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A Guide for Representing Yourself in the South Dakota Courts

This information was provided by the South Dakota Unified Judicial System.

Introduction
Some day you may find you need to go to court ­ to settle a dispute with a business or a neighbor, to get a divorce, or to address custody or visitation issues. Many people hire a lawyer to take their case to court. It's a good idea. A lawyer has training and experience ­ and knows how the system works. Even if you end up representing yourself in court, it's good to start by talking to a lawyer about your problem. Find out if your case is a simple matter or one that could get complicated. Ask what it would cost to hire a lawyer to handle it for you. In some cases, you may be entitled to a jury trial, which is an important right. You should discuss this right with your lawyer. Of course, not everyone can afford a lawyer. And others may decide to take their chances and go it alone. Going solo in the courthouse can be very scary, especially if everything you know about the law you learned from watching television. Going to court isn't as simple as they make it seem on TV. That's why the South Dakota Unified Judicial System has published this brochure for you. In this booklet you will learn how the South Dakota court system works. You will learn the process ­ step by step. Take it home and read it. It could save you time and headaches later. Keep in mind that this is a guide meant to give you helpful information, not legal advice. Additional helpful information about the court system and its processes is available on the South Dakota Unified Judicial System website at www.sdjudicial.com and at the Frequently Asked Questions sections available at each Circuit's webpage accessed through a link from the UJS homepage.

The South Dakota Unified Judicial System

MAKING THE DECISION
Can I go to court without a lawyer?
Yes. The South Dakota Supreme Court says you have the right to represent yourself in state courts. In fact, many people in South Dakota go to court without a lawyer. Some people can't afford to hire a lawyer. Others decide that they would rather handle their legal problem on their own.

Should I go to court without a lawyer?
That is your decision to make. This guide was developed by the South Dakota Unified Judicial System to help you make that decision. Some cases are fairly simple and can be handled without a lawyer. Others involve complicated procedures and legal issues that require the experience and training of a lawyer. It is a good idea to talk to a lawyer about your case if possible. Whether you decide to hire a lawyer or to go to court on your own, it helps to know how the court system works.

Can I get help with my case if I need it?
Yes. There is a list of services on page 11 of this guide that may help you. You might want to take a moment now, before you begin your case, to find out where you can get information or advice.

What if I need extra help because of a disability or language barrier?

Everyone has a right to come to court and participate in the legal system. This includes people who use wheelchairs, people with hearing and vision problems, and people who don't speak English. If you or anyone participating in your case needs special arrangements, first contact the Clerk of Court or Circuit Administrator where you filed the case. They should be able to help arrange what you need ­ things like a courtroom that is accessible, a sign language interpreter, or a translator. It is important to contact the Clerk of Court or Circuit Administrator just as soon as possible, so they have time to make the arrangements.

"Can I get help with my case if I need it?"

Is there a way to solve my problems without a court fight?
It's possible. You may be able to resolve your dispute through mediation without filing a lawsuit. Mediation gives people a chance to sit down with a mediator in an informal setting to try and work out their conflicts. The mediator is a trained problem-solver who may help the parties come to an agreement. Mediators usually charge a fee for their services, but mediation could save you time and money in the long run.
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SOUTH DAKOTA JUDICIAL SYSTEM
How is the court system set up in South Dakota?
The court system is like a pyramid. At the bottom of the pyramid are the Magistrate Courts, which are like a small claims court. That is where many court cases take place. Next in the pyramid are the trial courts called Circuit Courts. The highest court in the state is the South Dakota Supreme Court. If someone loses a case in the circuit court, they can ask the South Dakota Supreme Court to review the decision.
SD Supreme Court Circuit Court Original jurisdiction in most actions; appellate jurisdiction over Magistrate Court decisions, except small claims decisions. Magistrate Court Conducts preliminary hearings for all criminal cases and trials for criminal misdemeanor cases, civil actions that involve property of $10,000 or less, and small claims proceedings of $8,000 or less.

