Do You Really Need That Lawyer?
On Wednesdays in Alameda County Family Court, California Superior Court Judge Roderic Duncan presides over about 25 cases before lunch--roughly 10 more than other mornings. It is pro per (also known as pro se) day, when combatants appear without lawyers. "I can dispose of pro per cases in less time," says Duncan. "Many of the cases boil down to pretty simple things."
With attorney fees spiraling above $200 an hour, more people who can't afford the tab--or choose not to pay it--are representing themselves, most often in such matters as contract disputes with plumbers, non-contentious divorces, or straightforward personal-injury claims. The reasoning is simple: Why let a lawyer grab a third or more of your insurance settlement or damage claim in a trial when you might be able to do as well on your own?
LOSING BADLY. "In most cases, the amount you've got to pay for even a very good and conscientious lawyer is simply too much," contends Joseph L. Matthews, the author of How To Win Your Personal Injury Claim ($24.95, Nolo Press). "Even if a lawyer in a standard case can get you 10% or even 25% more than you might get yourself--which is already stretching it--the lawyer is charging 33% to 40%. You lose badly."
Many agree. "The number of people proceeding pro se is dramatically greater than in the early 1980s," says Sara-Ann Determan, chair of an American Bar Assn. committee that studied divorce cases in Maricopa County, Ariz. In 1990, 88% of Maricopa's cases involved at least one self-represented litigant, up from 24% a decade earlier. In 52% of the cases, both sides eschewed attorneys. Of those who served as their own lawyers, 72% said they would do so again.
Attorneys are not even welcome in many small-claims courts--except, of course, to argue their own cases. The purpose of these forums is to settle quickly and informally those disputes involving modest sums of money (typically $1,000 to $5,000). Everybody's Guide To Small Claims Court by Ralph Warner ($18.95, Nolo Press) lists state-by-state regulations and includes tips on arguing your case. If your dispute is automobile-related, you can obtain free pamphlets on small claims and lemon laws by sending a self-addressed stamped envelope to the Center for Auto Safety, 2001 S Street N.W., Suite 410, Washington, D.C., 20009-1160.
No one suggests that people should shun lawyers when they are involved in a complex injury or discrimination case, or one with gobs of money at stake. "They may not think of everything a lawyer would think ef," says Harvey W. Gurland Jr., a partner at Mershon, Sawyer, Johnston, Dunwody & Cole in Miami. Nor should a criminal defendant proceed without counsel. "If you're charged with a crime, I would recommend going to a lawyer if for no other reason than there are so many pitfalls and intricacies in criminal law," says Steven L. Kessler, a Manhattan attorney. Plus, criminal suspects can call on a public defender.
GET THE SKINNY. For those who go it alone, "it is terribly difficult to figure out all the little nitty gritty stuff about what color paper to use," says Los Angeles attorney Sara J. Berman-Barrett, who, with Paul Bergman, a law professor at the University of California at Los Angeles, co-wrote Represent Yourself in Court ($29.95, Nolo Press). Indeed, preparation is critical. For example, she recommends observing ahead of time the judge who will hear the case. Clerks may clue you in about regulations, and some courts offer booklets outlining rules.
Before filing or answering a lawsuit, you should informally quiz witnesses and gather bank records, medical charts, police reports, or insurance claim forms. You should also search real estate and other public records to get the skinny on your opponent: If he or she doesn't have sufficient assets, it's probably pointless to proceed with the claim. "Novices should understand that lawyers should have no greater access to evidence and witnesses than they do," says Bergman.
In the pretrial phase, you should consider a settlement. It's no sign of weakness to reach an accord before trial: Even when lawyers are involved, most cases are settled out of court.
If the case goes to trial, nonlawyers may face hostility from the bench. On the other hand, judges could cut newcomers some slack. "If anything, it's more difficult for a lawyer to face a layman adversary, because the legal system will bend over backward more often than not to show that it's fair," says Richard J. Kurtz, a New York attorney specializing in trial work.
Opposing counsel may attempt to throw you off with complicated motions or by requesting a jury trial. But again, being an outsider sometimes can work in your favor. Says Judge Duncan: "You dig your toe in the carpet and say: `Ladies and gentlemen of the jury, I'm really sorry you have to be here to do this.' I was perfectly willing to have the judge decide the case, but the other lawyer [requested a jury]. Please forgive my ineptness. I'll do the best I can.' Wow, the jury starts looking daggers at the lawyer."
Making speeches is not permitted when you are directly examining witnesses: You'll have time during closing arguments. Before delving into the specifics of the case, Bergman and Berman-Barrett recommend asking witnesses a few background questions, to calm any jitters. Then, when you're ready to zero in on the pertinent events, you can ask a combination of questions: narrative (describe the events of May 1), open-ended (what did the car look like after the accident?), or closed (what color was the car?). Be careful asking friendly witnesses leading questions (the car wasn't red, was it?). Opposing counsel will likely object, and the judge will probably not allow your question. Leading questions are acceptable during cross-examinations, however, because there is little chance that an opposing witness will falsely agree with you.
NO HEARSAY. Nonlawyers should also learn the rules of evidence. For one thing, evidence you present must have relevance: That is, there must be a logical link between what you submit and the legal claim you are making. In most instances, hearsay--evidence from witnesses not present in court, where they can be seen and cross-examined--is not admissible. When you suspect the opposition has introduced improper evidence, you can object. But do it fast--to keep the judge and jury from hearing something prejudicial.
Even the best-prepared self-litigants may be wise to call on a lawyer at some point. A number of attorneys are "unbundling" their services and coaching people who are otherwise handling their own cases. Legal coaches might advise you on the strength of your case or assist in preparing documents. Los Angeles attorney Forrest S. Mosten, a family-law specialist, has set up a library with consumer-oriented law books and lawyer-training videotapes. Self-help clients can browse as long as they like for no charge. But when they sit with Mosten, the meter starts ticking. He'll dispense advice in five-minute intervals, at his regular hourly rate of $350.
TIPS ON PREPARING FOR COURT
-- Make a trial notebook covering such matters as what you must prove or disprove, the evidence you have, and the witnesses you want to call.
-- Ask the court clerk about rules and deadlines.
-- If it is possible, size up ahead of time the judge who will hear your case.
-- Rehearse your opening statement, direct and cross-examinations, and closing arguments in front of a trusted friend or relative.
-- Prepare witnesses to testify, and verify that they'll show up. If necessary, subpoena them.
-- Prepare a crib sheet with a list of common objections.
-- Consult with a legal coach if necessary.