The Right for Self-Representation Explained
The legal right to represent oneself in court is firmly established. Although the common law typically required that all parties be represented by counsel, the relaxation of this requirement dates back several hundred years when courts determined that parties could waive their right to counsel. This inherent right was codified in 6 Wills, Age, All Law of the State of New York 5th §6:1 (2017), which stipulates that "[a]rising from a natural right it has been recognized by many courts that individuals have the right to represent themselves with full power to sue and be sued subject to the exercise of discretion by the court."
The constitutional basis of the right to self-represent itself is found in Faretta v. Caifornia, 422 U.S. 806 (1975). Therein, the Supreme Court confirmed the right of an individual to defend against a criminal charge without the assistance of counsel, noting that the right is "rooted in the belief that the defendant, and not his lawyer or the State, will bear personal responsibility for his defense." Id. at 834. The Supreme Court noted the two sources of the right to self-representation: the classically understood "right to defend" as clearly delineated in the Sixth Amendment (the last line of the Sixth Amendment mentions the right to self-representation) and the Fourteenth Amendment, which together prevent states from interfering with the fundamental right of a person to control their own defense absent counsel. Id. at 818; see also John Mulligan, The Right to Self-Representation: Why Requiring a Lawyer for Civil Cases Would Not Be an Effective Solution to Pro Se Litigation, 59 ST. LOUIS L.J. 511, 511 (Spring 2015).
Because a person cannot represent themselves through another person (there are no "party-counsel" relationships in a pro se capacity), a non-lawyer is not permitted to argue a legal case in general. See Words to Deeds, Why the Supreme Court Must Overrule Whitford v. Gill, 36 HAMLINE L. REV. 65, 66 (2012) ("For example, as a pro se litigant, one cannot present a case in federal court unless he or she is represented by counsel, even if the litigant is qualified to practice as an attorney."). Nevertheless, fairness requires that a family law litigant receive the same benefit of the doubt . In this way, a party representing themselves is afforded the same latitude as any other pro se litigant to make an argument on their own behalf, without counsel.
On the other hand, a court has discretion to limit the right of self-representation in order to promote the truth and fair determination of rights, full respect for the rights of representation of relinquishment under the circumstances of the particular case, and full respect for the parents’ constitutional rights and responsibilities. The right to represent oneself does not affect the ability of the court to act where one party may be unrepresented. Indeed, the in forma pauperis statute, N.J.S.A. 47:2A-1.5(a), permits the court to appoint a lawyer to represent the defendant, finding that "[a] party to a suit or proceeding who is unable to pay the costs of representation shall be entitled to appointed counsel in any proceeding, trial or appeal from a judgment in a suit or proceeding, in which that party may be required to be represented by an attorney-at-law either by constitutional or statutory mandate."
This statute allows for the appointment of counsel at the discretion of the court (N.J.S.A. 47:2A-1.5(b)); Courts can appoint counsel to review "all factors bearing upon the interests of the parents in final allocation of parental responsibility of the child" (N.J.S.A. 47:2A-1.5(c)); and, regardless of whether the party receives free counsel or is represented by private counsel, counsel is not required to represent a party "against his will in any matter nor be liable … for any malpractice" (N.J.S.A. 47:1A-1.5(d)). By its plain language, the statute is expedient, recognizing that not all parents require a lawyer to represent them. The circumstances under which a court must appoint counsel also extends to proceedings before the Department of Human Services or the Division of Youth and Family [Child] Services. See N.J.S.A. 47:2A-1.5(e)(4) ("establishment of child support"). Importantly, a parent cannot decline counsel in order to allow the State to seek a finding of abuse or neglect. Defendant father in New Jersey Division of Youth and Family v. J.E.T., 231 N.J. Super. 36, 37 (App. Div. 1988) is illustrative:
Pros and Cons of Representing Yourself in Court
Going to court without an attorney can have its upsides. Two of the most commonly cited benefits of self-representation are cost savings and control over the litigation process. For some, the most obvious advantage to self-representation is the potential cost savings that comes with not having to pay an attorney’s fees. Some creative case- or remedy-specific solicitation may yield a few willing attorneys who will undertake a representation for less than their normal hourly rate or for a flat fee payment. When that doesn’t happen, however, a self-represented party usually has to weigh the costs of representing herself against the value of the case itself. For example, if you are suing for $300, it is likely that a lawyer will decline representation in the matter. The same may be true of a claim worth $3,000 or even $30,000, depending on the lawyer. No matter how small or large your claim, however, there are effective ways to present your case in an efficient manner without paying exorbitant court costs or filing fees. Besides the financial aspect, self-representation can also give you more control over your matter from beginning to end. When you go it alone, you get to decide what strategies to use, how long to pursue those strategies, and how much money to invest into the litigation itself. For some, this ability to make independent decisions about their litigation history is invaluable. On the other hand, some cases suffer when litigants decide to represent themselves. If you do not understand the case law on which your claims depend, you could easily spend hours purging irrelevant and repetitive material to hone in on the legal issues that truly deserve your attention. If you do not understand the rules of evidence, the rules of procedure, or the rules of the given court, your case could be over before it even begins. If you cannot see the forest for the trees, you could find yourself vehemently pursuing a fight in one part of your litigation while the other side has seized the advantage in another part of the matter.
