Is self-representing in court a bad idea?

SDStaff Bricker replies:

It’s a bad idea.

Just how bad is debatable, since there are many branches of our judicial system, and while all seek equal justice, some manage it more equally than others. The consensus among judges, lawyers, and court staff is that acting as your own lawyer is unwise when the stakes are high. In criminal cases, a lone study partially refutes that view, but it may not be reliable, as we’ll see.

A client who appears on his own behalf, rather than being represented by a lawyer, is called a “pro se” litigant, from the Latin meaning “absolutely crazy” (or possibly “for oneself”; I was absent that day in Latin class). The performance of pro se defendants in high-profile cases has not been impressive: Colin Ferguson, the Long Island Rail Road shooter, rejected his lawyers’ advice of mental illness defense and insisted on defending himself. Ferguson’s defense theory, despite the abundance of witnesses and physical evidence against him, was that someone else did it.

John Mohammad, one of the northern Virginia snipers, demanded the right to represent himself at his trial, and did so for two days before requesting his lawyers back. Those two days were filled with delays while Mohammad asked things like, “What is hearsay?” and “What is a leading question?”

The vast majority of pro se litigants appear in civil rather than criminal cases, including divorce and other family law cases, civil tort and contract claims, landlord/tenant disputes, and traffic cases involving violations rather than criminal sanctions. One Utah study from 2006 found nearly half of all divorce petitioners and more than three-quarters of divorce respondents were unrepresented.

In less important matters acting as your own lawyer probably does little harm and may even promote the cause of justice. For example, Cook County, Illinois, has a Pro Se Court specifically for unrepresented folk seeking to recover less than $1,500, an amount ordinarily too small to warrant a lawyer’s fee.

But pro se defendants also create a lot of problems for both themselves and for the courts. Issues identified by the Utah study include failure to understand rules of evidence, inability or unwillingness to follow court rules and accept rulings, and expectations that judges and court staff would provide legal advice (they won’t).

The study also found only a third of civil pro se litigants identified inability to pay for a lawyer as their reason for choosing to proceed without one. Forty percent felt their cases weren’t complex enough to require a lawyer — an unfounded view, in the opinion of most lawyers.

A 2004 New Hampshire study on self-represented litigants put it this way: “There is no doubt that pro se litigants make mistakes that result in the loss of their own important legal rights. Their need for guidance and their inexperience with the rules and formalities of the justice system inevitably slows down the operation of the courts, jeopardizing the rights of others who expect efficient resolution of their cases.”

The U.S. Supreme Court, while upholding the right to self-representation, nonetheless observed: “It is undeniable that in most criminal prosecutions defendants could better defend with counsel’s guidance than by their own unskilled efforts.”

However, in a concurring opinion, Justice Stephen Breyer admitted: “I have found no empirical research … that might help determine whether, in general, the right to represent oneself furthers, or inhibits, the Constitution’s basic guarantee of fairness.”

At least one study suggests the prospects for pro se defendants in felony cases aren’t uniformly bad. Erica Hashimoto, an assistant professor of law at the University of Georgia, published a study in the North Carolina Law Review looking at state and federal court pro se criminal cases. Of 23 pro se defendants, five — 22 percent — were acquitted of all charges.

During the same time period, in the same courtrooms, 2,501 represented defendants were tried, and the same fraction, 22 percent, was acquitted of all charges. In other words, the amateur lawyers had done just as well as the pros.

That might have been luck. In federal court pro se litigants didn’t do nearly as well — just 7 percent were acquitted, compared with 16 percent of represented defendants.

Hashimoto concedes some possible problems with the data — among other things, the strength of the evidence in the individual cases wasn’t weighed, and it may be that defendants represented themselves chiefly when the case against them was weak. Nonetheless, she concludes, the study “calls into question our assumption that it’s necessarily a bad idea for a defendant to represent himself or herself.”

Even granting that conclusion, you have to ask why anyone would choose to defend themselves when the best case scenario is that they might do as well as a lawyer while in the worst case they could needlessly wind up in the slammer.

Hashimoto wondered the same thing. She determined that eighty percent of federal pro se defendants weren’t required to undergo psychological competency testing, which she took to mean most weren’t lunatics. She acknowledged, however, that the goal wasn’t necessarily acquittal; for example, some of the defendants in federal cases were accused tax evaders looking for a soapbox.

Others aren’t so quick to dismiss the nut factor. In a study for the Journal of the American Academy of Psychiatry and the Law, researchers studying 49 criminal pro se defendants found only four were ideologically motivated, sixteen were “eccentric,” and the balance had other, presumably saner reasons.

Bottom line? Except in small-claims cases, choosing to defend yourself appears to present little or no upside and significant downside. Unless you’re trying to make a statement, my advice is to hire a lawyer.

SDStaff Bricker

Send questions to Cecil via cecil@straightdope.com.

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