Ka Wai Ola - Office of Hawaiian Affairs, Volume 15, Number 7, 1 Iulai 1998 — WHY HIRE A LAWYER? REPRESENTING YOURSELF IN COURT [ARTICLE+ILLUSTRATION]

WHY HIRE A LAWYER? REPRESENTING YOURSELF IN COURT

£ % ' ^ . jjj| By Arnold Lum, staff attorney Native Hawaiian Legal Corporation

The voice at the other end of the telephone line was frantic. The caller, a single mother with three elementary school aged children, was representing herself in a lawsuit that threatened her family's interest in their land. Overwhelmed by a hectic personal life, increased pressures at work, and a misunderstanding of legal documents and their deadlines, she missed fding an important response with the court and a!so failed to attend the hearing. The result was heartwrenching. " Can you help me reverse this?," she asked shakily, as she read from the court judgment whieh said she had no interest in the property because she had not produced the necessary evidence. Given the high cost of legal representation, it is not surprising that many people are choosing to act as their own attorneys. The benefits of self-help or pro se representation are obvious — you don't have to pay a lawyer. But the cost of doing it yourself must be carefully weighed against any presumed savings, especially when you consider the emolional trauma and pain inflicted by a botched pro se representation. According to the Amenean Bar Association, a study of pro se litigants in Phoenix divorce cases disclosed that in 1980, only 24 percent of the parties represented themselves on both sides. By 1990, 52 percent of couples obtained a divorce without a lawyer. A recent survey of New York City*s Housing Court revealed that 85 to 90 percent of tenants defended themselves in eviction proceedings. and a 1994 study by the Federal }udicial Center points out that between 1991-94, 42 percent of all civil rights cases filed by non prisoners were prosecuted pro se. We at NHLC are keenly aware of the problems pro se clients run into and we frequently find ourselves salvaging some of the hopes and dreams that well intentioned families set out to preserve when they embarked on their pro se representation. What follows in the rest of this article are some practical pointers for those who are pro se litigants or those who are contemplating going pro se. One eommon pro se pitfall is being unaware of the fact that court procedures are governed by rules and procedures whieh do not necessarily conform to logic. For example, if you file a

response to a complaint a day late you may not feel the effects of your missed deadline until mueh, mueh later. So even after your response or answer is officially stamped by the court clerk and filed with the court, and the plaintiff or the person who initiated the lawsuit against you accepts and acknowledges receiving a copy of your response — your response ean nonetheless be stricken or bounced by the court many months later — thus creating the same legal effect as if a response had never been filed. You will be defaulted and lose the case without benefit of a trial. Unless your conduct towards your opponent is perceived as vindictive or malicious, the judge more likely than not will sympathize with your timing error and let you back in the case. But laek of legal experience is not a catch-all excuse. The court is perfectly within its rights in expecting you to have the same knowledge of the rules and procedures as a licensed attorney and it ean refuse to set aside your default. And, in the above example, the judge may allow you to remain in the case only if you pay a fine or pay your opponent's lawyers fees. Or if you previously filed motions or other papers not permitted under the rules or by a court order, the court may, for example, restrict your participation by setting a iimit on the number of documents you ean submit or their length. Even if you mold and shape yourself into the ideal litigant, the hands of the court and your opponent's attomey are tied in their ability to deal openly with you. The Hawai'i Rules of Professional Conduct prohibits a lawyer from advising indivi(iuals who are not represented by their own attorney, especially if there is a reasonable possibility that such an action will conflict with the interests of his or her client. While judges and clerks are not faced with the same restrictions, they must refrain from providing legal advice to any party, whether represented or not. The following judicial guidelines are taken from the Louisiana federal court's Westem District Court: Judges and clerks may inform any litigant of information present on the docket sheet or in the official file for the case, and ean point out the existence of mles and where to find them; however, they may not offer an opinion as to whether the litigant's situation falls within the

gambit of any particular mle. If you decide to press on as a pro se litigant, here ls a non-exhaustive list of hopefully helpful hints: • Don't miss any time deadlines specified by the mles of court, or set by the presiding judge; • Don't assume your laek of legal experience will be favorably considered by the court; • No matter how hard you try, you will never convince the judge that you ean be as neutral as the court, so ratchet your courtroom demeanor down a eouple of notches to keep it professional; • Remember that judges and lawyers often encounter or perceive, correctly or not, that self-help litigants harass opponents and waste court resources, so conduct yourself in a manner designed to achieve the opposite effect; • Always speak to the judge; don't ever debate your opponenl or his or her lawyer; • Don't assume your opponent's attorney is unbiased or wants to assist you and just the opposite, do not interpret every comment or conversation as being intended to mislead; • Remember that just because you argue something to the judge does not mean it is evidence. Your arguments have to be backed by evidence and you need to make a record using the same types of documents, materials, and witness statements as your opponent; • Just as you must carefully follow the court mles, you should also make sure you properly present your evidence, and this is one instance where it will probably be to your advantage to mimie your opponent's lawyer — for example, by preparing your exhibit list the same way. Another reason for following the mles and making a proper record is that it will make it easier for you to hire a lawyer if you need one later. Going pro se is not impossible. It takes research and leaming, diligence and care.

For many families it is their only option, so good luek and mālama pono.

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