The Man Who Represents Himself Has a Fool For a Client

58 Responses

  1. CJK Fossman says:

    Damright!

  2. Jim Salter says:

    Directing your own defense is one thing; managing it is entirely another…

  3. Quiet Lurcker says:

    @Clark

    For those who feel up to the challenge, how about hiring a lawyer without hiring a lawyer.

    Perhaps someone who's familiar with the technical and procedural minutiae, perhaps even with case law and similar, who can sidewalk supervise, guiding the pro se litigant into recognizing and dealing with deadlines, maybe adding relevant case law.

    But it's the pro se litigant who does most of the work.

    I've heard a position like described as a 'legal coach'.

  4. Rhonda Lea Kirk Fries says:

    I watched a lawyer–he was suing me, so I had no choice–bungle his very own case (and soundly humiliate himself) because he lacked the ability to be dispassionate about his self-interest. If a trained legal professional with more than 20 years of experience can't manage to adequately represent himself, then even an above-average layman hasn't a prayer of doing so.

    But "especially the good guys"? Not exactly. Pro se litigants place an unfair burden on the system (as evidenced by your example and my experience mentioned above, among many others) in their failure to get it right. They exasperate (and occasionally incite fear) in their adversaries (because their lack of detachment leads them into all kinds of foolishness), and they waste everyone's time with silly (and sometimes fatal) missteps and extraneous meshugas.

    So…what you said: Get a lawyer. Good guy, bad guy, any guy. Just STFU and get a damn lawyer.

  5. Rhonda Lea Kirk Fries says:

    @Quiet Lurcker

    Only if the so-called legal coach has the authority to prescribe tranquilizers and leave to tie the pro-se litigant to a chair until reason reasserts itself.

    On second thought, no, not even then.

  6. Clark says:

    @Rhonda Lea Kirk Fries

    Pro se litigants place an unfair burden on the system

    As an anarchist who denies the moral legitimacy of the "the system" (i.e. the government monopoly on courts and police power), I don't give a hoot about "the system" and reject the concept of an "unfair burden" (if the government wants to regulate me half to death, ensure that I commit three "felonies" a day, and confiscate 1/3 or more of my income, its agents can damned well twiddle their thumbs if I choose to represent myself and waste ten minutes in some procedural dead end.

    …but, yes, we're soundly agreed on tactics.

  7. Pedant says:

    "the law is a 2,000+ year old institution"

    As the Code of Hammurabi dates from ~1750 BC, this is a massive understatement. And I'm certain that this is merely the oldest Code that has come down to us.

  8. Griff says:

    @Clark, I have a certain amount of sympathy with your feelings about "the system," but the practical upshot of the "unfair burden" that can be caused (in part) by pro se litigation is that courts get overloaded and you wind up sitting in jail for eighteen months waiting for the transcript of your trial to be prepared before the appellate court will even hear your case, or it takes three years before you're finished with your divorce case.

  9. Virgil says:

    Aha, so that's where the term 27b/6 comes from. One of my favorite trolls…
    http://www.27bslash6.com/

  10. Quiet Lurcker says:

    @Rhonda Lea –

    I take it you, uhm, dislike the idea.

    Please tell me why?

  11. Ken White says:

    Some people get very angry at this point. They think the law ought to be so simple that anybody can navigate it. Often these seem to be the same people who think that Constitutional law is bogus because everything can be resolved by reading nothing but the plain language of the Constitution.

    Life is very complicated. People are very complicated. Unless a system is purely autocratic, or gives unbridled discretion to the judge, a system designed to adjudicate disputes amongst people is going to be complicated. Many complications are designed to prevent ambushes and surprises and guarantee rights.

    Add to that the point that advocacy is a skill. Some people think that it isn't. They generally are very poor advocates.

  12. Clark says:

    @Ken White

    Some people get very angry at this point. They think the law ought to be so simple that anybody can navigate it. Often these seem to be the same people who think that Constitutional law is bogus because everything can be resolved by reading nothing but the plain language of the Constitution.

    I used to be one of these people.

    Twenty years of interactions with complex systems has cured me of that.

