The Pitfalls of Pro Se Representation
Pro se is a Latin term meaning “for oneself” or “on one’s own behalf.” To represent oneself pro se means to advocating for one’s own self before a court, rather than being represented by counsel. The right of a party to a legal action to represent his or her own cause has long been recognized in the United States, and even predates the ratification of the Constitution. But is this the wisest course of action?
According to National Center on State Courts, 71% of domestic relations (family law) cases have at least 1 unrepresented party. In 18% of cases both parties are pro se litigants. So where does the problem lie when a litigant decides to walk into a courtroom without proper legal representation? The simple fact is that the vast majority of pro se defendants lose their cases.
The following is a quote from a judge used against a Defendant who represented himself after murdering his girlfriend. “You don’t know how to ask a question…You don’t know how to offer things into evidence. You keep making stupid speeches. You keep saying you are good at this. You are not… I do not say this to insult you…You do not know the law.”
What’s important to highlight from the judge’s speech is that it really underscores the greater reason why it is tough for a party to represent themselves in court. Poor representation is likely to antagonize a judge. Being a lawyer in the United States requires a vast amount of knowledge regarding proper legal rules and court procedures. Areas of knowledge like the federal rules of evidence, state rules of civil procedure, and local rules of court are generally very foreign and unnatural concepts to a pro se litigant. However, these were created for reasons of fair, speedy, and efficient justice.
The justice system is designed, in large part, for the traditional full representation model. Virtually all aspects of the system, from the rules to the training of judges and court staff to the physical layout of the courthouses themselves, have been oriented to cases in which knowledgeable attorneys represent the parties. The ability of a party to proceed without an attorney in prosecuting or defending a civil action is largely a matter of state law, and may vary depending on the court and the positions of the parties.
Pro se appearances may delay a trial proceeding and enhance the possibility of a mistrial and a subsequent appeal. Pro se litigants are not entitled to an award of attorney’s fees. However, a Court may order a pro se litigant to pay the attorney’s fees for the opposing party.
In some instances, pro se representation is not allowed. A pro se litigant may not represent a corporation, as a corporation is considered a “person” separate and distinct from its officers and employees. A non-lawyer may not sign and file a notice of appeal on behalf of a corporation. Similarly, a pro se litigant may not act as a class representative in a class action proceeding. In other words, a pro se litigant may not bring a class action lawsuit.
Another situation in which appearance through counsel is often required is in a case involving the executor or personal administrator of a probate estate. Unless the executor or administrator is himself an attorney, he is not allowed to represent himself in matters other than the probate.
Few federal courts of appeals allow unrepresented litigants to argue, and in all courts the percentage of cases in which argument occurs is higher for counseled cases.
Legal forms are becoming increasingly available on-line. However, numerous problems arise when deciding to use online forms and services. More often than not, these services do not take into account specific state laws. Only an attorney authorized to practice law in a specific state can effectively advise a party regarding the various jurisdictional issues that may affect their case. Many states have varying requirements when it comes to witnesses, discovery, case experts, and specific language that must be included in legal forms. Failure to comply with state requirements may lead to a case being dismissed by the court and increase future litigation expenses.
While a party has the right to represent themselves pro se in a court of law, they should not expect any special treatment, help, or attention from the court. And enough importance cannot be placed on the fact that they must comply with the Rules of the Court, even if they are not familiar with them.
Perception is everything. Representing oneself pro se can send out all the wrong signals to a judge and/or jury: that a party is not taking the matter seriously, determined to be obstructive, penny-pinching, unwilling to compromise, believe they are right and cannot maintain a proper relationship with counsel, or just downright difficult. Is this really the impression you want the court to have?
It will probably come as no surprise that the most common excuse for not employing a lawyer is that one cannot afford it. That may be short sighted. A good lawyer ought to be able to achieve a result that is fairer and of better value than a litigant struggling to do so on their own. Add to that the possibility that failure to understand and comply with court orders may result in orders for costs being made against the pro se party and the numbers start to mount up. It’s also the lawyer’s job to try to broker a settlement in order to avoid the expense of protracted proceedings and a costly trial. Trying to negotiate a settlement without proper legal counsel may end in disaster.