Representing Yourself in Court

"The law intersects our lives in numerous ways every day," said Stephanie Rahlfs, an attorney, and editor with FindLaw.com. "Our personal, financial and work lives are constantly impacted by laws, whether it's conditions of our employment; buying, selling or renting housing; contracts; divorce; as well as many other aspects of our lives."

If you decide to represent yourself you will save thousands of dollars but you will also be undertaking a monumental task.

Most people never do proper research and go to court unprepared. When you represent yourself you will be held to the same legal standard as an attorney. If you are unfamiliar with legal research you need to educate yourself immediately. Naturally, we recommend you obtain a copy of, "Legal Research for Non-Lawyers", an inexpensive, instantly downloadable e-book which cuts right to the information you need without wading through a lot of fluff or useless information.

Pro Se

The term for a person representing him or herself in court is pro se (proh say), a Latin phrase meaning “for oneself” or “on one’s own behalf”. Pro Se parties may file documents and make oral arguments and are expected to comply with the same rules, deadlines and procedures as attorneys.

Lawyers are expensive. Even for people solidly in the middle class, the cost of a lawsuit can cause serious hardship. For people of more modest means, paid counsel is simply out of reach for matters as important as evictions, mortgage foreclosures, debt collection cases, child custody and child support proceedings. In Missouri, there is less than one legal aid lawyer for every 10,000 in poverty. There is no right to an attorney in most civil legal matters.

Because of the high of cost legal representation and limited availability of free legal services for the poor, most people unfairly targeted by predatory municipal courts or unscrupulous creditors appear in court unprepared; or fail to appear at all, resulting in default judgment. It is necessary to learn about the legal process and gain a better understanding of the law to defend yourself. Legal bullies like most other bullies prey on the weak and shy away from those that fight back.

As a Pro Se Litigant, you can file motions and other documents with the court just like an attorney, during jury selection you can question potential jurors, during trials you can question witnesses, make an opening statement at the beginning and closing statement at the end of trials, cross-examine the other party's witnesses, use subpoenas to force witnesses to appear, and object to testimony or exhibits per the rules of evidence.

The right to appear pro se in a civil case in federal court is defined by statute 28 U.S.C. § 1654, which states: "In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein."

The Missouri Constitution Art I § 14 states, "That the courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property or character, and that right and justice shall be administered without sale, denial or delay."

Missouri Supreme Court Rule 2, section 2.6A states, "A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law."

The right of a party to a legal action to represent his or her own cause has long been recognized in the United States, and even predates the ratification of the Constitution. The Supreme Court noted that in the federal courts, the right of self-representation has been protected by statute since the beginnings of our Nation. Section 35 of the Judiciary Act of 1789, 1 Stat. 73, 92, provided that “in all the courts of the United States, the parties may plead and manage their own causes personally or by the assistance of counsel.”

In Faretta v. California, 422 U.S. 806 (1975), the Supreme Court of the United States held that criminal defendants have a constitutional right to refuse counsel and represent themselves in state criminal proceedings. The Missouri Supreme Court has declared it judicious for a trial court to not "proceed from one step to the next until all questions were resolved in so far as possible" during a Faretta hearing. Wilkins v. State, 802 S.W.2d 491, 501 (Mo. banc 1991). Faretta hearings are designed so that the defendant is "made aware of the dangers and disadvantages of self-representation so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.'"

A defendant has the right to "proceed without counsel when he voluntarily and intelligently elects to do so." Marshall v. Rodgers, 133 S. Ct. 1446, 1449 (2013) (citing Faretta v. Cal., 422 U.S. 806, 807 (1975)). While a criminal defendant enjoys "a constitutional right to legal counsel, he does not have an absolute right to be represented by counsel of his own choosing." State v. Briggs, 318 S.W.3d 203, 206 (Mo. App. W.D. 2010)

There are many instances when people endure injustices because justice cost too much. Once you develop basic legal skills, those skills can be used to research the law and you can represent yourself in other legal matters. Sometimes the other side simply tries to drag out the process to make your legal fees more expensive and wear you down. When you represent yourself, the only cost you’ll have is time. However, your time won’t be wasted; every time you represent yourself, you’ll learn something new about the law. Everything you learn builds upon itself and only helps you the next time.