    I dislike the fact that even simple concepts lead to an exploding number of complications, but that's a property of the universe we live in, not of any one defective legal code.

    Add to that the point that advocacy is a skill. Some people think that it isn't. They generally are very poor advocates.

    My laughter at this point is tempered by anger. Which in turn is tempered by rueful acknowledgement. As one Looney Tune character said to another "I resemble that remark!".

  13. N. Easton says:

    I'm actually offended that it is even possible to be charged with recording the statements and actions of a public employee. In addition to being an ugly conviction, that is a bad and stupid law.

    I didn't see a link that provided this information; what exactly was he recording?

  14. Clark says:

    @Quiet Lurcker

    For those who feel up to the challenge, how about hiring a lawyer without hiring a lawyer.

    If you hang around with welders, auto mechanics, etc. you will see, in short order, an oily sign hanging on a wall:

    labor: $50/hour
    if you watch: $75/hour
    if you help: $100/hour
    if you worked on it first: $150/hour

    I'm sure you can find a lawyer who will agree to coach you and oversee you. Heck, you can find all sorts of deviant services for offer in backpage.com. Or so I hear.

  15. ShelbyC says:

    "Some people get very angry at this point. They think the law ought to be so simple that anybody can navigate it."

    It certainly ought to be a goal of the justice system, among other goals, to reduce the complexity to a point where fewer people have to rely on expensive help to navigate the system.

  16. Anonsters says:

    IAAULWHL.*

    First, if you intensely read as you say, for about a decade, you probably do, in fact, know a hell of a lot more about law than a 1L. Or a 2L. Or maybe a 3L. At least in the areas that interest you, for certain, although from what I've seen law schoolers learn just enough substantive law, and retain it just long enough, to pass an exam, and then it's gone (to be refreshed in incredibly dumbed-down, simplified form for a bar exam, perhaps).

    Law school is entirely about driving home—over, and over, and over, and over, in the guise of various substantive areas, but the substance is never really the real point—that law is a process, a process, a process.

    You begin CivPro as a 1L convinced it's going to be the most boring, worthless class ever. You finish CivPro convinced that damn, that stuff's pretty important. Then by the time you finish 3L you're convinced that it was probably the most important law school class you ever took and damn, you really wish you had paid more attention.

    [*I Am An Unemployed Lawyer Who Hates Law.]

  17. Clark says:

    @Anonsters

    I Am An Unemployed Lawyer Who Hates Law

    Everyone who knew me for my first 20 years told me I should be a lawyer. I even aced the LSATs.

    At some point, though, I realized that the actual practice of law was nothing but huge bowls of bullshit, and decided not to even apply to law schools.

    I've made huge numbers of stupid mistakes in my life, but at least I made one good choice.

  18. Anonsters says:

    @Clark:

    At some point, though, I realized that the actual practice of law was nothing but huge bowls of bullshit, and decided not to even apply to law schools. I've made huge numbers of stupid mistakes in my life, but at least I made one good choice.

    I sincerely wish—every day of my life—that I had realized that before about halfway through my 2L year. Now I'm one of those long-term unemployed, only with such stacked debt that I've already accepted that no matter what I do I'll never pay it off.

    Why, oh why didn't I go to graduate school?

  19. Rhonda Lea Kirk Fries says:

    As an anarchist who denies the moral legitimacy of the "the system"…

    I don't care about the moral legitimacy of "the system," Clark. I care about the many worthy litigants who are forced to wait for resolution because lunatics are running the asylum.

    In other words, what Griff said. (I failed to read through the comments before I scrolled down to respond.)

  20. Xenocles says:

    "They think the law ought to be so simple that anybody can navigate it."

    Well, why not? I will be held accountable to the law regardless of my understanding of it. Morally speaking it seems like it ought to be simple enough to understand.

    Maybe you're only talking about the courtroom here, in which case I can agree a little but still – to lose such important fights because you didn't have an expensive consultant there to tell you that you have to wear blue socks today because it's Tuesday seems monstrously unfair. The old joke goes that you pay the expert to know which switch to flip, but to the layman it seems like there are – by design – more switches than are necessary.

    That said, this is the system we have and I won't deny the importance of a skilled advocate to help navigate it.

