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.
To boost your skills for free, see our curated list of online legal research sources, and get our excellent guide on finding legal support for your arguments when you take our free 5-day course.
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Brian Vukadinovich says
Sonja makes several great points here. As pro se litigants we should be smart in our cases and take Sonja’s information to heart. Her stated points are very important. In my federal court case I was battling five attorneys of record from two law firms and they hit me with a 40 page brief in support of their motion for summary judgment. They received permission from the judge to file an enlarged brief. When they filed their brief it was loaded with an enormous number of case laws. I am sure this was an intimidation tactic thinking that because there were so many citations of case laws that I couldn’t, or wouldn’t, be able to keep up. This is a tactic lawyers like to utilize when they go up against a pro se, i.e., bomb the pro se with hundreds of case laws to try to wear the pro se out. Unfortunately for the defendants and their team of lawyers, their tactic didn’t work, it actually backfired in my opinion. I read each and every case they cited from beginning to end and ended up citing many of their own cases in support of my position. I was able to defeat their motion for summary judgment which gave me a trial, and then I was able to beat them in a 5 day jury trial as well. But there would not have been a trial if I wasn’t able to beat their motion for summary judgment, so it was very important to be able to do the legal research to address and rebut the cases that they cited. Lawyers like to cite a “sound good” sentence or two out of the cases they cite to place the case out of context to make the case appear as though it is helpful to them when in reality the case may actually be more helpful to you as they are banking on the belief that you won’t read all of the cases in their entirety. There were many cases that the defendant’s lawyers cited in my federal court case that I utilized in support of my argument. I pointed out in my response brief that the lawyers reference to one or two sentences from the case was done to place the case out of context when in reality, the case actually was more favorable to me. So when that happens, you should read the entire case that they submit as you may well find that there is information in their cases that actually support your position. I actually mentioned several times in my response brief that I was happy that the defendant’s lawyers cited those particular cases, I did that to let the judge know that the defendant’s lawyers were trying to pull a fast one in hoping that the court will not pay attention to the entirety of the case. I wanted the judge to know that he should not fall for the lawyers’ tactic of having the case taken out of its true context. READ THE ENTIRE CASES THAT THE LAWYERS CITE! READ EVERY WORD! Look for discussions in their cases that may actually help your case and point that out to the judge! Courtroom5 has great resources to help educate you on case law research, utilize it!
Sonja Ebron says
Thanks, Brian. That’s really excellent advice. I’ve had similar experiences with lawyers quoting from a dissenting opinion, telling the court that’s the law. They really don’t expect us to even find the cases they cite, much less read or understand them. So yes, read. every. one!