Why Do Pro Se Litigants Lose So Often?

Pro se litigants have a reputation for making truly novel arguments in court.

We don’t know the conventions and customs of litigation, so we’re forced to think outside the box.

We often misunderstand the law, or introduce facts that aren’t relevant from a legal perspective.

And let’s not even start on the more technical aspects of litigation — rules of procedure, rules of evidence, witness examination, appellate procedures and so on.

We’re practicing law without a license, which is our right when we’re directly interested in a case.

But it also means we lose, a lot.

Some of us think we’re going to turn into Robert Kearns, the inventor of the intermittent windshield wiper who successfully sued Ford and Chrysler for stealing it.

When Ford claimed all the components of Kearns’ device were preexisting and deserved no patent recognition, Kearns reportedly forced Ford’s expert to read Charles Dickens’ Tale of Two Cities and admit that all the words were preexisting.

Kearns lost his family, his mental health and his belief in the justice system, but he walked away with $30 million.

Unfortunately, as several studies have found, success in court is not a reality for most of us. A Department of Justice study found that pro se litigants in immigration appeals were successful 10% of the time, compared to a 40% success rate for those represented by pro bono attorneys (often students supervised by law professors).

In another study, people needing protective orders were successful in getting them 83% of the time when represented by counsel, while those without lawyers got them at a rate of only 32%.

In some state eviction courts, unrepresented tenants were found to almost never prevail against landlords, whether the landlord brought a lawyer or not.

This comes as no surprise to us, right?

We know the advantage of having a good lawyer. Most of us would hire a lawyer if we had the funds to pay one and could trust them to do a good job.

We’d hire a lawyer to represent us in court the same as we’d hire a doctor to cut out a gall bladder. That’s because the rules of litigation are made by and for lawyers.

But for most of us, hiring a lawyer is not an option.

So besides going to law school, what can we do to win more often?

The first thing is to adjust our expectations. I don’t mean we should expect to lose, but we should release the romantic notion that justice will be done if we simply lay out all the facts and let a judge decide our fate.

Secondly, we should cure our lack of knowledge about legal processes. There are basic procedures that apply to each stage of a case. Following them won’t make you win, but it can keep you from tripping over yourself and losing too easily.

Thirdly, we have got to cure our lack of legal skills. Legal research, legal writing and argument can be learned, and they get better with practice.

That’s where Courtroom5 comes in.

Yes, it’s a home for your case, a place to organize the filings and keep up with your tasks and expenses. But it’s also a place to quickly learn what you need to know — and practice what you need to do — either by yourself or with a little help from your friends in our pro se community.

Because as pro se litigants, we really have got to stop losing so often.

Have you lost a case in the past? Did you diagnose the reasons for losing? Share in the comments below.