Everybody’s probably heard the old adage, “He who acts as his own lawyer has a fool for a client,” but apparently people either don’t believe it, or they believe they’re the exception to the rule. I say that because the percentage of “pro se” (i.e. self-represented) litigants continues to rise year after year. Why do people represent themselves in court? Generally there are two reasons: (1) you feel like you know the facts of your case better than anyone else, including the lawyer that you hired; or (2) you say you can’t afford a lawyer. Okay, there may be a third reason, too—you’re insane.
If you’re in the first category (or the third), there’s not much I could say that’s likely to change your mind. For one reason, it’s usually true that you know the facts of your case better than your lawyer. You should. You were there. But that’s why lawyers are lawyers, and they’re not allowed to be witnesses (this is true—there is a Rule of Professional Conduct that prohibits lawyers from representing a client in a matter in which the lawyer might be called as a witness). The lawyer’s role is to organize and present the facts in a manner that best supports a winning legal theory (think strategy). Because of the myriad legal concepts and doctrines that are constantly at play during every trial—with which non-lawyers are not intimately familiar—in most circumstances, a layperson won’t know when a particular fact, even a very small one, could have a crucial impact on the outcome of the entire case.
The second category of people are the ones who say they can’t afford a lawyer. This is inapplicable to criminal matters, because the Sixth Amendment to the U.S. Constitution guarantees every criminal defendant the right to be represented by an attorney, and for those who truly can’t afford an attorney, to have one provided for them by the government, at no charge. But in civil court, this is not the case. And for that reason, more and more people are showing up to court as self-represented litigants who’ve convinced themselves that they can’t afford a lawyer. It’s true that sometimes you could make out fine showing up to court unrepresented, but if you truly have something at stake in that lawsuit, can you afford not to have a lawyer?
One of my own biggest challenges when first starting out in private practice was how to “save” clients who came to me for help after they’d already started off representing themselves in a court case. Why is it so difficult? Because the very act of going to court for any type of proceeding, is oftentimes deemed as an appearance. Appearance is a legal term; either a party or his attorney makes an appearance in a case when they show up; usually it doesn’t matter whether anything actually happened in court as a result of that appearance. Once an appearance has been entered, all sorts of clocks start to run, which then trigger deadlines—if you miss one of those deadlines, even inadvertently, you can lose your opportunity to assert your defense. This is HUGE in municipal court cases, small claims section, and in New Jersey, the Special Civil Part of the Superior Court, because oftentimes when you appear in court in response to a summons, your appearance is deemed as an “answer” to the complaint filed against you. (Normally, the answer is a formal document that is carefully prepared, and filed with the court clerk, in the same manner as the complaint itself. As a general rule, you don’t want to give live testimony if you could accomplish the same thing by filing a prepared document.)
So why am I writing about this? These things have actually been on my mind for a while, but something happened recently, which made me plan to make time on a Friday morning to create this post. Recently I bumped into an old friend I hadn’t talked to for a while, and was sad to learn that he was in the middle of a divorce. I didn’t ask about any specifics because I assumed his lawyer was taking care of things; so we continued to talk, and he mentioned that he and his ex had planned to resolve everything through mediation instead of going to trial, but that his ex suddenly changed course and hired her own attorney. At that point, I had to come right out and ask him whether he had a lawyer. And he said, of course, “No, I can’t afford one.” This is a middle-aged guy who’s had a steady career for nearly two decades, and makes a six-figure salary. Something didn’t seem right.
Rule No. 1: If the party on the other side has a lawyer, then you should have a lawyer as well.
It’s one thing to go to court and not know what you’re doing because you’re not a lawyer. If there’s no lawyer on the other side, then there’s only so much damage you can do, and in all likelihood, both parties will do many stupid things. But if you try to represent yourself when there’s a lawyer on the other side, then you’re just asking for trouble. You wouldn’t challenge Usain Bolt to footrace or Lance Armstrong to a bike race, would you? Of course, not! Performance enhancing drugs or not, either would leave you in a cloud of dust. But forget about these high-profile international star athletes; any mediocre professional athlete would embarrass you if you challenged them at their own event. That’s what lawyers are—professionals. That is, we earn our living by trying cases and practicing law.
Back to my friend. What I eventually concluded was that the reason he “couldn’t afford” an attorney was because every two weeks he was giving over half his paycheck to his ex, who is herself college educated, and makes nearly as much money as he does. I don’t practice family law, but I know enough about it from my own NJ divorce to know that something wasn’t right with my friend’s situation. To make a long story short(er), I had him show me a proposed draft of the marital settlement agreement that his ex’s attorney sent him. I scanned it briefly, and had several questions for myself (legal issues I wanted to quickly research), but I only had one question for my friend: I asked whether he was okay with his ex having physical custody of their kids. His answer: “Hell no!” So I told him, that’s the way the agreement was written. He said, “No, it definitely says joint custody, look on page such-and-such.” There was, of course, some language there that suggested joint custody, but when read in its entirety, what that paragraph really stated was that the children will live with their mother, except when their father makes other arrangements in advance.
Rule No. 2: Don’t EVER sign a contract without having a lawyer review it first.
It turned out that there were a bunch of problems with the proposed agreement, but that one was enough to get his attention. Had he signed that agreement, and gone through with the divorce, it would be very difficult (and expensive) to try and undo or change it later. Right now, however, he still has options. Plenty of them. Why? Because he saw a lawyer. It didn’t cost him a dime. It’s true that not everybody has friends who are lawyers, and not everybody would’ve had the same opportunity that my friend had, but that’s not the point. The point is this—I’m not even a family lawyer; yet, I know enough about the law of contracts, and the law in general, to know when a purportedly negotiated deal is one sided.
In this particular situation, sure, it would help if the lawyer was a family lawyer, but every lawyer knows basic contract law (it’s one of the few useful things the bar exam actually tests). Theoretically, you could hang out at the family courthouse and find a lawyer sitting around waiting, and ask him or her if they would look at the your agreement for you. You could even find a lawyer to review your contract using Craigslist. I’m not advocating that you do either of these things, just that it’s possible. It may cost you nothing, or it may cost you $100, but even if it cost $500, that’s nothing compared to what it will cost if you don’t do anything. Think of how much more alimony you would end up paying (or not receiving) if your marital settlement agreement misstates the weekly amount by just $25—over ten years, that’s $13,000! Do you really think you can’t afford a lawyer now?