• Kenn Goldblatt

Do you need a lawyer?

Deciding whether you need a lawyer or should represent yourself is one of the first decisions you need to address when you are faced with a lawsuit. It is just one of a complex mix of decisions that have to be sorted out before you proceed.

If you are being sued as a corporation, you may be required to employ a lawyer. Most states require a corporation to be represented only by a licensed legal professional. But if you are being sued as an individual, there are various alternatives, depending upon the state in which you reside and the court in which you are being sued. For instance, in some states, you can appoint someone who does not have a law license to present to you. You have to know what the individual state’s requirements are to arrange non-attorney representation and follow the rules correctly to make it happen.

But in all states, you can represent yourself as a pro se litigant whether you are plaintiff or defendant as a matter of right. That right of self-representation is as old as the United States itself. Statute has protected it since the beginnings of the Nation. Currently, over five million (5,000,000) U.S. litigants are now representing themselves in state and Federal courts throughout the country. For each of them, knowing what to do, when to do it, and how is the key to prevailing in the lawsuit.

Whether you are the plaintiff – that is the person filing suit – or the defendant – the individual being sued – makes a difference in what your initial actions will have to be in the initial litigation decision process. Deciding how you are going to proceed is just as crucial to your eventual success in the process and the other choices you’ll make along the way to settlement or trial.

Hiring an attorney can be expensive. The average civil lawsuit now takes years to complete and can cost as must as fifty thousand dollars ($50,000.00) to go from pre-litigation investigation through trial. In some kinds of cases, you may find an attorney who will represent you “on contingency” – which means that he or she will take a percentage of the amount the court awards you if you prevail. Typically contingency fees are thirty percent (30%) if you settle before trial and forty percent (40%) if the case goes to trial – plus costs such as filing fees, court reporter charges, and other expenses. In other cases, attorneys may charge a “flat fee” in which they will do whatever is needed for a fixed sum of money or a monthly retainer as the case proceeds.

Some lawyers will also make alternative representation arrangements with clients in which they provide only a portion of the traditional services required in a lawsuit for a reduced billing arrangement. These situations depend on the particular circumstances of the individual case. They can include limited court appearances, participation in depositions, or other specialized assistance the litigant may need.

More and more people are representing themselves in courts across the United States each year. In some states, over half of the litigants in lawsuits are now representing themselves. Unfortunately, too many of them are coming to court believing what their sixth-grade teacher told them about the court system: ‘If you just go to court and tell the truth, everything will work out just fine.’ There is a lot more to know, and a lot more to do, than just show up and talk.

For decades, there has been a steady increase of pro se litigants stepping up to represent themselves. The Conference of State Court Administrators characterized this trend as ‘unprecedented, and showing no signs of abating.’

Over a decade ago, The National Center on State Courts surveyed domestic relations cases in sixteen (16) large urban trial courts. Overall, the researchers found that at least one party was unrepresented in 71% of the cases. In 18% of the cases, both parties appeared pro se (from 1% in Dayton, Ohio to 47% in Oakland, California) compared to 28% of cases where both parties had attorneys (from 12% in Washington, D.C, to 47% in Des Moines, Iowa).

A California study from 1991 to 1995 of family courts found that one party appeared pro se in 2/3 of all domestic relations cases and 40% of all child custody cases. Between 1980 and 1985, family law cases with at least one (1) pro se litigant in Maricopa County, Arizona doubled from 24% to 47%. By 1990, 88% of the cases involved at least one (1) pro se litigant and no lawyers were involved in more than half of the divorces.

A 1993 American Bar Association study of family law cases showed pro se litigants usually had incomes of $50,000 or less. 20% who said they could afford a lawyer but chose not to were generally younger, had higher education (including some college), were childless, did not own real estate, were not making personal property claims and had been married less than ten (10) years.

A 1994 Chicago study found that 30% of all new general civil actions for less than $10,000 damages were filed pro se as were 28% of landlord-tenant actions.

In 1996, a University of Maryland Law School report on pro se trends found that 57% claimed they could not afford a lawyer, 18% did not wish to spend the money to hire a lawyer, and 21% believed their case was simple and an attorney was unnecessary.

A 1998 American Bar Association Study of Legal Needs probed various public beliefs that may influence litigants’ opinions of the process: 78% believed it took too long for the courts to do the job, and 77% believed it cost too much to go to court.

Another American Bar Association study of low-income households’ refusals to seek legal help were that they believed that it would not help and ‘it cost too much. Moderate-income households refused to employ lawyers because they believed that there was “not really a problem,” that they could handle the issues themselves, or that a lawyer could not help.

The same year, a Boston Bar Association study of tort and general civil litigation in forty-five (45) urban trial courts found that 66% of the cases in probate and family courts involved at least one (1) pro se party, and an average of 3% of all tort cases included at least one pro se party.

A 2001 California study found that pro se litigants filed over 50% of the custody and visitation cases. Urban courts reported approximately 80% of new divorce cases were filed pro se. Other California research indicated that pro se representation is not solely based upon financial considerations, and that a significant portion of family law pro ses in the state were neither poor nor poorly educated.

One American Bar Association study found that 88% of respondents disagreed that a lawyer is required to go to court.

There is no disagreement that anti-lawyer sentiment and the growth of do-it-yourself materials have been key factors in the growing trend of pro se litigation. There is also a growing realization that some areas of litigation are simple enough for self-representation.

