general advice for pro se litigants

Miscellaneous and Personal Stuff I Must Share
1

This is an issue that’s come up in Stoid’s threads, and that I thought merited repetition for those who might consider their own pro se litigation, but don’t want to get into five-page BehemoThreads.

I don’t recommend pro se advocacy outside of small claims court, and sometimes not even there. The law is complicated, legal problems are frequently emotional, and us lawyers do learn a few things over the course of law school. We aren’t making it all up, honest.

But - if you do choose to represent yourself in court, please do remember that the court is not out to get you, and that opposing counsel is almost certainly not dishonest or incompetent. Legal argument is premised on the assumption that reasonable people may disagree, even vehemently disagree - but everyone involved is still a reasonable, honest sort.

As a lawyer, I have an ethical obligation not to present frivolous arguments. I can present the facts and law in a favorable light, but I cannot misstate or misrepresent them. If I’m ever a judge (and Ford help us all if that happens), I’ll have an ethical obligation to carefully review the facts and law presented, and decide the case on its merits. And the overwhelming majority of lawyers and judges adhere to these ethical standards. We really do take these things tremendously seriously - that’s one of the (many) things that attracted me to the law in the first place.

All of this is to say that, when you go before a judge and accuse a lower court judge of incompetence, or opposing counsel of being a liar, you’re truly shooting yourself in the foot. These claims aren’t impossible - but the truth of the matter is that they are very unlikely to be correct. And when the first thing that comes out of your mouth - or off the page, in your written brief - is something that the judge knows is unlikely to be true, that makes it harder to believe the rest of your claims about the state of the law, or the facts.

A good legal argument uses thorough legal research to establish that the law means what you believe it means. A good legal argument anticipates, understands, and rebuts opposing counsel’s arguments, rather than dismissing them as fabrications or deceptions. And while a legal argument may make limited use of an emotional appeal - for example, by pointing out the undesirable policy implications of an adverse ruling - it does not insult the integrity of any officer of the court, absent extraordinary evidence of genuine wrongdoing. (Disagreement is not wrongdoing.)

Good legal argumentation comes from the head, not the gut. And it’s a hard thing to do when it seems that the cry “this is wrong” is coming from the very depths of your soul. You need to ignore that, or - far better - hire a lawyer who isn’t so emotionally invested.

Thus endeth the sermon, I think.

2

Well, I have to differ on this. having represented myself in several legal actions (small claims, general court), and being successful, I have a few observations:
-in Massachusetts, judges are political appointees. Most are ex-politicians, quite a few are incompetent, many are lazy, and an alarming number are corrupt. In the times I’ve been in court, the judge’s attitude seems to be:“how can I get this over quickly”. In one case (small claims) I went before a clerk-magistrate-he was actually the nicest guy of the bunch (listened carefully and understood the argument -which concerned damage to my wife’s car, caused by a bad shop repair job).
As for the lawyers, I have found that there are good ones and bad ones-unfortunately, the bad ones outnumber the good ones…like the incompetent POS who screwed up my SIL’s divorce-cost her over $20,000 and left her without any assets. Or the guy I hired for a real estate transfer-never returned phone calls and showed up late for the closing.
In all cases, the problems stem from the fact that lawyers have a state sanctioned monopoly, and (as with all monopolies) the lack of competition breeds corruption and incompetence.
When you are paying some guy $300/hour, you deserve excellent representation-unfortunately, many lawyers think that their clients are idiots, who will take what is given them, without complaint.

3

Of course, there are bad lawyers - just as there are bad doctors, bad engineers, bad programmers, and so on and so on. It sounds like your real estate lawyer genuinely was one of the bad ones - it’s hard to excuse failure to communicate with one’s client. I’d point out, though, that losing a case and “screwing up” a case are very different things. It’s common to find oneself in a situation in which there are good, well-reasoned legal arguments possible for both sides. One side will still lose, but not for want of dilligence or skill - that’s just the breaks.

I’m always a bit surprised by arguments that lawyers have a “monopoly” on their profession. Most communities have licensing requirements for contractors of various sorts - does this mean that contractors have a monopoly? What of medicine - do doctors have a “monopoly” because they must be certified by state boards?