There are two kinds of legal cases: criminal and civil. A criminal case is when the state charges a person with a crime. A civil case is when someone sues an individual or a business. There are many kinds of civil cases. Some examples of a civil problem that could end up in court are: a divorce, a dispute with a landlord, a boundary disagreement with a neighbor, or a problem with a store that sold you a faulty product. This guide covers only civil cases.

Do I file my case where I live?
It depends. You must decide which county or state is right for your case. This is called finding the right venue. The case is usually filed where you live or where the action took place. In actions for divorce, the action may be filed where either the plaintiff or defendant resides, subject to the right of the defendant to have the place of trial changed to the county where the defendant resides. SDCL 25-4-30.1. See South Dakota Codified Law Chapter (SDCL) 15-5 for statutes on venue of other types of actions.

How do I know which kind of court to go to?
That will depend on the type of case and the amount of money involved. If it is a family law matter, like divorce, child support, or custody, your case belongs in Circuit Court. If it is another kind of civil case, you may go to Magistrate Court if the amount of the money involved does not exceed $10,000. If it is more than $10,000, then you need to go to Circuit Court.

What about deadlines in my case?
Many cases are covered by statutes of limitations and other deadlines. Contact a lawyer if you have questions about deadlines that may apply to your case.
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BASIC STEPS IN A LAWSUIT
1. File the Summons and Complaint. The person starting the case is called the Petitioner or Plaintiff. He/she prepares a written statement, called the Complaint, telling the court what the case is about. Then he/she arranges to have the Summons and Complaint delivered to the other side. 2. File the Answer. The person being sued is either called the Defendant or the Respondent. He/she files a written response telling his/her side of the story and sends it to the other side. This is called an Answer. 3. Prepare the case. Both sides have time to gather evidence to prove their case. Evidence could include papers, photographs or the testimony of witnesses. 4. The judge holds a hearing. This is when both sides appear before the judge to present their evidence to prove their case. 5. The judge makes a decision.

FILING THE SUMMONS AND COMPLAINT
Is there a Summons and Complaint form I can use? The
Clerk of Court's office can give you a packet of forms for divorce cases only or you may download the forms from the South Dakota Unified Judicial System's webpage at www.sdjudicial.com under the Procedures tab. Forms for service by mail are found at SDCL 15-6-4(j).

Does it cost to file a lawsuit?
Yes. The court will charge a fee to file your case. See SDCL 16-2-29, 16-2-45. There are additional fees for copying and/or certifying copies, or issuing subpoenas. There is also a $10.00 charge for a divorce forms packet if obtained from the Clerk of Court's office, or you may download the forms from the UJS website above to your home computer for free and print them yourself. If you feel you cannot pay the fees, you can fill out an Affidavit of Indigency.

How do I make sure I've done everything right?
Take it one step at a time and don't be afraid to ask for help. The courthouse staff cannot give you legal advice about your specific case, but they will answer your questions about how the court system works. If you decide that there is too much at stake or your case is too difficult to handle on your own, you can always contact a lawyer.
The following are two examples of cases: Angela wanted to get a divorce because her husband left her. She went to the Clerk of Court's Office to get a "Divorce Packet" which contains most of the forms needed to fill out to file for divorce. There is a charge for the divorce packet. The Clerk explained that she needed to read the instructions carefully before starting to fill out the forms. She suggested she practice in pencil before making a final copy. Bob was sued by his landlord. The landlord filed a Summons and Complaint stating that Bob had not paid his rent. The landlord asked the court to force Bob to move out. Bob received a copy of the Complaint and a Summons telling how long he had to respond. Bob went to the Clerk of Court's office and was told that he needed to file an Answer. If Bob did not file an answer by the deadline, his landlord could have asked the court to rule against him right away. This is a called a default judgment. He checked the box that said he "denied the matters set forth" in the petition and in the space provided he explained what happened in his way: "A pipe broke in my basement. The landlord told my wife that we should get a plumber to fix it, pay him and deduct it from the rent, so we did. The plumber cost more than the rent so that's why the landlord didn't get a check from us last month." When the pipe broke in Bob's basement, it also damaged a rug. Bob decided to ask the court to order his landlord to pay him for it. He checked the box on the form that he was asserting a counterclaim and explained what happened to the rug and how much the landlord should pay him for it.

