On: Is self-representing in court a bad idea?

Cecil's Columns/Staff Reports
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First, you have a constitutional right to represent yourself, but that being said; much of the stigma of not representing yourself comes from the fear of courts, a phenomenon that is established by the legal community as a whole.

I’ve written several articles on this very subject, and have researched it along with reading the new book by Eric Bright called “Snowballed” that came out on Amazon about Christmas season.

One thing that I agree is: like anything, you have to be prepared when you go into court. Each court and each level of court has rules of procedure and rules of evidence. You can’t expect to hold a good or influential argument if you don’t a.) practice, practice, practice; b.) know the rules, the case law governing your argument, and the statutes in force.

It’s an absolute noble idea to represent yourself. We as common citizens just don’t know how. We are taught about the Presidency, and Congress and the schools, save law schools and undergrad law studies, tend to ignore the Judicial Branch altogether, in context of how it works and how you interact with it. The legal industry does its best to keep law and the Judicial Branch a secret society? Now, if you think that is subjective; consider this: from the time we are born, the legal industry touts: “A person that represents themselves has a fool for a client,” “You can’t fight City Hall,” or simply “Get a lawyer.” They have the court staff so bound that they dare not utter even a simple phrase, if it appears that it will look like they are giving you legal advice (rendering legal advice is highly illegal, uniform across the entire United States). Yet, albeit a thin line, there is a difference between directing you on interacting with your local courts verses flat out saying, “Well, you should do this.”

The law isn’t that hard to understand and litigate. What the law schools teach along with the study of contracts, real estate, criminal, and etc., is philosophy. Harvard will guide their students with experiences from real Judges turned University professors, constantly role playing different scenarios. Cooley Law in Grand Rapids, Michigan is for the working person to take classes at night and on weekends. I don’t truly know their curriculum, but I make an assumption that they spend little time nurturing talent, opting to get you the necessary studies to get you a quick juris doctorate. The better the school, the better the talent is nurtured. But, for example, the actual Universal Commercial Code governing the sale of goods contracts doesn’t change, or get better or worse based on what law school you attended, or if you attended one at all. Another simpler example. The law is clear that you still have to stop at a stop sign whether you are a Harvard grad or a high school educated janitor.

Eric Bright wrote in his book about Judicial Branch attitudes. The true reason why its hard to represent yourself is because you run smack into a brick wall of resistance from the bench. You didn’t pay the dues that your attorney opponent did: struggling through law school, struggling to pass the bar; and struggling to juggle the case load of a first year law associate. The untold bias in the legal community, which is uniform across all courts, is that a pro per is prejudged before you even file your first pleading. Bright describes it as a hatred by the legal community for pro pers.

I have more to say on this subject, and I might even start a thread of my own on this blog. By the way, the article on this blog was well written, even though I do not agree with it.

While I am careful not to turn this into a prostilitization or an online sales cart, I gently and respectfully recommend that you check out motiontostrikeblog as well as maybe getting a copy of Eric Bright’s book “Snowballed.” Or, even viewing the Massachusetts School of Law’s Judicial Misconduct forum on YouTube where the panel speaks extensively on pro per bias in the legal community and judicial branch. Attorney Alan Grosseck (I believe I spelled the name right) also speaks in depth about pro pers not fearing the courts, as they are your Judicial Branch of Government.

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Thank you!

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So you changed twice? Or did you revert back to the original?

:p:)

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Thanks to Bricker for a well written article.

Today there’s more scope than ever for DIY lawyering: one go-to website is the publisher Nolo Press. They offer a range of practical introductions to various legal topics, including representing oneself in court. Here’s their take on self-representation:

[INDENT] Is it ever sensible to appear in court without a lawyer?

When it comes to small claims court, yes, definitely. Small claims court was designed to be accessible to nonlawyers. In a regular, more formal courtroom, sometimes it’s also a good idea to represent yourself. Hiring a lawyer is almost always unaffordable for disputes that involve less than $25,000 and often unaffordable for disputes in the $50,000-$100,000 range. In these cases, representing yourself may be your only reasonable option.

Can I learn everything I need to know to represent myself in court?

The basics of how to bring or defend a case aren’t difficult, but trying to get on top of every nuance of procedure and strategy isn’t easy. That’s why Nolo suggests a two-pronged approach: learn how to handle routine representation tasks yourself while hiring a lawyer as a self-help law coach to provide advice on strategy and tactics as needed. In many situations, hiring a lawyer to coach your self-help efforts will cost only about 10-20% of what it would cost to hire the lawyer to do the entire job.