One could, I suppose, argue that in all of these cases the licensing authority has a monopoly of sorts. I can’t see how that is meaningful, however, or a corrosive influence on any of these professions. When we hire people to do difficult, complicated, and often risky work, we want the state to ensure that they have some minimum level of competence.

I can guarantee you that the legal profession remains fiercely competitive - ask any recent law grad how their job search is going if you don’t believe me. (In fact, I think we’ve got some lawdopers graduating this year - congratulations, folks!) Perhaps you think it’s unfair that there is still a barrier to entry to the profession - law school, passing the bar and so on. However, that barrier exists for the same reason as degree and certification requirements for any other field - law is hard, and complex, and we want people to know what they’re doing.

4

Well, as i see it, the legal profession differs from all others, in that:
-it is self-policing. in other words, if you have a complaint with a lwayer, it is heard by the Bar Association-which is composed of…lawyers. No lay participation here!
-laws are written in obscure, obsolete language. This is why you need a lawyer to translate them. Why cannot laws be written in plain (i.e. 21st century English)?
-judges are not subject to review-they have tenure, and it is almost impossible to get rid of a corrupt one.
It is a system run by, and for the lawyers.
Competition? yes, the bad state of the law is leading to the growth of mediation, which is faster, cheaper, and provides better results.
As I say, competition is good., except the lawyers don’t like it.

5

With respect, these claims are not really correct. Lay participation in the lawyer disciplinary process is common - MA, for example, has four non-lawyers on its twelve-person Board of Bar Overseers. Cite: http://www.mass.gov/obcbbo/board.htm I’m admitted to the Maryland bar, which has three non-lawyers on its twelve-person Attorney Grievance Commission: http://www.courts.state.md.us/attygrievance/overview.html . True, most of the members of these board/commissions are lawyers - but that’s appropriate, as most of the issues these commissions deal with benefit from legal training to understand and resolve. Nonetheless, lay participation is incorporated into the process.

As for laws being written in “obscure, obsolete” language - well, that’s sometimes true, but most lawyers, judges, and legislators try hard to produce the closest thing to plain-language text that they can. This doesn’t make their output easy reads, necessarily - but that’s an unavoidable result of having to craft nuanced laws and legal decisions. That being said, the days when “learn Latin” was considered important, prudent advice for lawyers are long gone.

As for judges “not being subject to review” - well, federal judges (with some exceptions) have life tenure, but they can be impeached for misconduct in office. And the states frequently either appoint judges for limited terms, or elect them outright. It’s simply not so to say that it’s nearly impossible to get rid of a corrupt judge. Of course, it’s easy to convince oneself that because a judge ruled against you, he must be corrupt - but that doesn’t make it so.

Finally - don’t look now, but a lot of those folks going into mediation and arbitration programs? They’re (gasps) lawyers. Heck, my law school even had an Alternative Dispute Resolution competition team - I don’t know how you do that competitively, but people do. Shrugs.

6

Mr E, I beleive most of us are able to judge ralph’s contribution based on the quality of his other posts here, so I wouldn’t worry too much about rebutting him. As you can see, he provided no cites for any of his supposed claims of “fact”

Thank you for your thoughtful contribution here.

7

Generally speaking, I agree with your post. And I do so in spite of the fact that my experience in every forum I’ve been in tells me differently. Not that lawyers are evil, but my direct experience tells me that the default position when faced with a self-represented person is: they are full of shit, clueless, and I can brush them off without worrying about how I do it.

And if that wasn’t the underlying motivation in the other three experiences I’ve had (differnet judge in first case, UD One, UD Two), then the alternative explanation is that that all four of the judges…wait, one commissioner, three judges…that I’ve been in front of were shockingly lazy and clueless.

And I say that not because of my own reading of law or what should have happened, but because of three actual lawyers telling me that no, I’m not at all crazy, and the three judicial officers were wrong. Way, seriously, no-gray-area wrong. Again…my opinion, yes, but also the opinion of three real honest to god lawyers telling me so.

