There is a well-known saying in the legal community: “A man who is his own lawyer has a fool for a client.”
This quote is generally attributed to Henry Kett in 1814. Yet more than 200 years later this idea is widely accepted not only for lawyers who want to represent themselves in court but for the general public. You may already be saying, “Of course the lawyer writing this article wants me to hire a lawyer. That’s how he makes money.” Let me explain a little further.
I admit to being a do-it-yourself person around my house. I watch HGTV. I look online for video tutorials. I can tackle small projects, like changing out a light switch or replacing a toilet. Why should I hire a handyman to do what I can do myself? However, I know my limitations. When I needed windows replaced on my house, I called a professional. When I needed a wall moved in my basement, I called a professional. When I needed a hole patched in my roof, I called a professional. Why? Because these types of projects required technical knowledge, tools, and experience I did not have. I wanted my house to improve, not crumble down on top of me.
Now think of your legal problem as a home improvement project. How much expertise do you have in this area? Are you representing yourself because you have the technical knowledge, tools, and experience? Or are you representing yourself because you want to save money? Are you willing to risk having your legal problems crumble down on top of you to save a few bucks?
There are some cases you probably could handle yourself. After all, who knows your case better than you? On the other hand, there are some cases that involve complex issues, or confusing laws, or have large amounts of money or property at stake. Let’s start with the small cases and work up from there.
Small Claims Court
If you have a small matter and you don’t think you need an attorney, you can file your lawsuit in Small Claims Court. Think of “The People’s Court.” It is common for one party to bring a lawsuit in Small Claims Court for a contract dispute or other matter involving money damages. Other actions, such as divorce or child custody matters, lawsuits involving pain and suffering or punitive damages, or actions to quiet title of real estate cannot be brought to Small Claims Court.
In North Dakota, you can file a lawsuit in Small Claims Court if your claim does not exceed $15,000. The judge will help both parties in presenting their cases. There is no jury trial. There is no right to appeal the judge’s rulings or final decision. You can find more information on the North Dakota Small Claims Court here.
In Minnesota, you can file a lawsuit in Conciliation Court, also known as Small Claims Court. Like North Dakota, your claim cannot exceed $15,000 and there is no jury trial. Minnesota does allow a business the right to appeal from a Conciliation Court decision, but that business must be represented by an attorney do to so. Any party that is not represented by an attorney does not have the right to appeal to the judge’s final decision. You can find more information on Minnesota Conciliation Court here.
What if you can’t bring your case in Small Claims Court? Or perhaps you are in the situation where the sheriff or a process server just handed you some paperwork titled “Summons” or “Complaint.” The paperwork contains a lot of legal jargon and several Latin words that you have never seen before. It also says you must reply within a certain number of days. Perhaps you were just arrested and applied for an attorney, only to be told you don’t qualify because you make too much money. Are you going to DIY your serious legal problem?
A civil case is any court case that involves two or more private parties, or “litigants.” A broader definition is any non-criminal case is a civil case. Any party that represents himself or herself is known as a “pro se” litigant. A civil case is started when one litigant (the “plaintiff”) serves a summons on another litigant (the “Defendant”) alleging that the defendant owed a legal duty to the plaintiff. The plaintiff could ask the court to assess damages against the defendant for actual loss, pain and suffering, or punishment. The defendant could file a counterclaim against the plaintiff, alleging a separate legal duty owed by the plaintiff. Either party could allege that a third party (or more) are part of the lawsuit because of a legal duty owed by that third party. Confused yet?
Civil cases include divorces and child custody cases, medical malpractice, personal injury, and disputes between businesses over contracts and money. District courts, while sympathetic to pro se litigants, cannot bend the rules because a pro se litigant does not have an attorney. Courts have repeatedly stated that pro se litigants are not granted leniency merely because of their status. See e.g., Desert Partners IV, L.P. v. Benson, 855 N.W.2d 608, 612, 2014 ND 192 (N.D. 2014).
There are risks to representing yourself. The court will hold you to the same standard as a law-trained attorney. You are expected to know the rules of civil procedure, the rules of court, and the rules of evidence. You will have to respond to pretrial motions filed by the other party’s attorney. You will have to question witnesses in court to either prove your case or defend against the other party’s case. If you file a frivolous lawsuit, you may have to pay the other party’s attorneys’ fees for fighting your lawsuit. The risk of losing your case could cost you tens of thousands of dollars, or more.
A criminal case is any court case where charges are brought by the government against a person (the “defendant”). The government could be a city, a county, a state, a tribe, or the federal government. The defendant could be a living, breathing human being or a corporation. The common thread among all criminal cases is that the government if it successfully proves its case, can impose fines and jail time against the defendant.
In a criminal case, the defendant has a Constitutional right to be represented by an attorney. Surely you have heard of Miranda v. Arizona, a landmark case that birthed the now-famous “Miranda warning” that you hear on television and in movies. Yes, you have the right to an attorney, and if you cannot afford an attorney one will be provided for you. But this right comes with a qualifier – If you can afford an attorney, you have to hire one if you want one. Otherwise, you have to represent yourself.
As with civil cases, there are risks to representing yourself. You are expected to know the rules of criminal procedure and the rules of evidence. You have to pick a jury of your peers that is not biased against you. You have to question seasoned law enforcement officers and expert witnesses who were brought in by the prosecutor to convict you of a crime. And if you are convicted, you have to write an appeal to the appellate court and follow an entirely new set of rules. This time, the risk of losing your case could mean you lose your freedom. In Faretta v. California, 422 U.S. 806 (1975), the United States Supreme Court stated: “[a] defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of effective assistance of counsel.” You get what you pay for.
OK, I Get All That. Do I Really Need An Attorney?
One of the phrases I hear most often from clients and potential clients is, “This case is stupid. The judge will just see that and dismiss it, right?” The judge is not responsible for saying a case has no merit (“is stupid”) unless and until one litigant points that out through a motion or brief using well-established rules, case law, and the facts of that particular case. If you are served with a summons and complaint and say, “This is stupid. The judge will just dismiss it.” and don’t file any response, you run the great risk that the judge will enter a default judgment against you.
Only you can decide if you need the services of an attorney. But think back to the home improvement scenario. Do you think you can present your case to the court or the jury by yourself better than with the help of a law-trained attorney who has technical knowledge, tools, and experience? Do you think you can out-litigate the other party’s attorney who has years of experience in the very type of case you are trying to prove or fight?
The internet now functions as a DIY legal store with standardized forms and advice on a message board. These forms are great as long as your case fits nicely into the forms. Hopefully, there are no complex issues. Hopefully, the court of your case follows the same rules the forms are modeled after. Hopefully, the DIY legal store has an aisle on the proper objections to make during a trial. Are you really going to leave the fate of your case to hope?
I Think I Need An Attorney
Lawsuits are scary. Criminal charges are scary. Your case is unique and does not fit into a standardized form. Your case is complex and requires the tools and experience of an attorney. The outcome of your case could forever change life as you know it.
At SW&L, we have attorneys with experience in many areas of the law – both civil and criminal. I am the commercial litigation attorney at SW&L. If you have a question about whether you need to file a lawsuit or were served with one, call 701-297-2890 or send us an email below. If you’re not sure what kind of case you have, call us anyway. We can help.