  21. Chris says:

    The government's reply brief in the Lavabit appeal provides another example of why you shouldn't represent yourself. Levison was smart enough to bring a lawyer for some of the hearings before the district court, but not others. Now the government is arguing that many of the arguments Lavabit is making on appeal were not preserved by making them in the court below and many of the facts they are arguing from were not put in the record before the district court.

  22. Pedant says:

    "so simple …"

    Like the Lord Chancellor in "Iolanthe":
    The Law is the true embodiment
    Of everything that's excellent.
    It has no kind of fault or flaw,
    And I, my Lords, embody the Law.

    — W.S. Gilbert

  23. Frankz says:

    The Man Who Represents Himself Has a Fool For a Client…..and an idiot for an attorney.

  24. Elf says:

    @Rhonda: Persons accused of crimes should avail themselves of the constitutionally-available lawyers when/if they can't afford one. (And Freeman is an idiot for not doing so; even a barely-competent public defender who's only putting in time until he can get hired somewhere else is aware of the endless tightly-scheduled process of law, in ways that a layman usually isn't.) I gather that there are exceptions: many prison residents make the study of law their hobby, and may wind up with enough competence to represent themselves, or at least, know the legal nuances specific to their exact situation. But someone who hasn't spent years researching the law should use a lawyer.

    Persons accused of torts are required to pay for their own lawyers; they have a choice: place a burden on "the system" or themselves, and deal with the possible fallout of losing their case.

    Winning a civil case and winding up $50,000 in debt to a lawyer may not be the best choice. The key problem isn't whether the accused is "unfairly" burdening other people–that's how the system works; the plaintiff is the one who started the ball rolling, so if any blame is assigned for the delays and other problems, it should be placed there–but that the defendant, ignorant of the law, doesn't have a way to evaluate whether hiring a lawyer is more likely to wind up (a) winning with costs covered, or (b) winning with costs not covered, or (c) losing the $30,000 case (with a potential extra $50,000 owed to the lawyer), or (d) losing the case for $150,000 (with a potential extra $50,000 for the lawyer).

    He has no way to tell if option B or C is more likely to happen, nor whether a lawyer would shift a likely C result to an A.

    I am sympathetic to people who, when caught in a hard spot and required to make decisions that may affect the rest of their lives, decide to rely on their own skills rather than the unknown abilities of an expensive stranger.

    That sympathy doesn't mean I don't think they're fools, though. I can respect someone's right to make a public fool of himself without thinking he made the right decision.

  25. NI says:

    Yes, the law should be so simple that anyone who can read at sixth grade level can understand it. Yes, it shouldn't be illegal to record public officials. But what should be, and what is, are two different things.

    A lawyer is like a weatherman telling you a hurricane is headed your way. That doesn't mean he wants the hurricane to come or that he thinks hurricanes are a good idea or fair. It means that like it or not, a hurricane is coming, and if you're smart, you'll plan accordingly.

    Pro se litigants (in some cases, even pro se litigants with law degrees) are like people who turn on the evening news, see that a hurricane is coming, go outside, look into the sky, don't see anything, tell themselves that if a hurricane were coming they'd be able to see it for themselves, ignore the weather report, and go to bed. Later that night when the roof gets blown off their house with them in it, they have no one to blame but themselves.

  26. Clark says:

    @Rhonda Lea Kirk Fries

    As an anarchist who denies the moral legitimacy of the "the system"…

    I don't care about the moral legitimacy of "the system," Clark. I care about the many worthy litigants who are forced to wait for resolution because lunatics are running the asylum.

    The government has money to fund Cowboy Poetry festivals, armed SWAT raids on guitar manufacturers to enforce what foreign nations consider incorrect interpretations of their laws, etc.

    The gov is effectively unconstrained as to the resources it spends, for better or for worse.

    In this situation of being unconstrained, the government puts as much resources into making the courts operate smoothly as it cares to.

    To say that because the government creates "crimes" and then underfunds the courts relative to the number of dockets these courts process, therefore one is morally obligated to deal with the courts as expeditiously as possible is not – to put it mildly – something I agree with.

