should you go it alone?
Tens of thousands of Americans have been parties in a court case without having a lawyer — that is, they have “appeared” on their own behalf as pro se or self-represented litigants. Indeed, a frequently-quoted 1991 American Bar Association study found that “Self-represented persons are more likely to be satisfied with the judicial process than those who are represented by attorneys.” Nonetheless, the decision to “go it alone” to court can be difficult and scary. [Frankly, as Snoopy suggests, entering a courthouse can even give a lawyer the jitters.]
Of course, for many men and women, the choice to appear pro se is easy — they have an urgent need for help from a court, or they have been sued and must respond, but they have insufficient money to hire a lawyer (and no lawyer willing to do it for free). Therefore, the American Judicature Council has noted that “For the most part, pro se litigants cannot afford an attorney. According to a survey done for the 1999 National Conference on Pro Se Litigation, the average pro se litigant is a woman between the ages of 18 and 34 with a high-school education appearing in a family law matter.” Nevertheless, more and more better-educated and middle-income Americans are choosing to represent themselves at court. As report by the National Center for State Courts found:
“There is no particular type of pro se litigant; people from different incomes and educational levels represent themselves and each, due to the particular circumstances of their cases, may have differing needs for assistance.”
So, many people who can afford a lawyer, as well as lower-income people for whom bringing a case is optional (or not immediately urgent), have to decide whether they want to and should “go it alone” to court. On this webpage, you’ll find information and links that may be helpful in making that decision. [As always, SHLEP urges visitors to let us know of additional sources of useful information.]
A few questions to ask yourself
You can find materials online that directly address the “should I go it alone?” question, as well as materials that might indirectly aid your decision by helping you understand what to expect at court and in the litigation process. [update (Nov. 6, 2006): The Massachusetts Court system has recently published a comprehensive online guide called "Representing Yourself in A Civil Court: Things to Consider When Going to Court," which includes a thoughtful webpage on "deciding whether to represesent yourself."]
Here are some examples.
The Wisconsin court system put together the following set of questions about using self-help in Family/Divorce court; they are relevant or analogous for other kinds of cases as well:
Most people come to court because something is affecting their lives, maybe in stressful and emotional ways. Learning the law and court processes can also be difficult and stressful. In fact, sometimes when people act as their own lawyer in complicated cases, they later need to hire a lawyer to “fix” mistakes. Hiring a lawyer after-the-fact could cost more than using a lawyer from the start.
However, many people, for a number of reasons, think about representing themselves in court. There are some questions you should consider before you begin your case without using a lawyer.
1. Are you on time for meetings and deadlines?
- The court expects you to be on-time (a little early is better) for hearings and paperwork.
- Use a daily calendar with reminders of your court “to do’s.”
2. Can you make it to the courthouse during the day (during business hours)?
- You will need to arrange your work schedule and transportation to get to court a few times, both to file paperwork and be at hearings.
- Using a lawyer means you would need to be at the courthouse less.
3. Do you fill out and file your own income tax returns?
- Court forms can be complicated, much like income tax returns.
- Reading instructions, following steps, and paying attention to detail are necessary to complete court forms.
- You must be organized and prepared to successfully file the proper court forms.
4. Are you comfortable doing research, in a library or on a computer?
- Most people do not know the law and rules that control their cases. Many people are also unsure what forms and documents need to be filed with the court to start and continue their cases.
- Learning the law and rules for your case is required to be successful. While the court may provide forms for you to fill out and file, you will likely have questions. Court staff can only give you limited answers to your questions because of their duty to be fair to all parties.
- If you do not take the time to learn the law and rules of your case, you are unlikely to be successful. You may also feel frustrated and unfairly treated because you do not understand what is happening.
- Using a lawyer will save you lots of research time, because a lawyer is already trained to know the law and the rules that control your case. A lawyer may do some research on specific concerns in your case to make the best argument. Without using a lawyer, you may miss some of the arguments you could make.
5. Are you likely to be clear and calm when you stand up and speak in court?
- Representing yourself means you must attend all the scheduled appearances with the judge or commissioner. At these appearances, you will be required to speak clearly and logically while presenting your case.
- If the other party has a lawyer and you do not, you cannot count on the other lawyer to help you or speak for you. You must speak to the court yourself.
6. Do you easily get angry under stress?
- Coming to court can be difficult and stressful. Because you have something to gain or lose in your case, or you are angry or upset at the other party, you may find it more difficult to control your emotions in the courtroom and while speaking. You may also find that your good judgment is clouded by your stress or anger.
- You must be courteous at all times to court staff, the judge or commissioner, and the other party to your case. You cannot interrupt the other party, or the judge or commissioner, while they are speaking.
- A lawyer may be a good buffer between you and the other party. Using a lawyer may lower the stress and upset you may feel because you will not need to act directly with the other party.
7. Are you often frustrated by rules you think are unfair or should not apply to you?
- All types of cases are controlled by rules and procedures. These rules are procedures are in place to give everyone a level playing field. Though a rule may seem silly or wrong, the rule must be followed to make sure your case is fair.
- Using a lawyer may help you understand what rules your case must follow, and why those rules are in place.
8. Can you make decisions and stick to them?
- Most court processes are formal and lasting. Once you make a claim, a statement, or a filing, it is difficult to make changes. Any doubts or questions should be considered and answered before you start.
- Using a lawyer can help you get answers, as well as “do it right the first time.”
9. Can you live with some mistakes?
- If you represent yourself, you are likely to make some mistakes. If you regret decisions, or often dwell in actions you have taken, you may cause yourself stress and anxiety. You may also hurt your ability to be successful in your case.
