The nuts and bolts of being your own lawyer, please.

Factual Questions
1

This might be IMHO, except that I’m not looking for a bunch of people to tell me their opinion of my choice. What I want is some meaty info about what’s involved, especially if you are in California and you have experience or have seen it done.

What are the actual downsides (the non-obvious ones)? My attorney, who is still my attorney as of this writing, was concerned that if the other guy repped himself because he couldn’t pay his lawyer, it would be bad for me because the judge ends up functioning as the lawyer for the lawyerless party.

But that’s not why I’m considering it, believe me.

So what do you know about it? Your input is much appreciated.

2

You will get a much better answer if you include details.

“Being your own lawyer” can mean any one of literally hundreds of activities. Are you drawing up your own sales contract? Are you preparing to take your company public? Are you adding someone to a will?

You imply that there’s another adversarial party involved in your situation, “the other guy”. Are you involved in civil litigation? If so, are you the plaintiff or the defendant? What kind of suit is it? Or are you involved in criminal litigation where the “other guy” is the complaining witness?

3

I am the defendent in a lawsuit. After a year of discovery and motions and depositions, we are 25 days away from trial. For a variety of reasons that I’m not going to go into, I have come to the conclusion that I am genuinely better off acting as my own attorney from this point forward.

4

Oh, and by the way: I am telling and have always told the complete and unshaded truth, my depostions went great, the other side’s lawyer is a tool and he didn’t faze me in the slightest, while I had him steaming, and every bit of evidence in existence supports my position, which, as I say, is the truth. Hence the evidence supporting it.

5

[QUOTE=Stoid]
Oh, and by the way: I am telling and have always told the complete and unshaded truth, my depostions went great, the other side’s lawyer is a tool and he didn’t faze me in the slightest, while I had him steaming, and every bit of evidence in existence supports my position, which, as I say, is the truth. Hence the evidence supporting it.
[/QUOTE]

This paragraph alone, in my opinion, is a good reason for you to reconsider your idea to represent yourself, absent any other information. It shows, frankly, that you do not have a realistic appraisal of your own situation, without which representing yourself will probably cause you considerable trouble.

Which is not to say that you shouldn’t consider finding different counsel, if you and your current attorney are having difficulties. But one of the main reasons that individuals in lawsuits are recommended to have someone counsel them is to avoid overly simplistic and unrealistic appraisals of their own case, such as the one quoted above. After all, if your case was that good, your own attorney likely could have either gotten the case dismissed, or settled for a nominal amount.

Just an opinion, for what it is worth.

As for the mechanics of representing yourself, you still haven’t offered enough information to offer an informed opinion on the subject (other than a general warning that it’s not a really smart thing to do usually). What kind of lawsuit? How many parties, just you and the plaintiff, or are others involved? How much potential liability if you lose? How complex a trial is involved? Do you have to call witnesses other than yourself? What witnesses is the plaintiff calling, or likely to call? Etc., etc., etc. …

Representing yourself at trial can be a very involved process. There is a huge amount of paperwork, most of which is time sensitive; the consequences of not filing timely are usually quite unhelpful to your case. If this is civil litigation, the judge will prove very unhelpful to you, because there are few due process considerations involved: it’s your own dime at stake, and you made the choice will be the approach most judges will take. If you are anything less than quite competent, the judge will likely get irritated with you during the course of the trial, and if this case is going to be heard in front of a jury, that irritation will be communicated to the jury, which might start to agree. If the other side continues to have an attorney representing them, that attorney might very well be able to exploit your legal naivete and win considerable concessions from it, detrimental to your case.

On the other hand, if your case is relatively simple and straightforward, if your own attorney was planning nothing more complicated than having you testify on your own behalf, if the other side’s case consists mostly of the plaintiff’s testimony and some proffered documents, and especially if the case was to be tried before a judge, not a jury, then it might be relatively easy to represent yourself. There still is a boatload of paperwork to fill out, in the appropriate fashion; prepping for trial chews through trees like nothing else (except in those courts where all the filings are electronic). But it’s not impossible to do.

6

IANA lawyer, but my wife is.

The courts are a system. Just like the system you use at work for whatever you do, whether that’s filing papers, assembling gizmos or helping customers.