.... is there someone who can help me with the forms?

If I have trouble reading, is there someone who can help me with the forms?
Yes, you can ask someone in the Clerk's office to help you or contact your local library or you may contact the South Dakota Literacy Council at 1800-484-6690 Code 8585 or (605) 224-8212. You can also take the forms home and have a friend read them to you.

How do I notify the other person that I have filed a Summons and Complaint against them? Whenever you file a lawsuit,
including a divorce, you have to arrange to have the Summons and Complaint delivered to the other side and provide the court with proof of how, when and where the papers were received. This is called service of process. There are several ways that you can legally serve someone. The most common methods are listed below and are addressed in SDCL 15-6-4(a) ­ (j) and SDCL 15-65(a) ­ (i). See also SDCL ch. 15-39 for small claims procedures. Personal Service: The papers are hand delivered to the defendant or respondent. This is often done by the sheriff's office or, in some larger communities, a private process server. Personal service can also be done by any person over the age of eighteen who is a registered voter and is not involved in the case. An Affidavit or Certificate of Service form proving that the person received the papers must be filled out and filed at the Clerk's office. See SDCL 15-6-4(g) for proof of service requirements. Acceptance of Service: If the other side is willing to accept the papers, you can give them a copy, have them sign a form saying that he/she received them, and file that form with the Clerk. Service by Publication: This method is used only if the person you're suing lives out of state or you don't know how to locate them. This type of service usually involves putting an ad in the newspaper. Service by publication is explained in greater detail in SDCL 15-9-7 ­ 15-9-22. A court order is needed before you may serve someone by publication. Proof of such service is described in SDCL 15-6-4(g)(4).

Do I serve the papers the same way when filing an Answer?
You can serve an Answer by mailing it to the person who sued you. You will still need to file an affidavit of service with the court showing where and when you sent the papers.

PREPARING FOR THE HEARING
My papers have been filed and served. What do I do to get ready for the hearing? Now is the time to prepare
your case. You need to gather the evidence that will help prove your case to the judge. The evidence could be papers, like receipts or bills that you bring to court with you. You could also use witnesses to tell the court what they know about your case. Let's look at how Angela and Bob prepared for their hearings.

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Angela received a Divorce Packet from the Clerk of Court. There are specific things that Angela needs to do before the hearing. These are spelled out in a divorce packet and include: Filling out a Financial Affidavit to help the judge make decisions about dividing property and providing child support and setting alimony. The Court will need copies of financial records, like income tax statements, pay check stubs, monthly bills, deeds to property, bank accounts, and pension plans. Filling out a Stipulation and Settlement Agreement, if children are involved. This spells out plans to care for the children and is completed if both parents agree. It is best if both parents can agree on the parenting plan. Attending Parent Education Class, where required. Bob needs to figure out what evidence he needs to prove his case. The kinds of things he should consider are: The receipt from the plumber or a copy of his cancelled check. The plumber's testimony might also be helpful. He could testify that he did the repair and identify the bill. Testimony from Bob's wife. She can testify that the landlord told her to hire a plumber and deduct the cost from their rent. A receipt showing what Bob paid for the rug. If Bob uses receipts or checks as evidence, he should make sure that he has three copies: one for the court, one for the landlord, and one to keep for his own records. If his wife or the plumber is going to testify, Bob needs to write out his questions and go over them with each witness before the hearing. If the plumber does not want to come to court, he can get a subpoena forcing the plumber to come to court. The Clerk's office can provide Bob with a subpoena form that includes instructions for service. But he should be careful - a witness who doesn't want to testify may hurt his case more than he helps it.