Cases That You Can Handle Yourself in Court
Certain types of legal matters are more amenable to self-representation than others. For example, small claims courts routinely handle claims of only a few thousand dollars through procedures that do not require an attorney. A person could attempt to represent herself or himself against a business over an unpaid debt in the local Justice Court as long as the amount claimed is within the court’s limit. Obviously, the cost of retaining an attorney can eat into small monetary amounts, making an attorney too expensive for the small claims or Justice Court litigant. In fact, even the costs incurred in filing a case in these courts are extremely affordable, and in some cases, waived if you can establish financial hardship.
Family attorneys agree that very simple divorces, such as those with no assets or children, really do not need an attorney. If the parties can reach a settlement, they can navigate the court system without representation. In fact, simple divorces are a growth area for a number of court-based services that offer forms and advice to help settle such cases. If the parties cannot reach an agreement, however, they will need a skilled advocate to present their case.
Traffic tickets are perfect for self-represented litigants. Unlike criminal cases, traffic tickets generally do not result in incarceration but, instead, merely a financial penalty. The Court Clerks will typically enter a "Not Guilty" plea for you and set the case for trial within 60 days on the day you appear. You may also have a trial within 10 days of receiving your ticket if you specifically request an early trial date. Your only cost in a traffic case is the ticket so being represented by an attorney or not makes no difference financially. However, most people who go to trial lose and are stuck paying the ticket plus court costs, so winning and keeping a positive driving record makes this type of case a good one to handle on your own.
There are many other examples of cases more commonly handled by a self-represented person but I’d avoid making my first foray into the court system with a Criminal matter or anything having to do with the termination of rights of a parent. There is simply too much at stake in those cases and a great deal of complexity which is best handled by someone with training and experience.
How to Prepare for Court When You Are Your Own Lawyer
In order to prepare an effective case on your own, you must be able to establish your case with evidence. Without evidence, your statements it to the court will mean nothing. Speaking to the judge and/or jury is not enough. You must prove your case with admissible evidence. A lot of litigants believe that just because they were victims of something, the judge or jury will take pity on them and assume that the other side is the bad person. That is not the legal system. The legal system requires proof. If you cannot prove your claim, you cannot win, no matter how badly you were treated. And speaking to the judge on your own behalf will not count as evidence.
You should conduct proper discovery of the other side. You should also subpoena records from third parties that are relevant to your claims and defenses. Your opening with objection to get them into evidence. If applicable, you should also have a physical examination. It’s much harder to testify that you are in pain when medical doctors or therapists testified that they did not find any objective findings of pain. And you will be asked to identify any witnesses who have knowledge of the facts of your case. You may find some witnesses helpful and some not so much. You clearly do not want a witness who will testify against you.
You should also issue discovery to those witnesses. You want to question them under oath. You should have them explain what they observed of your claim. When you meet with your witnesses, you really should interact with them like they are your client. If you need to show them the evidence obtained in discovery, do so in a way that is the least confusing but still allows them to see all the evidence so they are prepared to testify to the judge and jury about what they know.
You should also spend time learning about court procedures and civil procedure. Most local self-help facilities will provide you limited assistance with discovery requests. But you really should file an affidavit under Preamble Section 6 (applicable only in DeKalb County) to allow someone from the self-help center help you communicate with the clerk’s office on the phone or in person.
Tools and Resources When Representing Yourself in Court
Legal Aid Services: Many local bar associations provide free or low-cost legal services or legal information to those who qualify. The Massachusetts Bar Association and the Boston Bar lead the way in Massachusetts, but nationwide many larger city bar associations have similar programs.
