Got a legal matter to resolve?
Should you hire an attorney?
Or, Should you represent yourself?
When you represent yourself, its called “Pro Se,”
which is a Latin term which means “for his self.”
people are representing themselves in legal matters these days, for many
Some reasons to represent yourself:
1) Nobody cares about your case as much as you do.
2) Nobody knows your situation as well as you do.
3) Nobody will spend as much time on your case as you will.
4) Lawyers cost upwards of $300 per hour. Even a small, simple case might run thousands of dollars – money you usually have to pay upfront. Very often the cost of an attorney puts him out of reach for the average income earners.
5) Lawyers normally work on a hourly fee basis, which inherently conflicts with a clients interests to keep costs to a minimum.
Some reasons to hire a lawyer to represent you:
1) Nobody knows the law and the legal system as well as a lawyer does.
2) Nobody knows the pitfalls and perils in using one legal approach over another as much as an experienced attorney does.
3) Nobody knows how the legal system “really works” as well as an experienced attorney does.
4) Nobody has the legal resources for case law and citation research as an attorney has.
5) An attorney can be calm, cool, rational, and collected about your case, which is especially important if you tend to be brash, impulsive, and/or emotional about your legal cause.
The Pro’s and Con’s of the hourly fee
It is in the attorney’s self-interest to prolong a case and run up the number of hours spent on a case. Of course, there are attorneys who are very scrupulous about their charges, and many law firms will have a fixed fee for some simple legal issues, such as an uncontested divorce without children, or a uncontested will. But the hourly fee system in and of itself encourages and rewards dragging out a case. And even if your attorney is doing all he can to keep your costs down, the opposing party and or their attorney may be doing all they can to run your costs up.
In defense of the hourly fee system, any time an issue is contested, then no one knows how many hours will be needed to bring it to a conclusion. Contested issues may call for interrogatories, depositions, motions, hearings, interim rulings, investigations, laboratories, expert witnesses, trial, and appeals. Most contested issues take months to resolve, and many drag on for years. And anytime a necessary step is skipped , your chances of prevailing are reduced .
Think of “Justice” as just a name we give to a system to settle issues between parties. In a contested issue that goes to a judicial decision, one party wins and one party loses. The winning party will like the “justice” meted out, but the losing party may very well view the process as “unjust.”
The rules of engagement in the justice system are set by federal and state statutes, often local ordinances, rules of court, the English Common Law (the Napoleanic Code in Louisiana) when not supplanted by statute, and an amassed body of decided cases. What you as an individual might think is “the right way” to do things is irrelevant. The only things that matter in the “justice system” is how your particular cause appears in the light of that “justice system.” You can only argue points in regard to the guidance set forth in that “justice system,”
In order to be successful as a pro se litigant, that is – a litigant without a licensed attorney, a litigant who is representing himself – by himself, you must be very familiar with the rules of engagement, and the applicable laws and court rules, as well as that vast reservoir of case law that has already been decided. If you are not, or can not become familiar with it, then you should probably seek the services of a qualified, experienced attorney – if you can afford one.
Contingent fee cases
There are many causes, especially claims of injury and/or property damages against insurance companies, where an attorney will take your case on a contingency basis. The attorney representing you will take a percentage of your winnings as his fee – if you win, If you lose, often there are no fees. There are also often up-front costs that the attorney will front for you, and recoup them from your award. Most of these cases are settled out of court, and very few are actually litigated in court. In many cases, you could probably do as well or better on your own without any representation. But in some cases, particularly where your claim has been rejected, or the offer is very small, such an attorney might be a good move.
Small Claims Courts
There are special courts – usually called “small claims” courts, where attorneys are rare, and most litigants are pro se. These courts are usually restricted to financial debt below a certain amount. In these courts, you must bring documentary evidence and relevant witnesses for your cause. The judge acts as the arbitrator, and does the interrogating, not the litigants.
Domestic Relations Courts
There are other courts, particularly the so-called “domestic” or “family” courts, which deal in domestic issues such as juvenile offenses, separation, divorce, and child support, which are very pro-female (wife, girl friend, mother), and are covertly, and often overtly, hostile to males (husband, boy friend, father). If you are female, you often can easily find an attorney to represent you for next to nothing because such courts almost always tax the female’s attorney costs against the male litigant Conversely, because of the inherent bias against males, a male litigant will be very much in need a good experienced attorney, as well as the cash to pay his legal costs upfront.