Although, to give the one UD judge a break (I held out for him after the UD commissioner screwed up the first time) had the decency to tell me I was actually correct about the law itself, he was just completely unwilling to in any way clash with the judge in the first case. He wouldn’t have been, the case was his and he had the right and duty to decide the law correctly, but because it had sprung from the erroneous orders of a fellow judge, he told me I would have to go back to her.

I did, and after I pounded on her, she finally admitted I was right. (As she has repeatedly, only after the damage was done, and I took multiple actions to get her to see it, and often while telling me that for some special reason the law doesn’t apply to me).

So why have I always had to work so hard for justice, when I’ve been right the first time? Because I’m self-represented.

But I have to believe that my experience is not normal.
Also: the work I"ve seen from other self-reps has proved to me why the legal community is so skeptical. But…what ever happened to innocent until proven guilty? Isn’t each individual supposed to be given the benefit of the doubt?

8

Here is an essay that represents how pro se litigants are viewed. The title is “Facing a Pro Se Opponent” Note that it doesn’t say a difficult, ignorant, unreasonable, pro se opponent. No qualifications.

Then, as you read, you realize that this writer is coming from a whole host of assumptions, all of which are completely negative. When he says that a pro se is capable of being reasonable at all, he calls this “surprising”.

And he’s hardly unique.

So are you going to argue that this belief system doesn’t create a prism through which the actions of the self-represented are viewed, leading to faulty presumptions? Because that would be very hard to argue.

By the way, almost all the behaviors and actions attributed to a pro se litigant by default in this essay, were engaged in by opposing counsel in my case. Never me.

9

Umm. I didn’t set out for this, but in searching for the above essay, which I remembered from a year ago, I stumbled upon other stuff that, unfortunately, supports the proposition that self-represented people are not treated fairly by the courts.

Just an FYI.

http://knowyourcourts.com/Archives/Pro_Se_Illusion/Pro_Se_Illusion.htm

Some quotes:

Following footnotes and reading PDFs, I’d just like to share this quote:

Apparently there are a few souls who agree that in fact, there is a difference. Whoda thunk?

Which is why the constant bleating from the lawyers that “you should get a lawyer” is so incredibly irritating. I’d love to. Most of us who represent ourselves would LOVE To have a lawyer. Are you volunteering to take my case pro bono? No? Why not? Shouldn’t I have a lawyer?

It’s obnoxious beyond belief to have people tell you to get a lawyer when you cannot get one. And then, as some did last year to me here on the dope, assert that the fact I have no money means the case is not worth pursuing for anyone, including me - basically, equating the lack of profit available for a lawyer with an assessment of the legal legitimacy of my case. Do you have any idea what a hideously nasty thing that is to think, much less say? Only people with enough money to hire lawyers have valid legal positions worth defending? WHAT?

Sorry… I really do have to believe that the courts and legal community are not invariably dismissive of the self-represented, but hanging around the Dope sure doesn’t help with that.

10

One last thing: I’ve been thoroughly dissed as a perfect example of all the things that are supposedly wrong with pro per litigants.

Without the slightest showing that it’s true, and a pretty decent showing that it’s not. In other words, all my battles here on the dope with the lawyers have been me bringing examples, cases, evidence, law, vs. the Dopyers arriving in the thread, assuming every negative thing possible, asserting that their assertions are true, repeating them some more, then disappearing when asked to offer something more substantive.

And you don’t think that reflects an anti- pro se bias? (I know, in some cases there’s an anti-Stoid bias, but not all, some are just about my self-representation.)

Again: I’ve seen the work of some pro se litigants that DO live down to the expectation. I understand. But at the same time I’ve seen work from members of the bar that’s just as bad.

Everyone should be given the benefit of the doubt and not have review of their legal work colored by any assumptions at all. Some lawyers suck, some non-lawyers rock. Judge the work, not the person who produced it.

11

Not that I want to be a royal terd here, but Stoid, this thread is about advice for pro-se litigants, not about your personal crusade. Please, let’s keep it to advice for the pro se litigant and not how the system is stacked against you frmo the get-go.

12

Well there’s your problem right there.

13

Actually, the OP should be: “General Advice for Idiot Pro Per Litigants”

When you tell a reasonable person not to act unreasonably, you either:

  1. are being disingenuous or
  2. are not giving enough credit to an insulting degree.

