Here's the next excerpt from my next (and last) July release, Closest to the Fire: A Guide to American Law and Lawyers. It concerns something that people sometimes have to do, but shouldn't usually do unless they have to.
(The pairs of double asterisks mark situations that could make good story material for authors of fiction.)
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K. Pro Se, or Courting Disaster
Representing oneself, rather than having a lawyer represent one, is called appearing or acting pro se.
It’s a perfectly good idea for a lay person to represent themselves in court — if they should have gone to law school in the first place, have a great deal of time to prepare, and are inhumanly objective about the matter at hand. Otherwise, it’s probably a terrible mistake.
Representing yourself in court without adequate legal training is like waltzing through a minefield without a map. In the dark. The odds are enormous that you’ll go up in smoke. More prosaically: a non-lawyer acting pro se is likely to miss the chance to introduce crucial arguments and evidence, because they won’t know how and when to fulfill procedural requirements. (Note: federal courts cut pro se litigants a little more slack.)
Given these difficulties, and the possibility of tricking a non-lawyer into making some damaging argument or admission, you might think an attorney would rub their hands in glee when faced with a pro se litigant; but the numerous delays while the judge tries to cope with the pro se party’s ignorance can be so maddening that most lawyers dread such cases.
For judges, there’s no “up” side. The trial or other hearing is likely to drag on much longer, with a just result much harder to achieve. If the pro se party failed to provide motions or other required documents to the opposing attorney beforehand, it may be necessary to schedule an additional hearing, adding to the court’s already overburdened calendar. Moreover, the judge has a very tricky line to walk: how much assistance may they provide before becoming, essentially, an advocate for the unrepresented party? Examples of help that might or might not be excessive (because different jurisdictions and different appellate courts may disagree) include:
>> Relaxing rules of evidence, such as the necessity to lay a proper foundation before admitting documents.
>> Overlooking missed filing deadlines.
>> Excluding objectionable evidence even though the pro se party doesn’t know enough to object.
>> Summarizing some key aspect of the applicable law at the start of the hearing, and/or prompting the pro se party as to what is or isn’t relevant.
If the judge does decline to enforce some procedural requirement, they had better be even-handed about it, allowing the same latitude to the attorney on the other side.
[. . .]
In criminal cases, because going pro se is such a bad idea, and because defendants have a constitutional right to legal representation (see 2.M.), the judge is supposed to make sure that any defendants stating the intention to represent themselves know how badly it may backfire before allowing the fiasco to unfold. In the civil context, however, urging a pro se party to get a lawyer has occasionally been held improper.
Even lawyers, when they find themselves in the position of litigants, are well advised to hire another lawyer. It’s almost impossible to keep your emotions and partisan viewpoint from clouding your legal judgment in this situation. There’s an old, wise saying among lawyers: “He who represents himself has a fool for a client.” (The pronouns are obviously outdated.)
On the other hand, it’s rarely much fun for a lawyer to represent another lawyer. They won’t sit back and let their lawyer run things. They’re full of tactical suggestions and demands. **One could have some fun with how an experienced, older, crusty attorney deals with being in the position of client for a change, and how their lawyer tries to maintain control of the case.**
Tomorrow, a pair of excerpts (the first very short): lawsuits as Hell, and a look at the wide net cast by RICO.
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