Domestic relations courts in some states have a well-earned reputation for extreme bias, to the point of violating the constitutional rights, towards men. Even with a lawyer representing you, you will have a difficult time prevailing
Unless you are in for a DWI/DUI you probably don’t need a lawyer. Usually its just cheaper to send in the traffic fine than to take time off from work to appear in court and plead not guilty.
County, District, and Circuit Courts
In all the other courts, if you represent yourself, you will be expected to follow the rules and guidance of the legal system. Some states, like Texas, have an official policy to cut the pro se litigant some slack – so long as the pro se litigant is relatively on track the courts will accept a pleading in pretty much any form, and legal theories will be applied liberally so as to do justice.
In the appellate courts, the pro se litigant is expected to comply with procedure in the same manner as an attorney.
Outside of small claims courts, legal actions are incredibly long. Even a simple case may take months, and sometimes years to conclude. After filing a cause, the opposing side may have three or more weeks to respond. Every time a petition, answer or motion is filed, the other side has another three or more weeks to respond.
If the original complaint does not sufficiently state a case at law, or if the the defendant does not deny the charges, or if no facts are in contention, either side may move for summary judgment. Sometimes both sides move for summary judgment. If summary judgment is denied, and even if it is granted, the summary judgment can be appealed.
When finally all the petitions, answers, and motions are filed, the opposing attorneys may seek a court approval setting a schedule for interrogatories, depositions, requests for documents, identify expert witnesses, and/or subpoenas for material not fourth coming. Each time a request or subpoena is issued, the other side has three or more weeks to respond.
If one side or the other does not respond, a hearing before a judge may be requested. Such hearing must give the other side at least three or more weeks notice. If adequate time is not scheduled, the judge may grant the other side a continuance.
When all the motions, evidence, and witnesses have been lined up, and the cause is ready for trial, the attorneys for each side may request a trial date. The trial date may be set for weeks or months away to accommodate the schedules of the opposing attorneys, and the court docket.
The trial itself may be days or weeks long if it complicated. At the conclusion of the trial, a judgment could be rendered, but it is more common that the judge will take the matter "under advisement." And it may be several weeks, or even months before a verdict is rendered.
After a trial court has rendered a verdict, either side may request reconsideration, a new trial, or appeal the verdict.
Litigation can be incredibly expensive. Even if you are pro se, if you are the complainant there is a filing fee that may be several hundred dollars for initiating the cause and serving notice on the defendant. Every time you file a motion, there may be a filing fee. Every time you serve the defendant, you will have to pay for a certified, return-receipt mail. If the defendant can't be found, you will have to pay for a private server to find him or her. And if it is a court of record, you will have to front the court reporters fee if the case goes to trial. If you are going to employ an expert witness, you will have to pay him or her. Sometimes you have to pay to copy documents in possession of the defendant or a third party. Many times you have to review the court file to see what has been filed by the opposition, as opposition counsel will often wait for the last minute to furnish you copies of their filings. You may have to take off time from work to appear in court -- time that may be uncompensated.
From the standpoint of cost, it is better to be the defendant than the complainant, as the defendant pro se does not typically have to front these costs. Typically, each side bears their own costs. However, there are circumstances where the court can award the other side's costs against you if you lose your case.
Because litigation is so expensive and time consuming, alternative dispute resolution procedures are encouraged, and sometimes required, by courts. In fact. litigation should be the course of last resort, and a negotiated settlement your first recourse. If you find direct negotiations with the opposition untenable, it might be well worth while to suggest and engage a mediator. Mediator service is not free, but it may be far cheaper in the long run.
The Bottom Line
The bottom line here is that it is indeed possible to successfully represent yourself in a litigation and win. But it requires a lot of legal research and reading case law, as well as searching the internet for like cases in your jurisdiction. You must have the logic, calm and patience of Star Trek’s Mr. Spock, for if you become excited and emotional, your cause stands little chance of prevailing. You also must accept the incredible long time it can take to bring a legal cause to conclusion. If you are the complainant, better have a minimum of a thousand dollars free if you cause is filed in a court other than a small claims court.
©2010 Simon Revere Mouer III, PhD, PE, all rights reserved