In the late 1970s I had the misfortune of having my vehicle catch fire while I was driving. The cab of the vehicle was totally scorched out and only the arrival of the Broomfield, Colorado Fire Department prevented the fire from reaching the gas tank and creating what might have been a life-threatening conflagration on the Boulder Turnpike. In their investigation the Fire Marshal concluded that the fire had been caused by the fact that the manufacturer had placed an open bolt hole directly over the catalytic converter and that when the catalytic converter overheated the heat caused the rug material (made of a flammable plastic to catch on fire). In an effort to get the damage paid for, I filed a Small Claims tort against the automobile manufacturer but was shocked when the manufacturer produced their own “experts” and attorneys who managed to confuse the issue to the point that the suit was dismissed.
That experience was so instructive and so angered me that I vowed never to lose again in court. With the exception of one traffic case that cost just $40 I have been successful. In the State of Washington I have had three “speed trap” speeding tickets completely dismissed and have filed over a half dozen pro se lawsuits, all of which have been successful.
The fact is that in this day of almost universal internet access, an average individual ought to be able to effectively and successfully represent themselves in most legal matters merely by employing internet searches and reading the laws and rules applying to their situations. In the case of the speeding tickets in Washington State I was able to take advantage of the law that required that if a speeding ticket based on radar, laser or other “speed measuring device or ‘SMD'” is issued, the defendant has the right to move the court to require that the prosecuting authority produce such an expert in court and have him submit to cross-examination. In all three of my cases the Court did not produce the expert. The cost of doing so would have exceeded the revenue brought in by the ticket by a large amount and even if the expert were produced there are questions that could be asked which the SMD expert would have difficulty answering truthfully and the likelihood is that all of the testing and maintenance records of the SMD in question will probably not be complete.
In spite of the fact that equal access to justice is and ought to be a basic American right, to which even the most elitist attorney will probably give lip service, the hostility of attorneys to pro se litigants is deep, ferocious and treacherous. Pro se litigants ought to never forget this even while being put off by an opposition attorney’s apparent friendliness. Deep down there is nothing an attorney hates more than a pro se litigant.
The greatest reason for this hostility is, of course, that if a significant percentage of the population becomes legally knowledgeable to the point that they are confident in their ability to act as pro se litigants, the very economic survival of the priestly Attorney caste is threatened at its most basic level. Remember that attorneys have spent prodigious amounts of money and sacrificed years to go to Law School. That money is usually borrowed and the typical Law School graduate goes out into a job market already overburdened with Attorneys already in debt tens of thousands, if not hundreds of thousands of dollars in debt.
Imagine the blow to his/her ego and the smoldering hatred that is the result of then facing an opponent in court who is not similiarly in debt, (at least not in that way), has not spent years in study, especially if the pro se litigant is even partially successful. The justice of the pro se litigant’s cause is likely to be no mitigating factor here. In Law School students are taught that legal opinions, laws, rules and court procedures all take precedence over the abstract and often denigrated concept of justice or Equity.
Accordingly, Lawyers try to discourage pro se representation whenever possible. The most effective method over the years has been psychological. One method used is the oft-repeated saying (repeated most often by Lawyers) that a self represented person has “a fool as a client.” A more sophisticated approach is the concerted propaganda campaign of Attorneys who view the proliferation of pro se litigants with alarm.
In an article entitled, “Self-Representation: The Perils of PRO SE,” by Marshall H. Tannick and copyrighted by the law firm of Mansfield, Tannick and Cohen, P.A., Tannick contends that pro se litigants generally cause “confusion and frustration,” within the legal system, thus increasing legal costs.
Pro se litigants drive up legal costs? As Tannick admits in his article, the primary reason that pro se representation is increasing is that Lawyers charge more than many can afford. Perhaps pro se litigants drive up the costs for the side that opposes them, but how many pro se litigants charge themselves hundreds of dollars an hour? The idea that pro se litigants significantly increase the cost of court operations seems highly suspect. When thinking about what Lawyers can and charge on a regular basis, the assertion seemed practically humorous.
Yet not all of Tannick’s article should be regarded as of no importance to the pro se litigant. Indeed, Tannick, clearly no fan of pro se litigants (who he also labels as often “disruptive”), goes on to inform the reader of another Minnesota attorney who “properly” managed to get a case brought by a pro se plaintiff tossed out of Federal Court because of “legal and tactical” mistakes made by the pro se litigant. Of course, the innate justice or Equity of the original complaint is not discussed, although the term “properly” used in this context certainly implies a suspect value judgment.