Ten years ago, trying to find a lawyer who would help you find your own way through the legal system was next to impossible. Today, given the surplus of lawyers and a gradual change in the profession’s attitude towards self-helpers, it’s much easier. Because law is an increasingly specialized field, however, you’ll want to find someone who is knowledgeable about your type of problem – not just any lawyer. For more information, see Nolo’s article Hiring a Lawyer as a Coach. [/INDENT] What about just showing up in court and winging it, without reading up on the topic with a reputable source? Snort.

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When I changed my name, all I did was…change it. I just started using the new name. I informed Social Security and the DMV and whatever other entities I was doing business with, and that was it. Name changed.

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RTrump, you make the case that there is a judicial bias against self representation. I can’t speak to that. But this:

This is the biggest hurdle to self representation - that most of us don’t know the case law, don’t know the rules of procedure and the rules of evidence, and don’t know the first thing about jury selection or tailoring arguments to play to the jury’s sympathies and all the other strategies that go into a court case.

Different levels of court are more amenable to self representation, owing to a combination of the penalties being low combined with the cost of hiring representation being high. It’s just not feasible.

But the more severe the possible outcome, the more convoluted the procedure and the more involved the case law. And good oratory skills and comfort with a jury is useful.

And while you suggest it’s relatively easy to take night courses on the law, the vast majority of people who are not pursuing the law as a career do not have the time/effort/money to prioritize that over, say, taking their kids to karate class, or spending an hour at the gym, or doing laundry, or whatever.

I suspect - and mind you this is only a guess on my part - that much of the judicial bias has less to do with a snooty “you didn’t earn your stripes” attitude and more of a pragmatic sense that most of the people who self represent don’t do the work. They don’t study the case law, don’t know the slightest thing about procedure, object to things that they’re not allowed to, can’t justify the objections they should make, and generally do such a pitiful job that it leaves vast grounds for appeal due to incompetence.

Of course, someone like Bricker might wish to chime in.

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What you speak of is deserving of more research by me, (I particularly like these type of subjects) as you bring up good and valid points that I may not have considered.

In fact, all of these posts enlighten me to positions that, while I don’t necessarily agree, help me to establish a more well rounded view.

The commonality between all of our posts seems to be not going into court unprepared, and the more complex the case, the more complex the preparation. In this, I fully agree.

Where I think I disengage from the general consensus is that, not only can we represent ourselves - - we should. Some find this to be scary, and I strongly believe this fear to be generated from the legal community itself.

Well done, all.

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In a hearing, where the rules of evidence are suspended, it’s not necessarily a bad way to go.

I served as a juror on a traffic case where the defendant a) managed to accidentally decline to testify, and b) didn’t really understand the concept of cross-examination. It didn’t work out well for him at all.

Another time, it was a civil case where the pro se plaintiff won big time, mainly because the defendant’s attorney rubbed the jury the wrong way (I was the lone holdout, but 5-1 was good enough). So…you never know.

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Pre-9/11, that worked. Post, not so much. And I speak from personal experience.

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I do have one major beef with the article: maybe I missed it but it appears that Bricker fails to declare his interest as a lawyer.

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What interest would that be?

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I mentioned this. Zero responses.

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I assume the idea is that, as a lawyer, Bricker has a motivation to encourage the use of lawyers and discourage not using lawyers.

Or maybe it is an interest in the law and understanding how it works.

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As a lawyer, I disagree with the suggestions by some commenters that judges are actively prejudiced against pro se litigants. Of course, people who represent themselves may be told that they should have a lawyer, but that doesn’t mean that the judge is going to rule against them on that account; it’s just good advice. Usually judges are at least neutral toward pro se litigants, and they often are willing to cut them considerable slack.

The problem is that pro se litigants (a) don’t know the law and (b) don’t know the proper procedures. Not knowing the law means that they don’t know what claims to make or defenses to assert, and not knowing the procedures means that those claims or defenses may well not be asserted in a way that the court can recognize. Many of these problems are so fundamental that even the most sympathetic judge will not be able to help.

Naturally, as others have mentioned, there are many cases that really do not need a lawyer, such as most cases that are in small claims court. A name change is another example.

One caveat is businesspeople who have formed their own corporation or LLC. The corporation or LLC may well be required to be represented by a lawyer (depending on the court and circumstances), even if the matter is a simple one that otherwise would call for self-representation. But that’s the only case I can think of where there is active judicial prejudice against the self-represented.

