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Thursday
May232019

The hazards of representing yourself in pro per

As legal fees continue to skyrocket, more and more people find they cannot afford to pay high rates for legal services. Reasoning that they know their cases better than anyone else and are not willing to forfeit their claims, laypeople are filing lawsuits in pro per.  (In propria persona, but that is quite a mouthful!)  

It is a daunting prospect. As an in pro per litigant, you are held to the same standard as an attorney who has gone through law school and may have years of experience in civil procedure. You cannot use ignorance of the law as an excuse. You are expected to know how to present your case without the assistance of the judge.

Some litigants mistakenly believe that a judge, who is supposed to be impartial, will help you. Such a believe is inopposite to the very concept of being impartial. It requires a judge to educate you at the expense, and very often the objection, of the opposing side.

Judges take different views on how helpful they can be. The reality is that courts are more efficient if everyone knows the rules. That means that both parties are represented attorneys. Attorneys know their roles and the procedures involved in handling a case. Explaining these rules to in pro per litigants takes time and patience. Not all judges are willing to do it and will take very opportunity to encourage you to retain an attorney. Some are nicer than others in their encouragement.

Judges also know that even the best case can be lost through a procedural error. Miss a hearing and you have no voice. File your papers late and they will often be disregarded. There are rules - statutes, rules of court, local rules, and even unwritten local practices - that must be learned and applied. It is a mindfield for the in pro per litigant.

In the last few weeks, I have been contacted by in pro per litigants who have lost their caes at the superior court level.  Most of them were lost due to procedural errors. Quite often, there is not much I can do at the appellate level, especially if there is no record to explain their failure to observe procedural rules. For instance, if you file a medical malpractice action against a doctor, you will eventually need a medical expert at some point, whether it is to oppose a motion for summary judgment or at trial. But many doctors refuse to act as an expert for in pro per litigants. End of case.

It is sad to hear from litigants who may have a meritorious case but lack the knowledge to pursue it. In essence, the legal system is set up against in pro per litigants. Sometimes there are viable alternatives, such as legal clinics, legal aid or even self-help clinics offered by the courts. But in reality, these may be poor substitutes for hiring an attorney. I think it would be great if there was a way we could make the judicial system more user-friendly but there does not seem to be a big effort to overhaul it to accommodate in pro per litigants.