To be your own lawyer, you have to face some obstacles. The biggest is an opponent’s lawyer, and they don’t play fair. Donald Best, a former detective in the Toronto Police Department has collected so many examples of bad lawyer behaviors towards self-represented litigants that he’s had to number blog posts in multiple parts with multiple incidents in each.
In, 9 Tips for dealing with an Abusive Lawyer: Advice for self-represented litigants, Part 4, Best says, “One lesson self-represented persons soon learn is that the respect and courtesy so evident between opposing lawyers, in and out of court, immediately vanishes when a non-lawyer sets foot onto the sacred turf of the legal brotherhood.”
Lawyers, jokers, can take a little knowledge about civil and court procedure and turn it into a win against an unwitting pro se litigant.
Here are two big examples.
The Scheduling Trick
Tasks that seem mundane can be used as a sword in the hands of a lawyer. Take, for instance, the scheduling of a hearing. Mundane task. Right. Yet, lawyers can and do use this simple task to annoy, delay, disrespect, confuse, or distract self-represented litigants. For lawyers, it takes a few seconds to perfect. For pro se litigants, it could wreak havoc on their day.
Here’s how one scheduling trick works. Lawyers are agents of the court in most jurisdictions. As such, they have access to a court’s automated scheduling system. Pro se litigants do not. Using this system, a lawyer will schedule a hearing at his convenience and not communicate to the pro se litigant that they can have input in the process. If a date the lawyer wants works for him but doesn’t fit the needs of the pro se litigant, who cares? The litigant is stuck with preparing for a hearing that’s too soon, which is often the case, or that conflicts with something important.
As planned by the lawyer, this leaves the pro se litigant off balance and scrambling to find the right cases and statutes for the hearing in a limited time. Alternatively, the pro se litigant can look for grounds to move for a continuance. The problem with that is most pro se litigants don’t even know they can do that. So they don’t. They go to the hearing and get knocked out.
The Court Reporter Trick
In another case of bad lawyer behavior, a pro se litigant always scheduled a court reporter for hearings on his motions because he wanted everything to be recorded. The opposing attorney would also hire a reporter, who was directed to arrive very early to get there before the pro se litigant’s reporter. Since only one court reporter was allowed, the pro se litigant would dismiss his.
This happened several times in a row with the pro se litigant paying anywhere from $75 to $100 to a court reporter he didn’t use. One day, the pro se litigant decided that it didn’t make sense to hire a court reporter because his opponent’s lawyer would have one present. So, he didn’t schedule a reporter for an important hearing. Guess what happened? You got it. For the first time, no court reporter appeared.
The attorney had been contacting the pro se litigant’s court reporting agency on the day of each hearing to determine whether he’d scheduled a reporter. The day he didn’t, the lawyer cancelled his court reporter in hopes the hearing wouldn’t be recorded.
Fortunately, in this case, the ploy didn’t work. The litigant found a court reporter, who rushed to the courthouse for an hour-long hearing. The reason a lawyer would do something like this is that it works most times. Had it worked this time, the lawyer would have been free to say what he wanted without any real oversight. With nothing being recorded, the judge would have been free to decide the case as she pleased without any fear of appellate review. There would have been no incentive for the judge to follow the law if she chose not to.
As an aside, if a lawyer plays this or another elaborate trick on you, it means you’re doing something right.
Take the Power Out of Bad Lawyer Tactics
The problem with lawyers and judges behaving badly is that self-represented litigants are told to follow the rules, get a lawyer or just bear up under the pressure despite what an attorney is doing. Bad behavior by a pro se litigant is met with scorn and sometimes sanctions. Know that you have a right to be there as much as they do. The longer you stay, the better.
Below are a few tricks of your own to help you avoid becoming victim to bad lawyer behaviors and judicial bias.
Always expect lawyers to be bullies
One bullying lawyer tactic is to lie to you about the merits of your case or the merits of your opponent’s case. They may say, “I could write a motion and win this case at any time. Settling is the best option for you.” If you’re doing your homework, you already know the merits of your case and of his. Don’t let him throw you off your game.
Be in on the scheduling of a hearing
From the start, let the opposing parties, attorneys, the judge, the clerk, the judicial assistant, and anyone who needs to know that you will be involved in the scheduling of hearings. If they try to bypass you, make a big deal of it by moving for access to the same scheduling system that lawyers have. If necessary, move for access on an emergency basis. Judges will take notice and do something about giving you better access.
Pay attention to civil procedure
Civil procedure deals with how courts and cases are run in civil court. The way lawyers win in court against self-represented litigants is most often through civil procedure. So, while you concern yourself with the $1700 you lost on a defective refrigerator, they’re busy preparing a request for admissions to get you to admit something harmful to your case. Once that’s done, nobody cares that you got stuck with a bad refrigerator. You’ve admitted that you bought the refrigerator ‘as is’. You must handle civil procedure the right way or you will never get to the merits of your case.
Bring a court reporter
If no court reporter is supplied by the court, hire one of your own. An amazing amount of bias and lawyer bullying is curtailed with the presence of a single mild-mannered court reporter. Court reporters are neutral. They don’t advocate for any side. Still, the way things can go in court, they can be the best friend you didn’t know you had. Oftentimes honest accounting of what was said and done in a hearing is all you need.
Manage your time wisely
That’s easier said than done. Life gets in the way. If you’re a working single mom, you may have to take time out of your schedule to deal with a custody issue or defend against a debt collector. Sometimes you’re so busy it seems overwhelming. It helps to learn ways to slow down a case, like extending discovery, moving for extensions of time, moving for continuances, and so on. Don’t let a bully lawyer lead on this. You lead by being strategic with time.
“Lawyers view self-reps as ‘easy pickin’s’ because, well, we are. Self-represented persons often describe how lawyers deliberately use shows of anger, personal space invasion, belittling comments and sarcasm to intimidate and confuse, both in and out of court.” Donald Best
Self-represented litigants must work harder than lawyers to get a modicum of a fair chance in a complicated legal system. Lawyers know this, and to advocate for their clients, they place as many obstacles in the way of unwitting pro se litigants as possible. It’s unfair, but it’s what we have now. Don’t be bullied. Jump over those obstacles and continue in court. The longer you stay, the better chance you’ll have of getting an outcome you can live with.
Thanks, Carrie, for finding the Donald Best article.