The Problems of Self-Representation

Some may dismiss this article as one of an attorney promoting attorneys. In a day when I was actively practicing those allegations would certainly gain merit. But that day is over. Today, I sit as an “observer” no longer in search of clients as a means of securing income.

On September 30 I was invited to testify before the Pennsylvania House on a divorce reform bill together with Susan Pearlstein from Philadelphia Legal Assistance. Susan reminded us that in Philadelphia County roughly 85% of the litigants appear without attorneys. We live in an age of  “Do It Yourself” and “Get Legal Advice on Line.”

Legal advice online is actually a good thing. Everyone benefits from educated consumers. But on-line advice is generic. It’s not tailored to your facts, your family or your experience. And whether it’s an allegation of domestic violence, a division of property or a dispute over how to divide time with your kids, these are vitally important issues.

Many folks navigating legal system dismiss the notion that they need a “mouthpiece.” They can look up the law and tell the court why they should prevail. They think because this is their personal journey they can navigate “better” than an expensive lawyer. For those of you tempted to try this, I offer a three-minute scene from the 2003 Peter Weir film “Master & Commander.”  It features a scene where the ship’s surgeon is tasked with extracting a bullet from his own abdomen. It’s not for the feint of heart. That’s what representing yourself can be like.

First and foremost, the courtroom fight you are about to unleash is not something you can view objectively. This is about two subjects quite dear to any sentient human; your children and/or your money. In that context, it’s tough to see the merit in what your spouse or former spouse is advocating. And, it’s tough to “read the room” in terms of understanding how judges view your matter, your spouse or the needs of your kids. You might be able to evaluate that if the controversy was about your neighbor’s custody rights or child support obligation. But, again, your case is about your kids and your money. This is self-surgery in another form. Litigants representing themselves are often too invested in their own beliefs and are quick to reject compromises.

There is another issue involved which is best termed “courtroom context.” Judges have all kinds of matters brought before them; some of which are thoroughly depressing. This can affect how they see your controversy. Let’s say you and your co-parent have intense disputes over drop off times, orthodontia needs, make-up time and whether the child should play football or soccer. But the case reported yesterday in Superior Court, Hurley v. Hurley is being heard while you await your proceeding in Fayette County to begin. In Hurley, a grandmother is seeking custody based on findings that her grandchildren are living with a parent who has no electricity and no running water. Their home is covered in animal feces. The Court intervenes on an emergent basis to rescue those kids. Then you step up and open your case with “Judge, she’s been 20 minutes late returning the kids for a month and my youngest does not need braces.”

The televised version of trials in America is built around a narrative in which one litigant wins and another loses. The American legal system of recent years has shifted hard against trials and towards mediated settlements. Moreover, family law matters rarely produce a raw win or loss. You may do well in a trial but in almost every custody and divorce case, the range of custody or property division toggles between 40% and 60%. In the custody world that means a difference of 73 days per year. The “loser” with a 40% custody allocation still has 146 days a year. An even split of custody is a pickup of 40 days a year. Judges commonly ask litigants what they would do if they had custody those additional days. The typical answer is that “More time with me is less time with the other (i.e., inferior) parent.” In nine cases out of ten, that explanation does not float.

The flip side of this problem lands in the lap of the lawyer who is litigating against the self-represented party. You are engaged in conflict with a person who cannot see the limits of his or her case. That litigant has no idea what the trial judge is expecting and no familiarity with the nuances of procedural and evidentiary rules. The self-represented litigant is kind of like the baseball fan invited to play cricket; the football fan dropped off at the rugby match. The lawyer’s problem is that the judge knows what needs to occur as does the lawyer. But the self-represented litigant has no idea how to proceed. And the judge knows that he/she needs to follow the rules of procedure and evidence but wants the trial to appear “fair.” The trouble is that while the result may be fair, the trial can’t be in a world where one side has three years of legal training, and the other side has none. The challenge is that it this disadvantage is often turned against the side with the lawyer. Valid objections are often overruled because the judge needs to move the case along. Judges often end up assisting with questioning for the same reason. The trained advocate often gets the signal from the judge that he or she needs to “go light” in cross examination lest the hearing look lop-sided.

We like to talk of judicial proceedings as a search for the truth. Certainly, truth is a central element of any judicial proceeding but family law is not a place where truth should be an end in itself. Rather, people who have been married and/or had children together need to find a way forward that allows their kids to grow in an environment where conflict is minimized. While adults in America seem to like litigation, their minor children aren’t so certain.

There are times when litigation is the only course. But, especially in a custody world, it is a course to be taken as a last resort and one where you need to have the advice of a person trained to litigate to help you regulate your own conduct and help you with case context.

Nota Bene: We posted this before noon on October 16. In the afternoon, the Superior Court posted a non-precedential ruling in Williams v. Williams. This is a textbook example of the challenges people face when representing themselves. Mr. Williams holds a relatively prominent position in the community. He chose to represent himself on appeal and the appellate court calls him out for not complying with the appellate rules concerning how to prepare an appellate brief. Ironically, we also see that the appellate courts ignore their own standards when allowing an appeal to be considered on the merits where they have found the standards for the brief were not met. Again, even appellate courts give non conformity the benefit of the doubt when a party self-represents.