The decision whether to represent oneself in court or whether to hire an attorney is a very common dilemma that a person may face when bringing or defending against a lawsuit. Oftentimes, a person will decide to represent themselves when they cannot afford an attorney. A person might also decide to represent oneself when they believe that they are the most effective person to advocate the case. A person that represents oneself in court without the assistance of an attorney is referred to as “pro se” or “self-represented”. A pro se litigant is supposed to be held to the same standards of conduct as an attorney. Theoretically, a judge is not supposed to give a pro se litigant any special treatment, assistance or attention just because they are not a licensed attorney. However, judges oftentimes assist a pro se litigant for reasons of benevolence towards the under-served or out of fear that the judge’s decisions could be scrutinized on appeal because the pro se litigant did not have adequate representation.
The adage that “A man who is his own lawyer has a fool for client” should be remembered as a keen observation that a person inexperienced with the legal profession needs to be extremely careful when representing oneself pro se. A person may decide to represent oneself in a small claims court or other civil matter in which there is only a minor dispute. However, it is certainly not advisable for a person to represent themselves pro se in a complex matter or a criminal case in which the consequences of losing the case could result in the loss of physical freedom. The expertise required in a complex legal matter calls for a qualified lawyer that is familiar with the legal procedures and substantive issues of law that would increase the likelihood of success on the merits.
A. Preparation is Essential
Any person that makes the decision to represent themselves in court must exercise care to come to court fully prepared. A judge will have little sympathy for a person that makes an appearance and is not familiar with the protocols and decorum of the court. While a judge may be sympathetic to the plight of the pro se litigant, ultimately the judge will make decisions that simply follow the rule of law. A judge is like an umpire in a baseball game calling “balls” and “strikes based on the rules, and not allowing emotion to sway the decision-making process.
A pro se litigant should be aware of the dress code when making a court appearance. The court is an extremely formal environment, so it is appropriate for men to dress in a suit or at a minimum a pair of dress slacks, collared shirt, a tie and nice dress shoes. A woman should equally be formally dressed. A nice suit, pair of dress slacks or a tasteful skirt is proper attire in the court room. A pro se litigant that appears in court with sneakers, a t-shirt, a tank top or shorts risks being admonished by the judge or worse being held in contempt of court. A pro se litigant should take the time and attention to dress appropriately because it shows respect not only towards the courtroom but also towards the judge. A pro se litigant does not want the judge to mistakenly to believe that the case is unimportant or not taken as a serious matter. Dressing appropriately and in formal attire is a recognition that the court room is a solemn place and not a casual affair.
A person that has never previously been to a court appearance should consider visiting the courtroom beforehand to witness the proceedings of other cases. The benefit of visiting the court room prior to a first appearance is that the pro se litigant can witness how the judge runs his or her court room. Each judge is unique in their personal style and character and visiting beforehand to witness the character of the judge allows a pro se litigant to get comfortable with the tone and style of the courtroom ahead of time.
The rhythm of the courtroom will vary from courtroom to courtroom but generally a court clerk will call the parties names when a case is ready to be heard. The plaintiff and the defendants will both move towards the front of the court room to make their appearance known. The plaintiffs and defendants will stand at separate podium or table on different sides of the courtroom and they might be sworn in by the court clerk if formal testimony were required. A pro se litigant must always be respectful to all parties, including the opposing side and be sure to address the judge as “your honor”. A pro se litigant should be careful to address their comments directly to the judge and not engage in inappropriate dialogue with the opposing party.
A pro se litigant will need to be prepared to submit any documents to the court so it is a good idea to get organized beforehand. A file folder is a good way for a pro se litigant to get organized if there are not a lot of documents to submit to the judge but an accordion style file case with separate compartments is a useful when there are many documents. A professional attorney would likely utilize an attaché case or even a larger briefcase with wheels when there are a lot of documents that need to be submitted over the course of the litigation. The key is to have all the documents ready on hand for when it is the appropriate time for submission. Most cases do not all get resolved in a single day so maintaining organization over the paperwork for the duration of the lawsuit is the best way to make sure that everything is properly submitted at the correct moment.
The legal profession has a lot of language that is arcane and strange to the layman. A pro se litigant should familiarize themselves with any new words or expressions that are strange beforehand. A legal dictionary is a great tool to look up new words that are unfamiliar so that if they are repeated there is no confusion because the word is already known. Learning the lingo of the law is a process that will not occur overnight so be prepared to constantly be looking up new words to clarify both the substantive aspects of the law and the procedural rules that arise throughout the course of the litigation.
