If you have been confronted with a legal challenge of any kind, it can be a scary, stressful experience. You will naturally begin to ask many questions: Will you face any kind of legal penalties, and if so, how severe? How much will the matter cost you in money, time, and energy? Will you have to go to court? These and many other questions will certainly run through your mind, whether you’re facing a traffic misdemeanor, a personal bankruptcy, a major felony charge, or anything in between.
One of the most important questions that often pops up for people in such situations is: “Do I need an attorney for this, or can I handle it myself?” Self-representation is known in our legal system as “pro se” representation, from the Latin meaning “for oneself” or “on one’s behalf.” The question of whether one should represent themselves is a critical, and reasonable, one to ask. After all, there can be benefits to handling a legal situation without an attorney: avoidance of high legal fees, less complexity, time savings from not having to meet with (or wait on) the attorney, etc. There is also the sense of control that can come from being in charge of your own case. However, there are also some potential drawbacks to self-representation, which must also be considered. Some cases are too complex to be handled alone. Many cases, even though simpler in nature, would nonetheless be better approached with the assistance of an attorney. This article will examine three things you should consider when determining whether or not to take on a case pro se.
Complexity
The level of complexity of your case is probably the most important factor to consider in determining whether or not to represent yourself. The legal system – and the law itself – can be very confusing, and presents many potential traps to the layperson. There are, broadly speaking, two parts to complexity, which every potential pro se litigant must be aware of.
The first part is the law itself. This has to do with the actual legal underpinnings of your case – the reason you have been brought into the legal system in the first place. Some questions to ask yourself are: Do you know the particular statute, regulation, or other rule that your particular matter falls under? Do you understand this law, and could you argue for or against it competently before a judge? Do you know how to research the details of the law in question, or examine other cases similar to yours?
The second part of legal complexity is the technical and logistical side. This has to do with the mechanics of handling a matter, and involves such things as filings, motions, service, etc. Some questions to ask yourself here are: Do you know which court is the proper venue for your matter? Do you know how to initiate or respond to a legal action? Does your legal matter require service of process on the opposing party, and do you fully understand the details of this process? Do you know what a motion is, and when and how to file one?
Some legal matters are simple enough that, even with the maze of rules and laws in place, a non-lawyer of average intelligence can learn all that he or she needs to know, in a reasonably short amount of time, to represent him or herself competently. These matters may include minor traffic violations, some low-level misdemeanors, and many small-claims cases, among others. If your case falls under one of these categories, or something similar, there is a possibility that you can learn enough to represent yourself by learning the relevant laws in detail, communicating thoroughly with your local court clerk’s office, and utilizing your local court’s online resources. Be mindful, though, that even undertaking simple legal cases is not for the faint-of-heart, or the undisciplined. Doing all that is necessary to effectively represent yourself will take a lot of work, focus, and self-discipline.
Other legal matters, due to their increased level of complexity, are best handled by an attorney. This would basically include all legal matters not falling under the categories listed above. In many cases, the need for an attorney will be obvious to the person facing the legal challenge. A major felony charge, for example, or the sale or merger of a large-sized business. Most people would naturally gravitate towards the use of an attorney in these situations, recognizing the complexity involved. In other cases, however, the legal complexity isn’t so apparent. For instance, setting up an LLC, or devising an estate plan or a will. These may seem to many people like matters that can be handled without the aid of an attorney, especially with the advent of sites such as Legal Zoom and Rocket Lawyer. However, while these matters often seem fairly simple at the front end, they are usually loaded with pitfalls and complexities over the long term. Most non-lawyers, who are untrained and inexperienced in seeing those long-term implications, are not in a position to put in the protections and safeguards necessary to avoid them. This is where competent legal counsel comes into play, and it is why attorneys should be utilized – or at the very least, consulted – when dealing with matters in this middle range.
Strategy
Another important factor to consider when deciding for or against pro se representation is the strategy that will be employed to address a legal matter. No matter how simple or complex a particular case, strategy will be involved in how it is handled. Some cases require only a very basic strategy, and can be employed pro se. For instance, you loan your friend $1,500, he has not paid you back in the agreed-upon time, so your strategy is to take him to small-claims court, and try to win a judgment against him. This is a simple strategic course, which can be drawn up and implemented by someone representing themselves.
Other cases will require much more sophisticated strategy and execution. For example, consider a partnership that has been in existence for 20 years, has three partners, and is worth $10 million. Two of the partners suspect the third of misappropriating funds, and they want to take action. Here, the potential strategic angles are numerous, and would require legal counsel. What are the causes of action that could be brought against the fraudulent partner? Which path would have the highest likelihood of success? How can the wayward partner’s misdeeds be proven? Is it better for the accusing two partners to leave the partnership, or remain in it? Etc., etc. The partners in this case, without legal training, knowledge of the relevant laws, or experience in dealing with these types of questions, would almost certainly need to have competent attorneys working with them, not only to implement strategy, but to devise it in the first place.
Or, consider seemingly simple cases, which still might benefit from attorney representation on the strategic front. Imagine that a young man is caught shoplifting from a local retailer, with the total amount of stolen goods amounting to $200. In most states, this would be considered a misdemeanor or low-level felony, and would carry a maximum of 6 months to 1 year in jail, or something similar. While the crime here is relatively minor, and the consequences not extremely severe, the young man may still be better off obtaining counsel, as opposed to going it alone. There are many potential benefits that an attorney could bring to the situation. He or she could examine the evidence and find holes in the case, use his or her experience to negotiate for a lighter sentence, or competently take the case to trial if necessary. The young man acting alone would be disadvantaged in all of these areas without the aid of any attorney. Even in the prior example of you loaning money to your friend, an attorney might still be useful. If you were to go to court and win a judgment against your friend, what would be your next steps? How would you collect that money? Would you be permitted to obtain a garnishment on your friend’s wages, and how would you go about doing so? How would you gain information on his employer, bank, etc.? All of these questions could be answered with the aid of an attorney, making it clear that even small, strategically-simple cases can often benefit from legal counsel.
Legality
Finally, anyone facing a legal challenge should know that for many matters, the laws of your state or locality will actually require you to find representation. For example, many states prohibit corporations from being represented by anyone who is not an attorney. Likewise, there are some rules in place which bar the ability of pro se litigants to participate in class action lawsuits.
In addition to this, many individual courts place restrictions or limits on pro se representation, depending on the particular circumstance. Some small claims courts require legal counsel for litigants if the dollar amount is above a certain threshold. Many courts will push defendants to obtain counsel if the judges feel that the stakes are high, and the defendants ill-equipped to deal with them.
If you are considering representing yourself, be sure to check your state laws and local court rules, to see if any such restrictions would apply to your individual matter.
Summary
Although there are a few circumstances where self-representation can be beneficial, in the vast majority of cases, it is far better to obtain the assistance of an experienced, competent attorney. If the potential cost of an attorney is what is driving you towards pro se representation, be aware that most states, and many local districts, offer pro bono and low-cost legal services to their constituents. You should explore these options and see if you qualify. Even if you don’t, investing in the expertise of a skilled attorney could save you much more, in the long run, than dealing with the consequences of mishandling a legal matter by attempting to do it yourself.
NOTE
This article primarily references Indiana law. Please check the laws of your local jurisdiction if you live in another state.
The articles in this blog are for informational purposes only. No attorney-client relationship is established through the publication of these articles.