I think Stoid has a point, in that when lawyers say, “Never represent yourself,” the reason they give is usually something vague and akin to saying: “We know very special magical things that mortals could never figure out.”

Outside of the blatant, and (I sense) disingenuous, OP scenario–though it may have happened–I’ve rarely come across very specific reasons of why a reasonable person absolutely-positively-under-no-circumstances can ever represent himself effectively.

If judges dislike pro per litigants, it’s probably because they’re usually wackos. They just might be pleasantly surprised when a reasonable person–who can follow court-room etiquette–does it with sufficient and appropriate preparation.

14

Ok, here’s my advice for others in my position:

**Don’t go off half-cocked. ** Don’t find one case or one law that looks like it is the answer to everything and leave it at that. The law is a very complicated thing, and sometimes what seems plain is far from being so. You have to find every law that even remotely touches on the law you are looking at, you have to look at other cases and see what happened there. You have to have the time, patience and ability to take in a LOT of information. Information you might ultimately not use, but you MUST review it and make certain you understand it.

**Comprehension! ** Do NOT skip things that you don’t understand, because they will almost certainly come back to be exactly the thing that undoes you. Research every term, every word, every law, and make sure you see how they relate to each other and to your situation.

Currency! It is absolutely crucial that you make sure any case that seems to support you is still good law. That’s a killer - you find something from 10 years ago, go running into court and find that it was overturned last week. You MUST make sure of this. If you have Lexis access (you should through the law library in your town, or Westlaw, and if you don’t, you really can’t hope to be able to pull this off. Your research has to include up-to-the-minute law and decisions.) you “shepardize” - ask the librarian. (Doing that manually is nearly impossible for a lawyer, don’t you try!)

Face your fears! In doing your research (Which is 90% of what you will be doing - if this is hard for you, you are facing a huge battle) do NOT give in to the temptation to avoid ANYTHING that looks like it might be bad for you!!! PLEASE! That is the worst possible thing you can do. In fact, here’s the best piece of advice I can give you overall: approach your case as though YOU are the other side, and you are looking for ways to defeat you. That is the way you will be prepared…or realize you need to give up, one or the other.

**Follow Procedure **Don’t expect the judge and the other side to bend over backwards to accept any degree of screw up you present. You must do your best to follow all the rules, so your research must include the rules. You are not supposed to be given deferential treatment, but at the same time, your case is supposed to be considered on its merits. So don’t give anyone a flimsy excuse to blow you off by being lazy about the rules.

**Keep Cool **Control your emotions and your anger at whatever injustices you’ve suffered. As my mother said: For god’s sake don’t whine. Especially about how mean the other side is. If you are going to be your own lawyer, you have to, as much as you can, pretend to be exactly that, and your lawyer wouldn’t spew personal reactions all over the place. He or she can convey the same information in a professional way; learn to do that. You aren’t you, you are your lawyer - keep them separate as much as you can.

Get Help Keep trying to get as much professional assistance as you can possibly get, any way you can get it, even if it’s only to have someone review your papers. Ask, ask, ask. Some lawyers WILL help you, they will point you in the right direction, they will give you a little tidbit here and there, maybe more. But you must show them that you are not a crazy person, so don’t give in to the urge to tell them the whole sordid story. Respect whatever time they DO give to you. Also, of course, search for self-rep assistance. There’s a lot of it for family law, for instance, which is by far the category that finds the most self-represented people.

**Look for limited representation possiblities. **It is becoming more common to be able to enter into limited representation agreements with lawyers. You may be able to find one that will appear before the court for you, write a paper, handle some particular aspect of your case. They are far more likely to do that if they can see that you are reasonable and capable. I have had 3 lawyers do this for me, one, who specializes in appeals, put his name on my writ of supersedeas. He warned me that he wasn’t likely to unless it was letter-perfect, so it made me work even harder. And it paid off.

**Have the Courage of Your Convictions. ** If you’ve done what I’ve said, and especially if you’ve gotten support and encouragement from legal professionals, don’t be afraid to stand up for yourself and your position. A judge or lawyer telling you something doesn’t make it so, believe me, especially if everything in the law fails to support what you’re being told.
Justice and Law are not the same thing. Remember that while the law would like to be about justice, it frequently fails to be. That doesn’t mean you got screwed legally, it means that the system isn’t perfect. Flailing away at a legally sound but infuriatingly unjust ruling will just take years off your life. Move on.

