August 25, 2019

Should You Represent Yourself in Court?

Wondering whether you should represent yourself in court without an attorney (also known as “pro se” or “pro per”)?

Rising attorneys’ fees continue to make legal representation less and less affordable, leaving millions of Americans each year with the important decision of whether to represent themselves in court without an attorney.

Should YOU represent yourself in court? Well, it depends (classic lawyer answer). First, find out whether you CAN represent yourself in court under your jurisdiction’s laws and court rules.

If you can in fact represent yourself in court, you must then address the more important question: should you represent yourself in court? Again, the answer is: maybe.

This article and video is not state-specific. Each state has its own laws and court rules regarding when you can represent yourself in court. We do not recommend either way whether you should represent yourself in court. Only you can make that determination. This article and video are designed to point you in the right direction as to what factors, among others, you should consider.

Consult First With an Attorney

Even if you are inclined to represent yourself in court, consult with an attorney first. Many attorneys offer low cost or free initial consultations. You might as well, right? You may even learn something about the litigation process, potential claims and defenses in your case, and some of the obstacles you may face.

Some attorneys offer reduced fees, payment plans, and work on a contingency fee (in certain matters). These could help you keep down your legal bills or make payment terms easier.

Factors to Consider Before Deciding to Represent Yourself in Court

Here are some important factors to consider before committing to represent yourself in court as a pro se / pro per party without an attorney:

How Complicated is Your Case?

Obviously, the more complicated the case, the more difficulties you are likely to face if you represent yourself in court. But how do you know how “complicated” your case is going to be?

In reality, it is difficult to quantify how complex your case will be, and things can change in an instant.

And, even if it was simple, cases often take unexpected (sometimes unfortunate) turns. Interesting legal issues may pop up. Witnesses, parties, and even attorneys can be uncooperative, stubborn, or even hostile.

With that in mind, here are a few factors to consider when evaluating how complex your case is:

What is the Lawsuit About (Subject Matter)?

Does your case involve technical, scientific, or otherwise complex subject matter? If so, you will need to not only learn and understand the relevant legal standards for proving your case, but also the necessary scientific and technical concepts and workings.

This is especially true in actions for product liability, professional negligence (e.g., doctors, attorneys, architects, engineers, etc.), and intellectual property (e.g., trademarks, patents, copyrights, etc.). But this is not a complete list … use your judgment!

This all depends on the knowledge you bring into the lawsuit and what you need to learn to prove your case. Will you need to learn some medicine? How toaster ovens are built? The standards of professional conduct for accountants?

Who are Your Opponents?

How many parties are involved in the lawsuit? Are they businesses, individuals, government entities, non-profits, or some combination? Are they able to fund their legal fees and mount a strong opposition to you?

If you’re suing a government entity or official, there are special rules and restrictions (including sovereign immunity), and you will need to read the rules and court rules in your jurisdiction to ensure that you comply with these stringent requirements.

As a general rule, the more parties are involved, the more complicated the case will be. This is because each party has the right to conduct discovery, file and oppose motions, and represent its interests at trial. And, if your opponents have a war chest of cash to pay attorneys to make your life more difficult, that will almost certainly make your case more complicated.

What is the Venue? (State vs. Federal Court)

If you or your opponent(s) have already filed a lawsuit, is it venued in state court or federal court?

If a lawsuit has not been filed, where is it likely to be filed? Generally speaking, actions in federal court tend to involve more procedural requirements and disclosures and to be stricter with enforcing court rules and deadlines.

That being said, whether you are in state or federal court, always abide by deadlines and procedures and never assume that your court is “relaxed” when it comes to enforcing deadlines!

The vast majority of lawsuits filed each year are in state courts. Certain cases MAY be filed in federal court; and some cases MUST be filed in federal court. Do your research!

This is not to say that if your case is (or belongs) in federal court, you should not represent yourself. Indeed, countless pro se / pro per parties represent themselves in federal courts every year. However, this is an important factor (among others) you need to consider.