Can I find out what the other side is going to say and bring to the hearing?
It is possible to find out what evidence the other side is going to present through a process called discovery. In civil cases, you have the right to get information about witnesses and copies of documents before the hearing. There are complicated rules about what you can get through discovery and strict time limits apply. In South Dakota, discovery rules are generally located at SDCL 15-6-26 through 15-6-37. If you need to use discovery, you may want to talk to a lawyer.

Can I try to settle my case before the hearing?
Absolutely. Many cases settle out of court without a hearing. For example: Bob's case might be just a simple misunderstanding and could be settled with a phone call to his landlord or the landlord's lawyer. He might also want to use a mediator to help Bob and his landlord reach a settlement or an agreement. In Angela's case, it will be better for everyone if they can agree on the parenting plan before the hearing. If the parents can't agree on how the children will be cared for, what arrangements will be made for custody and visitation, the Circuit Court Judge may appoint a mediator. See SDCL 25-456 through 25-4-62. The mediator will sit down with both parents in an informal setting and help them resolve some or all of their differences in caring for the children. The UJS Circuit Administrator maintains a list of court-approved mediators. Contact the Circuit Administrator in your circuit for this list or find this list for your circuit on the UJS website, www.sdjudicial.com. These mediators do charge a fee for their services.
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THE HEARING
How do I get a hearing? Will the court just schedule one?
Ask the clerk of the court where your case was filed whether you need to request a hearing or whether the court will schedule one on its own. In most magistrate and small claims court cases, the court will send both sides a notice of hearing telling them when and where the hearing will take place. In circuit court cases, the hearing will be scheduled only upon request. In that case, it's up to you to contact the Clerk of Court's office to request that a hearing be scheduled. Then, you must send a notice to the other side telling them the time and date of the hearing. If you are handling your own divorce action without a lawyer, you must schedule a hearing before the judge.

I've never been to court. What should I expect?
Each court is a little different. Some courts use formal rooms like the ones you see on television. But some hearings, may be held in a small room or the judge's office, called the judge's chambers. In general, this is what you can expect to see at your hearing.

Magistrate Court
· · Magistrate Judge or Clerk May be less formal setting

Circuit Court · · · · Judge in robe on bench More formal Court reporter and/or taped recording of proceeding Clerk of Court, who keeps track of official court file

· ·

Court reporter and/or taped recording of proceeding
Clerk of Court, who keeps track of official court file

What will happen at the hearing?
That will depend on the kind of court and the judge. The chart below describes what you can usually expect to happen in each of these kinds of courtrooms. Magistrate Court: The judge will probably start off by asking you to tell the court what your case is about. It will also be up to you to question your witnesses and present your evidence. The judge may ask questions and each side has the right to question the other's witnesses. Circuit Court: There are strict rules for presenting evidence and questioning witnesses in circuit court. You will be expected to know what those rules are and follow them. The other side is more likely to be represented by a lawyer. In cases tried without a jury, the judge decides the case. In cases tried before a jury, the judge rules on what evidence may be considered by jurors. The judge also instructs the jury on points of law pertaining to the case.

When will the judge decide my case?
The judge may make a decision at the hearing. Often judges will take additional time to consider the evidence and the law before deciding and will then send a written decision to the parties.
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when representing yourself in court
1. Make a good impression. 2. Be respectful.
If you dress nicely, it tells the judge that you respect the courtroom and care about your case. Be respectful to everyone in court, including the other side ­ and don't argue with the judge, or the other side. Try to stay calm. You can ask court officials for information about the process and what type of information to put on the forms. But remember, court employees cannot tell you what to write on the forms or what to say at the hearing. Arrive early. Most judges like to start on time. But some cases take longer than expected, so be prepared to wait. Tell the judge in a few brief sentences what your case is about and how you plan to prove the facts of your case. Lawyers call this an opening statement. Bring at least three copies of any evidence you plan to use. Write out the questions you plan to ask and go over them with your witnesses before the hearing. Most important of all, you can use a lawyer if you need help. You may start this case on your own, but later realize that you need the help of a good attorney.