10. What is at stake in your case? Do you and the other party get along?
- Every case is important, but some cases may have a bigger effect on you because of the large amount of money (or property) involved, or other people involved (like children). Cases with more money or people to consider are more complicated. Using a lawyer will make these cases less confusing and upsetting, and prevent mistakes that could be difficult or impossible to correct after the case is over.
- If you and the other party had a relationship that included physical or emotional abuse, you may have trouble keeping a steady emotional state. Being calm and logical is necessary to make good decisions in your case. Using a lawyer may help you keep a safe and comfortable distance from the other party.
- If you feel the other party is good at “hiding” money or property (like on tax forms), or if you have no idea about the other party’s financial status, using a lawyer may be helpful in locating the other party’s finances and collecting on a judgment or settlement.
The decision to represent yourself in court is an important one. When making this decision you must be aware of the responsibilities you are undertaking. The following are the basic responsibilities of a self-represented litigant.
You must follow the same standards of a lawyer. You should follow all the rules that apply to lawyers. If you fail to follow the rules, you may be subject to the same penalties as if a lawyer represented you.
For example, if you fail to file required paperwork with the court your case might be postponed to another date or dismissed entirely. You also could have an unfavorable ruling made against you that could affect issues such as visitation or the distribution of assets.
You should understand the legal process. The legal process is a complex and sometimes difficult to understand. Decisions you make during the process could adversely affect the outcome of your case. If an attorney represents the other party in the case you will be at a disadvantage.
You will have to do your homework. Representing yourself in a case may require a substantial amount of your time outside the courtroom. This includes gathering evidence in the proper form, completing forms that include instructions similar to tax forms, and completing research of statutes, rules of procedure and case law that apply to your case. Be aware that while court personnel are available to answer procedural questions concerning your case, they are prohibited from giving legal advice.
You need to remain objective. You have a personal interest in the outcome of the case that may deprive you of objectivity that you will require to present your case effectively.
You must maintain the integrity of the legal system. Communication between the parties and judge is restricted. Judges must be fair and impartial. For that reason, they are not allowed to discuss the case with only one of the parties. If information needs to be presented to the judge concerning the case both parties must be present.
You will be required to be on time. The court has a very busy schedule and only a limited amount of time to hear cases. It is also not a good idea to keep the judge who is going to decide your case waiting.
You should keep a file. A copy of each document or piece of information that is filed or that is delivered to the court should be kept in your file.
. . . What to expect at court.
There are many helpful documents online if you want to get a feel for what to expect at court when starting a case and seeing it through to completion. The Library at Self-Help Support.org is well-stocked with useful documents, especially on its Tips on Self-Representation page. Here are a number of promising resources:
Information on Representing Yourself in a Civil Action from the U.S. district court in South Carolina (revised 2006; 23 pp. pdf) gives a good general picture of the court process and also makes a few important points for pro se litigants: (1) a Warning about privacy concerns and prohibited personal identifying information in documents filed with the court (e.g. Social Security numbers; names of minor children; financial account numbers); (2) a reminder that “If the lawsuit is important enough for you to invest your time in it, it may be worthwhile for you to consult a lawyer who is willing to handle your type of case.” and (3) a notice that “Although you have the right of access to this court, you do not have the right to proceed on a ‘frivolous”’claim.”
Consumer’s Guide to Legal Help: Helping Yourself . This Guide from the ABA’s FindLegalHelp pages has brief, but helpful, answers to the following questions: Can I handle my legal problem myself? Where can I find basic legal information? Where can I find more information about proceeding on my own? What should I know about legal documents and forms? Can I hire a lawyer for only part of my legal matter? Can I get help from a legal hotline?
Sometimes, people can’t afford legal representation or they just want to do it themselves. People without legal training may be able to handle some simple legal problems on their own. (This is called proceeding “pro se” or “pro per.”) Handling a legal problem by yourself can be risky, however, because each step may involve tax issues or other legal consequences that you may not think about. Representing yourself requires a lot of time and energy to learn the proper procedures and law. The first thing you will want to do is to learn as much as possible about the law and procedures related to your problem. You will want to get information about the law and courts in your state.
How to Try or Defend a Civil Case When You Don’t Have a Lawyer by the Civil Court of the City of New York (17 pages, pdf) states: “This Guide is meant to help someone who is not represented by a lawyer understand the general rules and procedures of a court case in the Civil Court of the City of New York. It is not meant to be a complete guide on every aspect of the law. It does not discuss all the legal issues that may come up in any particular matter. It makes no recommendation about whether or not you should have an attorney represent you. The purpose of the Guide is to give you general information to make it easier for you to present your case to the Court.”
Tips for Going to Court (video presentation) IllinoisLawHelp.org has prepared this online video presentation (3:24 minutes) for litigants going to court.
“This primer is intended for all those who wish to represent themselves in court – called pro se or pro per representation. It is also useful for those who simply want basic information about how a case progresses through the courts. It provides a short description of the court system, a summary of pre-trial and trial procedures, ways for pro se litigants to get help and suggested materials to read. In effect, it explains to you the steps you or a lawyer would take in handling a case.
“HALT supports the principle of pro se representation. We realize, however, that with the exception of Small Claims Court, discussed in HALT’s manual, Small Claims Court, pro se litigants usually get little help and less encouragement from judges, lawyers and court staff. You should, therefore, recognize that you need to be patient and persistent if you hope to represent yourself successfully.”
HALT is correct to warn prospective pro se litigants of their uphill fight. Happily, in more and more courts, Americans can find a significant amount of help, should they decide to “go it alone”. There is, of course, a lot more shlepping needed, to make self-help available universally as a viable option. You can go to this webpage at the Pro Se Law Center or to our getting self-help help page to find out what court-based services are available in your state for pro se litigants.