  27. Chris says:

    Persons accused of torts are required to pay for their own lawyers; they have a choice: place a burden on "the system" or themselves, and deal with the possible fallout of losing their case . . . The key problem isn't whether the accused is "unfairly" burdening other people–that's how the system works; the plaintiff is the one who started the ball rolling, so if any blame is assigned for the delays and other problems, it should be placed there

    You seem to be assuming that the only people who end up pro se in civil courts are defendants. Quite a few pro se litigants are plaintiffs.

  28. Rhonda Lea Kirk Fries says:

    @Quiet Lurcker,

    Even with a coach, putting aside one's self-interest to serve one's interest is not within the grasp of most (if any).

    Let me give you an example. I was a legal assistant for 25 years (aside to Clark–all the lawyers I ever worked for encouraged me to go to law school, so I think it's less a recognition of one's talent than a sadistic desire to see someone else suffer). I know that clients–even sophisticated clients–do not often understand the law (and if they do understand the law, they still have trouble with procedure). Even after it is explained to them repeatedly.

    So I was sued. For a post I did not write. My name wasn't on it. My IP address wasn't on it. I didn't even reply to it, much less write it, because I never saw it until I was presented with the complaint. Again, I didn't write the post. And again. Rinse and repeat.

    To this day, I still grind my teeth at the idea my lawyer extricated me by way of Section 230 rather than because I DIDN'T WRITE THE &^@(#!* POST!!!!!!!

    See what I did there? (Just the fact that I'm still talking about it is a good indicator that I'll never get over it.)

    Even knowing better–because I do–representing myself, with or without a coach, would have been a disaster, because I simply wasn't capable of focusing on the law rather than on the fact.

    (And, as I mentioned, the lawyer who sued me represented himself. The entire debacle is in PACER–it's now in the appeals court, but I'm out on a stipulation of dismissal with prejudice, so I don't care–but the commentary that sums it up is on Eric Goldman's blog. You don't have to read it carefully to realize that someone's emotions ran away with him as he was drafting and strategizing.

    http://blog.ericgoldman.org/archives/2010/04/online_defamati.htm)

    And that's what people do. Always. Just like the numbnut up above who Clark used as his example. We all have this idea about truth, justice and fairness, and the legal system has very little to do with any of it. It's mined territory, and a good legal education is the map. But even with the map in hand, you're only safe with a guide who is not driven by his fear of being blown up all over the landscape. Not a guide who is coaching you from the safety of the boundary or walking behind you calling out encouragement as you go, but a guide who sticks you in the back seat of an armored vehicle and drives you to the other side of the maze.

  29. Elf says:

    @Clark:

    First the man demanded, then he pleaded. "But, Dr. Russell, we know your background. You've no excuse for not keeping proper records."

    "But I do," Dad told him. "Up here." He tapped his forehead.

    "The law requires written records."

    "Look again," Dad advised him. "The law can't even require a man to read and write. More coffee?"

    I have no sympathy for the courts, or voluntary participants therein, being caught by delays or problems caused by people who didn't volunteer for that participation; if there are not enough courts for the legal activity that's needed, as you say, the government is capable of funding more courts. It is not J.Q. Citizen's job to make life easy for those whose careers are caught up in the courthouse.

    It may be his job–or at least, his responsibility–to comply with the legal process, but he's not obligated to look out for the interests of the other people involved.

  30. Mr. A says:

    @Virgil

    Aha, so that's where the term 27b/6 comes from.

    27bstroke6 is the name of a form from Terry Gilliam's excellent movie, Brazil.

  31. George says:

    When one of my best friends was in law school, he advised me that if I ever needed a lawyer, I should be sure to (1) not only get one who is experienced in the area of law I needed, but (2) was familiar with the particular court involved.

    My ex-wife sold real estate. Local real estate agents amused themselves by swapping stories about an incompetent local attorney. In one real estate closing, he seriously screwed up rule (2), above.

    We live in Middlesex County. The attorney in question was once doing a closing in neighboring Worcester County. It turns out that the paperwork requirements of the Worcester court are different. The guy hemmed and hawed and shuffled papers for a while before admitting to everyone in the room (buy, seller, other attorneys, bank rep) that he couldn't finish it. They had to bring in a local Worcester attorney to finish the closing.