The judge allows both sides a fair opportunity to argue their case but the opportunity to present the evidence to the court will vary based upon the forum. A pro se litigant must appreciate the forum in which they are making a case in order to understand their ability to acquire new evidence. A small claims court case usually envisions that a litigant come to court with all their evidence only a single time in court. There is typically no discovery period in a small claims action to acquire evidence that is in the possession of the opposing party. On the other hand, a complex civil matter usually allows for a litigant to acquire the necessary documents and testimony that will be needed to argue the case throughout the course of the litigation process. This discovery process allows for the parties to seek evidence from the opposing party typically in civil litigation for court cases that involve sums of money greater than $25,000 or in a criminal matter.
If the opposing party has evidence in their possession that is needed to make the case, then the proper motions should be made or obtained during discovery. The rules typically allow for a party to subpoena the other side if necessary, to compel the production of evidence but proper procedures must be followed to compel evidence. All documents and testimony should be acquired before the case begins an actual trial so that there are no surprises at the last moment as to the best arguments to be put forth by either side. It is the responsibility of the pro se litigant to acquire all the evidence that is necessary in to prove their case. The discovery process allows a litigant to learn the existence of any evidence beforehand. It is imperative for a pro se litigant to appreciate that the discovery process is the method proscribed by the court for the parties to acquire any evidence.
The deposition process also allows a litigant to learn the testimony of any witnesses beforehand so there are no surprises when a witness is called to testify. It is the responsibility of the pro se litigant to select witnesses that will buttress their case. If a witness refuses to comply and that witness is essential to the case, then there may be a need to get the court to compel that the third-party witness appear before the court. It is important for a pro se litigant to understand if a witness is cooperative or not ahead of time in order to get the court involved in mandating an appearance if the witness refuses to appear. A pro se litigant will then have an opportunity to question a witness on the stand to elicit responses that are helpful to prove the merits of the case.
It is critical that a pro se litigant appreciate the importance of punctuality and meeting court set deadlines. Any appearance before a judge should leave ample time to go through security, find the courtroom and check in with the judge’s court clerk to let them know you are there for a scheduled appearance. Normally a courtroom posts a list of the cases that will be called for the day so be sure to check the courtroom postings to make sure that you are in the correct location. It is always a good idea to arrive at court early even if an appearance is not called right away, as there is no harm in waiting around for a bit and the failure to appear at the proper time when called can be fatal for a litigant.
Equally important is the significance of meeting all court appointed deadlines. A judge usually runs a very tight schedule from the beginning when a lawsuit is brought until its final resolution. There is usually a court calendar that tracks all the important dates for conferences and motions. Typically, a preliminary conference at the onset of a lawsuit establishes dates for the parties to meet and confer. A calendar of dates in which the parties will get ready for trial usually includes dates for when depositions are to be held, dates for when interrogatories are due, and dates for the production or inspection of any requested physical evidence or documents. A pro se defendant must be aware of these dates and comply with the schedule order. The failure to keep track of the court calendar could detrimentally affect the ability to properly litigate the case, so a pro se litigant must always watch the court calendar to ensure that all deadlines are met or risk a default judgment against their interest.
The decision to represent oneself in court might seem like an inexpensive option, but a person must carefully weigh the pros and cons before stepping into the court on their own. While representing oneself in court may save some money, it is probably a good idea to at the minimum consult with an attorney in order to understand the risks of doing so. Many attorneys offer free or low-cost initial consultations that can offer perspective on the trade-offs involved with representing oneself. A person that consults with an attorney may learn more about the litigation process, potential defenses and claims available in the case. Therefore, it is probably a good idea to speak to an attorney about the details of the case before making the final determination to represent oneself pro se.
There are many people that work in the courtroom and none of them can be an advocate on your behalf or offer legal advice. These people work for the court system and they cannot offer legal advice to you or the other side. The judge is an impartial settler of disputes that will not provide you with the relevant law to assist in winning a case. That duty falls upon the pro se litigant to do the legal research and come to court prepared. Similarly, the court clerk that helps the judge to manage the cases, keeps track of the court files and orders and calls cases will not assist a pro se litigant or offer any legal advice. The court stenographer will transcribe the oral testimony of all participants in order to have a written record, but they are not there to offer legal advice. A court may also have a court officer or bailiff in charge of security, but they also are not an advocate for either side. The judge’s final decisions in a matter will be either in oral or written form and are called court orders or judgments that are usually the final say on a matter. A pro se plaintiff has the option to renew or reargue a motion or even appeal a matter if decided erroneously by the judge but for the most part all determinations of the court are final and a pro se litigant must be prepared to accept the reality if the decision of the court is unfavorable. There will be no opportunity be a pro se litigant to decide after the fact that they foolishly represented themselves and would have been better off hiring an attorney, so make the decision judiciously whether it is a good idea to represent oneself or not.