What is the process when a person wishes to represent themselves in court? How common is it? Is it true that a person who represents themselves "has a fool for a client?"
Today in our "Ask a Judge" series, attorney and magistrate Amy Lin Meyerson and "small town lawyer" Ray Williams give tips for those who have no choice but to address the court on their own behalf.
Here is the American Bar Association's virtual legal advice clinic (staffed by human legal minds, not AI!)
Transcript
Archival: Legal precedent, Your honor, going back to 1789, whereby a defendant can claim self-defense against an agent of the government if that act is deemed a defense against tyranny, a defense of liberty, your honor. Henry Ward Beecher in Proverbs from the Plymouth Pulpit, 1887, said, and I excuse me.
Archival: Excuse me, can I make a mockery of the court?
Archival: I am afforded the right to speak in my own defense, sir.
Nick Capodice: You're listening to Civics 101. I'm Nick Capodice, I'm Hannah McCarthy. And today, in our not yet a series [00:00:30] series. But I hope it becomes a series. Ask a judge. We are gonna talk about pro se.
Hannah McCarthy: You have a theme song yet?
Nick Capodice: I don't, I don't, but I'm gonna work on one, I promise. So stick around, pro se. Coming right up. All right. Hannah. Today we're talking about one of the scariest seeming things you can do. But it's actually not that scary if you just follow a few steps. Pro se representation.
Ray Williams: Well, that, like so many legal [00:01:00] terms, is a fancy Latin term, but it simply means that you represent yourself. You do not have counsel to represent you.
Amy Lin Meyerson: Proxy means that individuals want to have access to justice and don't necessarily have the means or the desire to pay for legal counsel to represent them. And so they choose to start off by representing themselves before the courts. Sure. I'm Amy Lin Meyerson, I'm an attorney in Connecticut, but I also serve part time as a magistrate with the Connecticut Judicial Branch.
Ray Williams: My name is Ray Williams. I am a sole practitioner [00:01:30] attorney in West Plains, Missouri. I have two offices where I represent folks in all kinds of cases, and I'm just a small town lawyer.
Hannah McCarthy: A small town lawyer.
Nick Capodice: I'm not some kind of big city lawyer. Ladies and gentlemen, my opponent's gonna do a little magic trick here with smoke and mirrors.
Hannah McCarthy: Wait. Amy said she's a lawyer and a magistrate.
Nick Capodice: She is. And therefore, I can technically call this an Ask a Judge episode.
Hannah McCarthy: Oh, a [00:02:00] magistrate is a judge.
Nick Capodice: Yes, albeit with limited powers and jurisdiction.
Amy Lin Meyerson: So I hear civil cases that are under $5,000, unless they're involving home improvement contracts, that jurisdictional limit goes up to $15,000. Also here, housing session matters. And then on the criminal side, I hear a motor vehicle infractions.
Nick Capodice: So again, pro se is simply when somebody represents themselves in court. The Latin is pro for, say, oneself or yourself. [00:02:30] And if you fall down a YouTube rabbit hole like I did, you can see thousands upon thousands of videos of people representing themselves and making a hash of it. Many of them, Hannah, sovereign citizens.
Archival: Are article six judge. Under the Michigan Constitution, you have no authority to deprive me of my rights. See how.
Archival: Much authority I have.
Archival: Because you don't know what you're doing. That's what I tried to tell you originally, the first time you were here. You've never been to law school, you've never tried a case. You don't know the rules [00:03:00] of evidence and all the other things.
Archival: You don't have power to do that.
Archival: So your hearing is over. If you don't take your paperwork and leave the courtroom, we'll have you remanded into custody.
Archival: You're threatening me now? I'm even more.
Archival: Giving you a.
Archival: Choice. And if anybody tries to touch me, I'll charge them with assault and battery.
Hannah McCarthy: I think we should make a whole episode on sovereign citizens.