A courtroom is a 3-ring circus, where ring 1 has the Facts, ring 2 has the Law, and ring 3 has the personalities of the judge, jury members (if applicable), lawyer(s), parties, & witnesses.

You sound like you believe you have the Facts on your side. Great.

What about the other 2 rings? Generally you need to prevail in 2 of 3 to win. What expertise in those areas do you bring to the fight? Opposing council is an expert, though perhaps a crappy one, in those areas.

Your assertion that the judge ends up acting as the attorney for a non-represented party is nuts. (S)He will help with the trivial procedural issues of when to call witnesses & such, and may be willing to accept documents in “improper” formats, but don’t expect him/her to raise objections on your behalf, be an effective cross-examiner, etc.
If I went to your work location and tried to do your job for a day I might be able to stumble through parts of it. If it happens to be something I’d done before, even as an amateur, I might be able to almost scrape by. But in no way would I be doing pro quality work at a pro quality pace. Just watch Dirty Jobs for some examples of a fairly smart & handy guy looking like an utter n00b and mostly failing at some pretty unskilled jobs. Imigine how well he’d do at things that take real training to accomplish.

Courtrooms move at real-time speed, and when the Judge or opposing council is talking, you need to be able to hear, understand where they’re going, understand how it relates to all 3 rings, and decide how to respond. In real time.

The courts are a system. They are not here to produce Justice. They are here to produce decisions. Along the way, justice is often done. And sometimes not. Skill in operating the system counts for a lot in the results you get. And in an adversarial system like ours, you are competing with the other guy. Both of you are trying to drive the system to do your bidding. And only one of you will succeed. The judge is there to referee, but the reffing is a lot more like Hockey, where 1 in 100 violations are penalized, than football, where 9 of 10 are.
All that said, maybe you’ll luck out. How much is at stake? Whenever I hire a pro to do something, including hiring a lawyer, I’m always unhappy with the less-than-total involvement they have in my case. It’s easy to convince yourself that your pro is shoddy, distracted, or just not as smart as you or I are.

But they have something you or I don’t: skill & proficiency at the task at hand. We won’t see it in action until it’s time to do the task.

Something to consider … Litigators have a slang term for opponents who represent themselves. They call them “Lunch”.
My bottom line: It ain’t like TV. Stick with a pro. If you really have doubts about your current guy/gal, get a second opinion.

7

[QUOTE=Stoid]

My attorney, who is still my attorney as of this writing, was concerned that if the other guy repped himself because he couldn’t pay his lawyer, it would be bad for me because the judge ends up functioning as the lawyer for the lawyerless party.
[/QUOTE]

While working to get my paralegal license, I spent a lot of time in court rooms to learn as much as I could. Much of it was traffic court where there are probably more folks without lawyers that those with, but I saw a few in higher courts. I very rarely saw any of the judges give legal advice to the defendants, many in fact would state that they could not give advice when asked specific questions. The advice that was given was generally about court procedings, not about the case itself. Unless your attorney knows the judge and how he runs his courtroom, I wouldn’t put too much stock into this comment.

8

My opinion is you’d be a raging idiot to act as your own lawyer in civil litigation, particularly at trial. Having been represented and firing your lawyer on the eve of trial will probably make it worse.

More factually, even if self-represented you are required to comply with virtually all of the legal requirements that a represented party would be. Most judges will go somewhat out of their way to assist an uninformed party who innocently transgresses rules or procedures which may legally be waived (and there are some things that a judge cannot un-screw up–particularly at trial). However, there is usually no reason why a judge cannot where appropriate strictly hold a pro se party to the standards a represented party would be held.

If a party cannot afford a lawyer, or is pursuing a low-value claim that might not warrant counsel, or even just hates lawyers, judges will be pretty sympathetic (if quietly annoyed that they have to deal with the annoyance of someone who just doesn’t know the rules). To some extent, where a party with a lawyer faces one without, the judge will at times assist the unrepresented party and prompt that party to do things that a lawyer should be doing on behalf of his or her client, particularly where the lawyer appears to be using his or her knowledge of the rules and procedures to trap the pro se party.