Many judges don’t like people representing themselves; some believe it creates an extra burden on the court. Judges are lawyers, and lawyers don’t like it when someone does what they believe only lawyers should do. Court clerks, opposing lawyers, judges and the entire legal system can be very intimidating to those new and unfamiliar with the process. You may be treated like an unwanted outsider, but don’t let that discourage you.

Brian Vukadinovich, a teacher who represented himself and won a verdict of more than $200.000, wrote about the negative treatment he received from the court, see: "Courts and Congress must protect the rights of pro se plaintiffs".

The judges, clerks, attorneys and other court personnel are considered officers of the court and are usually very familiar with each other because they interact on a regular basis. Since judges are attorneys; they and other attorneys have a vested interest in protecting the financial interest of their chosen profession. According to the book, “Failing Law Schools”, the out of pocket expenses for obtaining a law degree is approaching $200,000 and the average law school graduate’s debt is around $100,000. Some attorneys view pro se litigants as treats to income, each represents a lost client. Knowledgeable pro se plaintiffs and defendants are examples to others that attorney representation is not always the only solution for resolving legal matters.

Missouri Revised Statutes chapter 484, section 010 (cited as RSMO 484.010) makes it illegal for anyone other than those licensed to practice law to represent, prepare or assist with documents or appear on someone’s behalf for any court proceeding. It is considered an unauthorized practice of law to provide legal help or advice no matter how knowledgeable you might be or how desperate the person’s situation. You cannot even legally advocate for you own child in court. The only solution would be to hire an attorney. You can, however, represent yourself in court. Imagine if the medical profession had similar rules; no one would be allowed to perform first aid or CPR on an injured person.

One possible solution to help a family member may be to file a “Motion to Intervene”, which is a procedure to allow a nonparty, called an intervenor (also spelled intervener) to join ongoing litigation, either as a matter of right or at the discretion of the court, without the permission of the original litigants. The basic rationale for intervention is that a judgment in a particular case may affect the rights of nonparties, who ideally should have the right to be heard.

Many bar associations and courts publish information on self-representation, however, much of that information seems to be very basic and even discouraging to those considering representing themselves. For example, the Missouri Courts has a self-assessment exercise to help you decide if you should proceed on your own. I took the assessment test and scored a 23 which ironically indicates I probably don't have what it takes to be successful and strongly suggested I hire an attorney. However, the questions asked during the assessment exercise provide good food for thought to consider, but you may want to use you own good judgment rather than relying exclusively on the score.

If you have a family court issue, such as divorce, child support or custody, the Missouri Courts has a "Representing Yourself" section.

Some material above was republished with permission from, "Legal Research for Non-Lawyers"

Legal Classes

If time permits, another option you might consider is taking some legal classes. St. Louis Community College for example offers several legal studies courses, including legal research and legal writing. Find a community college near you. Keep in mind that in addition to tuition, you will need to budget for books, supplies and transportation cost. You may qualify for Federal Student Aid. However, if your need is immediate, this option will not fit your needs.

Limited-Scope Representation

Limited-scope representation is when you and a lawyer agree that the lawyer will handle some parts of your case and you will handle others. This is different from more traditional arrangements between lawyers and clients where a lawyer is hired to provide legal services on all aspects of a case, from start to finish. Limited-scope representation is sometimes called “unbundling” or “discrete task representation.”

