Lawyers often make mistakes 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 with the skills needed to come out on top. In the end, most pro se litigants lose and they do so very quickly.
To stay alive, avoid these 6 common 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, Did You Come To Appease Or To Conquer? The 5 Types Of Pro Se Litigants, 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 the 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 a 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.
Thank you for these helpful hints.It’s true that we are at a disadvantage but when you have no other recourse but to be pro se. Especially against the government.
Am self representing my by default, read about my case and what my formal attorney done and after she was compromised no one would take my case because it’s a big case and a big company an up against in Las Vegas, am the plaintiff pro se, the defendant àre bad that no one in this town would really stand up to them did they have no disregard
for silver procedures and they are related in public they personally they do not care they are total disregard for every Federal process…I was force into this follow my case at Hill v. Wynn LLC
I need your advice 2169549420 Mike prose a suit
How did it go?
9547420 sorry
I would like to ask some questions regarding a possible position in a litigation against two public agencies
If I have any adverse to anyone that is Plaintiff, Pro se, 3 things I would do differently if I had no attorney that would go the distance with me, 1. I invest in the best soft wear that runs mitigation litigation courtroom mock simulations, 2. If you are plaintiff if your case is the Federal move it to lowers state remend it as soon as possible, 3. Do your best to follow the the rules, but remember you did not create this the defendant did…Good Luck
Hello, I saw your post and found it very helpful. So you’re saying not to tackle the case by suing at a federal level yet? Instead I should start at the lowest level first? Even in a discrimination case that can be under a tort claim? I have 100% evidence of misconduct of an agency contracted to handle rental assistance, and even possibly a way to bar them from even having a defense, so would I take that to the State courts?
I’m a pro se plaintiff. Defense sent an email asking if I was calling my expert at trial. In my mind I thought I would present via zoom but I said no.he filed an MSJ. I filed a response and brief proving my case. Defense filed a reply stating I provided no case law. Do you have a case?
Reference: Receiving Summons & Complaint from entity planning to represent self as pro se. Where can I find rules pertaining to what the pro se litigant can and can’t do in civil court, especially pertaining his/her right to subpoena medical records? Follow up regarding medical records: Is there a limit to how far back medical records have to be given? Example may be something that happens 10-20 years ago. Appreciate the info.
In my experience, it can go 10 years prior to the date the case was filed.
Am seeing all officials collecting money for doing nothing. Have been testing for evidence stating “people” to include the negligent court judges. But, i have to “bite my younger”. It insulting the judges
, to then file a case in federal court to fix OUR “civil Gideon” problem
Are you serious? Did proposed ps litigants actually post those or are you, successfully I might add, trying to show how the lack of basic language skills may bias a judge against a ps litigant. I already cant stand these people for being so clueless to not know they need help, even posting to a attorney! Please tell me they are not real. As a PS litigant Ive prevailed and not prevailed. I have NEVER lost. Why? I have always learned from my mistakes particularly in understanding the potential death blow of summary judgement…thanks to your postings on the subject!
I had to let my former lawyer go due to a situation in the middle of litigation. I’ve been struggling finding a new lawyer and it has been 6 months now no one takes over my case so I’m planning to represent myself, I’m crossed-complaint (not plaintiff but also not considered as defendant). My case is complicated. I’m been researching in Courtroom5 and other resources. Would anyone share or advise me what or where I should go? I am in Northern California. Thank you
Is there any special pro se “privileges” when it comes to citing resources. This is way out of my scope.
Get O’Connor books. Find older editions. If family law civil law or appeals. Buy older used books he writes texas california but they must be madteredwill help no matter the state.. he also had federal civil. Next spend time on internet asking questions over and over in different ways.. if you need to subpoena ask many ways.. laws. There is local county that you have to know then there are districts and then there is state and then federal.. local ruled must be masteted too.. rules. FRCP. Federal Rules of Civil Procedure.. change the first letter to your state then FRAP. Federal rules of appelant procedure then IRPC. Idaho rules of professional conduct.. Now statues.. you have to find statues pretty much states follow feds but you have to find them.. O’Connor really helps.. there are more..
No privileges. You will be held to the same standard any attorney is. Purchase the Nolo books. Ill be writing a book soon as well.
A year later, I still stand as the plaintiff in my medical malpractice case. We have a public, “status update”hearing on April 4, 2024. False bravado put aside: I have 15 mini-case briefs that support my claims, and I have a strong foundation in medicine. On the other hand, the Judge hates me, but I have a strong case. Do you have any suggestions for this strong but exhausted plaintiff?
#4. FAILURE TO BRING A COURT REPORTER: Calling that a mistake is naive. Paying for a court reporter might not seem expensive to the article’s author or to those who run Courtroom5 (both of whom should know better), but it costs much more than many of us can afford. Many (perhaps most) of us who are pro se don’t have the money to pay for court reporters, attorneys, expert witnesses, ad infinitum. A more appropriate approach for those of us with practically no money is to ask the judge if he/she can permit us to use a voice recorder during trial.
