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

[QUOTE=RTrump]
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).
[/QUOTE]

Two points:

  1. The reason court staff will not give legal advice, other than on the most basic procedural matters, is not because it’s legal advice; it’s because the court must remain neutral as between the parties. The court staff are part of the court; if they start to give advice to Party A (“If I were you, I would do X because that’s most likely to help you.”) then the Party B can ask, “Wait a minute! Whose side are you on! That’s unfair!” And, if a point came up in court when the judge says to Party A, “Why on earth did you do X??” and Party A says, “Well, the court staff told me to!” it puts the judge in a bad spot. Court staff can’t give legal advice, because as part of the court, they have to remain neutral.

  2. Giving legal advice generally isn’t a problem; most prohibitions I’m aware of is that you can’t give legal advice for a fee unless you are legally trained. That’s a type of consumer protection legislation, and is common in a lot of other areas. For example, when I was having some yard work done, I asked the contractor if he could hook up my yard light. He said he couldn’t, because I had hired him and was paying money. He didn’t have the qualification as an electrician to install anything electrical for a fee. If he had just been my buddy doing me a favour, he could, but not when money was changing hands. Same thing for lawyers and other professionals.

Muffin, I agree in part and I understand the point about criticizing the “legal community” subjectively before gathering the facts. But I would submit that my motivation in stating that the legal community complains about pro pers more than it offers solutions is based in fact…albeit from one particular jurisdiction. When security was less stringent back in the 1980’s, I, as a pro per, was often invited back to judge’s chambers along with the opposing attorney(s). I got a good hands on education through observing and interacting with judges and attorneys “back stage.” The general consensus back then, as I believe now, was the cringing feeling that attorneys and judges get when a pro per is in their midst. Yet, for all the angst concerning pro pers, no one offered solutions. They just prayed for the day and hour that the pro per would get its case disposed of. As I still appear on my own behalf in my own affairs, this sentiment still exists, at least as far as my own experiences. That’s not to say that judges and attorneys say, Trump, get out of here! But, again, only expressing my own experience, I’m often talked “at” and “through” rather than talked to by the legal profession. As far as I know, (and there have been compliments through the years about my trial preparation) I have always been fully prepared to present my positions.

Irishman - once again, a solid argument. I think my interpretation of the gravamen question is not so much “is it a good idea.” In the face value of the question, I believe both sides of this (for lack of a gentler term) debate are in agreement that it is not a good idea. As Muffin has stated, and I too, when we look elsewhere at other professions, we can conduct our own actions in those professions as well, but it is never a good idea. I think I have been coming from the point, “you can” represent yourself, which I now admit is an entirely different animal. As Muffin points out, if we just wave a magic wand and people start filing cases on their own without understanding “hearsay,” “rules of evidence,” and procedural rules, its a considerable drain on the system. A judge is not…nor should he/she…going to say, oh, Mr. Trump. I see you don’t understand hearsay. Let’s take a day or so in continuance while you study up.

Northern Piper - Agreed. I think this makes Muffin’s point that pro pers such as myself have to be cautious of making over-broad statements before gathering a factual basis. I stand by my criticism of court staff, but as you point out, there is a very sound reason why they act as they do.

I’m a lawyer, but I would hire a lawyer if I got in serious legal problems. I would not attempt to represent myself.

The problems with self-representation are twofold: (1) as everyone has said, ignorance of the laws and procedures (not to mention that advocacy is an art that requires much practice); but also (2) when the problem you are dealing with is your own, you may well lack the objectivity required to deal with it in the most effective manner!

You get, as it were, emotionally invested, which may make you come across as unreasonable, or unwilling to accept the sort of compromises necessary to achieve the best results for yourself.

To extend the analogy, physicians in many places are strongly discouraged from operating on or otherwise practicing medicine on themselves or their near relations (except for minor stuff or in emergencies) - not because they lack knowledge, but because they may have troubles with objectivity.

The same goes for lawyering, in spades. I would no more want to represent myself in a serious matter, than I would want to take out my own appendix (or my kid’s).

Back when my wife was an active lawyer, she had a case involving a pro-se plaintiff who was probably mentally ill. She was beyond frustrated with it, because multiple judges kept giving this loon breaks, second chances and wide latitude in procedural matters because he was a pro-se, and because he was clearly somewhat unhinged.