Here are some examples of limited-scope arrangements:

You can just consult a lawyer and get legal information and advice about your case when you need it.
You can hire the lawyer to represent you on certain issues in your case (like child support or custody) while you do the rest yourself.
You can hire the lawyer to prepare the forms and other court documents but file them yourself and represent yourself at the hearings.
You can hire the lawyer to coach you on how to represent yourself at the court hearings and help you prepare the evidence that you will present in court.
You can hire the lawyer to help you with the more complicated parts of your case, such as discovery and legal research while you do the simpler tasks yourself.

When you cannot afford to pay for a lawyer to handle your entire case, a limited-scope representation can be a great way for you to have legal help with your case while keeping costs down. Courts approve of limited-scope representation because they want to encourage people to get as much legal assistance as they need to protect their rights. They know that you will do a better job of following proper court procedures and presenting the important information to them if you have the help of a lawyer during the most complicated parts of a case.

Limited-scope representation may be somewhat new in some areas, and some courts and lawyers may not be very familiar with it. But more and more lawyers are willing to take on limited-scope cases and more judges are becoming familiar with these arrangements. When you do speak with a lawyer and you want limited representation, make sure that you are clear about what you want; that you do not want to hire the lawyer to handle the entire case.

Additional Statement about Representing Yourself (A lawyer's point of view)

The judge is required to verify that you’re familiar with how a trial works. The judge, in certain criminal cases, also has to confirm that you know you’re entitled to a court-appointed lawyer if you can’t afford one. Usually, the judge will start by warning you about the dangers of representing yourself. Then he’ll ask about your level of education, ability to speak English, whether you’ve ever been through a criminal trial before, etc. This conversation between you and the judge is called a “Faretta hearing.” ³ It’s rarely a separate proceeding; instead, it occurs at whatever point you tell the judge that you’re planning to represent yourself. Sometimes judges are pretty disrespectful during the Faretta hearing, especially when they’re talking about how unwise it would be for you to represent yourself.⁴ However, if you lose your temper in response (especially if you yell or swear), the judge will most definitely declare that you’re not competent to represent yourself. If the judge does decide you’re not competent, he may appoint a lawyer to represent you despite your wishes.

A defendant who represents herself is referred to as proceeding pro se or in pro per.¹ You have the right to represent yourself, provided that the judge decides you’re “competent” (that you have enough experience and education to manage it).² You needn’t have taken courses in law or be familiar with technical matters such as hearsay exceptions, to exercise your right to self-representation. However, you do have to understand the basic procedures undertaken by the defense and the prosecution:

• Each side gets to make an opening statement at the beginning of the trial and a closing argument at its end.
• Each side can put on witnesses and items of physical evidence, and use subpoenas to force them to appear, if necessary.
• Each side can cross-examine the other side’s witnesses.
• Each side can object to testimony or exhibits on the basis of the rules of evidence, and the judge will then decide whether the material in question may be presented to the jury.
• The prosecutor usually makes the first opening statement and the last closing argument, and normally puts on all of her witnesses and exhibits before the defense puts on any.
• Each side is responsible for submitting a set of jury instructions.

Since the legal profession is an elitist monopoly, the drawbacks to representing yourself are huge. The judge and prosecutor won’t give you any breaks, even though you haven’t been to law school. If you can’t make or oppose objections, introduce evidence correctly, or handle complex motions, no one will help you. And most people who represent themselves just look foolish to the judge and jury, especially if they stumble over legal jargon or speak pompously. (Lawyers aren’t very well liked in our society; but a wannabe who pretentiously poses as a lawyer is liked even less.) Some judges will mock you when you make mistakes. And other judges will be friendly and polite, and sit there watching while you walk right into the prosecutor’s traps. The fact that the judge has declared you competent doesn’t mean he thinks you really are able to defend yourself adequately—the Faretta hearing is just a requirement the judge has to fulfill to avoid grounds for appeal. (Judges find it embarrassing when their cases are overturned because they made a procedural mistake.) To sum up, it’s a lousy idea to represent yourself, especially if you’re stuck in jail before or during a trial. Even a bad lawyer is likely to know more about how to write motions and make objections than someone who isn’t licensed to practice law. So, if your lawyer’s not satisfactory and you can’t afford to get a different one, your best bet is probably to assist your lawyer with whatever tasks you’re capable of doing (research, investigation, preparing exhibits, locating witnesses, etc.).

