, Senator Foote struck Senator John Fremont of California in the face in the hallway outside the Senate chamber. They would have had a duel but friends intervened.

In the good ol’ days people weren’t trolling each other online. They were beating each other silly in person.

True, the difference between today and the good ‘ol’ days (not really that good, if you ask me) is that our fights can escalate more quickly than ever. We can dig in and hunker down with the click of a button (or the batting of an eyelash, if you’ve got those glasses). We can draw battle lines, recruit allies, and replenish our arsenals without even leaving the sofa. Every glance at our screens reminds us of why everyone else is so hazardous to our health. Not only do we fight a lot, but now we can fight quickly.

So, we need court. Resorting to shootouts was not always productive. Duels don’t provide much protection from mistakes. Court provides us a basis for resolving our disputes with one another—a basis grounded in something more than someone’s whim, or their mood, or whether we can shoot straight.

Still, court is a mixed bundle of upsides and downsides.

On the one hand, court can be a refuge from certain types of savagery, a place with standards and procedures for ensuring that your fight is resolved according to principles based on something more certain than someone’s whim or mood, or whether they like you, or fear you, or anything like that. In court, you’re supposed to be able to enjoy the benefit of rules that ensure we resolve our disputes in a reasonably civil way. It is supposed to work this way even when the person with whom you’re fighting is neither reasonable nor civil. That’s why you’re supposed to be able to go to court—to get them to play fairly.

On the other hand, court is a place where savagery can run rampant. Maybe it’s a lawyer or litigant who fabricates tales with the same ease that others breathe air. Maybe it’s an opposing party who obstructs and protracts matters just because they can—because the system allows them so many opportunities to do so while doing very little to protect you. Maybe it’s the fact that some of your "ride or dies"—your great friends, your allies, the ones who say they’ll always have your back—decide that when it comes to testifying on your behalf, your back is on its own. Who knew you’d ever have to subpoena your friends? (The quotation marks are quite intentional.) Some ride or dies would rather take the bus.

Maybe it’s just the unremitting toll that litigation takes on your peace of mind and your wallet, especially when you show up unprepared for what you’ll have to do in order to wage war in court.

This book contains no secret sauce about how to win your court case, should you happen to be in one. How could it? I don’t know you or your fight, or whether you even should be in one. Maybe the fight is a complete waste of your time. Maybe you’re in the wrong, at least partially. Maybe your position will be absolutely and thoroughly vindicated. I have no idea.

As someone who has decided a multitude of cases in our Hot Bench tribunal, litigated them in private practice, and counseled people about disputes and the dispute resolution process, I instead want to debunk some myths, help you better understand why some things in court might work as they do, and give you a general understanding of the process so you can better organize your thinking around your fight if it ends up in court. People sometimes think that when it comes to proving their case in court, they can assume more things than they really can—whether it’s about what they have to prove; or how they go about proving things; or how the law might analyze and dissect an issue that looks like one Big Heaping Mass of Problem. Some people may think that picking through that Big Heaping Mass of Problem will be easier or more straightforward than it actually is. Or, they may be too intimidated even to start.

When you’re not in court, winning can mean any number of things. In the most straightforward of circumstances, it can simply mean scoring more points or winning some objective contest. In less straightforward situations, winning can mean ensuring your opponent, who may be your opponent for reasons only you can know or determine, doesn’t get something they believe is important or valuable to them. You might take this view irrespective of its consequences to you, if any. Your sense of winning may be derived from seeing someone else lose, in which case you don’t really gain anything except a sense of satisfaction in someone else’s struggle. If you find that someone else particularly devious or troublesome, perhaps this gives you a sense that they’ll be kept at bay in the future, depending on the ground you’re trying to protect. Perhaps you think the lawsuit will teach them a lesson.

Plus, so many of our fights aren’t really what we say they’re about. We claim we’re fighting about the economy when we’re really just hashing out longstanding culture war enmities. We say we’re mad about a friend’s sharp tone when we’re really annoyed they forgot a birthday. Sometimes, we want a referee to make sense of our fights and bring some order to them. Decipher them. Explain our position to the other side. Make them get it. Sometimes people show up in court with their Big Heaping Mass of Problem—a kindling of grievances and offense spanning any period of time—to which a flame has been lit, and they want the process to rescue their valuables from the ash. What they don’t always realize is that they have to take a walk through the wreckage first so as to point out where the valuables are.

