So you think that you may need an attorney. It’s an intimidating thought to have, and many things should be thought about, including the fact that you may have some “Pro Se” resources available to you.
Pro Se, is Latin for “in one’s own behalf” and what a person is referred to when they represent themselves in legal proceedings. As citizens, we each have a right to represent ourselves that is protected under Federal law. Judges know that you have little to no legal experience, and they will bear that in mind throughout the proceedings. However, “Ignorantia juris non excusat or ignorantia legis neminem excusat.” Translated from latin (again), “ignorance of the law excuses not” and “ignorance of law excuses no one”. Judges will also expect that you know and follow the rules of Civil Procedure, as well as jurisdictional rules for that courtroom. This is especially true now that we are in the internet age where all that you need is available at a second’s notice.
The first place to start while considering going Pro Se is that specific court that you will be filing in. What forms do they require? What is their filing fee? Most small claims courts and even Family Courts have fill in the blank type complaint forms. When I unfortunately found myself in a divorce, I was able to download all of the forms and the instruction packet right from the Family Court’s website. I had it filed within one day and the entire process was smooth and went straight through. I wouldn’t say that being a paralegal made it easier for me, as the forms were basic and the instructions were very clear.
If you need to do deeper research into what similar cases have come before you and what the precedent is, I invite you to try Google Scholar. You can select “case law” and search what the binding law on your topic is, or you can search by court for past and recent filings as each court in America is listed. You can even search multiple courts a one time. You can also pull legal briefs, as well as the actual complaints to help you outline your case narrative.
Also, every state has a law library and law librarians can get you anything that you ask for in mere minutes. These libraries house computer terminals that are linked to WestLaw and Lexis Nexis. These are expensive subscription only legal research sites that can give you the same access any attorney has.
By now you’ve probably realized that Pro Se will take a lot of work. This is where you should honestly self-evaluate your capabilities. If you are not proficient in research and writing, this should be a factor when you determine whether or not you can handle going Pro Se. You won’t be held to the standard of an attorney of course, but you will need basics, otherwise you’re putting yourself in danger at worst case scenario and wasting the courts time at best.
Sometimes hiring an attorney just complicates things…
I encourage everyone who wish to file for Divorce to explore how user friendly your Family Court is. The employees at the court cannot give you advice, but they can help you fill out forms and tell you the procedures.
Often courts have volunteer attorneys who come in once per week for a few hours and will meet with you for 15 minutes to give you legal advice. Obviously 15 minutes is not enough to advise on the full scope of the matter, but is instead meant to give guidance for a specific issue within the proceedings. For instance you may have just received a counter filing from your spouse; this specific resource can give you instruction on which motion or form to file in response. Most often than not, you get a one time shot at this resource so don’t spend it recklessly by attempting to fill the attorney in on every he said/she said that has transpired thus far. Your Family Court can tell you if this program is available just by calling or stopping by.
Most people think that if they don’t have money to spend on an attorney they can just go to Legal Aid, however this is false. Legal Aid is mostly for landlord tenant matters for those who are elderly or in extreme poverty. They also go after systematic injustices, but the cases that they take are usually broad enough to bring about a larger resolution for the greater good or set a precedent. Sadly, their funding resources are limited and get smaller every year.
The truth is, there really isn’t any help for legal services if you are a “person in the middle”. You make too much to qualify for legal assistance, or the matter doesn’t warrant it, and retainer based attorneys rarely have a sliding scale of fees. This then makes many part of the 80% of Americans that cannot afford to retain an attorney. You read that right, 80% of Americans cannot afford an attorney if they needed one. This includes those who make $70,000 to $100,000 per year.
(This article from the ABA Journal that cites The Wall Street Journal’s 2010 expose on those choosing Pro Se is a must read for attorneys.)
In America, we are in what many experts deem “a legal crisis”. The industry can’t afford to lower fees due to the current structure of overhead, yet they have priced themselves out of reach to nearly everyone making it even more difficult for them to sustain the unsustainable. There are many reasons for this; archaic or bad operational and hiring practices, weak business practices, corporate counsel increasingly bringing their legal resources in house, and an unsustainable principal/partner structure just to name a few.
(Over the next couple of months I’ll explore all of this in depth, so if you’re interested in this content, subscribe and/or follow me on LinkedIn so that you’re notified of my postings.)
