Representing Yourself in Court

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

 

Pro se means “for self” in Latin. In the legal system it is the term applied to cases in which someone represents himself, rather than having a lawyer. In almost every kind of court case, individuals have the opportunity to represent themselves. But there are all kinds of documents and actions that have to be done exactly right in a court case, not only to win, but even to keep the case alive through the numerous processes in formal dispute structure.

There is an impression that judges will be flexible and patient with people representing themselves in court. Judicial conduct codes require judges to be thoughtful and unbiased,[i] but they do not require judges to waive court formalities or provide unlimited time for people representing themselves to make their way through a case. In fact, judges trying to be unbiased might have to restrain themselves from being too helpful to litigants representing themselves.

Judges’ professional organizations have produced position papers and suggestions about keeping court fair, efficient, and accurate for self-represented claimants and also their opponents who are paying attorney fees.  [ii] In sum, judges have no legal obligation to protect or assist people simply because they have come to court without a lawyer.

Many courts have a “pro se packet” or a similarly named segment of their Web sites where case filing instructions are provided for non-lawyers. [iii]   The difference between those instructions and the ones the lawyers follow is basically in the way they are written, although they also tell how to notify the court that you don’t have legal counsel. Even though a pro se printing of the court’s requirements may be easier to read than the full-text of the court rules, the fact is that pro se litigants do not get to avoid court formalities simply because they have not hired a lawyer.

The court formalities and the strange ways that laws and cases are written make it very hard to independently navigate the legal system. New litigants often want to have someone explain a legal phrase in plain English or just summarize a whole long process in a few sentences. Those kinds of communications are forms of legal advice because they involve interpreting the law.

Sometimes, people who represent themselves in court cases find themselves asking for legal advice from the lawyer on the other side of the case. This not only puts that lawyer in an awkward ethical position,[iv] it also informs him about the case strategy. It is also unwise to ask court clerks, law librarians, and various legal system employees for advice about a case. While those people may have been tangentially involved in a lot of cases, they do not necessarily have the knowledge or information to analyze or plan a case. Only lawyers can give legal advice. Non-lawyers are at risk of being charged with the crime of practicing law without a license if they give legal advice.
The more pressing problems for the pro se litigant who seeks legal advice from a non-lawyer are:
1. that he will either get incomplete or incorrect guidance or else
2. that he will irritate that legal system employee who cannot give the desired advice. It is very annoying to be asked for help that you cannot give.

For assistance in planning litigation strategies, collecting evidence, and pleading a case in court, pro se litigants (and lawyers) can get a great deal of help from law library books in the call number ranges beginning with KF 8800 and KF 8900. That section of the library has books with sample deposition questions, instructions for writing and delivering an opening statement in court, ideas for asking questions of witnesses, recommendations for how to use evidence, tactics for effectively communicating with the judge and jury, and much more. Some books are just about bringing a case in a particular jurisdiction, others are about succeeding with specific legal claims, and others teach techniques. There are several large series’ of practice books that give especially detailed examples: Am Jur Trials, Shepard’s Causes of Action, and Am Jur Proof of Factsare the three primary sets of these. They include features such as checklists to follow for organizing a case to be sure that all of the necessary information is collected and provided to the court, examples of actual documents that have been filed in cases, lists of questions to ask in depositions before trial and cross or direct examination during trial, and suggestions for how to present evidence. There is a Web-based resource called Self Help Support.org http://www.selfhelpsupport.org/ with a library about self-representation, several listservs, a newsletter about self-representation, and other background about handling a case without a lawyer. Note that this service is not designed for individuals representing themselves in court, but is “a virtual resource for people involved with providing pro se assistance or directing pro se and self help programs.” (from http://www.selfhelpsupport.org/about/) They do not have information about specific law topics.LawHelp.org http://www.lawhelp.org/ does have topical law information. The first screen on LawHelp lets users select the state within which they are representing themselves. Within each state’s page are the topical categories (employment, children and families, health law, veterans, migrant issues, etc…) with links to legal explanations and free legal services for each of those categories. Findlaw has an ever-growing collection of articles about representing yourself in at http://public.findlaw.com/. Here is a very useful guide listing each state’s various support services for self-help litigants. http://www.co.washington.or.us/LawLibrary/upload/Collaborative_State_JD_MLS_TaskForces_April2014.pdf  Note that this list was compiled by librarian Laura Orr whose goal was to identify collaborations between law libraries, courts, bar associations, and other groups/

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[i] Code of Conduct for United States Judges, available at http://www.uscourts.gov/RulesAndPolicies/CodesOfConduct.aspx.

[ii] Paula Hannaford-Agor, Helping the Pro Se Litigant: A Changing Landscape, Court Review (published by the American Judges Association) (Winter 2003) available at http://aja.ncsc.dni.us/courtrv/cr39_4/CR39-4Hannaford.pdf;  Here is an article called Pro Se Litigation: Best Practices from Judge’s Perspective.

[iii] Federal court Web sites are available through http://www.uscourts.gov/courtlinks/. Look for a link to “documents” or “communications” that might link to instructions for filing a pro se case.

[iv] Forms for self-representation in state courts are available via the National Center for State Courts at http://www.ncsc.org/Topics/Access-and-Fairness/Self-Representation/State-Links.aspx?cat=Court%20Forms. The National Center for State Courts also has other helpful information about self-representation. Simply go to http://www.ncsconline.org/ and search within the site using the phrase “self-representation.”  Also, take note of NCSC’s resource guide for self-help litigants. http://www.ncsc.org/topics/access-and-fairness/self-representation/resource-guide.aspx

[v] Rule 4.3 of the Model Rules of Professional Conduct prohibits lawyers from giving advice to litigants who are not their clients. Link to states’ lawyer ethics material at http://www.abanet.org/cpr/links.html.