How you define your win will determine what you do or don’t in the course of your fight; how hard you try (or not) to resolve it; and what objectives you set as your medium- or long-term ends. When you’re fighting in other places, you can craft a version of winning that suits just about any objective you like. You can make up objectives as you go along or improvise upon them as you see fit. You have a lot of flexibility!

You don’t have that much flexibility in court. Improvising and flying by the seat of your pants can cost you a lot of time and money. If you’re not very clear on precisely the win that you’re seeking and what it will take to get there, you can end up being held hostage by the process, or by the whims and caprices of someone else’s anger, or even by the whims and caprices of your own. You may ignore opportunities to escape your kidnapper because you really want to punch him in the face first.

Court may be a refuge from unfair and unjust fighting in other places but when you’re fighting there, it won’t always feel very just or very fair. You may not get the justice you think you deserve. Even if you do get it or something close to it, you should have some idea of what getting there will require of you.

When you know how messy, difficult, time-consuming, and expensive court can be, you will do everything you can to avoid it. You will send emails confirming your agreements, clearing up confusion before people become too wedded to divergent paths. You’ll read carefully the contract upon which you know to insist, since doing a little work beforehand can save you a lot of (more expensive and frustrating) work later. You’ll save some voicemails. You’ll take better notes. Maybe you’ll think twice about loaning someone money; or think twice about not paying it back; or maybe you’ll consider more carefully whether to reject unilaterally someone’s demand that you correct a problem they claim you created. Since having your day in court can sometimes mean having your years there, you may be more inclined to explore whether there are other, more effective ways of solving your problem.

By the same token, you may have to be in court for some reason. You may have no other choice. If that’s your situation, there is good reason to be overwhelmed or intimidated by the process because it can place enormous demands on your time and resources. Those demands sometimes can result from the automatic application of rules and standards that may be as unfamiliar to you as the lost languages of Atlantis.

I hope this book helps demystify the process. Having some idea of what court may require of you, of the many ways in which it may disappoint you, and of the ways in which it may nonetheless give you a break, can help you better prepare how you move forward with your court fight. There are so many things that can happen in court to blindside you; I just want to give you a sense of a few of them so you’ll understand how uncertain (and sometimes counterintuitive) the process can be.

In the course of resolving disputes on Hot Bench and during other phases of my legal career, I’ve seen people be completely bewildered by court. They sometimes seem to think that proving things in court is like trying to convince your mother not to ground you for staying out too late. They can’t believe that in the course of a court proceeding someone can get away with saying that. They can think it’s easier than it is or, alternatively, retreat into a type of defeatism, overwhelmed by twists and turns that can be as slippery and elusive as Medusa’s hairline. Slippery and elusive as those twists and turns may be, however, rules still apply.

While a lot of the material I reference here involves tactics and maneuvers that apply to cases more complex than those you might see on Hot Bench, they’re intended to give you a flavor of what different court experiences may be like. I wanted to highlight the sorts of demands court can make of you as you seek its help. You have to help court help you. I also want to explain why some things happen as they do so that you don’t feel like the process is a complete gamble. It’s not a complete gamble because there are rules and controls on things that can give you some guidance. Still, it’s something of a gamble.

Some of the anecdotes in this book are inspired by case experiences and interviews with lawyers (with names and details changed); some are composites; others are complete hypotheticals; some are based upon or inspired by published and unpublished court decisions. Don’t get nervous—I’m not talking about you. If something feels familiar, just act casual and no one will notice. So many of the fights and problems people have are similar to those of others, existing perhaps on a different scale and with different characters, but born of the same types of protectiveness and, sometimes, animosities.

To be clear—I am not giving you legal advice. Nor am I offering any definitive statement about what the law is on a particular topic; this is not, obviously, a comprehensive primer or textbook. Any law can change or be interpreted differently in different cases, or across different jurisdictions, or even interpreted differently by different people. Some may not even apply in every jurisdiction. Some of the rules