In a post entitled Thinking About Being Pro Se? Let Me Change Your Mind, attorney Michael Helfand discusses reasons why people should not represent themselves in court or go pro se litigants.
It appears Helfand writes the same article with a different title every year or so in an apparent attempt to reach the masses of people who aren’t hiring lawyers. Still, the article merits discussion. Below is this pro se litigant’s reactions to Helfand’s points.
His Reason #1. “The other attorney isn’t going to cut you any slack. They’ll probably think it’s going to be an easy case to win because you don’t have an attorney, and they might be right.”
Reaction: I agree in part and disagree in part. It’s been my experience that lawyers in court do not cut pro se litigants any slack. Attorneys are more knowledgeable about civil procedure, and they use it to their advantage at every opportunity. Yes, they usually think it will be easy. Yes, they are often correct, but not always. That’s why more people should choose to go pro se rather than roll over and take a default or ignore meritorious claims.
His Reason #2. “You will make mistakes. An attorney can make a mistake, too, but your chances are higher. In the worst case scenario, you might do something that gets your case dismissed, without a chance to try again. This can happen by simply missing a deadline.”
Reaction: I disagree with Helfand’s assessment of the “worst case scenario”. The “worst case scenario” would be doing nothing. Take foreclosure for example. Chances are, if you’ve been sued for foreclosure you’ll lose whether you have an attorney or not. How long you stay in your home is another matter. If you simply walk away, you’re out in as little as 100 days. Respond to the complaint with or without a lawyer and you buy yourself time. The average Florida foreclosure takes 890 days from start to finish. If you go pro se, even a lackluster performance with mistakes is likely to net more than 100 days.
His Reason #3. “You may not end up saving any money in the long run. The cost of legal fees is probably the main reason people consider being their own attorney, but if you fail to represent yourself well, you can lose your case. You can end up with a judgment against you that could be very costly. Of course, you can lose even if you do have an attorney, but …”
Reaction: Two main reasons people go to court pro se is because someone has sued them, and they have no money. In fact, all too often someone, usually a company, sues them because they have no money. So saving money is the least of their worries. Too, the amount of money for a judgment is oftentimes less than hiring a lawyer, who, as Helfand points out, may not win. Doesn’t it make more sense to take your chances with the court on your own?
His Reason #4. “You are more likely to lose. In my experience, your chances are better with an experienced attorney. You might know the facts of your case better than anyone, but an attorney knows how to present them to the judge. Not everything is relevant, and not every piece of evidence is admissible. An experienced attorney has developed a strategy based on past cases. Many people don’t hire a lawyer because they think they’ll pocket more if they are suing. That almost never happens….”
Reaction: Indeed self represented parties lose a disproportionate number of times against represented parties. Yet, not every attorney “knows how to present [the facts] to the judge.” In a case in which I took part, an attorney plagiarized almost the entire text of another attorney’s brief, including hourly rates, which were different from his own! (I guess he learned the hard way in third grade not to write the name of the kid whose test he’s copying from.) He had no clue what the facts or real issues were in the case and did his client a disservice.
His Reason #5. “You don’t know the customs. You can research the law and the rules of court, but some things are learned by simply spending a lot of time in the courthouse. The Judges by law have to hold you to the same standard as a lawyer, even if this means tossing out your case because it was filed wrong.”
Reaction: I agree. New people to any environment don’t know the “customs”. That’s why new lawyers unaccustomed to the real legal environment attend trials and hearings, review other cases and briefs, and get pats on the head and guidance from judges and lawyers. That being said, unfamiliarity with the environment is not a good excuse for not going into it. As for the point that judges have to hold pro se litigants to the same standards as they do lawyers, well of course.
His Reason #6. “It’s not as fun as it looks on TV. It’s really not. There’s a lot of waiting around. There are a lot of rules. You don’t always get to tell your whole story. It can be really frustrating.”
Reaction: I agree, but this is not a good reason not to go pro se.
His Reason #7. “You will suffer more stress. Let an attorney be stressed out for you. It’s tough enough going through a divorce, or suffering an injury or bringing a case against your employer. Don’t take on the stress of legal research, drafting documents and making court appearances on top of all that.”
Reaction: This is probably the best reason not to go pro se. You don’t want the stress and hassle. However, if you’re living paycheck to paycheck, you have to take your chances on your own.
His Reason #8. “You might regret it. I hear from a lot of people who tried to represent themselves the first time around and need an attorney to help them fix things. Sometimes, it’s too late. It’s not that you aren’t smart or capable. And it’s not because you didn’t go to law school. It’s that you don’t do this day in and day out.”
Reaction: Of course an attorney would hear from people who regretted not hiring a lawyer. That’s because the people are sitting in the attorney’s office wanting to hire a lawyer. What about the others the lawyers don’t see? Lots of people who represent themselves have no regrets about it, even when they lose. There is pride in representing yourself despite the “Oh no. A pro se!” attitude self-represented litigants get from lawyers and judges.
His Reason #9. “You don’t know the judge. Knowing a judge’s preferences and tendencies can give you an advantage in the courtroom. An experienced attorney who has appeared before the judge in your case is going to have some invaluable knowledge. An experienced attorney also has the ability to talk to colleagues about different judges and how they handle the cases on their dockets.”
Reaction: This is not a reaction so much as an interpretation. I interpret this to mean that a pro se litigant doesn’t know the judge, so may be treated badly. In a fair judicial system, the judge is impartial. In America, that’s up for debate.
All most pro se litigants need is a judge’s fair interpretation of law to facts. I once had a judge say to me, “Why don’t you go ahead and settle with Mr. (Attorney). He’s a nice man.” Excuse me? It didn’t matter to her that she’s supposed to be impartial. She would never have said that to a lawyer. In fact, a lawyer would have asked her to recuse herself. At the time, I didn’t know to do that. I did, however, know just enough to appeal a judge’s decision in that case and win against a bank’s attorney.
His Reason #10. “You might annoy the judge. When someone represents themselves, it can take more time. The judge might have to tell you the rules, or what to do next, or explain what’s going on, and that is going to be annoying. The last thing you want to do is get on the judge’s bad side.”
Reaction: The judge may not like me?! Unfortunately, in America when a pro se litigant walks into a room with lawyers on the other side s/he is immediately on the judge’s “bad side”. For pro se litigants, being on the judge’s bad side is part of the process. See The Judge Wants You Off The Docket for more insights about judicial bias. The judge may not like it, but you’re in his court and due process is required.
While going pro se is no barrel of laughs, no one struggling to make ends meet should mortgage a house or take out a loan to pay a lawyer unless they’re sure it’s what they want. If a lawyer loses your case, you don’t get the money back.
If you’re of average intelligence and willing to put in the work and time, you can effectively go pro se. You have that right. We can help.
Pssst! Hey, you there, struggling to win your case. Isn’t it time you gave Courtroom5 a spin? We publish articles like this to help you level the playing field, but it’s sometimes too late to save your case. Stop trying to catch up. Get ahead of the game and start driving your case to the judgment you deserve. See how it works today!