How Much is Your Case Worth?

The more your case is worth (or for a defendant, the most your opponent’s case is worth), the more strongly you should consider hiring an attorney. Of course, valuing your case can be difficult, and cases can greatly increase or decrease in value based upon developments in the lawsuit. For example, a helpful deposition of a witness could improve the value of your case. The opposite is true as well.

What Damages Can You (Or Your Opponent) Obtain?

Despite these difficulties, do your best to come up with a realistic value for your case. Research what money damages are available in your jurisdiction for this type of case. Are you or your opponent entitled to compensatory damages? General damages? Punitive damages?

If you are entitled to attorneys’ fees, it may make even more sense to consider hiring an attorney.

Why does the value of the case matter? Well, the more your case is worth (or more it is worth to your opponent), the more you stand to lose if things go wrong. And, the harder your opponents may fight.

For example, if you’re suing your tenant for $800 in unpaid rent, it might not make sense to pay an attorney hourly at the rate of hundreds of dollars per hour.

On the other hand, if you’re being sued for $300,000 in fire damage caused to your neighbor’s apartment when you lit fireworks in your living room, you may prefer to hire an attorney to represent your interests. Or not … it all depends on your particular circumstances!

Can You Devote the Necessary Time to the Case?

If you’re lucky, your lawsuit will resolve quickly with a settlement. However, many (even most) cases take weeks, months, or sometimes even years to resolve. All this requires an investment of time on your part.

Here are some examples:

Attending court conferences, motion hearings, trials, and depositions;
Interviewing witnesses;
Researching and learning your jurisdiction’s laws and court rules;
Preparing or opposing motions and briefs;
Conducting and responding to discovery; and
Locating and gathering evidence to prove your claims or defenses.

At the end of the day, time is money. Even if you’re saving money on attorneys’ fees by representing yourself, your time has a value. What are YOU losing by dedicating time to litigating the lawsuit?

Are you losing wages? Missing out on opportunities to network and develop your professional contacts and business? Losing precious time with your family?

Give some thought to what you would be giving up by taking on the responsibilities of representing yourself in a legal action.

Can You Deal With Pressure?

How well do you deal with pressure? Some people really thrive under pressure. Others don’t. Some find that a little pressure is good for them: it makes them more productive and gives them a sense of purpose.

For others, pressure has the opposite effect, causing them to shut down or worse, panic.

Almost everything in litigation has a deadline. Among other things, discovery responses, disclosures, status reports, and motions all have deadlines. And deadlines can be uncompromising and strict!

Are you the type of person that is good at keeping track of and meeting deadlines?

Furthermore, your health is the most important asset you have. If acting as your own attorney will negatively impact your emotional health, strongly consider hiring an attorney instead of representing yourself pro se / pro per.

Never Represent Yourself in Court in a Criminal Case

This article and video applies only to CIVIL lawsuits. If you are a defendant in a CRIMINAL case or accused of a crime but not formally charged, it is NEVER recommended that you represent yourself in court.

In criminal cases (unlike civil), the Sixth Amendment of the U.S. Constitution requires that the state appoint an attorney for you at its expense if you can’t afford to hire an attorney.

Criminal cases involve the possibility of money fines or even imprisonment, and therefore the stakes are simply too high. Moreover, with legal representation available to you for free if you can’t afford it, representing yourself without an attorney in a criminal case is simply NOT recommended.

Think Very Carefully Before Deciding to Represent Yourself in Court in the Following Cases:

There are a few categories of cases where you should give a second (or even third or fourth) thought to hiring an attorney. That is not to say that you can’t represent yourself effectively and well, but the cases listed below are more document-intensive, (generally) more complex, and require some knowledge of scientific and technical matters that may be difficult for non-attorneys (and sometimes even for attorneys!):

Intellectual property (e.g., trademarks, copyrights, patents, etc.);
Medical malpractice;
Product liability; and
Employment litigation (e.g., wrongful termination, employment discrimination, etc.)