Online Tools: Nationwide, states seem committed to improving their websites to provide relevant information on how to navigate their court systems. Some states are doing a better job than others, but most have taken steps to make information on their court processes and rules easier to find and understand. Most states have downloadable forms for self-represented individuals (also known as "pro se" litigants) to file in the courts. Many state and local bar associations are setting up their own websites to provide legal information for pro se litigants; the Rhode Island Bar has some of the best information available online . For more information and links to each state’s court system, you can check out this article over at FindLaw.
Courtroom Guides: Courts have been tasked with helping pro se litigants navigate the court process. This does NOT include helping them draft legal documents or giving them legal advice. But many courts are trying to help by providing guides on what pro se litigants can expect before the judge and jury.
Workshops: Just because you don’t have a lawyer doesn’t mean you can’t learn like one-or at least learn what you need to know to get by in court. Many local bar associations and community organizations provide workshops and seminars on various aspects of the law. Often, you can simply show up and ask questions and leave with better understanding of where you stand. Although some workshops have a fee, the fees are usually nominal and cover things like coffee and snacks.
The more you know, the better equipped you’ll be to navigate through your legal dilemma.
Guidelines for Success When Representing Yourself in Court
While every state has different rules, generally when you enter into a courtroom, you are given a set of rules that you are expected to follow, as opposed to just standing in the middle of an open field and speaking your mind. In a courtroom, eyes are on you and your conduct should be serious.
• Be a "professional." You wouldn’t go into a job interview or a business meeting looking like you’ve spent the last week camping in your car (unless you are a photographer taking photos). So why would you approach a court that way? Dress appropriately (i.e. like an adult, not an angry teenager). No baseball caps, no t-shirts, no jeans. While the Court doesn’t have a dress code per se, if you’re appearing in front of a judge, you will never receive sympathy from someone if you look like you just rolled out of bed. It’s just the truth.
• Make an effort to keep track of dates. Any litigator with any practice will prepare a "calendar," which is (in effect) a set of reminders and alerts. Most of these are all electronically managed now, but even without that luxury you can still create a calendar to remind you of important dates in your case, such as court dates, filing deadlines, time limits, etc. Moreover, yes, you should always show up when the court orders you to-otherwise it may result in your case being dismissed outright. Just because you’re in pro se doesn’t mean you’re immune to the rules.
• Stand up and address people the manner they deserve. Don’t give the judge your back when you are talking to him/her. Likewise, don’t walk up to the Court and start talking as if you’re talking to a friend at ten p.m. at the bar when you ordered your fourth beer-a court’s formal. Unless you are very comfortable, you should be very polite and very brief with the court.
• Speak clearly and slowly. The court reporter (if there is one) doesn’t need a Fiona Apple-repeat to hear what you said. Speak clearly and slowly. If you can try to articulate your points without yelling and screaming, you will be farther ahead. Be respectful to everyone in the court. Not only do attorneys have full knowledge that they are (for the moment) on stage, but the judge and others have no time to listen to "drama." Again-it’s a court, not a soap opera.
It’s very easy to forget all the above when you’re nervous or under pressure, but, at least in the states that we practice, they are very important.
Knowing When to Hire a Lawyer
When considering whether to hire a lawyer to help you with your case, there are some signs that could indicate that you should at least look into hiring one. If you have an issue with a high dollar amount at stake, you will likely be much better off hiring an attorney, who could help ensure you get every dollar that you deserve (and seek). Or, if you have a situation in which the other side is represented by a lawyer, you will probably want one yourself. An attorney with experience in your particular type of case will know the ins and outs of not only the law but also the procedures of the court that opposing counsel will have their advantage, and are meant to be used as a shield and sword to get what their client needs.
Another aspect to consider is whether the opposing party’s lawyer has more experience than you, or is an "expert" of sorts in your type of case. Again, this puts you at a considerable disadvantage, and you could find yourself unable to keep up with the proceedings and possibly not getting what you need . It may be the case that the severity of the issue warrants getting a lawyer, or even the life changing consequences of your case demands a lawyer’s assistance.
You may also want to think about hiring a lawyer when there is much at stake, such as: custody of your children, the loss of a job, loss of a large sum of money, your ability to drive, or just about anything related to criminal law. These are all big deals that could end up costing you a lot of time, money, and possibly your livelihood.
Many people that go up against lawyers or represent themselves in court misunderstand what it is that a lawyer does. A lawyer is not necessarily a hired gun to be unloaded on the other side (though some do act like Tom Cruise in A Few Good Men), instead, a lawyer is a guide, counselor, and advisor to walk you through a difficult process. Lawyers are used to dealing with the court, rules, and tons of information that a "lay person" might find confusing.