How’s that?

15

All true. Which is why it’s so frustrating and difficult when it IS true.

So here’s some more advice: if you actually are dealing with an unethical attorney who has lied, you have to first figure out whether it matters. Did it change anything? Did the judge listen? Did it make a difference, or was it just infuriating? If it just bugged the shit out of you (and it will, especially if you are being completely forthright and honest yourself) let it go. Be better than that.

However, if it did make a difference, if it changed something, then you should address it, if you can. And here’s the steps I recommend, after dealing with a lawyer that could not report the time of day truthfully ( for fun I went through one of his declarations. In 32 paragraphs, exactly one was entirely free of lies, distortions or misreprentations of any kind. One. I think it was the “I’m so and so and I’m a licensed attorney” paragraph.)

  1. Determine if you can prove it. If it’s your word vs. his, hang it up, you’re toast.

  2. If you can prove it, can you prove it conclusively? Or just kinda? Again, you have to be able to prove it like it’s a note from God. Cuz he’s the lawyer and you’re the crazy pro se with the persecution complex. So you need documentation that is pretty bulletproof.

  3. If you can prove it conclusively, when you do it, do NOT use the term “liar” or “lie”. Even though it might make you gag, try to call it an error or mistake. If you are artful, you can make it clear that it was a lie without coming right out and calling it one. And if you have to call the spade what it is, try to use less brutal terms. Call it a falsehood or a misreprentation or simply call it untrue. All better than lie and always better than labeling the lawyer as a liar, which is really bad.

An example is when I had to tell the second judge about my opposing counsel’s lies, which fortunately were all in the actual record (he lied about the judgment itself, for god’s sake.). I was rewarded by seeing him get admonished twice. But I had to do it, it would have been disastrous for me to ignore it.

16

I just realized, with amusment, what the OP’s idea of “advice” for pro se litigants really boils down to:

“Don’t do it at all, but if you must, believe that most in the profession are competent, ethical, and trustworthy. Don’t accuse us of lying, accept what we say because we really do know better, don’t get emotional and really… don’t do it.”

17

I think you are being disingenuous. I believe all he is saying is that pro se is hard, and you’ll likely have better results if you don’t. But, if you do, you maximize your results by not being accusatory. You are not trying to convict the lawyer or past judge. You are challenging their position.

I think it’s pretty much what you’re supposed to do in real life. Be civil and respectful if you have a complaint. Assume good faith. If you don’t, you come off as complaining for emotional, not factual reasons.

In other words, the judge in your new case doesn’t give a crap about who was at fault, just whether the law was followed properly. It doesn’t matter if it was malevolence or incompetence.

18

I disagree with this, since lawyers will generally apply the aphorism not only to random untrained pro se litigants, but to other lawyers who appear on their own behalf. The problem is that it is very difficult to view a case dispassionately and select only the good arguments when it is your own life that you are dealing with. This is true even for lawyers, and is the reason why lawyers usually don’t represent themselves, especially for anything important.

19

I don’t disagree with this.

My favorite scary pro se of all time was this guy:

And he’s a judge!!! Holy mother.

Even though he lost, he managed to destroy the lives of the Chungs, the people he sued. Kinda like someone else I remember…oh, right,:smack: the guy I’m thinking of had a lawyer.

20

Actually Enugent brings up the most consistent argument I’ve heard against representing yourself: you’ll blow it by missing the big picture. You’ll miss what counts.

And I do understand that, definitely. Some incredibly frustrating and infuriating things can happen, and you find yourself feeling very resentful, and you want someone to fix all of it. There’s a definite desire to have someone listen to you tell about all the big meanies and the big meanie things they did and you can obsess over that and lose sight of what’s really happening and what’s really important in the law. Which is why I said in my list of advice that you have to remember that the law and justice are different. Your version of what’s right doesn’t matter if the law itself doesn’t agree. Pursuing “justice” if the law kicked your ass fair and square is a fool’s errand.