3. Know what to ask.

4. Arrive early.

5. Tell your story.

6. Come prepared.

7. Use a lawyer if you need help.

MAKE AN INFORMED CHOICE
The South Dakota Unified Judicial System hopes that this guide has given you a better idea of how the court system works. If you ever decide to go to court, you'll know the basic steps. You can decide whether to hire a lawyer or do it on your own. You also understand the risks you are taking if you go to court without a lawyer. Some cases work fine with a "do-it-yourself" approach. Some don't. Keep in mind that some cases are better left to a trained professional ­ if you can possibly afford it. Just be smart. Decide what is best for you.
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Affidavit of Indigency ­ a sworn statement used to determine if someone meets the income guidelines so that they are not required to pay court fees Agreement ­ an oral or written promise to do something Answer ­ The defendant's written response to allegations (claims) in the case Certificate of Service ­ Form filed with the Clerk's office stating when and how the opposing party in a lawsuit received the papers filed in the case Circuit Court ­These are the courts that handle the major civil cases. South Dakota's 66 counties are divided into 7 circuits composed of one or more counties Civil Case ­ an action brought by a person, company, or other entity to protect some right or to help recover money or property from another person or company Complaint ­ (civil) written statements by the plaintiff setting forth the claims against the defendant Contempt ­ a finding by a court that a person has disobeyed a court order. The court may impose a punishment including a fine and/or jail time Counterclaim ­ a claim filed by the defendant or respondent in a legal action Criminal Case - a criminal charge filed by the State of South Dakota against a defendant for violation of a criminal law Default Judgment ­ when a party who has been sued fails to timely answer, either the Clerk or the court may enter a judgment by default against that party Defendant ­ the person against whom a civil lawsuit is brought. In divorce cases, the person against whom the divorce is being filed Discovery ­ a legal process used by a party to obtain facts known by other parties or witnesses. Divorce Packet - a series of forms and instructions developed by the South Dakota Unified Judicial System to assist persons filing for divorce Evidence ­proof presented in court established by witnesses, testimony, records, documents, etc. Lawyer ­ a person licensed and authorized to practice law, conduct lawsuits, or give legal advice

Magistrate Court ­hears small claims and certain uncontested civil cases and minor misdemeanor criminal cases Mediation ­ a method of solving problems without going to court when the parties meet with a trained mediator appointed by the judge Notice of Hearing ­ an official notice telling the parties when a hearing is scheduled Opening Statement ­ summary of the case and the evidence that will be presented given at the beginning of the trial Petitioner ­ in a civil case, the person or other entity who files a claim against another person; may be called plaintiff depending on type of action (see plaintiff) Plaintiff ­ in a civil case, the person or other entity who files a claim against another person. In divorces, this is the person who files or starts the divorce Respondent ­ the person against whom a civil lawsuit is being brought; may be called Defendant depending on type of action (see Defendant) SDCL - South Dakota Codified Laws ­ these are the laws of South Dakota. Copies can be found in public libraries or on the internet at http://legis.state.sd.us/statutes/index Service of Process ­ legal methods of delivering the papers to the other side in a lawsuit and proving to the court (by filing an affidavit of service or a certificate of service) that they were received Settlement ­ an oral or written agreement to resolve a dispute, especially before going to court Subpoena ­ a written legal notice requiring a person to appear in court and give testimony or produce documentary evidence Summons ­ a written notice to a person named in a lawsuit that an action has been filed against the person Testimony ­ a verbal statement made under oath Venue ­ The specific county, city or geographical area in which a court has authority to make a decision South Dakota Supreme Court ­ South Dakota's highest court where five Supreme Court Justices hear appeals of circuit court decisions and interpret the laws and constitutions of South Dakota and the United States