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In Ohio it’s not an “active judicial prejudice,” it’s the law. Nonlawyers may represent corporations in Ohio courts only if they limit themselves to testifying; they cannot conduct motion practice or cross-examination, which can be very limiting.

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That’s what I hear from the lawyers I know as well. One of the criticisms of legal ghostwriting and limited scope representation is that judges and juries tend to view a pro se client who has their act together very favorably and cut them slack on procedural stuff, which opens up an ethically murky situation where you could have someone presenting themselves as pro se to get favorable treatment but who really has a lawyer behind the scenes doing all the legwork and drafting all the documents.

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JBaker: your own industry admits that it is a bastion of prejudice against litigants pro se - the ones that rise above the cowardliness to actually speak without fear of career or employment suicide. Attorney David Grossack; Larry Velvel of the Massachusetts School of Law to name a couple.

You are right, as is all of the posters, in the commonality of stating that you have to know what your doing when you enter the court. You have to know the local rules that govern the individual court as well as the State and/or Federal rules. There are some customary acts, like standing when a judge enters, that must be respected.
I may have to concede the point to you that judges are “actively” being biased, in the context that I, a pro per myself, do not possess the qualifications to paint such a broad brush on all judges for the perceived actions that I have read about concerning a few adjudicators, notwithstanding my own experiences in the courtroom.

But, if you are trying to tell the posters that the bias doesn’t exist, and is not an epidemic, then I beg to vehemently disagree.

Okay, but the gravamen point of this thread is, should we represent ourselves, we without legal training and experience. I say yes - with considerable preparation before hand.

I close with this, and this will probably lean more toward JBaker’s point, although unintentionally. It’s always better to have a professional. You can wire up your own home - but the electrician has the license, education and equipment to do the same job faster, and in most cases, better. You can treat your common cold with chicken soup - but the nurse practitioner has the license, education and skills to make you more comfortable and endure the cold in hopefully at a reduced duration. You can represent yourself in court - and I advocate that you do - however, the attorney has the license, education and expertise to navigate through the legal circles that you, a pro per, are not accustom to.

There’s a small voice out there, that I hope to help grow, that will start educating the common citizens about the Judicial Branch and its operation. If your public education was like mine, you graduated high school knowing how the Executive Branch and the Presidency operated, you knew how Congress was elected and operated, and you may have been enlightened on how the Judicial Branch was appointed; but, I bet you couldn’t write a brief that was acceptable to your local jurisdiction. The legal industry is good at complaining about pro pers, and absent about solutions to their complaints…other than “get a lawyer.”

With permission and respect to this board, if you like this type of topic, I also recommend Motion To Strike Blog: http://www.motiontostrikeblog.com.

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I think there are two uses of the word “prejudice” at hand.

One is how the judge acts and rules. With that context, I think most judges strive to not be prejudiced against in their rulings and certainly make allowances as they can.

The second is their personal attitude toward pro se litigants, and that is typically negative about the group as a whole, primarily for the reasons that you yourself acknowledge - that most pro se litigants are completely ignorant of all the details of operation of the court room in question to be able to put up a decent showing. Except for the low financial stakes courts that are set up intentionally for pro se litigation with low procedural hurdles.

“Considerable preparation before hand” equates to lengthy study of the law, essentially becoming a lawyer in all but name, right?

Well, that is a pretty good solution in most cases. Becoming a good pro se litigant takes a considerable time and money commitment, most people don’t have that to just do as a hobby, and can’t wrestle that up once they find themselves in need.

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You’re capable of brushing your teeth, but not performing a root canal on yourself.
You’re capable of cleaning a small cut on your leg and applying a bandage, but not setting and sewing up your own compound fracture.
You’re capable of handling your own simple, single issue, low-stakes small claims case, but not a complex, multi-issue, high stakes matter.

In short, if a complicated task is outside of your area of experience, but important enough that you need to have it correctly done, the odds are that you would do better with a professional than floundering about on your own.

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I encourage you to look at what the “legal industry” is doing to improve access to the law before making such a statement.

Have a look at the un-bundling of legal services, the streamlining of procedure, the public funding of counsel for people of modest means, the funding of legal clinics, the provision of contingency fees, the publication of self-help procedural guides, the implementation of alternative dispute resolution, the promotion of para-legals, and the implementation of on-site advice centres.

Self-represented people are a significant drain on the system, including judges’ time, court staff time, lawyers’ time, and law clerks’ time, so don’t be surprised to discover that a lot of effort is being made within the system to deal with the problem of self-represented parties. Have a close look at the system and how it has been changing.