Going to Court Without a Lawyer
It is not unusual for litigants to represent themselves in litigation instead of hiring a lawyer. Sometimes a person cannot afford a lawyer, especially since lawyers are expensive. Sometimes they don’t know a lawyer who can help. And sometimes a person believes that he can handle the matter just as well, if not better, than someone else. Often, appearing pro se (without a lawyer) is a bad idea, even if it is easier and cheaper in the short term.
Why should you read this post about pro se litigation?
You want to know what lawyers and judges think about clients who represent themselves.
You want to know how hard it is to represent yourself.
You want to hear about times where pro se parties actually win.
Image credit: https://commons.wikimedia.org/wiki/File:Loneliness_(4101974109).jpg
Who Can Appear Pro Se
Regular people have a right to represent themselves in a lawsuit. So if someone sues you or you sue someone else, you have a right to pursue the claim yourself.
But companies do not. If you own a company or are the president of a company, technically you are not the company. So you cannot show up to court or file papers on behalf of the company. Only a lawyer can do that.
Further, if you are a person who is appearing pro se, then it must be you who appears. You can’t have a friend or articulate relative speak for you. It has to be you; any other person who speaks on your behalf must be a lawyer.
Pro Se Parties Often Don’t Know the Rules
Opposing counsel and judges are often annoyed by pro se parties because pro se litigants often do not know the relevant litigation rules. This requires repetitive explanations of complex subjects. And, since a lot of litigation requires trusting other sides to follow the rules (such as expecting the other side to properly gather and produce documents in discovery), it can be difficult for attorneys to trust that a pro se litigant will fulfill his duties properly.
In recognition of that, judges frequently give pro se parties extra flexibility with the rules. This makes litigation more frustrating for a represented party, but judges recognize that it may be too demanding to require a pro se party to perfectly comply with the rules.
Pro se litigants also often make frivolous arguments that lawyers may recognize as not being likely to succeed. This is frustrating for judges and lawyers that need to respond.
Pro Se Parties Are Not Well Suited to Litigation Strategy and Procedure
If you go to court yourself, you are at a substantial disadvantage for a few reasons.
First, it may be one of the first times you are going to court or filing documents and so you lack the experience with the process that a lawyer who handles similar cases all the time has. Knowing where to go, what to do, what to say… these are all things that lawyers learn over years that may not seem intuitive to anyone that does not practice law.
Second, people may think that going to court is like a TV judge show, where you just see a judge and tell her your story and expect her to agree with you. But court procedure is complicated and the failure to properly follow the rules could result in losing the case before even reaching the substance of the dispute. A pro se litigant may not understand what each stage of the case is and what is required. This is especially true in discovery, where there are complex rules and strategic considerations that require training to do well (and even experienced lawyers make mistakes here).
And third, a lot of litigation requires legal research that lawyers learn to perform in law school and that often cannot be performed well on Google or even with helpful legal websites.
Pro Se Parties Can Succeed
Despite these issues, pro se parties can succeed. It often makes sense for a party to appear pro se in small claims court, where the amounts in dispute are small and thus it does not make sense to hire a lawyer.
I have also appeared in court against pro se parties and, while they may struggle to understand the procedure, judges listen carefully and consider their arguments and evidence. While I usually prevail against pro se parties, in one small claims case, I lost because the other side had helpful video evidence.
Many courts also have offices whose purpose is to assist pro se parties. While the court system cannot offer legal advice, these offices help unrepresented litigants pursue their claims and defenses without hiring a lawyer.