However, and this is a big however, where a party has a lawyer but elects to represent herself right before trial, a judge will be pretty highly disinclined to cut that party any slack. Frankly, except in courts that are set up to deal with the self-represented (family court, small claims, housing court, etc.) judges really hate dealing with this stuff, and think that most folks who don’t have lawyers are idiots wasting their time. Where a party was represented, but (at least from the point of view of the judge) thinks she knows better than her lawyer, the judge will be very likely to think her a fool and decide to let her suffer all of the consequences of her folly. And judges have a lot of discretion, particularly at trial.

Also, at trial there is a lot going on both procedurally and factually, and there is a lot that someone not attuned to it will miss. There are quite a few things that one can do or not which can totally screw up your case. The intricacies of examination and cross-examination are legendary, and trial examination is totally different than depositions. Even if you want to go in to just tell your story, without the telling being presented and crafted by a trained outsider you will likely miss or underemphasize the legally relevant points. One frequent point of conflict between lawyers and clients is that the lawyers focus on the legally critical matters in the client’s narrative, often leading the clients to think they are ignoring the points that the client thinks are important in the client’s view of the fairness and history of the conflict.

If you don’t like your lawyer, changing is a possible option, though there are disadvantages to trying to bring a new counsel up to speed this close to trial. Going it alone, however, is an exceedingly risky proposition that will almost certainly work to your disadvantage.

9

[QUOTE=DSYoungEsq]
This paragraph alone, in my opinion, is a good reason for you to reconsider your idea to represent yourself, absent any other information. It shows, frankly, that you do not have a realistic appraisal of your own situation, without which representing yourself will probably cause you considerable trouble.

After all, if your case was that good, your own attorney likely could have either gotten the case dismissed, or settled for a nominal amount.
[/QUOTE]

You’d think, wouldn’t you? It’s absolutely stunning, and pretty much everyone is blow away that the other sides persists as they do, including my lawyer, who actually expected that lawyer to bail by now. They called two weeks ago to say they wanted to talk settlement, but then the plaintiff made the bizarre remark that he wasn’t willing unless I had X dollars…and not to think that even if I did, that he’d settle for it.

It has been a trainwreck since the beginning and never should have been filed.

In the interests of saving money, I have been generating the paperwork myself since the beginning. I wrote the vast majority of my pleadings, with very little editing by my attorney, whose edits were almost exclusively cuts, very little rewriting.

The current plan is three people take the stand: me, the plaintiff and my expert witness. His case is his story, not a single document. His desposition undermined his own case and his own accusations against me repeatedly, and he could not keep his own story straight within the depostion itself, sometimes reversing himself (unknowingly) within the same page (however long that represents).

I did the research and turned up the important aspects of law for my attorney in a couple areas where he’s not that familiar, and he followed up and found everything I found to be sound.

So how do I testify? I imagine that I am permitted to do so in a narrative form, and that the judge will ask questions of me, yes? Is it considered proper to refer to myself as “me” at all times, or am I expected to refer to myself in the third person when addressing the plaintiff?

As far as the procedural stuff outside the courtroom, I will still have the assistance of my attorney, he’s actually an old friend. I also have another attorney friend who has been enormously helpful during all of this who will help. The only place I’m going to be entirely on my own is actually IN the courtroom itself, doing the process.

10

[QUOTE=Billdo]
Also, at trial there is a lot going on both procedurally and factually, and there is a lot that someone not attuned to it will miss. There are quite a few things that one can do or not which can totally screw up your case. The intricacies of examination and cross-examination are legendary, and trial examination is totally different than depositions. Even if you want to go in to just tell your story, without the telling being presented and crafted by a trained outsider you will likely miss or underemphasize the legally relevant points. One frequent point of conflict between lawyers and clients is that the lawyers focus on the legally critical matters in the client’s narrative, often leading the clients to think they are ignoring the points that the client thinks are important in the client’s view of the fairness and history of the conflict.

[/QUOTE]

I undertstand all this quite well because of conflict my attorney and I have already had over it, but he’s been successful in getting me to understand what is considered important, and I have every intention of emphasizing the right stuff.

11

[QUOTE=LSLGuy]
What about the other 2 rings? Generally you need to prevail in 2 of 3 to win. What expertise in those areas do you bring to the fight? Opposing council is an expert, though perhaps a crappy one, in those areas.
[/QUOTE]

I have all the facts, and all the law. Seriously.

