The Do's and Don'ts of Legal Self-Representation
Due to the high cost of lawyers and wage stagnation in the middle class, many Americans are left with no choice but to participate in litigation without legal representation. Even where an individual can afford legal services, in cases where the amount in controversy is small it may not make economic sense to pay an attorney for representation. It is no surprise that courts throughout the country have witnessed an increase in pro se litigants. Nationwide approximately 40%-60% of all court cases are litigated without an attorney on either side of the case. See Handbook of Limited Scope Legal Assistance, pg. 8. The number of pro se litigants are more pronounced in divorce cases or probate cases. Judges generally dread trying cases where one or both parties are without legal representation because these cases take much more effort than cases where both parties have legal counsel. Here are some Do's and some Don'ts that will help you in front of the judge.
Don't Stretch the Facts of Your Case
It is the job of an attorney to spin the facts in favor of a particular position. As a legal do-it-yourselfer, you can and should spin the facts of your case. This involves putting the facts in the light most favorable for you and your legal arguments. Do not, however, make the mistake of overreaching. Pro se litigants often succumb to the temptation to fight ever detail of their case, even when a given argument is doomed to failure. Legal do-it-yourselfers often do not understand that the party who ultimately prevails in a case has done so despite having lost some small battles along the way. In fact, it is very rare for a party to be on the winning side of every issue in a case. If you know that you are on the losing side of an argument or if the likelihood of success on a given issue is remote, it can often be better to concede that issue to the opposing party. This will allow you to garner credibility with the judge and he or she will take your arguments more seriously on issues that are a closer call. Also, don't forget that both parties to a case will likely be called as witnesses at trial. The judge will make his or her decision based upon credibility when your testimony contradicts the testimony of the other side. Your case may be over in just such a situation if you have previously taken unreasonable positions on other issues in the case.
Don't Throw in Everything and the Kitchen Sink
Any good lawyer will spend significant amounts of time on a case brainstorming possible arguments and exploring facts that are relevant to the matter. It is important that you track down all available exhibits and witnesses that will assist a trier of fact to get to the bottom of the events that have transpired between the parties. It is equally important that you take the time to think through all of the possible arguments that can be made in a case. This is important because it can often be difficult to anticipate what will and will not resonate with a judge of jury. Having said this, sometimes less is more. Too many exhibits and too many witnesses can be daunting for a trier of fact. Too much information can be distracting. It is important to focus on key exhibits and key witnesses. It would behove you to present a streamlined, simple, straightforward case to the judge or jury rather than to bog them down with binders full of exhibits.
Don't Resort to Ad Hominem Attacks
It can be tempting, especially during a contentious case, to resort to name calling. There is no doubt that resorting to such tactics will feel good in the moment. Unfortunately, in the long run such attacks detract from the attacker's argument and are usually seen as a sign of desperation.
However, a witness' reputation for truthfulness or his or her criminal record may, under certain circumstances, be relevant. It is important for a jury to know whether a witness has a reputation in his or her community for stretching the truth so it can determine the appropriate weight to be given to the witness' testimony. Further, a witness' convictions for felonies or crimes involving dishonesty are admissible. A jury is free to discount or disregard the testimony of a witness who has been convicted of the above-described crimes.
Don't Let Your Emotions get the Best of You
Of course you care about your case. But, unless you are a gifted actor, it is hard to pull off an impassioned plea for justice or to go off on a rant full of righteous indignation and effectively communicate your legal position. Many attorneys try. Many fail. You should learn from the mistakes of these Hollywood wannabes by keeping your emotions in check. You can make your point with greater ease when you are calm. Not only are emotional outbursts very distracting, but a judge or a jury might hold your poor behavior against you. Leave the drama to the actors.
Don't Question the Integrity of the Court Without Just Cause
You feel like you are not being given a fair shake. What should you do about it? You could "put the system on trial." Before you do, though, you should know that it is a major turnoff for a judge when a pro se litigant unjustifiably questions the integrity of the court. Think about it. The judge went to school for a very long time to become an attorney. Chances are he or she spent several years as a young attorney doing the grunt work for a senior partner with no thanks and little reward. It is likely that your judge then spent the better part of his or her career feverishly working to meet the demands of litigation. Your judge has likely spent most of his or her life devoted to the legal profession. When you question the integrity of the judicial system you are telling the judge that the last twenty years of his or her life have been a waste and that the judge is too stupid to see it or, even worse, complicit in the routine and systemic denial of justice. Any unjustifiable accusations impugning the integrity of the judge or the legal system are not likely to be well received. You should act accordingly.
Do Know the Law
You cannot just walk into court and say that you have been wronged and that you deserve compensation. You must couch your problem with the other party in legal terms. In other words, the judge must be able to classify your case as a certain type of legally recognized claim in order to grant you any relief you request. Similarly, if you are being sued, you must be able to articulate to the judge a legally recognized defense. It is, therefore, incumbent upon pro se litigants to read and understand the law relating to their case.
Do Know the Rules
You better know the rules if you are going to be in court. There are three primary sources of rules applicable to judicial proceedings: (i) the Rules of Civil Procedure; (ii) local court rules; and (iii) the Rules of Evidence.
The Rules of Civil Procedure: Civil procedure governs most aspects of a case, including the commencement a lawsuit, motions, the exchange of information between the parties, the trial, and court orders. State courts base these rules on the Federal Rules of Civil Procedure. Please consult the rules of your state for variations.
Local Court Rules: Many courts have their own rules that are particular to that specific court or district. Ask a court clerk for information on these local court rules since the rules may alter court procedure in significant ways.
The Rules of Evidence: The rules of evidence exist to ensure that the trier of fact is only presented with reliable or trustworthy evidence. These rules also prohibit parties from showing evidence that is considered to be unfair. These rules determine which exhibits can be admitted into evidence. The rules also govern which witnesses may or may not testify and which questions may or may not be asked of a witness. It goes without saying that a pro se litigant needs to know these rules for any evidentiary hearing or trial. State courts base their rules on the Federal Rules of Evidence. Please consult the rules of your state for variations.
Do be Prepared
Mottos may not your thing, but the Boy Scouts sure have a good one: be prepared. This is good advice. It applies just as equally to those lost in the woods as it does to those lost in the legal system. Judges in general are not known for their patience. This is likely due to the fact that your case is one of hundreds over which the judge presides. The fact that judges value their time will become apparent at court hearings where there can be anywhere from one to twenty cases scheduled at the same time as your case. Needless to say, have your documents ready. Know the arguments that you will be making and present them in a clear and concise manne
It can be difficult for the uninitiated to get up to speed on legal matters. Don't let this discourage you from properly preparing for court. Several states provided information online for pro se litigants so make sure not to overlook these valuable resources. Also, some private attorneys offer legal services to pro se litigants. These attorneys provide legal coaching, advice, and consultations at reasonable rates. Attorneys will even offer online legal documents such as divorce papers or estate planning documents at affordable fixed rates. Pro se litigants can even hire these attorneys to prepare legal documents piecemeal as they are needed.