Is it foolish to litigate pro se?
Marcel Strigberger.
"A man who is his own lawyer has a fool for a client." A phrase often attributed to Abraham Lincoln. Given that we see so many self-reps in our courts these days, this is as good a time as any to discuss this phenomenon, also known as pro se representation.
Are they all fools? I doubt that. It would be foolish to make this assumption. What I can say offhand is that self-reps often create problems for the justice system: In addition to not knowing the ropes, objectivity goes out the window and emotions can run wild.
A large part of my practice used to be family law. I recall a case in which my client was seeking a divorce on the grounds of cruelty. Her husband, Mike, was a bit volatile, firing his lawyer midway through the case. While waiting to be called into a court session (one of several because Mike wasn’t behaving), I asked the gentleman a question about his financial summary. This did not sit too well with him, and he lunged at me, shouting, “That’s none of your business!” (Actually, he did have an adjective or two describing my business, but I need not elaborate.) Fortunately, security was nearby.
We lawyers, on the other hand, are expected to act with civility. As Shakespeare said in the Taming of the Shrew, “Strive mightily, but eat and drink as friends.” Through the years, I was able to follow this wisdom and work things out in the most acrimonious matrimonial cases over coffee and bagels. But I got the feeling Shakespeare’s strategy might not exactly have worked with Mike. I sensed that if asked, he might have told me what to do with those bagels.
When representing a wife in another matrimonial matter, in my initial communication with a disgruntled husband, I wrote something like, “Hi, Peter. Erma retained me to try to amicably resolve this matter with you …”
I was respectful and polite. Mahatma Gandhi could not have sounded more conciliatory. Self-represented parties, however, generally tend to view their spouse’s lawyers with daggers in their eyes. The husband emailed me back unleashing a tirade, saying something like, “Don’t call me Peter. You don’t even know me. It’s all my wife’s fault. She a vixen. There is nothing amicable about it. You should know better than to be her lawyer. See you in court.”
At least, unlike Mike, Peter wasn’t violent. Still, I got the feeling I would have been more comfortable dealing with Darth Vader.
Self-reps slow down the process because they simply are not familiar with or perhaps sometimes do not care about the rules of the game. I once witnessed a woman hand a document she prepared to a judge. The words were handwritten in a spiral script-type font and fell on the page in a circular spiral layout, like a snake coiled up. When the judge started reading the document, he had to keep turning it around and around. And when questioned by the judge, the lady said, I’m just a poor artist. Unlike my rich husband, I cannot afford a lawyer. Alas.”
Surprisingly, the judge was patient, cutting her incredible slack. With self-reps, we often see some judicial bias. I dare any lawyers to try that artist stunt. The judge would box their ears—or worse, one ear, and give them a Van Gogh.
I first came into contact with self-reps during my early weeks after my call to the bar when a judge forced me to assist one. I was sitting quietly in the body of our local small claims court ($400 claims limit in the mid-1970s) simply observing and learning. The judge was a colorful elderly lady, fondly known as “Ma Mackenzie.” She had a penchant for moving cases through efficiently, sometimes not in an orthodox manner. She was eager and pleased to see litigants arriving with lawyers—or at least law students—and usually urged those who did not to attend with one or the other. About 50% likely represented themselves.
One case involved a self-rep calling himself something like “Jimmy the Upholstery Doctor” who was defending a claim in which the plaintiff insisted the defendant returned to him a different chair than the one—of great sentimental value—the plaintiff had given him to work on. During the plaintiff’s testimony, he would jump up and shout, “That’s a lie, Ralph. And you know it.”
The judge, after admonishing him a couple of times, suggested she adjourn the case to enable Jummy to get legal advice. She said to him, “If you were sitting in your den watching a hockey game and one of your eyeballs popped out, would you try to put it back yourself?”
The defendant agreed with her that he would not attempt the fix pro se. (Totally understandable since he was an upholstery doctor, not an ophthalmologist.)
She then suddenly set her sights on me while I was minding my own business. (This business was definitely different than the one I was minding with Mike.)
The judge said, “You look like a lawyer. Do you have a matter here today?” I told her I was “just observing.”
She said, “I’m holding down this case. Can you give this man some basic trial advice?”
Given that I had nothing better to do that morning, I agreed. And I managed to calm Jimmy, but I’ll admit my mind was more focused on that straying eyeball. This incident happened more than 40 years ago. I still visualize it.
To deal with this pro se issue, we have seen the development of the legal coaches. These people are lawyers who work with litigants, educating them about how to maneuver and behave in the justice system. I suppose they do what I did with Jimmy.
Many lawyers also provide unbundling services, doing some of the work and showing the clients how to perform other tasks by themselves. Does it work? It might. However well-intentioned, unbundling always raised potential malpractice red flags for me. Would a surgeon hand a scalpel to a patient and say, “Appendectomy is a piece of cake. Let me know how it works out. And oh, yes—do remember to first wash your hands.”
Unlike those in other callings, legal actions can have many complex parts and take years to play out. The layperson’s exposure to justice is generally what they learn from watching television or some lawyer movie. All you have to do in a courtroom is talk. Most people are good at this. Most important, it is permissible for all litigants to self-represent.
As lawyers we should focus on the positive, namely, that we should appreciate it more when both sides are lawyered up. Then we can indeed follow Shakespeare’s advice.
I like my bagels whole wheat, toasted, with honey.
Marcel Strigberger, after 40-plus years of practicing civil litigation in the Toronto area, closed his law office and decided to continue to pursue his humor writing and speaking passions. His just-launched book is Boomers, Zoomers, and Other Oomers: A Boomer-biased Irreverent Perspective on Aging. For more information, visit MarcelsHumour.com and follow him at @MarcelsHumour on Twitter.
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.
Clarification
Updated Nov. 15 at 10:49 a.m. to note that the first quotation in the story is popularly attributed to Abraham Lincoln.
