In civil lawsuits, unlike in criminal cases, there is no constitutional right to representation by an attorney. Likewise, unlike in criminal cases, there is no express right to self-representation, also known as “pro se” or “propria persona” litigation, meaning “on one’s own behalf.” Some civil courts allow self-representation and others do not.
Most small-claims courts, for example, where the amount in controversy may not exceed $1,500 – $15,000 depending on state, do not allow attorneys. This is so that average citizens can recover relatively small sums of money without paying a lawyer and having to understand complex court procedures. However, some courts do not allow corporations to self-represent. The purpose for this is that corporations, who employ highly-trained in-house counsel, will not take advantage of other parties without access to attorneys, as in small claims court.
What Is the Advantage of Self-Representing?
Many litigants in civil cases choose to represent themselves. In criminal cases, the reason for this is usually that the defendant is an eccentric who wants to voice his or her unorthodox opinions. In civil cases, however, litigants self-represent for one specific reason: to save money on lawyers (in criminal cases, lawyers are provided free of charge).
Some litigants also believe they have more control over their case when they represent themselves rather than have an attorney speak for them. This can be true in some cases, although attorneys are always bound to their client’s wishes and directives.
Are There Any Disadvantages to Self-Representation?
The disadvantages of self-representation in civil courts are largely the same as in criminal courts, although the penalties for losing aren’t as high. In general, pro se litigants are treated the same as regular attorneys: they are expected to be able to give persuasive arguments, answer any questions posed to them by the judge, file the appropriate paperwork within the appropriate deadlines, and know the law, including the procedural rules. Indeed, it is typically the procedural rules which confound a self-representing party, as the rules will often vary greatly from state to state.
Is There Help For Self-Representing Litigants?
Yes, some judges may allow or require a pro se party to work with coaching attorney. This means that the litigant is free to represent themselves, but a lawyer is available for assistance where necessary. The attorney may assist by explaining some of the more difficult concepts of the law or be present at hearings to assist with procedural rules. This type of hybrid representation setup has recently become a popular compromise between traditional representation and self-representation.
Nowadays, self-represented litigants have more help than ever from our courts. They simply have to look to government court websites as a start. From there, they can learn about court procedures, and download court documents for submission. Many state courts now offer “facilitators” who are available on a first-come first-served basis. Facilitators will direct and help a member of the public find what he or she needs, but will not offer legal advice on what he or she “should” do.
There are numerous types of civil cases where self-representation is appropriate. Most involve straightforward law, established forms and paperwork, and do not require talented oral argumentation. Popular issues include: child and spousal support, child custody and paternity, divorce and dissolution, civil traffic, estate and probate, eviction, name change, guardianship, and small claims tax appeal.
Do you Really Need a Lawyer?
As mentioned, the decision to proceed as a pro se defendant will almost always be more risky than working with a civil lawyer. If you represent yourself, your success will depend on your own abilities and knowledge of the law. At the very least you may wish to retain an attorney as an advisor as you work your work through the judicial proceedings.