Her comment to me was that had he been a real lawyer, she’d likely have either obtained a summary judgment against him off the bat, or barring that, settled out of court with very disadvantageous terms for him. But since he was a pro-se, and a nut, judges wouldn’t grant the motion for summary judgment, kept giving him second and third chances with procedural lapses and omissions and and this guy wouldn’t settle out of court either. IIRC, she managed to get his case dismissed on some kind of procedural violation that a finally fed-up judge granted.
That said, she said that you don’t want to represent yourself for that very reason- you don’t know the procedural rules, you don’t know the law or how it’s typically applied, and you usually don’t have the time to do it, etc…

There’s a big difference between a person who cannot afford a lawyer and has to wander through the system without enough assistance, and a nutter who clogs up the system. Regular folks slow things down because they take longer at hearings and need adjournments to fix mistakes, but the real problem is the nutters who act for themselves and make a bad name for self-represented people.

What’s a nutter? Someone who has a belief in his or her own case, contrary to any reasonable analysis, and the determination to follow it through regardless of any cost/benefit ratio. Whenever a person wants to hire me to “fight on principle”, I run away, for I deal in reality – real facts and real law, not principle.

For example, this morning, a lawyer, a judge and I settled a matter that had been banging about the court for seven years until the previously self-represented nutter finally broke down, stopped fighting on principle, and hired the lawyer. Seven years of emotional stress on both the parties could have been resolved in a few weeks if the nutter had not insisted on being self-represented.

Then, as we were leaving the courtroom, a previous client whom I had dumped went into the courtroom self-represented. What for? To fight on principle. Eventually he will go down in flames, and remain bitter about the unfair system. He’s just another nutter clogging up the system, and blaming his own psychological problems on money grubbing lawyers and crooked judges.

Last week I was in court filing a settlement that opposing counsel and I had worked out at very little cost to our clients. While I was waiting my turn, a self-represented person started yelling and swearing at the judge because the self-represented person on the other side asked for an adjournment to hire a lawyer. What it comes down to is that if some folks don’t have a crisis, they will make a crisis. They end up in court because they can’t handle reality, but court is the very last place they should be without a lawyer, because court requires one to handle reality.

Now let’s have a quick look at the numbers (I know, it’s not a big enough sample). Four cases, in which one matter was delayed for years by a self-represented nutter, once case which will continue to be a mess due to a self-represented nutter, one case that was derailed and nearly came to violence due to a self-represented nutter, and one that went smoothly with both parties having lawyers.

In my area of practice (mostly family law), if a matter ends up in court for anything other than the making a consent order, usually one party or the other or both are emotionally unbalanced. If and unbalanced person is self-represented, it makes a mess in a system that is based on rational positions being taken by people making rational arguments. (By analogy, have a look at SDMB’s Great Debates when the nutters crap all over a thread, and compare it to a thread in which rational but conflicting arguments are strongly but rationally argued.)

When you hear lawyers or judges complaining about self-represented people, it’s not about the people who are rational and pursuing their cases as best they can. We (systemically and individually) try to help them as best we can. Our primary complaints are about the nutters who grind the system to a halt.

Quoted for truth.

But on what I considered to be a silly matter, I once defended myself (a nutter sued me after he lost to my client at Superior Court, Divisional Court and the Court of Appeal – most oddly, he also sued a handful of other lawyers along with me despite none of them having anything to do with the matter). It worked out well: not only did I get costs, but an embarrassed relative of the plaintiff gave me a mint set of GS race skis and a mint set of Super-G race skis. :slight_smile: WHEEEEEE! Where’s the skier smiley?

I’m a lawyer, and while I’ve never had serious legal problems (or any kind of legal problems for that matter), I still hire a lawyer for even the most mundane things: a will, a real estate transfer, the polite and civil divorce I went through some years back.

Why? Well, I’ve got someone on my side who has no emotional or financial investment in the matter, who can explain to me all the options I have, and who can deal with the matter reasonably if things go sideways.

Certainly, if I did get into serious legal trouble, I’d lawyer up at the earliest possible opportunity. Emotion, principle, and suchlike are my problems; getting the matter through to a reasonable resolution that both I and the other party can live with is the job of two people who have no such investment in our dispute: my lawyer and theirs.

The type of law I practice is very different from family law - quite frankly, family lawyers have my respect: I don’t think I could handle dealing with other people’s intimate emotional stress!

I do mostly pharmaceutical regulatory work - not IP, but pure regulatory - stuff like determining whether drug ads are within federal and/or provincial laws, or drafting clinical trial agreements; plus some appearences before various administrative tribunals and courts - needless to say, I never actually encounter the self-represented in this line of work. :smiley:

However, when I was just starting out, I did have one doozy of a self-represented nutter case - I was junioring in a case where it was established that, in Ontario, Martians do not have standing to sue. :smiley:

[Emphasis added]

The case was Joly v. Pelletier, [1999] O.J. No. 1728 (Ont. S.C.)