Hannick bemoans Judges who he says, feel as though they have to “bend over backwards” to accommodate pro se litigants, even though they are not legally required to do so, and as if, slamming a royal flush down on the table states that the pro se litigants ought to realize that they can be held to the same legal standards as attorneys (actually not true in all cases, pro se litigants are not subject to Bar Association discipline) and can be subject to sanctions from the Court. He cites the Minnesota case of State vs. Seifert, 423 N.W. 2d 368, 372 (Minn 1988), which stated that pro se litigants who fail to follow Court rules, procedures, etc. or the like may have their actions dismissed, even if they are unfamiliar with the rules or procedures.
Hannick’s article, obviously intended for the audience of would-be pro se litigants, did actually have one useful suggestion, the idea of a mix of pro se and having an attorney who made no appearances but was available to advice the pro se litigant on the side. I have actually used this technique at times, sometimes calling a Lawyer referral service, which usually charges something like $25 for an initial visit to run an idea by a Lawyer and I was once a member of a group that provided “Pre-Paid” legal representation, whose best benefit, as far as I was concerned, was that I could always call and talk to an attorney about a legal question, even though it sometimes took a day or two to get a call answered.
All Americans have a Constitutional right to represent themselves, no matter what the issue. One of the most recent Supreme Court rulings affirming that right was Godinez v. Moran, 509 U.S. 389 (1993). More importantly, equal access to the Courts and to all legal matters has always been one of our most important rights.
The framers of the Constitution did not intend to create a priestly noble class called Attorneys or Lawyers. Yet to hear the Lawyer’s argue it, all legal matters ought to go through them, much as the Pope acts as an Intercessor to God. To that end they have, as Lawyer/Legislators attempted to make laws, regulations, forms and Court rules so complex that most individuals take what they believe is the more prudent road, expensive legal representation by lawyers who frequently put their own interests above those of their clients.
When complexity has not been a sufficient deterrent to those who seek to use their right to self-representation, the priestly caste known as Lawyers, has sought other means including the passage laws aimed at discouraging if not actually barring pro se representation.
Yet somehow, in spite of the opposition of the Leviathan that Lawyers as a group have become, determined and knowledgeable pro se litigants continue to press forward, forcing settlements or otherwise quietly winning cases, both Civil and Criminal, a phenomenon that Lawyers take personally all the way to their core.
I remembered a particular opposition attorney who had seemed fairly friendly when we finally came to a settlement in a particularly hard fought case involving lengthy Discovery issues, including Motions to Compel Discovery, etc. It seemed to me that more than anyone else she would be able to attest to my litigation abilities, after all, I had obtained a settlement from one of the largest law firms in Seattle actually as a pro se litigant and in spite of lengthy and complex legal maneuvering. When I called her firm I learned that she no longer worked there and was now working in the legal department of a large local institution of higher learning.
Yet when I finally was able to reach her and asked for a recommendation, she appeared to take an inordinate amount of glee in telling me that she refused to do so. Apparently she felt that revenge was a dish best served cold and the bruising that her ego must have taken when a pro se litigant was able to force a settlement from a large, prestigious, local firm was deeper than I had realized amidst the seemingly genuine pleasantries exchanged at our settlement conference. It even occurred to me that that case may have had some hand in her leaving the firm, although I have no way of knowing that, short of asking her, and assuming that I would get an honest answer, something that does not seem worth the effort.
However formidable the two above described obstacles create for the potential pro se litigant, the last is perhaps the toughest, confidence and self-assurance. Without these the pro se litigant will lack the will to go forward regardless of the justice of his cause or his knowledge of the law. As an aside, the innate justice of one’s cause is usually referred to as “Equity” in the Courtroom and shockingly carries significantly less weight than rules, laws or procedure.
The best means for developing such confidence and self-assurance is through successful practice and study. Knowledge is Power. A good learning experience would be to take the next consumer rip-off you experience to your local Small Claims Court. In Small Claims Court, the litigants are almost always pro se (due to the nature of a “Small Claim,” in Washington State the highest award in Small Claims Court is $3000, legal representation would be cost prohibitive) and so Judges are used to and should be more tolerant of pro se litigants. Additionally, many Small Claims Courts retain paralegals who assist litigants with filing procedures, Court rules and other matters.
Another good starting point would be to defend yourself if you have received a traffic or other ticket. A later chapter details how I have successfully had speeding charges based on radar against me dismissed in the State of Washington (including a sample motion and instructions on how to write it) and how others have done the same using the same strategy, although this is, of course, no guarantee that you will be able to do the same, particularly in a different state. Yet, in every case I have ever contested a ticket, I have been able to either have it dismissed, or when I was less knowledgeable, negotiate a better outcome, such as having the charge reduced or the fine or charge waived.