Nick Capodice: We could. It might get us in a bit of a pickle. And I want to be careful, but let me just do a fast explainer on that movement. Sovereign citizens [00:03:30] believe they are not subject to the laws of a government, and that US citizens are being used as collateral to pay off foreign debt, and that birth certificates and social security numbers are just bills of sale. And the aforementioned YouTube rabbit hole is rife with titles like Judge Destroy, Sovereign Citizen, Argument in five seconds.
Ray Williams: The fact is that, yeah, anybody can represent themselves and you don't need to make odd constitutional arguments [00:04:00] about. Sovereign citizen type things that, uh, the patents don't pass down from the king all the way to the common law and all the things that they want to talk about. In fact, you can represent yourself and tell the judge your story.
Nick Capodice: So now we've got that out of the way. Let me say, sovereign citizens aside, people representing themselves in court is a lot more common than I had thought.
Hannah McCarthy: How common is it exactly?
Ray Williams: Well, it turns out there's been studies on that, and it's an increasing, uh, [00:04:30] increasingly common situation, uh, largely because of two things. One, folks sometimes just choose to, to go it alone. They don't think they need a lawyer or they think they can do an adequate job by themselves.
Amy Lin Meyerson: For the cases I preside over in small claims court, many of our litigants are self-represented, and you are seeing increasingly individuals representing themselves in the courts of general jurisdiction as well, because they don't have access to attorneys that they can [00:05:00] hire on a regular basis.
Ray Williams: The more concerning thing, Nick, is this thing called our justice gap, where folks want a lawyer, but they simply cannot afford one.
Nick Capodice: Now, if you're a defendant in a criminal case, you have a right to an attorney. If you cannot afford a lawyer, the court appoints one to you.
Hannah McCarthy: And this is a public defender, right?
Nick Capodice: But you do not have a right to an attorney in a civil case.
Ray Williams: Let's talk about civil cases and a civil case versus a criminal case is you're not charged [00:05:30] with a crime, but you're suing or being sued, uh, typically for money or maybe rent and possession or an eviction case where they're asking you to move out of your apartment. And in those cases, uh, the numbers of pro se litigants are staggering. Uh, for example, in landlord tenant cases, uh, in, uh, credit card collection cases, the larger entity, Usually the credit card company or the landlord will have a lawyer. The pro SE litigant will appear by themselves. Who is [00:06:00] the tenant or the person owing the money or allegedly owing the money. And in those cases, uh, it's generally more than 50%.
Hannah McCarthy: Wow. Half.
Speaker 2: Yeah, half.
Nick Capodice: Maybe more.
Ray Williams: There are some of the statistics will say it's as high as 75% or 80% of one side is represented and the other side is not in state court especially. And we're talking about state court cases, unlike the federal courts, where generally it's, uh, the type of litigation where everybody has a lawyer and in cases in state [00:06:30] court where one company sues another almost every time, there, both sides will have lawyers in those cases. But in cases like landlord tenant, consumer debt collections, family law, increasingly one side can afford a lawyer, the other side cannot. Or, uh, some, some of those, uh, small claims court, for example, that'll always be both sides are pro se, but that was designed for pro SE litigation, but these others were not. And it's simply that, uh, IT folks just can't afford a lawyer to represent them in these kind [00:07:00] of cases.
Hannah McCarthy: This may seem like it has an obvious answer, but if you had to choose between having a lawyer represent you and representing yourself, you would pick the lawyer, right, Nick?
Nick Capodice: You would almost all the time. There is a famous quote that is attributed everywhere to Abraham Lincoln, but I couldn't find the source for it. So I'm going to say, unless a listener writes in with a citation, I'm going to say it is in the air. But the quote is this a lawyer who represents himself has a fool for a [00:07:30] client. Now, Ray did say pro se representation is rare in federal courts, not so rare in state courts. But when people did represent themselves in federal courts, the judge ruled in their favor. Only 12% of the time, if they were the defendant, and 3% of the time when they were the plaintiff.