The one type of criminal matter in which it can be worthwhile to represent yourself is a case involving political activism (such as civil disobedience)—especially when the charges are misdemeanors and the amount of potential jail time is thus more limited. In political cases, judges often forbid defendants to talk about the reasons—philosophical or religious—for their actions. Such defendants may have a better chance of getting the message across if they represent themselves. Although a political defendant who represents herself is nonetheless more likely to lose the case than if she uses a lawyer, she may find the trial more satisfying. Anyway, if it’s clear that it’s impossible to win, then a political defendant has nothing to lose by representing herself—and speaking truth to power in the courtroom is itself an important form of activism. For inspiration, you might look at court statements by people such as Socrates, William Penn, Emma Goldman, Mohandas K. Gandhi, Dorothy Day, and Nelson Mandela.⁵ If you’re going to do time anyway, you might as well have your say.

A middle ground between having a lawyer do everything and representing yourself alone is to have a lawyer as “advisory counsel” or “co-counsel.” ⁶ The precise range of activities for advisory counsel or co-counsel to a pro se defendant varies according to the preferences of individual trial judges, so the following descriptions are just generalizations.

Advisory Counsel: a lawyer who writes and argues motions, and stays in the courtroom during trial (either in the audience or at the defense table). Advisory counsel doesn’t speak in front of the jury, but can usually help with legal arguments to the judge, when the jury can’t hear. The defendant can pause periodically to get help from the advisory counsel, especially about procedural issues.

Co-Counsel to a Pro Se Defendant: a lawyer who can write and argue motions, and speak to the jury and witnesses. Co-counsel sits with the defendant and they work as a team. This is sometimes referred to as “hybrid representation.”

Having advisory counsel is awkward for the defendant because it’s often difficult to stop in the middle of things to ask questions. Sometimes judges appoint advisory counsel whether the defendant wants it or not—particularly if the judge thinks she may want to declare the defendant incompetent at some point in the middle of the proceedings, and order the advisory counsel to take over representing the defendant.

A pro se defendant with co-counsel has an advantage, in that the lawyer can do technical tasks, like making objections and cross-examining prosecution witnesses; while the defendant can do things like examine defense witnesses, or give the opening statement or closing argument. Judges are often resistant to allowing hybrid representation, but can sometimes be convinced if they’re assured that the lawyer and the defendant will figure out in advance exactly who’s going to do what, so they won’t be interrupting or talking over each other.

1. Pro se is a Latin expression that means, "on one's own behalf." In pro per is an abbreviation of the Latin phrase in propria persona, which means "in one's own person"; that is, speaking oneself instead of talking through a representative. The expression pro se is used in federal court and in some state courts; other state courts use in pro per.

2. Don't confuse being competent to represent yourself with being competent to stand trial. Competence to represent yourself requires familiarity with the mechanics of a criminal trial. Competence to stand trial merely requires sanity.

3. Some courts use a written form, covering the questions usually asked during a Faretta hearing. To represent yourself, you'll be required to sign the form, agreeing to all the statements on it.

4. Judges occasionally quote: "The defendant who represents himself has a fool for a lawyer," among other helpful remarks.

5. There's a collection of statements made by activists during court proceedings on the Just Cause Law Collective website: http://www.lawcollective.org

6. Co-counsel normally just means any lawyer is a case with more than one attorney on the same side (for example a case with multiple defendants each of whom has a lawyer; or one defendant with a team of lawyers). In this context, it means a lawyer who is helping represent a pro se defendant.

When you represent yourself, you will need to convince and persuade a judge or jury to see things your way and rule in your favor.

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