Do-It-Yourself Law

Pro se people usually go it alone because they cannot find or afford a lawyer, but some choose to represent themselves despite the availability of lawyers. It can be exhilarating to represent yourself, and self-representation has been the start of paralegal careers, but it is often a frustrating, confusing, and scary experience. Legal representation requires highly sophisticated resources, giving lawyers and paralegals the clear advantage, but the revolution in information technology now in progress is leveling the playing field.

Self-help law is quickly evolving. The Internet has increased the potential of pro se lawyers by bringing a wealth of formerly inaccessible legal resources to their desktops, and the phenomenon of self-help law can only grow as Internet access expands. The increasingly sophisticated legal marketplace that results will transform the way legal services are delivered and the kinds of services offered.

How risky is self-representation? That depends on your level of legal sophistication, the legal resources you command, and the legal tasks you undertake. Sheer luck also plays a part, although lawyers usually do not admit it. The more complex the task, the less you understand it, and the fewer your tools, the greater the risk of failure. How can you assess the risk? Prediction is difficult because there are an infinite number of unknown variables, but there are some factors you can assess, and some free help is available.

Facts-Only Presentation. Effective legal representation involves the organized and timely presentation of the relevant facts and applicable law. When you represent yourself, telling your side of the story -- i.e., the facts -- is usually safer than arguing the law. There are exceptions: if you are a child, are mentally, emotionally or physically handicapped, don't speak English, are being stalked, or could incriminate yourself on the witness stand, you need a lawyer no matter what.

User-Friendly Courts. Small Claims Court, Housing Court, and Family Court serve pro se litigants by design, and non-lawyers routinely appear there, because cases there tend to be fact-based and the procedure less formal than in NYS Supreme Court. Cases are often heard, if not decided, by non-judicial hearing officers.

Court Clerks. Court clerks in New York City generally assist pro se litigants. The practice is institutionalized in the federal court system, where each courthouse has a pro se clerk. The clerk will usually provide the forms you need and help you file them, making him a valuable pro se resource who should be considered, along with court officers, stenographers and translaters, a gatekeeper to the courthouse.

Alternative Dispute Resolution. Many, not all, NYC judges have attorney assistants called "court attorneys" who help the judge sort out the daily calendar and separate those cases that can be settled from those the judge will have to hear, probably on an adjourned date months in the future. The court attorney may confer with the parties to find out if the case can be settled, and try to negotiate settlement. Sometimes the judge has the option of referring you to alternative dispute resolution (ADR) with the same objective. If you have the opportunity to consider ADR, seriously consider it. Once you find out how long it can take to litigate a case, that opportunity will assume greater significance. Holding out for judicial hearing may mean months of adjournments.

To effectively utilize the chance to settle, have an attorney consult before your first court appearance to formulate a resonable bottom line, by which I mean the least favorable terms on which you would end the litigation but still be reasonably satisfied. Sometimes the bottom line is all the parties seek.

During any settlement conference, listen carefully to your opponent's demand. Do you have any common ground? That is, a result you and your adversary both seek or to which neither of you could legitimately object. Common ground leads to agreement, agreement leads to settlement, and settlement leads out the courthouse door.

Listen carefully to any proposal made by the alternative decision-maker. Is it fair to both sides? Even if it doesn't give you everything you want, is it a reasonable compromise, which, in hindsight, may be the best possible outcome? You, your opponent, and the alternative decision-maker have the power to end the litigation, saving time, money and aggravation, so consider every settlement proposal carefully. It may not only expedite a result, it may be more favorable than the outcome after the judge has heard the evidence.

If a settlement proposal isn't fair and reasonable, you may reject it an make a counter-offer, which is expected, and can produce a result closer to what you want. If the proposed settlement terms are so one-sided no counter-offer is possible, you may end the negotiations without penalty.

Negotiation is a gamble that may not pay off, but is always worth taking. If the negotiation succeeds, you go home with something to show for the hours you spent in the courthouse. If it fails, the litigation merely continues on an adjourned date.

Self-Help Legal Books. As with alternative medicine, self-help law is a controversial subject. Should lawyers write books telling laymen how to perform legal tasks? Professional protectionism aside, there are clearly risks involved: neither the author nor the publisher of a self-help book can foresee how the reader might misuse the information, any more than the reader can foresee the risks of self-representation. For many low and moderate-income legal consumers, however, legal representation may be out-of-reach or have been rejected as an option. If laymen will inevitably represent themselves, the pro bono tradition of our profession seems better-served by offering guidance than offering none.

A legal self-help book is a risk indicator. The more cut-and-dried the task, the more likely it is to be the subject of a self-help book. If you cannot find a book on the subject, the task may be too complex to explain to a layperson. For instance, you probably won't see a self-help criminal defense manual, although you'll find a dozen books that tell you how to write a simple will.

Perhaps the best-known self-help legal publisher in the United States is Nolo Press (listed under Section N in Legal Resources on the Worldwide Web) in Berkeley, California. No dedicated do-it yourselfer should miss the Nolo site.

"Walking the Walk and Talking the Talk". No one in the courthouse knows you in any other context, so, like an actor on the stage, you can play any role you choose. Consider your ability to perform on the courtroom "stage" when deciding whether to represent yourself. Some pro se litigants are deeply frustrated by the theatrical aspect of litigation. They see it as giving unfair advantage to the seasoned "actor", and in fact, it does. A litigant can gain the psychological advantage by seeming to be the more rational or appealing human being.

There are other sources of frustration. Waiting all day in a crowded, noisy waiting room for your case to be called, often to be adjourned without resolution, frays nerves and raises tempers to the boiling point. Litigants may reach the courtoom in a state of desperation, having lost a day at work; having had to arrange for a relative to pick up their child from school; having waited for the court officer to collect all the litigants and their respective attorneys from the far reaches of the courthouse; having waited to confer with a court-appointed attorney assigned a dozen other new cases on that day; or having waited for a translator in order to communicate with that attorney.

But anger and frustration with the implacable ironies of the situation, if it gets out of hand, can hurt your case. A display of "attitude" risks alienating the judge, the person whose good will you most depend on, so you must control your behavior at all costs. If you cannot restrain yourself under extremely trying circumstances, self-representation may not be for you.

What you wear to court.-- your "costume" -- makes a powerful statement to the judge. To make a good impression, dress as though you were going to church. It bespeaks respect for authority and self-restraint -- qualities that play well in court. Good manners and a gracious demeanor also boost your credibility. Because judges have to put up with so much offensive courtroom behavior, they are grateful for civility.