The 7th shouldv’e been “Reading Negative Blogs That Has No Cited References To Support Where This Load Of Crap Originated, Besides The Writer’s Baseless Opinionated 1 1/2 Brain Cells”.
I mean, where did you gather this data from? A research study? Courtroom experience? Did you take a poll survery?
And what court are you referring to? Small Claims Courts in my county don’t even allow recordings and you can’t even use it as evidence if you appeal since it’s a “de novo”, as you should know, Mr. “Bravado”
Bs I beat all my cases. Pro se litigant and I taunt and talk to them like crap and make them scared
I represented myself in a medical malpractice case (Rhode Island) that went to trial on January 8, 2024 and ended with a jury verdict in my favor on January 19. I have searched high and low and cannot seem to find any med/mal cases won by pro se Plaintiff’s?? I am not a lawyer and the nearly 4 years of lies, bullying and fraud was even a lot for the Judge to handle.
congratulations
Could you give me you case law
Linda, congratulations!!!!!! Want to come to Syracuse on April 4th? I have searched high and low, but I cannot find verdicts in favor of the pro se med/mal cases. My biggest challenge is my writing skills. (I like emojis; Judges do not!)
HI I AM PRO PER IN A CIVIL CASE FOR WRONGFUL DEATH AND MED MAL FIGHTING FOR JUSTICE FOR MY FATHER, ITS GOING ON 5 YEARS NOW AND WE ARE ABOUT TO SET A TRIAL DATE AT THE NEXT CMC LET ME SAY IT BEN A HARD ROAD GOING INTO TO THIS WITH ZERO KNOWLEDGE ALL I DO IS STUDY AND STUDY, DOESE ANYONE HAVE ANY TIPS FOR ME MY NAME IS COLLEEN
Tips: I am feeling your pain. Hang in there.
LOOK AT THE ELEMENTS OF MALPRACTICE LAW IN YOUR STATE. YOU ARE THE PLAINTIFF SO YOU HAVE THE BURDEN OF PROOF. HAVE YOUR PAPERWORK, NOW PROVE THE ELEMENTS OF THE LAW AND WHY THE DR IS RESPONSIBLE FOR THE INJURY. YOU CAN GOOGLE THE LAWS IN YOUR STATE.
Hi Colleen! I’m unsure of the meaning of “CMC”.
With more details; possibly I can gauge the information you’ve prepared for your trial. If you’re about to set a date for trial; presumably the “Note of Issue” (certificate of readiness) is about to be filed. And all the “Discovery”, “Interrogatories”, and “Evidence” have been exchanged. And you’ve investigated if the Defendants will be offering any experts, and you’re familiar with the “expertise” of the expert(s) and how much they are paid, etc. And you’ve obtained the doctor’s and hospital’s insurance policies information.
If you haven’t already done so; if there’s still time to ask the Defendants questions; I strongly recommend you send a “Bill or particulars.” The “Bill of Particulars” asks the Defendants, to clarify any affirmative defenses or denials, in their answer. I personally believe this is important; so you can be prepared with knowledge of what they are going to say at trial. This eliminates surprises at trial.
My advice is to have your trial notebook ready; which includes the original complaint and answer, and any pre-trial motions exchanged. And to have your “script” prepared and memorized to the best of your ability for direct and cross examination. The notebook should include cases; which may help the Judge understand your legal point of view on an issue. This may be helpful when the Judge is asked, if you can “offer proof” to allow a statement on the record, or to allow the jury to hear testimony.
Make sure you know how to lay a proper foundation and to authenticate each exhibit to be entered into evidence. And that the evidence is “prima facie” for the “best evidence rule”. And that the evidence can support the “elements” of each “cause of action.” See “Federal Rules of Evidence” or your States “Rules of Evidence”. I’ve heard of an MRI x-ray not being admitted into evidence, because a proper foundation wasn’t laid.
The email doesn’t state whether you’re having a jury or bench trial. If you’re going to have a bench trial; prepare your trial like you’re going against a linebacker. Some Judges can be “staunch”; and play devil’s advocate, but if you follow the civil rules of procedure and are well prepared for trial, the Judge will be respectful. If you’re having a jury trial; make sure to look into your states “pattern jury instructions”. This way you can tell the Judge how you want the jury to rule. Also prepare your, “voir dire” questions to select jury persons.
Prepare your opening statement and closing arguments. Find out from the Judge; the amount of time you’re allowed for each. Some allow 10 minutes for each; and other allow up to 60 minutes.
Anticipate what the opposing party is going to say; so you can have possible objections ready. See the “Federal Rules of Objections.”
Get a copy of the Judges rules. Find out if the Judge tapes the trial; which many do, and what the cost and process of having a copy of the transcript, should you need to appeal.
Research any caps on malpractice punitive damages; there may not be any in your state. And be clear with the Judge or Jury the basis of the compensatory and punitive damages requested.
It sounds like you’re prepared!! You’ll do well! Preparation, preparation, preparation. -Johnny Cochran_