Can’t we all just get along? Uh. No, at least not when adversarial positioning is the name of the game. Litigation is all about confrontation, taking a side, advocating for a desired outcome, and doing what needs to be done to come out on top. Self-represented litigants and lawyers might seem to be a natural matchup in this type of environment. After all, one needs a lawyer and the other is a lawyer. Yet, they don’t play well together so can’t have nice things. For the 6 reasons below, matching up the two is not a piece of cake.
1. Most Self-represented Litigants Can’t Pay Lawyers
Duh. This one is obvious. It’s the major reason people go pro se and represent themselves. It’s about needing a lawyer and not being able to afford one. There are more than 20 million civil cases in the United States with at least one self-represented litigant in them.
Everyday, average people are going to court on their own in foreclosure cases to keep their homes or in family law courts to get a divorce or maintain custody of their children. They’re defending themselves in debt collection lawsuits against banks and credit card companies. Some are even taking on probate and employment discrimination cases. Most self-represented litigants outside of traffic and small claims courts are up against a lawyer on the other side. They’d hire a lawyer if they could, but who has a $5000 retainer?
2. Self-represented Litigants are Not Ready for Lawyers
In an ideal world, self-represented litigants can be in control of their cases while getting targeted help. In other words, they would use unbundled legal services. For a fee that’s less than a $5000 retainer, unbundled or limited services lawyers can provide expertise or strategic help in areas where a pro se litigant might need it most. Lawyers might do tasks like preparing a litigant for trial, ghostwriting motions or pleadings, or handling depositions. Using these services, a self-represented litigant can more effectively handle their cases.
That’s the ideal, but the reality is that the vast majority of pro se litigants are not able to properly task a lawyer to do what needs to be done. That’s because they don’t understand their own cases enough to know where they are and what to do next. Rather, they react to what the opposition does, especially when there’s a lawyer on the other side.
So, when they end up in a lawyer’s office, they cannot describe what it is they need. Or worse, what they say they need is totally inappropriate for their situation. So, the lawyer is forced to turn them down, plow through the docket without pay to see what the litigant actually needs, or do the task the litigant wants knowing that the position or argument is not sustainable. What self-respecting lawyer wants to do that?
3. Self-represented Litigants May Not Trust Lawyers
Assuming that most lawyers represent their clients well, it’s still hard to go out and hire a lawyer once you’ve had a bad experience with one. In fact, many self-represented litigants may have the money to pay a lawyer, but are hesitant to take that final step. They may even know they need a lawyer, but even wealthy people don’t want to feel as if they’re throwing their money down the toilet. So, it might be difficult for a lawyer to break through that trust.
Additionally, a lawyer can provide a client with the best representation available and still lose. While it’s true that a lawyer gives most litigants a better chance of winning than if they represented themselves, that “win” is not guaranteed. Ethically, a lawyer can’t guarantee a win. Once a litigant understands that, he might be able to work through trust issues and shell out the money for a retainer.
4. Lawyers Don’t Have the Proper Perspective
A law school education is not just about learning the law. It’s about advocacy. It’s about oaths lawyers take in regards to their clients. Anyone who is not a client is a potential client. In short, lawyers are trained to represent other people. That has been the whole infrastructure of the legal profession for hundreds of years. A client pays them. They represent the client in court. That’s law school.
As a rule, law school doesn’t take into account a potential client running the show. They don’t teach lawyers to see themselves as “tools” to help potential clients represent themselves. Why would they? Allowing a non-lawyer to “run” a case they’re involved in might be downright repulsive to lawyers. That’s why the aforementioned unbundled services have not taken off.
5. Lawyers Don’t Have the Requisite Experience
Though most lawyers have likely filed their own legal documents or advocated in an informal way for their own cause, the majority of them have never represented themselves in formal litigation. It kinda goes along with the teachings in law school of being either an advocate or client, not both.
So, how can a lawyer teach or show someone else how to go pro se when they don’t themselves have the experience? Further, there are some things that lawyers can do that pro se litigants cannot. They depend on this and understand the system through this lens. In some ways, it’s like a leg up. Lawyers for instance, have status as officers of the court. Thus, they have access to resources, like the judge’s calendar or multiple opportunities to interact with the judge or court staff. These resources make lawyers better advocates. Can they teach a pro se litigant to utilize these advantages? No.
Will a lawyer really tell you to bring and pay for a court reporter for every hearing? Probably not, because they won’t think a court reporter is necessary. In their experience, judges and other lawyers respect them. A pro se litigant who has experienced judicial bias and lawyer machinations will tell you that a court reporter is a must. Without one, you can get slaughtered in court with no means to appeal.
6. Lawyers Don’t Have the Desire to Help You Represent Yourself
One of the most popular quotes of the legal profession is something like “anyone who represents himself has a fool for a lawyer”. As a group, lawyers embrace this edict. They certainly wouldn’t want to support you in violating it. In fact, who would want to do what appears to be teaching someone how to do what you should be doing for them?
Lawyers are not like, say, librarians who have for hundreds of years taught people to find information. Why would anybody in their right minds teach the people they serve to do the job for themselves? The thing is, that’s what librarians do. Teaching is part of their mission.
However, librarians are not paid directly by their patrons or customers. Lawyers are. They’re not librarians. For attorneys, advocacy, not education, is their mission. So, it’s understandable that a lawyer would not want to put himself out of business to teach a potential client how to do what he does.
So, while lawyering and self-representation don’t currently play well together, it pays to understand why not. Perhaps then the players can meet somewhere in the middle.
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