Amy Lin Meyerson: In a case, a general jurisdiction court where the formal rules of evidence do apply. Then having a lawyer is very helpful because attorneys are familiar with the rules [00:08:00] of evidence and how to get evidence admitted and keeping evidence from being excluded. They'd like to have admitted that would help prove their case. So it is. It is helpful, obviously, to have a lawyer.
Ray Williams: If you don't know the rules of procedure, if you don't know the rules of evidence, if you don't know what you're what's called the burden of proof or how what do I have to prove to win? Or if you don't know when the other side's doing something wrong so that you can object, your odds are pretty much stacked against you, and that it's really a concern that [00:08:30] we have. Also, the court system doesn't run as efficiently because folks don't know what is going on in court. They're not used to being in court. And so they're asking the judge to help. And then unfortunately, judges are, by their ethical guidelines and standards, are not allowed to help, uh, litigants. So that that is a real concern.
Hannah McCarthy: Can you tell me what Amy and Ray mean by the rules of evidence.
Nick Capodice: Yeah.
Ray Williams: And that's one of those lawyer things that it just comes by nature to me. But yeah, that's a very important question. [00:09:00] And a rule of evidence is that hearsay, for example, is defined as an out-of-court statement. Like you and I are having this conversation offered into court for the truth of the matter asserted. And what that means is, if we took this recording and took it to court, it wouldn't be admissible as evidence according to the rules of evidence, unless there was an exception that allowed it to come into play. And that is an example. Just like the photograph, a [00:09:30] photograph in itself is an out-of-court statement, in this case a picture or a video that was made. But you have to demonstrate to the court a what's called a foundation, that it was made at the time of the incident, or in a situation where the incident is the same or substantially similar, uh, as to when the timeline of what's going on happened. So you have to be able to know enough to get your evidence, your documents into evidence so the [00:10:00] judge can consider them. And if you're going up against a lawyer, the lawyer's likely to object. If you try to offer something that's inadmissible.
Hannah McCarthy: This all sounds pretty daunting.
Nick Capodice: It is daunting. But, Hannah, let me say it is not impossible. Again, so many people have no choice but to represent themselves. So after a quick break, I'm going to give everyone some tips if they're going to have their own day in court. We're [00:10:30] back. You're listening to Civics 101 and we are talking about pro se.
Hannah McCarthy: All right. So if you are involved in a civil case and you cannot afford a lawyer or you just plain don't want one, how can you make sure that you do things right?
Nick Capodice: All right, here we go. Hannah. Step number one.
Amy Lin Meyerson: If you look on the judicial branches website of your state, there's actually a tab for self-help. And if you click on that tab, it'll bring up a lot of information on things you need [00:11:00] to do to bring a case in court on your own. There are different resources where you can get free legal advice either through your bar association. A lot of bar associations often have legal aid clinics that are free and open to the public, where you can come ask a question. The American Bar Association actually has a program called Free Legal Answers, which is like an online walk in clinic, and it's available in a lot of different states. And if you go on the ABA's website, ABA free legal answers.org, you can [00:11:30] click on there and just post a question online and an attorney will answer your question.
Nick Capodice: I am going to put some helpful links that Ray and Amy sent my way down there in the show notes, by the by. But on we go. Step number two take a day off and see what you're in for.
Ray Williams: If a party has to go to court by themselves. Then you need to understand you're being held to the standards of the lawyer. I would recommend going to a courthouse and seeing how it works beforehand, preferably on the same type of docket, a family law [00:12:00] docket. Very common is these what's called order of protections or a similar name, where folks get a restraining order to keep another person away from them. I would recommend if you're involved in a situation like that, you go to one of those courts and watch them before your case comes up.
Nick Capodice: Have you been to court, Hannah? Like not have you been on trial, but have you visited a courtroom just to see what's going on?
Hannah McCarthy: Of course, we had a whole episode about it.