While most individuals believe it is easy enough to get a lawyer if they need one, there is a growing suspicion that lawyers do not make the process easier or more cost-effective. One American Bar Association study found that 50% of respondents disagreed that lawyers ‘try to help make a divorce simpler and less painful (while 21% were neutral). 82% of respondents with incomes above $75,000 and 63% with income under $35,000 disagreed that lawyers can make a divorce simpler and less painful. 45% of respondents believed that lawyers are more concerned with their own self-promotion than their clients’ best interests while 22% were neutral. 51% of respondents believed that society would be better off with fewer lawyers.

It is a challenge to make the judgment calls of whether or not to employ an attorney, when to defend or when to sue – and when to settle. But knowing how the system works and how to act as one’s own litigation manager can save pro se litigants untold amounts of time and money AND aggravation. The process is not easy and, if there is a lot at stake, it probably will not be fun. But it will help them take control of their own destinies with confidence they might not have otherwise.

Whatever the arrangement a litigant makes with an attorney, he or she will need deep pockets to be represented in a lawsuit. But the alternatives to hiring an attorney are not necessarily any more attractive than proceeding pro se.

Representing oneself is called proceeding pro se or pro per depending on the jurisdiction or the court in which the litigant’s case is proceeding. Pro se is a Latin phrase meaning "for oneself" or "on one's own behalf." "Pro per" is the shorthand for propria persona meaning "in the person of yourself.”

On the other hand, proceeding as a pro se has specific challenges. And they can be significant. People proceeding pro se often ask me, “Isn’t there an easy way to do this?” My answer is always the same. “No. If you’re unwilling to do the hard work to prevail, you should hire a lawyer and step back.”

The litigant must realize that as a pro se, he or she is coming from behind from the start. While judges will usually cut an attorney slack for making a mistake, they are unlikely to be so generous to a pro se. Thus, a pro se will have to work hard to catch up. In a typical court, a pro se doesn’t have the latitude to make any mistake.

Most judges are frequently intolerant of pro se litigants from the start. Too often, pro se litigants come to court without knowing the rules, the law, the litigation process, and the other details that control the court’s operations. As a result, they waste the court’s time and frustrate the judge in the process. Judges respond by consistently ruling against them. It’s not the judge’s job to help them. Pro se litigants have to know how to help themselves. But if a pro se litigant is diligent and dedicated, the benefits can be worth the effort required.

Before proceeding pro se, the typical litigant has homework to do. It starts with the applicable Rules of Civil Procedure for the court that will hear the case. Then there are the applicable Rules of Evidence and the Local Rules of Court to be reviewed.

At that point, a litigant should know enough to decide whether he or she wants to employ an attorney or proceed on his or her own. Even then, there’s still a lot to do.

If a lawyer is required, the litigant should still want to stay informed about what is happening in the case as it goes along. If not, he or she will be in charge of keeping it moving and making sure all of the required actions are taken to keep in going forward. That control can be satisfying.

If the decision is to continue pro se, then whether the individual is plaintiff or defendant will govern his or her decisions after that.

As a plaintiff, the litigant needs to determine how the defendant’s actions have damaged he or she, what statute governs those actions, and how the facts of the case apply to the applicable statutes. Then he or she will need to produce a Plaintiff’s Original Petition if they’re in a state court or an Original Complaint if they’re in a Federal court.

In determining applicable causes of action the suing party may need to research any applicable required elements of the allegations being raised.

For instance, a claim of fraud requires evidence demonstrating six (6) required elements: In most states, the necessary components for establishing fraud are

(1) a material misrepresentation was made;

(2) it was false;

(3) when the representation was made, the speaker knew it was false, or the statement was recklessly asserted without any knowledge of its truth;

(4) the speaker made the false representation with the intent that it be acted on by the other party;

(5) the other party acted in reliance on the misrepresentation, and (6) the party suffered injury as a result.

If the cause of action is for negligence, the required elements that must be established are:

(1) a legal duty owed by the defendant to the plaintiff,

(2) a breach of that duty,

(3) and damages proximately caused by that breach.

Proximate cause has two components:

(1) cause-in-fact and

(2) foreseeability.

Once the required elements of a cause of action are identified, the plaintiff needs to explain how the facts of the case relate to those elements necessary to establish that particular cause of action. Other causes of action may have required items to be created. For each cause of action alleged in a petition or complaint, careful research is needed. For each successive cause of action asserted, the same procedure must be undertaken and completed successfully.

Then all of the required information must be drafted in the proper form for a plaintiff’s petition or complaint to be filed in the appropriate court and accepted by that court’s clerk.

As a defendant, once the party is served with the lawsuit, he or she will need to file an “answer” to the plaintiff’s petition or complaint to prevent the court from issuing a default judgment against him or her. The answer can be a simple “general denial” where the defendant refutes everything in the plaintiff’s filing or presents a more specific point-by-point refutation of the plaintiff’s causes of action to begin setting up his or her particular defenses.

For example, if the defendant believes that the plaintiff’s lawsuit has failed to establish one or more required elements of a cause of action, the defendant can demonstrate that the evidence required to prove that element does not exist. In so doing, the defendant may successfully defend against that particular cause of action. If the plaintiff fails to meet the burden of evidence supporting the challenged element, the cause of action may be dismissed as a result of the challenge.

Once the defendant’s answer is filed, the parties are “joined” in the lawsuit and the case proceeds from there. What follows is a structured and organized procedure in which the case proceeds on a step-by-step basis to a final trial on the merits.

The crux of the decision of whether to lawyer up or go pro se boils down to whether you are willing to do the work to learn the litigation process and carefully follow the rules and procedures to conduct your own lawsuit or manage a lawyer doing it for you.

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