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Most of us have a “movie version” of a courtroom we dream up when the topic of lawsuits is introduced. We’ve all watched Law and Order – the lawyers put together their complicated briefs, deliver rousing statements to the jury, and get witnesses and criminals to admit to the truth, sometimes under cross examination. On an hour-long TV drama, it’s all very exciting. However, in real life, that hour of TV drama is backed by weeks, months, or even years of hard work.
Of course, all that work can be very expensive. With some areas of the law, clients pay attorneys by the hour, and the bills cam add up fast. Hourly fees can range into the hundreds of dollars and preparing a lawsuit takes months.
If you’re short on cash, what are your options? Can you do it without an attorney? If not, how can you afford it?
The good news is that personal injury attorneys, in recognition of the fact that their clients are going through hard times, charge fees only when they win. This type of arrangement is called a “contingent fee” arrangement, and usually means that a victorious law firm will take ⅓ of damages collected from the insurance company as payment for their services.
However, some who have suffered an injury, unaware that they can hire an attorney on a contingent basis, may decide to “go it alone,” and represent themselves.
This usually isn’t a good idea.
Pro Se Lawsuits
Of course, you can technically file a lawsuit without the help of an attorney. You’re not required to have legal representation. When you represent yourself in court, it’s called a “pro se” filing. Ohio Courts even maintain a Pro SE Handbook available for litigants who choose to represent themselves.
Just because it’s possible, however, doesn’t mean it’s a good idea.
Lawyers go to school for an extra 3 years on top of their undergraduate degrees to earn their law degrees. That’s because the law is a complicated thing. The issues involved in a lawsuit go far beyond the simple facts of the case. They include the proper jurisdiction in which to bring the suit, what evidence is allowed and what it means, and how to handle the actions of your opponent. Lawsuits typically involve numerous motions, which are actions designed to tease out information, dismiss cases, or extend deadlines.
A procedural mistake in any of those areas can jeopardize your entire case. The thing to remember here is that you don’t just file a case and then you’re done. Representing yourself successfully involves multiple filings and mountains of work. Any slip on the details and your case if in trouble.
Do you know where to file?
Personal injury lawsuits can be particularly complicated. If you’re bringing a lawsuit, you’ll need to figure out where to bring the lawsuit.
Should you file the case in state court in your home state, the state court where the defendant is incorporated, the state court where the injury occurred, or federal court?
File your suit in the wrong place and you’ve wasted a lot of time and money in travel and court fees. Jurisdiction is tough – even experienced attorneys get it wrong. The law isn’t always well settled and an argument over proper jurisdiction can go either way.
Of course, the laws differ in each jurisdiction.
You may have a claim under the state law of Ohio but not under the state law of Indiana. That means the jurisdiction in which your case belongs is really important – it can make the difference between winning and not having a claim at all.
Identifying legal arguments
Jurisdictional issues may depend on the legal arguments involved in your case. The law determines whether you have the right to file a claim at all, so you’ll need to work out what law applies.
Then, you’ll need to actually go about litigating your case.
That means filing a brief with the court about the relevant issues of law and fact. You can likely find the correct formats for those documents on the internet, but getting the content right is tough. Attorneys have access to huge databases of legal research to use in their arguments, but if you decide to go without an attorney, you’ll be limited to whatever you can find online. This puts the pro se filer at a major disadvantage vs. an experienced law firm.
Lawsuits are complex
A lawsuit may be simply a question of facts. If A did, in fact, murder B, then that’s obviously a crime. Unfortunately for the pro se filer, that’s rarely the case. Lawsuits are usually a mixed-up bundle of factual and legal issues. You’ll need to prove the facts of the case – what actually happened. Then you’ll need to prove that those facts are a violation of the law. That means you’ll need to dig into legal theories to work out what the law means.
In personal injury cases, you’ll typically have to prove that the defendant had a duty of care, that the defendant breached that duty, and that the breach caused your injuries.
So, you’ll need black letter law (the laws on the books) and case law (the law interpreted by judges in other cases, also called “precedent”) to prove that the defendant had a duty to you. Then you’ll need more black letter law and legal precedent to show that the defendant’s actions were a breach of that duty. Then you’ll need still more to show the link between the breach and your injuries. There is a whole body of law on issues of causation, so you’ll have to work out what the relevant legal standard is and how to apply it in your case.
Procedural issues can sink pro se cases
Finally, you’ll need to be able to manage procedural issues. That includes what forms to file, what they should include, and where and when to file them. It also includes dealing with motions made by the other side.
They may file a motion to dismiss your case for any number of reasons. You’ll need to file an answer to show that your case should not, in fact, be dismissed. They may file motions to delay proceedings or to move them to another jurisdiction. You’ll have to field all of those motions to keep your case where you want it and to prevent it from being dismissed.
You’ll also have to manage the discovery process. That’s when you and the other side gather your evidence. Both sides must share requested evidence with each other, subject to certain rules and procedures. You’ll need to work out what to request and how to request it. Then you’ll need to dig through it to determine how it affects your case.
A Complicated Issue
At every stage in a lawsuit, you may be faced with more procedural and legal issues. You’ll have to juggle the Federal Rules of Civil Procedure in addition to your court’s local rules. You’ll have to work out the proper jurisdiction and the laws that apply under it, then how those laws apply to your case.
If you call up an expert witness, the other side may file a procedural objection. You’ll have to fight it to get your expert witness onto the stand. You’ll also have to fight objections to get the rest of your evidence admitted. If you go to trial, you’ll have to prepare a whole new set of briefs and arguments in the proper format. You’ll have to manage jury selection. You’ll have to deliver your own arguments to the court. Most courts offer some resources to pro se filers in the form of guides to forms to fill out and procedures to follow, but they’re no substitute for multiple years of law school and courtroom experience.
This is all for a simple, straightforward lawsuit. If you want to appeal or if your suit may be part of an MDL, you’ll have a whole new raft of issues to deal with.
Worst of all, your opponent will almost definitely have a trained attorney. That attorney knows that you don’t know the ins and outs of the legal system and will throw every possible objection at you in an attempt to wear you down and force you to settle early. They have legal teams to back them up every step of the way and are likely to take advantage of you.
Essentially, the issue is that filing pro se doesn’t mean you don’t need an attorney. It means you have to become your own attorney. You have to follow all the same rules and handle the case in all the same ways an attorney would. You won’t get any special treatment from the court.
Economics don’t justify filing pro se
All of this information likely seems disheartening. If it’s so expensive to hire an attorney and so difficult to manage a lawsuit, what are your options?
The good news is that the legal system recognizes that hourly attorney’s fees put legal help out of the reach of many people. So, law firms often handle personal injury cases on a “contingent fee” basis. A contingent fee is usually a percentage of the final amount won in the lawsuit. If you don’t win anything, you don’t pay anything. If you do win, the lawyer or firm takes its percentage from those winnings. That allows you to file a lawsuit without ever having to pay an attorney out-of-pocket.
If you’re considering filing a personal injury lawsuit, contact us today for a free consultation and case evaluation. We handle all personal injury claims on a contingent fee basis, so we never get paid unless you do.