Self-represented parties can make serious mistakes in Court. I remember representing a developer defending himself in a lawsuit against a sweet elderly Asian woman who thought my client had done a poor job building her new condominium and that he should pay her $15,000 as a result. The plaintiff filed her claim as a limited jurisdiction action instead of waiving the difference and filing in small claims court (first mistake). During the course of months of litigation, I repeatedly offered to settle, finally stating that my client would pay the plaintiff $5000 if she would just let go. The disgruntled lady steadfastly refused (second mistake).
Eventually, after standard discovery and trial preparation, both parties appeared in Court for trial. In somewhat of an unusual maneuver, the trial judge asked all of us to come into chambers before he heard the case. As soon as he invited us back, I knew that he had read the pleadings and felt this case should settle. I knew that he would try the case, not a jury. And, as I was walking through the courtroom to the judge’s chambers, I also knew that we already had won our case. The disgruntled lady did not have a clue. In chambers the judge had each of the parties to explain the facts (I did the talking for my client, of course). This took only a few minutes. The judge then asked if we had discussed settlement; we indicated we had and that there still was a $5,000 offer. In a very gentle manner, the judge took considerable time explaining the situation to the plaintiff and advised her to consider our offer. He could not tell her that she would lose, but he did say that it looked like she had problems with her case and that if she lost she would face a substantial attorneys fees award against her, the same advice competent counsel gives his client in similar situations. She demurred. So the judge told her to think about it and continued the trial for a couple weeks. We could not work it out in those extra weeks, so all of us appeared for trial as ordered. In open court at counsel table, the unhappy plaintiff indicated that she would not accept our $5000 offer. In under thirty minutes, we tried the case: judgment for defendant. The Court awarded my client $28,000 in attorneys fees, which the gentle but litigious lady promptly paid. A $33,000 swing, a big mistake.
This story is not at all uncommon, but for the details. I have tried probably several hundred cases, many of them against self-represented parties (“In Proper’s”) and have seen as many more while sitting in the gallery, waiting for my case to be called. It is not uncommon for me to see defendants (usually tenants) argue ineptly and lose a case that I thought they might have won had they only given the judge enough testimony and evidence for him give them the nod. I knew they had the evidence, as did the judge and opposing counsel, but if they fail properly to present it to the judge, he cannot give them the relief they seek. On my way out of court, I hear these same unhappy defendants complaining about the injustice of the system.
Over more than thirty years of practice, I had developed the strong opinion that noone, not even attorneys (another story there) should represent themselves in Court. Lately, though, I am beginning to feel otherwise. My change of heart is driven mainly by the realization that many, if not most, cases do not warrant the attorneys fees it takes to win them. Also driving this change of heart is that most mom-and-pop litigants cannot afford full blown representation even at a wildly discounted rate. They are faced, therefore, with the Hobson’s choice of litigating their own claim or walking away from it altogether.
I now am of the opinion that something can be done about this. I think that the average layman can represent himself in Court…in the right type of case…with competent advice. Lately, as I near retirement and am letting my practice wind down, I have been giving more attention to the individuals who cold call with their legal questions. These encounters, coupled with the gaffs I have observed in Court as explained above, have led me to believe that perhaps the needs of counsel for fair income and the need of the public for affordable legal advice can meet – so long as neither counsel nor litigant gets too greedy. I have found that over the telephone or via email I can succinctly advise a litigant on the legal issues and evidentiary issues he is facing. Often I can tell him what the judge will want to hear and how to marshal his evidence in support of his claim. The good news is that I find I can give out this advice for probably under an hour of my time, often in only ten or twenty minutes. And this works even for small claims actions. Although a party may not have an attorney represent him in small claims, he sure can consult with an attorney beforehand. I am of the conclusion that a savvy litigant who can manage a claim within his limits can get helpful legal advice for an affordable cost. All that remains are for attorneys to make themselves available for this service at a reasonable rate and for laymen to understand what they will be getting for that reasonable rate.