  32. db says:

    The problem, as I see it, with the argument that advocacy is a skill and that competent advocates are needed to navigate the waters of the legal system is not that it is false (it is true!) is this:

    The legal system has been created, in some cases intentionally, in (hopefully for the souls of its creators) some cases unintentionally, to be complex and to require professional assistance to navigate. Sometimes I feel that the entirety of the legal system is based on a massive entanglement of rent seeking and conflicts of interest.

  33. Clark says:

    27bstroke6 is the name of a form from Terry Gilliam's excellent movie, Brazil.

    Which, in turn, derives from the apartment that George Orwill lived in while he wrote 1984.

    Even my throw-away jokes have footnotes, which themselves have footnotes. ;-)

  34. Anonsters says:

    @Rhonda:

    We all have this idea about truth, justice and fairness, and the legal system has very little to do with any of it.

    This is a point that needs to be repeated—yea, verily, even ad nauseam—to people who don't routinely have contact with our legal system.

    Relatedly, it should also be noted that lawyers (or lawyers-to-be, anyway) appear to prefer it that way. We took a day or two in CivPro to glance at the European (non-Anglo) inquisitorial model of procedure (whereas ours is purportedly adversarial). The key difference being, of course, that the inquisitorial model explicitly includes considerations of such quaint notions as truth-seeking and justice-serving, whereas the adversarial sets aside such passé nonsense in favor of a battle of the arguments, let-reason-win approach (scoffers gonna scoff). Aside from the French students on exchange programs who were getting their JDs, most considered it self-evident that the adversarial model is vastly superior (somehow—it was never really made clear why other than fuck yeah, common law!).

  35. Rhonda Lea Kirk Fries says:

    To say that because the government creates "crimes" and then underfunds the courts relative to the number of dockets these courts process, therefore one is morally obligated to deal with the courts as expeditiously as possible is not – to put it mildly – something I agree with.

    I used to be an idealist just like you, Clark. In my heart of hearts, I still am one, but I'm also 55 years old, and experience tells me that all the idealism in the world will not fix the world or even a small part of it.

    I do the best I can with what the system allows, and I try very hard not to damage myself or anyone else thereby. If it's us against them (the government), or even if it's not, then we need to do our very best individually to see that we are not collectively screwed by our inability to make the path easier for ourselves and each other.

    It's fine to be an anarchist, but you still have to live and interact with a bazillion human beings and their varied points of view. If it's possible to smooth the way for another (without undue inconvenience to yourself, of course, although it doesn't hurt to put oneself out for others from time to time), the overall outcome is generally positive. The government seems unable to do that, but you, as a self-responsible individual, do have the power to make it so, so you might as well put it to good use.

  36. Anonsters says:

    @db:

    Sometimes I feel that the entirety of the legal system is based on a massive entanglement of rent seeking and conflicts of interest.

    Historical circumstances drive a lot of the complexity. I do think lawyers get a bad wrap (looking at, inter alia, you, Bleak House) for somehow plotting and scheming the legal system to be as arcane and forbidding as possible to the uninitiated.

    That said, though, the lawpeople do have a fierce, nigh-atavistic drive to protect their turd turf when enroachment encroachment is threatened (for example, by real estate people). [I had to leave those two typos in. Paging Dr. Freud, Dr. Freud to the white courtesy phone.]

  37. JTM says:

    Getting a lawyer is important. It's just as important to make sure your lawyer is experienced in the area of law that you're dealing with. You don't want a civil family law attorney defending you in your felony wiretapping trial. You don't want your criminal defense attorney handling your construction defect litigation. The law is specialized, your attorney probably should be too.

  38. En Passant says:

    Clark wrote:

    … If you ever come into contact with the law over anything more serious than a speeding ticket or a small claims lawsuit …

    Get a lawyer.

    Amen.

    I am a lawyer[1], and I would not represent myself unless I absolutely had to.

    For example, small claims courts typically don't allow individuals to be represented by lawyers. If I were a doctor, I wouldn't treat myself for most any injury or illness either, unless circumstance required it.

