It takes a while for us as pro se litigants to understand the work required to get justice, but when we do, legal research tops the list of challenges.
You have a hard enough time crafting legal arguments to get your case moving in the right direction. The need to support those arguments with case law and statutes is enough to make you want to throw the whole thing away.
Why on earth would a non-lawyer need to show a judge that the law agrees with your argument. It either does or doesn’t, right?
Why would you need to show an actual judge any citations to the law in your motions or responses? Isn’t the judge the smartest lawyer in the courtroom? Isn’t it their job to know the law.
Actually no, that’s not the way it works. The judge often is the smartest lawyer in the room, but you’re supposed to pretend she’s just a referee. You’re supposed to persuade her that your position is the correct one. You’re required to show the judge that your argument is better than your opponent’s argument because the legislature or an appeals courts has said so.
And to do that, you need to sprinkle citations to those legal authorities throughout your arguments.
At Courtroom5, our members spend a lot of time learning and doing legal research. It’s one of the most challenging yet rewarding endeavors for a pro se litigant. When you’re finishing up your motion, nothing beats finding that one case that supports your legal theory.
It can feel like plucking a diamond from a coal mine.
But for most of us, when the lawyer on the other side files a motion with all those perfectly formatted citations, we feel intimidated. We may not even know where to find those cases, yet we feel we must match them cite for cite. But how? We’re not lawyers. We don’t know legal research. And why would there even be conflicting cases if they each define the law?
It’s the biggest challenge we have.
But it may be overblown. A recent survey by Casetext, a legal research technology firm, found a “shocking” level of legal research skill among lawyers. The survey of more than 100 judges across the United States showed a widespread failure of lawyers to show adequate support for their arguments. It found that lawyers routinely missed citations to relevant cases when trying to support their arguments.
Yes, it turns out judges (or their clerks) do know the law. So they know when citations are missing in the briefs they read. According to Casetext:
First, every single judge we surveyed said that they or their clerks have discovered relevant precedent that the parties before them missed. Over a quarter of judges (27%) said that they or their clerks catch missing precedent the attorneys should have cited “most of the time” or “almost always.” The vast majority of judges (83%) say that they see this problem at least some of the time.
This is horrible. It’s not that lawyers are failing to mention cases that may be related to their arguments. They’re missing relevant cases, cases so important to their arguments that judges note their absence.
Here’s the kicker: two-thirds of the judges surveyed said they’d decided issues that may have turned out differently had the losing lawyer discovered the relevant authorities in time to properly argue them at the hearing or trial.
I hate to say it, but I’m relieved. News of this report doesn’t exactly lower the bar for pro se litigants where legal research is concerned. But perhaps we shouldn’t feel so bad about missing the mark as often as we do.
And we certainly should stop feeling intimidated by lawyers. Looks like they’re not as perfect as they’d like us to believe.