To begin to combat this epidemic, some States are thinking outside of the box. For instance, in Washington State they are granting qualified paralegals a limited license to represent in Family Court. They cannot give legal advice because paralegals are ethically barred from doing so, but they handle all of the paperwork and guide clients though scheduled court appearances for far less per hour than the usual attorney fees of $250-$800. The process to obtain this limited license is expensive and time consuming, but it’s a great start to providing some resolution to this growing problem. Not to worry though, one small shift always works into another and eventually all of the “old school” I-hate-change-attorneys will rescind their reactive ways for a more altruistic and proactive approach to their practice.
So should you represent yourself? That is a case by case question that needs to be asked. When I did my own divorce, we had no assets together and no children. Even if we did have those things, I’m pretty confident that we could have still handled the entire proceeding without attorneys. What was key was the amicability. Not to say that there wasn’t hurt feelings and arguments, but being adult like is what got us through with it only costing $150.00 in court fees.
Many people run to attorneys out of spite or as a means of intimidation of the other party and soon find out that calling your lawyer to complain about the other person will drain your retainer balance and result in bills in the thousands and by the time it’s all over, you could have bought a new car in cash. Civility really is the most economical and least mentally damaging way to go.
In a matter such as divorce, can it be worked where the spouses split a mediator at $250 each and retain attorneys to oversee the final agreement? Can you draft your own agreement together and then sign it in the presence of a Notary Public? Can you both agree in writing to a certain sum of money in child support per month, and the receiving spouse agree to give the paying spouse monthly receipts?
When it comes to your neighbor’s lemon tree hanging over your fence, is it really a big enough deal to have them served with paperwork which will turn into some legal back and forth that eventually leads to you paying for legal advice and nasty-grams on letterhead?
A little note to those who claim that there are too many laws on the books and that we have a big Government but still wish to file lawsuits: please realize every time that we cannot work it out and run to the system to sort it out for us, we are creating more legal dockets which creates more structure in which to deal with the influx. You simply cannot be sitting in traffic and complain about the traffic, because you are in fact part of that very traffic. This should also be part of your decision making process in determining whether or not you need to be filing actions.
How to retain an attorney…
Being in the legal industry watching the massive changes coming down the pike, I know that the current structure that we have now is unsustainable. No matter the state of the legal industry however, it is likely that nearly every person will consider hiring a lawyer at least once in their lives. As such, for the times that you simply cannot go Pro Se, here are my insider tips for retaining an attorney to make it worth it, efficient, cost effective and the best experience it could possibly be:
You have to like them – You’re going to spend a decent amount of time with them and you’ll have to answer personal questions about your lifestyle. It’s important that you get along well and that you trust what they have to say.
Look past as many eccentricities as you can because lawyers are often scholars, or Type A personalities. They can be rather urgent people running around like their pants are on fire when there is no emergency. They can be a tad ridged and all of this can make them great at the law side of practice, but not so great at the entrepreneurship/people pleasing part of the practice. Don’t hold this against them if they’re genius litigators.
Be wary of reputation – There are a few lawyers in my city who are known to win, but they don’t have a great reputation with their bar association. They’re known among other lawyers as being questionable when it comes to their ethics. So just because they’re known on the street, doesn’t mean that they’re liked by judges and opposing counsel. This could hurt you for many reasons and may even cost you money if they like to play games with discovery or even if they have their license suspended right in the middle of your matter leaving you to have to come up with another retainer deposit.
Inform yourself – I can’t count how many clients have just signed one of our retainer agreements without reading it or asking questions. I always go back and break it down to them in plain English until I’m confident that they understand the contract, but some law firms won’t.
Part II of informing yourself is knowing words like Discovery, Depositions, Pleadings, Defense counsel. Google them so that you can cut right to asking any questions that you have when your attorney or attorney’s staff calls you. This way everyone saves time and money by forgoing the vocabulary lesson. Speaking of legal support staff…
Utilize your attorney’s staff – I will admit there is a caveat to this: there is a drought in support staff as well as support staff who are knowledgeable. This can be traced back to the year that law changed forever…2008.
