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Wednesday, February 25, 2015

Pro Se Rules May Let You Go It Alone in Court -- But Should You?

By Peter J. Lamont, Esq.

The Latin term “pro se” means “on one’s own behalf,” and many courts have adopted pro se rules allowing individuals to represent themselves in litigation, including appearing in court without a lawyer.

For civil (i.e., non-criminal) cases in federal courts, the right to act pro se is spelled out in §1654 of Title 28 of the United States Code, which allows parties to “plead and conduct their own cases personally or by counsel,” subject to court rules. State rules vary, but nearly all states have similar provisions, often in the state constitution, allowing pro se participation.

The Sixth Amendment, which applies to federal criminal trials, protects the right of accused persons to be informed of the charges against them, to confront witnesses against them, to summon witnesses on their behalf, and to have the assistance of counsel. In the well-known 1963 Supreme Court case of Gideon v. Wainwright, those rights were extended to state courts as a requirement of due process of law, giving indigent criminal defendants the right to have the assistance of counsel.

Far less well-known is a 1975 Supreme Court decision, Faretta v. California, upholding a criminal defendant’s right to mount a pro se defense without the assistance of counsel, as long as that decision is reached intelligently and voluntarily. In the Faretta case, the Supreme Court held California had wrongly forced an accused to accept the services of a public defender, disregarding his request to represent himself without a lawyer.But knowing the right exists doesn’t tell you whether it’s a good idea to exercise it. Here’s some basic advice on factors to consider in deciding whether to represent yourself in a lawsuit or criminal proceeding.

The importance of the interests involved: The larger the stakes -- as in criminal cases where your good name, employment prospects or even your liberty may be at risk – the more important it is to make sure you have the strongest possible defense. Similarly, when your case involves significant amounts of property or potential damages, not having expert legal advice increases what you can lose by handling your own case (while at the same time increasing your chances of finding lawyers willing to take on your case for a share of any eventual gains).

The complexity of the case: Pro se plaintiffs and defendants often appear in small-claims cases, which handle lower-value claims and often have simplified rules. Similarly, in uncontested divorce proceedings without complex property division, spouse support or child custody issues, often neither spouse obtains legal counsel.

Your ability to find, grasp and follow rules: Taking on responsibility for handling your own case will require understanding and following numerous procedural rules. For example, statute of limitation rules set firm deadliness for bringing a lawsuit; miss the deadline and your lawsuit becomes a non-starter. Court personnel can provide rudimentary information, but are forbidden to give you legal advice. Likewise, your case can be lost if you fail to respond to court filings in the allotted time.

Your ability to stay focused and deal with the stress: If your picture of legal proceedings comes only from TV shows like People’s Court or Judge Judy, you may think that being in a lawsuit just requires you to be able to shout louder and longer than your opponent. But to be effective, you’ll need to be able to present your case clearly and persuasively. You won’t accomplish that if you can’t maintain your composure. That’s also true when it comes to negotiating with the opposing side, and all the other out-of-courtroom parts of a lawsuit that don’t turn up on your TV set.Even if you decide to represent yourself, it could very well be advisable to consult with an experienced attorney, to get some grounding in the legal issues and potential options in your case.

If you would like more information about this topic or have general legal questions, please feel free to contact me at (973)949-3770 or via email at plamont@peterlamontesq.com Offices in: New Jersey New York, Colorado & Puerto Rico and affiliated offices throughout the country.© 2010-2015, Law Offices of Peter J. Lamont & Associates. 

This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between the firm and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. This Update may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome.

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