Russell Hebets May 2, 2011

Do I really need a lawyer? That’s an excellent question, the answer to which is, “it depends.” In small claims court (where disputes between two private parties over small dollar amounts are heard), lawyers aren’t even allowed. Having a lawyer represent you in court is never required; representing yourself is called litigation pro se (meaning “for self”). That said, though, except for in a few very limited circumstances (e.g., disputing parking tickets), it is highly advisable that you consider obtaining the services of an attorney.

Why is it highly advisable? First, the law and the rules of procedure (how and when you ask the court, opposing counsel, law enforcement, etc. to do certain things) are very complex. They have developed over centuries and are not always intuitive. Lawyers are trained to a level of expertise in these areas. Going it alone (i.e., pro se), you may miss a legal issue that would’ve been obvious to an attorney. For example, did you know that the police need reasonable and articulable suspicion that you have committed or are about to commit a crime before they can legally search or detain you? Did you further know that they have to document it? Finally, did you know that if either there was no reasonable suspicion or the police documentation was deficient, any evidence obtained thereafter may be suppressed (thrown out) by filing a motion to suppress with the trial court? If you read our blog, you should know these things, but nevertheless this is only one of countless potential issues.

Will the court hold my hand through the process if I represent myself? No way, Jose. Pro se litigants are held to the same standards as licensed attorneys. A judge might forgive your ignorance of legal lingo and standard formatting in motions, briefs and other documents prepared with respect to your case, but he will not explain the rules of procedure to you and will not hesitate to rule against you if you’ve mishandled something. Furthermore, ignorance of substantive law and procedure is not grounds for an appeal, meaning once the damage is done (i.e., you’ve screwed something up), you’re stuck with the outcome.

What if the case seems pretty simple? There are still benefits to being represented. Whether civil or criminal, having a “buffer” between you and the other side has distinct advantages. If you’re charged with a crime, presenting mitigation and trying to persuade a district attorney to be lenient in her approach to the case is marginally more credible coming from someone other than the person charged. Of course you are going to say nice things about yourself and try to save your own skin—and your attorney bears the same bias—but it comes across better when your lawyer is the one saying it. Plus, birds of a feather flock together. Defense attorneys interact with the same DAs all the time. They’re colleagues, often friends. Many went to law school together. Many used to work together in the same office. Attorney-to-attorney professional courtesy and camaraderie, like it or not, greases the wheels of good plea deals.

In sum, always keep things in perspective. Yes, legal representation is expensive. But remember: you didn’t ask to get into trouble or to have a dispute go as far as the courts, but once it has, you’re past the point of no return. You must either opt to go pro se or hire a lawyer. If you represent yourself and wind up taking a worse deal—that results in higher fines, longer jail or harsher criminal record—trust me, you’ll lose much more money in the long run than you saved by not retaining an attorney.

Michael Mauro is a regular contributor to the Hebets & McCallin blog.