Occasionally, we get calls from people asking, “Do I need an attorney?” Invariably, my answer is a big “YES”, particularly if it involves family law, (custody, divorce, support and the like) and personal injury cases, (car accidents, products liability, medical or legal malpractice and the like).
Joe Poissant, who met with thousands of people over his legal career was direct about the subject: “Why do people think nothing of charging hundreds of dollars on a refrigerator but won’t spend a dime on a lawyer to save custody of their children!”
Without a lawyer, in a personal injury case, the insurance company will take advantage of you. I have seen it and if you sign a release with an insurance company to settle your personal injury claim, you cannot undo it and you’re stuck.
Of course, what is the reality that faces someone who shows up in Court without a lawyer? Most family law attorneys have dealt with adversaries that decide to represent themselves in a divorce, custody or support case. And, from what I have personally seen, people who decide to represent themselves have the funds to devote to an attorney, but just don’t want to spend the funds. To be clear, it is everyone’s right to represent themselves in any court proceeding. It is just a bad, bad idea. Setting aside the financial concerns in hiring a lawyer (I’ll post something about that in the near future) the hurdles that a self-represented litigant faces are tough. As Toby Kleinman and Daniel Pollack write in the New York Law Journal, “In actuality, litigants often decide to represent themselves. In choosing to do so, they face obstacles they may be unaware of as they try to move their cases forward. These obstacles may eventually limit their effectiveness. Some of the fundamental barriers include not knowing where to find reliable information, resources and advice; not having the ability or time to understand some of the more complex legal issues; and being psychologically ill-prepared for courtroom combat when in the middle of a difficult and emotional family law matter.”
A husband or wife, father or mother, who represent themselves are going to be emotional. Attorneys are trained to be able to differentiate opinions from fact, (well, most attorneys are…), but in family law, proceedings cause high emotion, especially where children are involved.
There is the old adage in criminal trials that describes a person who represents himself at trial: “He has a fool for a client.” And there is nothing more isolating and unsettling as representing yourself in Court. Some of the problems the self-represented party will face: Instead of getting ahead of things or running their own case, they let the lawyer on the other side take the lead. And, lacking confidence, you might be tempted to ask the advice of your opponent’s lawyer. He’s not your friend. His obligation is to represent your opponent as zealously as he can. He’s not supposed to care about the unrepresented party. And remember this phrase: Litigation Privilege. The phrase has a formal meaning, but in layman’s language, it means that lawyers will try to do just about anything, especially to a self-represented litigant, to protect their clients And because of their superior knowledge of the law, knowledge of the court staff and environment they have the “home field advantage” that you will not have. One of the biggest mistakes pro se litigants make is not doing research. Lawyers count on pro se litigants’ ignorance of the law to win cases. Finally, the BIGGEST mistake pro se litigants make is thinking they know more than they do, as a way of overcompensating for lack of confidence.
So, if you tell me, “I’m going to represent myself in this, ” I can only say, “DON’T DO IT!!!”
I’ll have more on what you should be doing in selecting an attorney, including costs, in upcoming posts.