Win Your Case in Court is a book directed at an individual who has a case in court or is contemplating a case in court. It is written for the lay individual as well as the novice legal professional. And since no one walks into a courtroom unconcerned about winning and losing, this book is written to equip the litigant with the tools needed to bring a case to a successful conclusion. Even if you are engaging a lawyer you need to know as much about the process as is feasible. Not that you will wish to interrogate your lawyer, but it is helpful for you to have a basic understanding so that you can provide you lawyer with as much useful information as is possible – useful as opposed to time wasting information. You also may be able to reduce the amount of time your lawyers has to devote to your case by doing a good bit of leg work yourself.
The framers of our justice system were not interested in creating some exclusive, special access tool for society’s elites and their high-priced attorneys, but rather an impartial judicial system approachable by all – that, in part, is why in many states Judges are elected. Indeed, the right of the individual to self-representation is held in high regard in our system. A judge will always grant a person the right to self representation. A term, pro se (sometimes pro per, or self represented), is commonly used to communicate an individual’s self representation status. Pro se, in Latin, means “on ones’ own behalf.”
Many misunderstand one of the enduring symbols of American justice – the blindfolded lady with the scales and sword – to mean that justice is fair as well as impartial, balancing the merits of each case in her scales toward a right and fair conclusion. Unfortunately, that is a flawed understanding. Better, Lady Justice should be understood to be the guardian of access to the justice system’s fairness. In other words the justice system is responsible to weigh the evidence legally introduced, like ballast added to the scales, and conclude the case based on the merits – or weight – of the evidence.
“He who can get the most weight of evidence allowed to be placed on his side of the scale will tip the balance and win,” says Carl Frederick, president of the American Pro Se Association. “Obviously some parties and their attorneys, along with the nature and particular perceptions of a judge, may be able to get what appears to be more weight on the scale, even though the actual reality of all the facts – including those they failed to get on the scale – may well be in the opposite direction.”
But there are rules and conventions that must be observed to ensure that evidence is introduced fairly and often there are standards for how much “weight” different types of evidence may add to help a judge or a jury render judgment. Often, in our legal system this maze of rules and standards can discourage litigants from going to court without a lawyer. We have been conditioned to believe the workings of the justice system are unknowable except to those select few trained in the law, and that the one who acts without such professional counsel do so at his or her own peril.
Not anymore. These days, the steady erosion of public trust in the institutions of government – including the legal system and the conventional relationships of clients with their attorney/advocates – has resulted in a surge of pro se cases across the country. Americans are less willing than ever to “tolerate a justice system that consists of procedures, forms and practices that are known only to a select few in society,” says the American Judicature Society in its Revised Pro Se Policy Recommendations, (March, 2002).
Increasingly, courts have recognized the growing volume of pro se litigants and are taking steps to make relevant court rules and procedures available to the self-represented, understanding that such efforts not only improve access to the court system and protect the rights of due process, but also streamline the efficiency of the courts and reduce the hours spent in trial.
“The defendant who represents himself in court has a fool for a client,” says the old bromide. While there certainly are many cases which need the specialized training of a lawyer there are many that do not. Often the cost of legal representation leaves an individual who is forced into a court with no choice. Many times the amount at stake is far outweighed by the cost of legal representation – like when a merchant takes advantage of a consumer costing the consumer an extra $500.
There was once a strong tradition in this country – between the years of 1825 to about the time of Lincoln’s death in 1865 – when families raised their children to study and master the law. Citizens routinely appeared in court on behalf of others. These days, the practice of law has become so specialized that all but a few hardy souls would consider self-representation akin to no defense at all.
But, there are a number of reasons why a person might choose to represent himself in court, ranging from the soaring cost of legal services to the desire to provide the best possible case with a level of care only a litigant himself can offer. There are many court cases where the expense of a lawyer is not cost effective or even necessary. The uncontested divorce case, the small claim, the rent case are just a few of the types of cases where the cost of a lawyer outweighs the benefit gained. Indeed the cost of the lawyer in many of these cases is a deterrent to access to any legal remedy at all.
The principles of law and advocacy can be daunting to the uninitiated. A litigant representing himself without a law degree and the years of accompanying study often cannot help but feel less than confident in preparing and presenting a case in a modern courtroom. One can believe in a cause and know that it’s right and feel fully entitled to the full compensation the law allows, yet still fail in court. And even a recent graduate of law school is not equipped with the skills of an advocate.
Thomas Paine characterized often as the spokesman of the American Revolution, arguing in favor of the 1776 Pennsylvania Declaration of Rights, said; “party … has a natural right to plead his own case, the right is consistent with safety, therefore, it is retained.” Paine added that when the parties are not able, they “therefore [retain] the civil right of pleading by proxy, that is, by counsel, [and this right] is an appendage of the natural right to self-representation.”
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