Lawyers make mistakes often against pro se litigants, but their mistakes rarely cost them the case. Even when they do things that are clearly wrong, unethical, or even criminal, lawyers seem to slide right out of it. In fact, bad behavior on behalf of their client is considered part of a lawyer’s job.
Conversely, pro se litigants who make mistakes lose day in and day out, even with minor infractions. This is most often due to lack of knowledge, but judicial bias and lawyer tricks add another layer of peril. Lawyers know how to avoid default judgments, dismissals, and summary judgments. Pro se litigants rarely do. Lawyers skillfully “handle” pro se opposition. Most pro se litigants don’t handle lawyers or their own cases. In the end, most lose and they do so very quickly.
To stay alive, avoid these 6 mistakes pro se litigants make.
#6. NOT TAKING CHARGE OF YOUR CASE
Oftentimes, self-represented litigants become reactive when there’s a lawyer on the other side. Instead of getting ahead of things or running their own case, they let the lawyer take the lead. They spend so much time responding to discovery requests, summary judgment motions, motions to dismiss, and other filings that they don’t formulate a strategy of their own. They don’t do their own discovery or object to certain requests because they’re swamped and often intimidated. So, they’re always behind and in a constant reactive state. If a wise opponent sees how reactive you are, they can walk you right into an error. So, take control of your case. Never let a lawyer think that he’s in charge of it.
#5. LETTING LACK OF CONFIDENCE RULE
This is similar to the previous point. In a post, What Kind Of Pro Se Litigant Are You?, I discussed five types of pro se litigants. The least effective is one lacking in confidence. Many pro se litigants lose early by simply not showing up for court. Many more lose at the first hearing. With a lawyer on the opposite side and a robed judge on the bench, the average person is bound to feel as if they can’t succeed. Don’t let that feeling rule your actions. Lacking confidence, you might be tempted to ask advice of your opponent’s lawyer. He’s not your friend. Where a judge is concerned, ask for clarification about a ruling, not for advice about your case. In the face of uncertainty and fear, don’t give up. Keep going and learn. Simply getting to the next step, the next hearing, or the next motion is a victory. The longer you stay in, the more confident you’ll be.
#4. FAILURE TO BRING A COURT REPORTER
Let’s say you go to court and a court reporter is not present. You argue very strong points against an attorney with weak ones. Despite both the law and facts on your side, you lose. Think an appellate court will understand what went wrong and overturn the ruling? Probably not. Appellate courts will find many excuses not to overturn a lower court ruling. Without a court reporter’s transcript, an appellate court will say that the lower court was in the best position to evaluate the arguments made. Then, they’ll let the lower court decision stand. A court reporter, on the other hand, creates an official record of proceedings that can be sent to the appellate court. In the lower court, the simple presence of a court reporter greatly curtails judicial bias and bad behavior from lawyers. With that, you have a better chance of getting a fair hearing. To learn more about the effect of court reporters on judges and lawyers see, A Court Reporter Stops All Foolishness.
#3. REACTING TO LAWYER CRAP
Remember this phrase: Litigation Privilege. The phrase has a formal meaning, but in layman’s language it means that lawyers can do just about anything, especially to a self-represented litigant, to protect their clients. They can lie, steal, cheat–and kill if they could get away with it–to win. Lawyers don’t always need tricks to defeat pro se litigants, but they try them anyway. They can scare defendants into paying more than they owe or settling for far less than they deserve. They’ll use a request for admissions to make pro se litigants “admit” to undeserved liability by not answering. Some will even attempt to keep away your court reporter by lying to you or to your court reporting agency. So keep your eyes open when you’ve cornered a lawyer. Chances are, there’s a trick coming, and when it does, don’t let your emotions get the best of you. Stay focused on your case. Reacting in anger by moving for sanctions, writing letters to the judge, reporting lawyer behavior in a hearing, or moving to disqualify a lawyer makes thinking and strategizing difficult. That’s not to say certain issues shouldn’t be addressed. If you must take an issue head-on, like moving for sanctions, do it strategically so you’ll get the most out of it. Otherwise, only address lawyer antics and judicial bias when it hurts your case, not when it hurts your feelings.
#2. NOT DOING RESEARCH
One of the biggest mistakes pro se litigants make is not doing research. Lawyers count on pro se litigants’ ignorance of the law to win cases. The less a pro se litigant knows, the shorter the litigation process will be. A lawyer can buy a $7000 debt for $700 and pay a $100 fee to sue. Thirty or so days later, he wins a default judgment or a one-hearing judgment. He then has the right to collect the full $7000, the $100 court fee, and case-related costs. He’ll have to collect the money himself, but lawyers wouldn’t buy debt if the practice never paid off. Facing a pro se litigant in court pays off for lawyers almost all the time. Whether you’re a plaintiff or a defendant, you don’t want to get knocked out early because of lack of knowledge. Learn the laws relevant to your case. The more you know, the longer you’ll stay and the less chance a lawyer will have a windfall at your expense.
#1. (FALSE) BRAVADO
The BIGGEST mistake pro se litigants make is thinking they know more than they do, as a way of overcompensating for lack of confidence. False bravado can lead you into mistakes #2, #3, and #4 on this list and a whole lot more. You don’t bring a court reporter because you don’t feel you need one. You don’t do research because you don’t have time, and you think you know enough. You react to or challenge every lawyer trick because you believe, without any evidence, that it’s the best thing to do. You talk about admiralty law, not because you know anything about it or where it fits into your case, but because you heard someone talk about it. You file the wrong motions in the wrong situations. It’s important to know what you don’t know and act accordingly. Instead of talking about sovereign citizenship, talk about and use civil procedure. Rather than reacting to lawyer antics, judicial bias or a sense of unfairness, focus on your case. Learn it backwards and forwards, and then bring your court reporter. That’s how you win. See Sovereign Citizens Make Pro Se Litigants Look Silly for more about the “problem” with sovereign citizens.