That will be tough when actual Martians arrive. They will be so pissed.

I’m glad to see you capitalized “Martians,” even if the court didn’t. I certainly would - Venusians, Jovians, Neptunians etc. all get the same courtesy from my court.

But do they have standing? And just how often do these extraterrestrial plaintiffs put in an appearance? :confused:

That is hilarious!

Surely one Oxford dictionary definition of “person” wouldn’t pass muster in a court of law should an actual extra-terrestrial find himself in court, would it? Or, if E.T.s are too esoteric, suppose dolphins are found to be intelligent animals on par with humans.
Powers &8^]

The judge merely found himself a way to stop this guy from pestering him and everyone else in the world.

“You’re a Martian? Sorry, you don’t have any standing in Earthly courts. You’ll have to file your complaints directly with Emperor Ming the Merciless of Mongo. Don’t let the door hit you on the way out.”

You got that right - but there is slightly more to it: a sort of judicial in-joke that takes some background to explain. :wink:

I actually had some dealings with Madame Justice Epstien some time after this case and I asked her about this ruling - why make this point when you could just say 'frivolous and vexatious, out with you?" (as she also did).

The reason has to do with the state of the law on summary proceedings in Ontario. It used to be the case that no evidence was admissable on either a summary judgment motion (rule 20) or a motion to strike (rule 21) - something (many) lower court judges found highly irritating: they felt too many useless cases were going to (expensive time consuming) trials. They changed the rules to allow evidence in rule 20 motions since.

What this sometimes did, was cause judges to tie themselves in logical knots trying to find purely law-based solutions to get rid of cases where they strongly suspected that the evidence (if they could only hear it) was, in fact, non-existent, absurd, or totally contrary to the case as pled.

Anyway, here we have a case that was obviously absurd, it could actually pass the high onus necessary to get it turfed as frivolous and vexatious - so she thought to have a little fun pointing out, to other lawyers and judges, the absurdity of not being able to admit evidence, by finding a purely ‘law based’ argument as to why the pleading should be struck out: that he did not have standing.

She could not evaluate, as part of that particular exercise, whether he was or was not in fact a Martian (that is a matter of evidence and she could not admit any evidence).

Obviously you spoke with her so you have more insight than me, but I thought that her point was well taken, even if hilarious. The sole basis of his complaint was that he was a Martian and that these various entities conspired to make him look like an Earthling. If he’s not a Martian he has no claim, but as the Judge pointed out, even if he IS a Martian, he has no standing to sue. So there is really no need to consider evidence of his planetary home.

I agree with what others have said, but I would like to add one more for criminal matters: earwagging the prosecutor. It’s much easier for me to say “Sure the kid’s a dumbass, but what he did wasn’t a crime!” than it would for the defendant so say the exact same thing. A prosecutor looks at the defendant as the guilty party. He looks at me as someone doing his job to help the guilty party and will take my representations more seriously than a pro se defendant.

I heard about that case, and I’ve referred to it once before. You supplied the details.

I did not realise that you were personally involved with the case.

Like Elendil’s Heir, I’m not seeing what interest Bricker should have declared. If you had a column on electrical wiring written by an electrical engineer, or a column on tax returns written by an accountant, would you expect them to declare an “interest”?

In my personal experience, when a self-rep goes up against a lawyer, the self-rep usually loses. And, the file drags out two or three times longer than it should have. So, you might say that a lawyer has an interest in having self-reps appear in court: on the other side of a file! The lawyer has a much better chance of being successful for their client, and will get paid more because of the increased number of appearances.

Of course, that comes at the expense of the client, and the waste of everyone’s time: the court, the lawyer, the client. It’s not in anyone’s interest, really, that time be wasted and the cost of a file be increased beyond what is appropriate. That increases the overall cost of access to justice. Lawyers are professionally obliged to support access to justice. Cost and time barriers to access to justice are in no-one’s interest.

Yes.

A very minor one: a partner at my firm was representing one of the dozen or more defendants - I did some research for him on the state of the law on dismissing claims for being frivolous & vexatious.

My main input was actually after the case was over, when I had the opportunity to ask the judge about it. Purely by chance, somewhat later, I was working with her in a commission of enquiry.

In Ontario last year the rules of civil procedure were changed to permit the court on its own initiative to toss out a case that is frivolous, vexatious or an abusive of process. Yay! Could be as simple as sending a letter to the judge asking the judge to read the file rather than going through the time and expense of making a motion. Now if only they’d make a similar change to the family law rules, for that’s where there are far more self-represented parties.

Full disclosure: I am not an electrician, although I did purchase a laptop battery on-line today.