There are several reasons why people represent themselves without a lawyer:
- In criminal cases, if you cannot afford a lawyer, the court will appoint a lawyer for you, like a public defender. But in civil cases, you do not have the right to a court-appointed lawyer so, if you cannot afford your own lawyer, you have to represent yourself.
- Some people choose to represent themselves even if they could pay a lawyer because they feel they can handle the case on their own.
- In small claims cases, you are not allowed to have a lawyer, so everyone in small claims court is representing himself or herself.
Whatever the reason, you have the right to represent yourself, to be your own lawyer in all cases in California. But just because you can represent yourself does not mean you should. It is very important that you learn about what is at stake in your case, and what you will be expected to do and know in order to handle it on your own.
What to consider when deciding if you need a lawyer
It is a good idea to have a lawyer to represent you. But, as we just explained, it is not always necessary or possible.
You may need a lawyer if…
- You have a complicated case or a case that may become complicated (but keep in mind you may not always realize a case is or could be complicated without talking to a lawyer).
- You want legal advice.
- You want to discuss strategies for your case, like where to file your lawsuit, whether to file a response, whether to ask for a jury, and many other decisions that will come up during the case.
- You want a confidential attorney-client relationship.
- You are worried that the other side will not “play fair” (a lawyer is more likely to notice this and know what to do).
- You are going to have a jury trial, and there are complicated decisions to make, from choosing a jury to knowing how to present a case to a jury most effectively.
- You are too close emotionally to the case and have a hard time seeing things objectively.
You may not need a lawyer if…
- Your case is straightforward and there is no opposing side (like in a petition to change your name) or the other side and you are in agreement about everything (like an uncontested stepparent adoption or a guardianship of a child where everyone agrees).
- You understand all your options and can make informed choices about your case.
- You are willing to learn and understand the law and the rules and procedures that apply to our case.
- You can spend time to prepare your case.
- You can follow written instructions and work on your own.
Tips for representing yourself
Here are some basic steps you can take to make sure you are prepared to represent yourself in court:
- Read about the law that applies to your case. Do research at the local public law library and ask for help at your court’s self-help center, family law facilitator, or small claims legal advisor. If you can, have a consultation with a lawyer to make sure you are on the right track.
- Look at the options that would solve your problem without having to go to court. For example, you can try alternative dispute resolution (ADR) like mediation or arbitration.
- Make sure you follow the court procedures. To do this, you must read the laws that affect your case in:
- California Code of Civil Procedure
- California Rules of Court
- Your superior court local rules (you can also find these rules at your law library or your court’s website)
Not being a lawyer and not knowing the law is not an excuse for not following court procedures.
- Keep track of all deadlines — especially deadlines for filing papers and serving the other side. If you miss these deadlines, you may lose your case.
- Go to the courtroom where your hearing will be and watch some cases. You can learn:
- Where the parties sit;
- How to explain your case to the judge; and
- How much time each side has to talk.
- Be prepared for your court hearing. Have copies of:
- All the papers you filed;
- All the papers the other side served you with; and
- Anything you have not served on the other side but want to use in court. If you have exhibits (like photos or letters you want to show the court), you must mark each one with a label (Exhibit 1, etc.) and make sure they are organized.
- Act professionally in court. Explain your side briefly and clearly. Do not talk about issues that do not support your case.
- Be realistic about what the judge can and cannot do. Make sure you understand what legal relief you can get in your case and focus on that.
- Show respect for the judge, the court clerks, and other people in the courtroom. Do not interrupt the judge or the other side. Do not make personal attacks against the other side.
Risks of representing yourself
- The biggest risk is that you lose your case because (1) you are unable to follow all the required procedures to bring your case to trial so your case is dismissed, or (2) once you get to trial, you cannot meet all the technical requirements to prove your case.
- If you lose your case, the judge will likely order you to pay for the other side’s court costs and attorney’s fees, which can be a lot of money. Sometimes the costs of suing are more than the amount sued for.
- If you lose and you are ordered to pay the other side’s costs, you will get a judgment entered against you. This means that instead of winning money or some form of relief, you now owe the other side money.
- A judgment is valid for 10 years and can be renewed for another 10 years as many times as is necessary until the judgment is paid. It can result in a garnishment of your wages, a levy of your bank accounts, property liens, and other collection methods.
In order to assess whether or not to sue, you should consult with a lawyer.
- Malpractice cases: If you are suing for medical malpractice, or some other type of professional negligence, the law says you need to prove that (1) the doctor or other professional breached (broke) the duty of care owed to you and (2) you suffered damages as a direct and proximate cause of the breach. These legal requirements are very hard to prove, and you will need expert witnesses to do it. First, expert witness fees are very expensive. If you have a lawyer representing you on a “contingency” basis (meaning the lawyer only gets paid if you win), the lawyer will usually hire and pay for the expert witness upfront, so you will not have to reimburse the lawyer until the case is over. If you are representing yourself and do not have a lawyer to advance these costs, you may not be able to afford the experts you need to prove your case. Also, getting an expert witness and establishing to the court that he or she is an expert can also be very complicated and should be handled by a trained and experienced lawyer.
- Construction defect cases: Construction defect cases often depend on expert witnesses to prove or disprove the allegations of the complaint. This may not be true of a small case in which the property owner hired a handyman or contractor to perform a single job on the property and 1 person performed all the work. For example, if you hired a roofing contractor to install a new roof, and the new roof leaked, you may be able to sue the roofing contractor without a lawyer or expert witnesses because you may be able to prove on your own that (1) you hired the contractor to install a new roof, (2) you paid the contractor, (3) the roof leaked, and (4) the leaks caused damage.But if you had several people working on your house (like an architect, a structural engineer, and a general contractor who, in turn, hired subcontractors and purchased supplies from different suppliers), proving who is at fault when something goes wrong becomes very difficult, and you would probably need an expert witnesses to determine fault and explain it to the court.
Also, while construction experts are usually not as expensive as medical experts, they can still cost a lot, especially if you need many experts in different specialties. Expert costs for these types of cases can run in the tens of thousands of dollars.
Some lawyers will take construction defect cases on a contingency basis, but most charge by the hour. You may be able to hire a lawyer on a limited-scope basis to help you with certain parts of the case, while you handle other parts on your own.
- Cases involving competing title to real estate: Real estate cases that allege someone committed fraud, like cases in which there is competing title to real property, are usually too complicated for a person without a lot of legal training and experience. Also, even if you win, if you make a mistake in writing up the final order (in civil cases, the court generally does not prepare orders, it is up to the parties to do it), the title insurance company may not insure title, in effect preventing you, as the property owner, from selling or refinancing.
- Cases involving wrongful termination or employment discrimination claims: If you are suing your employer for employment discrimination or wrongful termination, you most likely will need a lawyer. Proving these cases is complicated and the employer’s lawyers usually fight these cases vigorously. To win this type of case, you must have a lawyer skilled in direct and cross-examination of witnesses and the rules of evidence.
- Administrative writs and appeals: Cases appealing a final decision by an administrative agency or hearing officer are extremely complicated and limited in the type of review the court can make. A lawyer can tell you if you have a sufficient basis in the record for an appeal and discuss other options with you.
- Other types of cases: There are other types of cases that are difficult or impossible for non-lawyers to win because the law or procedure is extremely complex or because the cost of bringing the case to trial is high.
It is always best to consult with a lawyer before filing a lawsuit to make sure that the case is one you can bring with some chance of success. Most local bar associations have lawyer referral and information services that can provide you with a limited consultation with a lawyer for a small fee. You can also get some information from your court’s self-help center.
from California Courts