I’m going to go to the judge’s courtroom next week and watch her operate to see if she scares me or not. Then I’ll have a good idea if I’ve got ring three or not.

12

It could well be that your opponent has vastly misjudged the value of the case. Or he has let his emotions control his decisions. Those are the reasons the vast majority of cases that do not settle go to trial.

I’m not sure about the mechanics or repping yourself. Folks do in small claims cases all the time.

But I guess I’m not sure why you want to jettison your lawyer at this point. If something goes wrong with my car, I generally feel I’m better off taking it to a mechanic. There is a lot to be said for hiring experts to work within their areas of expertise. And your lawyer is the expert on how things are done in the courtroom.

Yeah, judges often give pro se parties a ton of slack. But they rarely will allow that to make them find for an undeserving party. And there is no way to accurately and reliably predict how any particular judge will act in any particular situation, on any particular day. Maybe he’ll be pissed because his wife wouldn’t give him a blow job and he decides to take it out on the first person who gives him a hard time. And up you pop expecting him to give you a crash course on “Litigation for Dummies.” I just don’t know why you would want to take the chance.

My rec would be just to keep your lawyer, ask that he downplay his representation, and just get your judgment.

13

Add me to the chorus who can’t understand why you would fire your lawyer on what is pretty close to being the eve of trial.

With a bad plaintiff’s lawyer and a shakey plaintiff’s case – especially with a P’s lawyer who doesn’t do a lot of courtroom work – one of the best ways to undermine the P’s case is with effective use of objections at trial, so that everything not allowed under the Rules of Evidence – all the hearsay, all the documents lacking foundation – is excluded. As a layperson, you almost certainly aren’t going to be able to do that. Now, maybe you’ve got a shitty defense lawyer and he wouldn’t be able to effectively do it either, I don’t know, but YOU won’t be able to do it.

And the Rules of Evidence are very much a double-edged sword; if you appear pro se, you can expect the attorney for the other side to object to any evidence you try to admit that does not comply with the Rules of Evidence, and how will you know whether or not his objections are valid? If they are, how will you cure your error to overcome the objection? For example, let’s say you’re trying to get a document admitted – a contract, a photograph of the scene, a deposition excerpt, whatever – and the P’s lawyer says “Objection! Lack of foundation,” and the judge says “Sustained.” What do you do? How do you get that document in? Do you even know if you can get that document in? And if you fail to object to something at trial, you have waived that issue on appeal, which can make a huge difference in whether you ultimately lose your case.

I am not one of those people who thinks that lawyering is magic and no one who isn’t a lawyer could possibly do it. But trial work IS some of the most esoteric and complicated work lawyers do, and it is very difficult for lay people to function effectively to represent themselves at trial. If you’re talking small-claims court, one step up from Judge Judy, fine. If you don’t really care if you win or lose, fine. But if a bad outcome at trial will negatively impact your life in a real, meaningful way, then you would be far wiser to stick with your attorney (or get another, if you can this close to trial) than to try to handle the matter yourself.

14

What Billdo and others said.

The fact that you are asking here for nuts and bolts suggests that you don’t have them.

Trials are governed by multiple layers of rules, including:

  1. There are rules of evidence: http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=evid&codebody=&hits=20

  2. Civil Procedure: California has a few layers of rules.

  3. Substantive law.

  4. Prior rulings in the case.

  5. There are also usually some unwritten “rules” that everyone just “knows.” Some are bullshit; some aren’t.

All of these determine what you can, can’t, and must do at a trial. The goal is to use all of the rules to prove a case, using relevant and admissible evidence, that meets the requirements of the substantive law. Part of the case can be planned, and I suppose its *possible * for a non-lawyer to research and plan that part. But things never go as planned. A competent trial lawyer will know the usual tricks and have responses for them, know what sorts of objections to make and how to respond to objections made by the other side, and know the rules well enough to improvise when surprises come up. You probably won’t.