The State Bar of South Dakota
Public Service ­ Lawyer Referral ­ Help Line 1-800-952-2333 Internet Home Pages www.sdbar.org or www.sdbar.net
The State Bar of South Dakota offers a listing of lawyers and firms along with what types of matters they handle. The attorneys have agreed to provide you with your first half-hour consultation for a reasonable fee. You should discuss any additional fees with the attorney during your first visit. If you feel you can afford an attorney, the lawyers and firms in the lawyer referral listing are private practitioners who will charge for their services. If you don't think you can afford a private lawyer, you should contact the legal aid services offices to inquire whether you qualify for representation under that office's income guidelines. Legal services offices, telephone numbers and addresses also can be found under "Attorneys" in the yellow pages of your telephone book. Attorney General's Office Consumer Hotline Division of Consumer Protection 1301 E. Highway 14 Pierre, SD 57501-5070 Phone: (605) 773-4400 Consumer Help Line: 1-800-300-1986 (SD only) E-Mail: [email protected] **** Legal Aid Services of South Dakota: Dakota Plains Legal Services Main Office: P.O. Box 727 Mission, SD 57555 Phone: (605) 856-444 1-800-658-2297 East River Legal Services Main Office: 335 N. Main Ave., #300 Sioux Falls, SD 57104 Phone: (605) 336-9230 1-800-952-3015 **** Mediation/Arbitration Services Contact the South Dakota State Bar Office for a list of mediators and arbitrators in South Dakota. Contact UJS Circuit Administrators for a list of approved mediators in your circuit. Pro Bono Coordinator/Access to Justice As of January 1, 2006, a pro bono coordinator is employed by the State Bar of South Dakota to coordinate attorneys who provide pro bono legal services. Contact the South Dakota State Bar Office for additional information. **** The Internet has many good sources of information, but be careful. Laws and procedures vary from state to state. Not all of the information you find on the web will apply in South Dakota. Keywords: Pro Se litigants Self-represented litigants Legal information

**** Some public libraries and courthouses may have books and computers for research and law librarians that can help you. **** For further information regarding the court system in South Dakota please visit the South Dakota Unified Judicial System's Webpage at www.sdjudicial.com

U

Do You Need Help?
The court staff can not give legal advice.
· · ·

The court staff CAN answer:
How do I request a hearing? How do I file a lawsuit? Has a complaint (or petition, motion, response, answer, certificate of service, objection, etc.) been filed? I just got this summons and complaint. It says I have to file an "answer" or I will be subject to default. I can't afford an attorney. What is the answer? What does one look like? What does it say? What does "default" mean? When is my answer due? What does "interrogatory" mean? I got a summons for jury service. My wife and I have tickets for a cruise on the date I have been called to serve What happens if I don't show up? Well, what should I do then? When are the court deadlines and due dates? Are all the forms I need filed?

The court staff WILL:
· · Explain how the court works, including procedures, rules, and practices to litigants, the media, and other interested citizens. Provide examples of forms and pleadings, provide procedural guidance to litigants, and answer questions about the completion of forms. Explain the meaning of terms and documents used in the process. Explain how to bring problems before the court. Provide information contained in docket reports, case file (except in juvenile and family), indexes, and other reports. Explain the requirements to have a case considered by the court. Give you information from your case file. Encourage you to seek legal advice.

·

· ·

· · · · · ·

· ·

A lawyer can give legal advice.
The court staff CANNOT:
· · · · · · · · · · · Advise you whether to bring your problems before the court or what remedy to seek. Give advice or information to one party over another or take sides in a case. Give information when they are unsure of the correct answer. Advise you whether to take a particular course of action. Disclose the outcome of a matter until the outcome is part of public record. Give information that must be kept confidential, by statute, rule, or case law, such as domestic relations or juvenile. Tell you whether or not to bring a case to court. Give an opinion about what will happen if a case is brought to court. Recommend a lawyer, but can refer to the State Bar of South Dakota and the Lawyer Referral Help Line (1-800-952-2333). Talk to the judge for you about what will happen in your case. Let you talk to the judge outside of court. The South Dakota Unified Judicial System (605) 773-3474 10,000 copies were printed at a cost of $.54 each. Rev. 07/2007

Form UJS-300 Rev. 07/2007