Nick Capodice: Oh that's right. It was the Supreme Court, wasn't it? What [00:12:30] about, like, a regular court? Not the Supreme Court.
Hannah McCarthy: I have my aunt is a lawyer, and I have watched her in court before. What about you? Have you?
Nick Capodice: Yeah. One of my professors in college said courts in the United States have open proceedings. The building is ten blocks from here. Just walk in and take a seat. And I did, and it was fascinating.
Hannah McCarthy: Do you remember what the trial was?
Nick Capodice: Yeah. A kid in Boston got in a fight in a mall. Anyways, physically going [00:13:00] to the court beforehand isn't just to see what your trial is going to be like. It's to talk to the clerks and to make sure you've done all the proper paperwork.
Amy Lin Meyerson: So there's a fair amount of legwork that needs to happen before you actually appear in court.
Amy Lin Meyerson: It's always important to first go to the courthouse or connect online with the clerks of the court and find out what procedures you need to follow in small claims court in Connecticut. While the formal rules of evidence don't apply, uh, you still do [00:13:30] need to follow the practice rules, so it's important to follow the procedures of the court. Make sure you have your documents that you need to file files in on time, and have all of the information to prove your case also filed. Um, oftentimes I'll see Self-represented parties file the claim or the writ and say, um, Mr. X owes me such and such amount of dollars because I paid them to do the service. They didn't provide the service. Um, and that's all they write on the writ. Um they failed to [00:14:00] um attach, for example, the service order or a canceled check showing that they paid the amount and that evidence or the supporting documentation needs to go with your claim so that the court can look at all the evidence and determine whether or not they should rule in your favor.
Ray Williams: Always remember, the court clerk is your best friend. They know where things are. They know things, how things get done. They're not going to give you legal advice, but it sure is nice to know when your docket is and what you need to do next, where you need to stand those sorts of things. Um, remember, [00:14:30] as I said before, you're held to the same standard as a lawyer, so you need to have some familiarity with what your case is about, what the rules of procedure are, uh, such that, uh, you know, you know, what to file, what must be filed. What's, uh, what the deadlines are. Don't miss a deadline. That's a real key point.
Hannah McCarthy: All right, so these are all things to do before you appear in court to represent yourself. What about the day itself?
Nick Capodice: Well, I told Amy that if I did this, I'd kind of feel like a dog playing basketball and not a particularly [00:15:00] talented dog like Air Bud. And so I asked her, is this kind of like a one day crash course version of law school? Like everyone in court trying to help out the person doing pro se.
Amy Lin Meyerson: I think it can be very daunting for people who haven't gone to law school. It is similar to maybe what people have seen on TV. I don't know if it's exactly like a law school experience where you're in a classroom where the professor is asking you questions of the [00:15:30] Socratic method. Um, but yes, you, the, the self-represented parties will come to court, they'll present their case, provide the evidence or point to the evidence that they've already filed, um, and then hear what the other side has to say.
Nick Capodice: Also, courtesy goes a long way.
Ray Williams: Show up not in some t shirt with your favorite crazy logo on it, but instead show up, uh, professionally dressed. You don't have to wear a suit and tie, but certainly or, or, or, you know, a funeral dress. But on [00:16:00] the other hand, it's very good to show up in a professional way and, uh, take it very seriously. Uh, it's always good to refer to the judge as your honor or. Yes, judge or, or, or very politely and professionally, even if they rule against you. Uh, don't argue with the judge. Don't argue with folks like that.