15

And since you’ve asked for nuts and bolts, not really advice:

For trial, you should review the Rules of Evidence of the court you’re in (state or federal). Ask your law librarian to pull the book for you. In addition to the state rules of evidence – I assume you’re in a state court, if you’re in federal court there is no way in hell you should act as your own lawyer – you should see if there are Local Rules of Evidence passed by whatever court you will be appearing in front of. The State Rules will give you information on objections and that sort of thing, but more importantly the Local Rules will give you necessary information on procedural deadlines and filing requirements. Are you required to have a pre-trial conference with opposing counsel? Are you required to file a pre-trial brief? When do you have to have your proposed witness list to opposing counsel? When do you have to exchange exhibits? Be aware that at one month out, many of these deadlines will be either behind you or coming up very, very quickly.

Get a book on the steps to a trial, either, I don’t know, Trial for Dummies or something, or maybe a textbook for law students. McElhaney’s Trial Notebook is one of the best-known. Also, contact your state bar association. If they put out publications (and many do) they may have a “Trial Notebook” or “Trial Manual” specific for your state which they will sell to you. (FYI, my copy of Washington State’s Trial Manal cost me $125.) You can also look at the American Bar Association website; they have lots of trial materials for sale, including the latest’s McElhaney’s.

Go to the court and watch the judge in action. Sit through a trial he or she is presiding over – sit through several, if you can. Note where the lawyers sit and stand, where they address the court (the judge) from, where they question the jury from, how they make objections, etc.

Become overwhelmed by all you will have to know and do in order to represent yourself effectively, and call a lawyer.

16

With 25 days before trial, firing your attorney would be an incredibly bad move. Generally, I hate dealing with pro se litigants even if they aren’t an attorney. They don’t know how things work, they don’t understand the rules of civil procedure and evidence, and they won’t know how to get things moving. I don’t even like it when other attorneys act for themselves pro se since they get too emotionally involved and their pleadings and responses get a little wacky.

Do you know what California’s requirements and deadlines are with respect to witness lists, exhibit lists, and objections to opposing counsel’s witness lists are? What is the deadline for witness subpoenas?Which witnesses are important? I’ve had a client who insisted that I subpoena one guy who she claimed was a great witness. I had already interviewed him and he had almost no relevant knowledge and what knowledge he had was the same as another witness’s knowledge. I told her that it would be useless but subpoenaed him just to make her happy. He didn’t care about attending trial so it was no big loss for him.

Most client’s don’t really know what their case is worth and more importantly are too emotionally invested in the outcome to be objective. Litigation is often a little esoteric and while the rules make sense to someone who does it regularly, they probably won’t to someone who doesn’t.

17

[QUOTE=Jodi]
I assume you’re in a state court, if you’re in federal court there is no way in hell you should act as your own lawyer …
[/QUOTE]

I dunno, happens all the time! And as I observed in this thread, if you are trying to figure out how to get on the good side of a federal judge, dropping f-bombs may not be the route to choose. :smiley:

This yahoo’s latest pleading contends that by admonishing him for using vulgar language, the Court is impinging upon his freedom of speech! And he concludes with a sure winner of an argument, suggesting that the judge is biased against him because of his nationality, ethnicity, or gender.

So yeah, feel free to represent yourself in federal court. If nothing else, you may give some bored gov’t wage slave a few yucks as you lose your case.

18

So I know the OP said he’d rather not discuss why he’s dropping his lawyer.

But why are you dropping your lawyer?

-FrL-

19

Maybe you mind a better lawyer through Craigslist. Just a jaunty little post that explains who you are, what you’re all about, what a lawyer meeting your exacting qualifications would offer, and the princely sum you’re willing to pay for the services of such a professional.

Also, out of curioisity, are you familiar with that phrase, “a lawyer who represents himself has a fool for a client.” The conventional wisdom seems to suggest that even lawyers cannot effectively represent themselves.

Best of luck.

20

[QUOTE=threemae]
Maybe you mind a better lawyer through Craigslist. Just a jaunty little post that explains who you are, what you’re all about, what a lawyer meeting your exacting qualifications would offer, and the princely sum you’re willing to pay for the services of such a professional.

[/QUOTE]

Exactly what kind of lawyer do you think trolls Craigs List looking for clients? I can’t believe some of the stuff in this thread. Letting a client research and write pleadings?