Many law firms went under or nearly did and cut from the middle by laying off seasoned paralegals or reducing pay. This resulted in a mass exodus of veteran paralegals who were poached by other industries who would continue to pay them their 75,000-90,000 compensation packages. I will digress by saying that paralegal roles vary widely and you can either be writing complex briefs for that kind of pay, or you can be typing…it just depends. The other factor that the paralegal industry has faced aside from money, is that more law firms are requiring that Paralegal’s have Bachelor Degrees in any discipline and have become quite lax on requiring paralegal certificates and actual paralegal training.
Despite all of the above, paralegals and support staff should be your first resource about your case. Calling and asking for your attorney just to ask a question that his staff can answer is a time waster. In more cases than not, the paralegal knows more about where your case stands because file is probably on their desk.
Bring your paperwork – If you are in a car accident and are retaining an attorney (as you should – do not handle these Pro Se) It is only fair to bring the police report number and your insurance information with you. In fact, bring every piece of paper that has entered your domain since the accident and a paralegal or attorney will gladly sort through it. I can’t tell you the hours spent tracking down complaint numbers, and claim numbers, all because the client didn’t bring anything with them. It’s a complete inefficient use of time, and it’s like showing up at your doctors office without your insurance card.
Be organized – At the inception of a case, my law firm will send a nice folder with a copy of the initial letters that we’ve sent out on the client’s behalf. We do this in hopes that the client will use it to keep all of the paperwork and copies of letters that we sent to them. I also included self-addressed envelopes to mail us any correspondence that they’ve received. Still I’ve had clients send me a medical bill that is over 120 days old and has moved to collections. Now I have to spend hours arguing with a collection agency, and sending them a letter and a release so they can talk to me when there was insurance that would have paid the bill upon receipt. It’s needless work that derives from disorganization. If we were a firm that billed hourly, something like that could needlessly cost a client $1,000.00.
Make, keep and be on time for appointments – Much like you cannot just walk into your doctor’s office and demand that you see them, you can’t do it to your attorney either. Their day is incredibly scheduled and often they are on the court’s time table and they can’t be late. If you have a matter that you feel is urgent, call your attorney’s paralegal and discuss it with them, they may have the answer that you are looking for. If not, they will discuss it with your attorney and either call you back to inform you or they will help you schedule a meeting at a mutually agreeable time. You may have to wait a week, and that would be normal. Believe me, if your attorney is aware of your matter and they don’t deem it an emergency, then no matter how you panicky you feel about your situation, it isn’t an emergency.
How you present matters – This may be viewed as judgmental by some, but it’s practical advice. If you arrive to your attorney’s office in sweat pants, un-combed hair and reeking of cigarettes, they may take the case but they’re never going to put you on the stand. Not presenting well means that no attorney is going up front litigation costs for fear of that same disheveled person arriving at depositions or in front of a jury. This means that they may advise that you take a settlement rather than litigate and you’ll never know if the reward for damages may have been higher.
In short, by not taking pride in your appearance you hurt yourself. This applies to Pro Se too. I can’t tell you how many people I see walking around the courthouse in pajama bottoms. I highly recommend that even of you find yourself struggling financially, that you get yourself to the Goodwill and for less than $10.00 you purchase – or even borrow – a pair of khakis and a button down shirt. There are just something that you have to do in life and respecting the court if not yourself is one of them.
Hiring an attorney should take a lot of thought and research on your end. Use the internet, do your homework, and talk to people who have had the kind of legal result that you wish for yourself. Retaining an attorney just to get someone mad or to threaten them is long gone practice of psy-ops. The price of revenge is just too expensive.
Entering into a contract with counsel is one of the most adult and costly things that you’ll do in your lifetime, but if you are to protect yourself, your family, and your assets from a complex set of legal structure that you have not studied and practiced on your own, it is necessary. The best thing that you can do is play your part entirely. Show up, be organized, be actively involved, ask informed questions, but back off and let your attorney do their work. Then pay them on time for their work when their invoice arrives by budgeting every pay for your upcoming legal fees.
Attorney/client relationships are a team effort. You’re paying for their legal expertise, so make sure that you are doing yourself right by following what they advise because nothing is worse than only one team member working. If something feels wrong or off, speak up and give your attorney a chance to explain further, or participate in coming up with a different plan.
In the end, we may all consider hiring a lawyer at least once in our lives, but the kind of experience that we ultimately have is entirely up to us.
Jenna M Prosceno
What are your thoughts and ideas?