Amy Lin Meyerson: One important thing is, uh, the litigant should do their best to remain civil and really focus on getting their story out and telling the court what it is that they would like [00:16:30] to see happen, what kind of relief they want, and not focus on little things, um, like trying to refute every single thing that the other side has said, um, and trying not to get too emotional so that your story is told. So the court it makes it easier for the court to render a decision. I've had a couple of different instances. Either the litigants get very angry with each other and start, you know, saying, oh, that person is lying, or that's not true, or focusing on little issues like, oh, he threw a gum gum wrapper at my, [00:17:00] at my feet when we were talking. And that's really disrespectful, but really doesn't get to the heart of the legal issue that they're trying to, to show. Um, I've also had, um, unfortunately, disputes between family members where they get very emotional. Um, and it's difficult to hear what they're trying to relay because they're just overcome with emotion. And it's, it's, it's hard to hear what they're trying to say.
Hannah McCarthy: Okay, let me run it all back. Go to the court's website, make sure you filed everything you need [00:17:30] to file beforehand, go to the actual court itself to see a trial similar to your own and make friends with the clerk. Don't miss deadlines. Dress professionally. Be courteous and don't let your emotions get the better of you.
Nick Capodice: And there's one thing we mentioned earlier you have got to do your research on the rules of evidence as pertains to your case in your state.
Ray Williams: Be sure that you know some basic information about the rules of evidence. [00:18:00] If you have a picture and you want to introduce it, then you have to tell the judge that it's fairly and accurately depicts what you're wanting to tell the judge about. You always get tripped up on hearsay, and that's a complicated area of evidence, but at least have some basis for what you have to do in your case. Uh, and then know what you want. Because if you don't ask the judge for what you want out is the judge give.
Speaker 13: It to you.
Hannah McCarthy: Last thing, Nick, I know there has been a significant [00:18:30] increase in people using AI to prepare for a case. Is this something that's recommended?
Nick Capodice: Well, Hannah, as you know, I'm kind of a dyed in the wool take no prisoners anti AI guy. But Ray said it could be helpful. But you've got to be careful.
Ray Williams: The artificial intelligence is is extraordinarily helpful in legal research now. But remember that especially the general artificial intelligence platforms will [00:19:00] from time to time, if you ask it a question, almost try to be too helpful and hallucinate an answer. And those hallucinations are common in the law. And sometimes you'll get a case citation that if you look it up, it's not really there. It's it's it's made up. Uh, judges have had that happen with, uh, typically young lawyers, but law firms have filed those things where they used AI to give answers, and they were made up answers and they didn't check them and have gotten into significant and serious trouble. [00:19:30] So if you use AI, go look at your source documents, look at your citations, and be sure that those cases exist, and it's always good to even print them out and provide them to the court as a courtesy.
Nick Capodice: Perhaps unsurprisingly, Ray said, if you can afford a lawyer, get a lawyer, even if it's just for one little part of the process.
Ray Williams: There's something in most states called limited scope representation, and you're able to retain counsel for a limited purpose. For example, [00:20:00] if you are sued, that's usually in the form of something called a complaint or a petition. You need to file something called an answer. That's a legal document. And you can sometimes hire a lawyer to just file your answer. Or you could hire a lawyer to just go to trial in a in a landlord tenant case, for example. So you might be able to limit the scope, the nature of what the lawyer is going to do for you and pay less money. The other thing is if you qualify, it's the right type of case and you don't have sufficient income, then you might [00:20:30] qualify for something called legal services. And the Legal Services Corporation is a national corporation with uh, various entities around all the states, uh, that provide legal services to the indigent who cannot otherwise afford counsel in a civil case. And in those situations, they would represent you for free. In other words, if you can get counsel, do it just like, uh, as the old adage is, I wouldn't want to take my out my appendix, even though I know how to do it because I can read it on the internet.
Nick Capodice: That's [00:21:00] all we got on pro SE today. That's all we got on Pro SE today. This episode is made by me, Nick Capodice with my name in all capital letters and Hannah McCarthy. Our staff includes producers Marina Henke and Dana Cataldo and executive producer Rebecca LaVoy. Music. In this episode from blue Dot sessions, Epidemic Sound and His Honor, Chris Zabriskie. Civics 101 is a production of NHPR New Hampshire Public Radio.