    In a comment Clark wrote

    … I don't give a hoot about "the system" and reject the concept of an "unfair burden" …

    I tend to agree, as long as the courts get sufficient resources to handle every case any citizen brings, and sufficient resources to enforce any order against the legislative or executive branches.

    A government at war with itself has much less time and resources for going to war against its own subjectscitizens.

    FN 1: Mostly did other unrelated lines of work; licensed when I was old enough to be yer pa; old and in the way; retired, not practicing; standing athwart history and yelling "stop!"[2]

    FN 2: And sometimes "You Kids Get Off My Lawn!"[3]

    FN 3: When I'm not throwing rocks at the Overton Window.

  39. JTM says:

    With regard to the increased costs of pro se litigants on "the system," keep in mind that the system isn't just the government, but everyone involved in the legal system, including other parties.

    When I've had to defend clients against pro se litigants, the litigation costs were through the roof, because we've had to fight over every single crazy, unnecessary step in the litigation. (No, you can't sue us for "trespass" because you allege we're scanning your thoughts with microwaves. No, you can't amend your complaint to put back in the trespass cause of action the judge just threw out. No, you can't have the judge removed for ruling against you. No, you still can't amend your complaint to put the trespass cause of action back in. No, you can't remove the case from California state court to Nevada traffic court. No, you can't amend your complaint with new Nevada-based mind-reading allegations to let you remove to Nevada traffic court. Somebody shoot me now…)

  40. Paul E. "Marbux" Merrell says:

    As one who litigated and won a major civil case pro se before attending law school [1] because I could not obtain legal representation, I recognize some exceptions to the otherwise sound advice of only appearing in court when represented by counsel, if you dedicate yourself to studying both the rules of procedure and substantive law in depth before filing, including:

    * In small claims court, which is designed for pro se litigants;

    * In administrative law cases where review is based only on the administrative record and you will not need to testify as a witness; and

    * In public records act and privacy act cases that do not require your live testimony.

    * A further exception is recognized by the courts: "[t]he Second Circuit, for example, perceives a basis for the pro se right in the need not to force a defendant to accept a lawyer in whom he has little confidence. Without such confidence, lawyer-client communication is likely to be unsatisfactory and 'defendant may be better off representing himself[.]" [2]

    But outside of small claims court, one should only consider self-representation with the understanding that *a lot* of judges view pro se non-attorney litigants as intruders — in a private club only for lawyers, judges, their assistants, and in some cases a jury — to be deterred by summary dismissal and award of costs to the represented party.

    I was lucky. I had a stunningly compelling set of facts and drew a judge who was open to doing something to remedy the situation even though I appeared pro se. And I managed to get the assistance of an envioronmental law professor who gave me some very sound advice about my approach to the case.

    But I view the fact that we have evolved an adversarial dispute resolution system that requires professional navigation as a horrendously serious usability bug for those of limited means, not a feature.

    Occasional instances of jury nullification despite court-enforced ignorance of that power [3], rules of procedure and evidence, court-appointed defenders, Legal Aid societies, occasional pro bono representations, contingent fee arrangements, alternative dispute resolution services, arbitration clauses, insurance, and the like do not begin to fill the gargantuan justice gap in America for those unable to afford high quality vindication of their rights in either the criminal or civil context by competent legal counsel.

    One need look no farther than the disparate outcomes for black and latino criminal defendants compared to those for the dominant white race to comprehend that our justice system is massively defective from the perspective of the values enshrined in our nation's Constitution and its Rule of Law.

    The truly sad part is that mine is not a controversial view, yet no adequate reform is on the horizon, even for the racial disparity. It's an issue that people of all political, philosophical, and religious stripes need to address in a serious quest for practical solutions.

    In aid of that goal, if anyone has nominations for a forum suitable for such discussions, I'm all ears.

    [1] SaveOurEcosystems/Merrell v. Clark, 747 F. 2d. 1240 (9th Cir. 1984) (upholding district court on the merits but expanding the scope of the injunction to halt the use of all herbicides by the U.S. Forest Service and Bureau of Land Management to the entirety of their programs; "widespread fraud in the tests performed by independent testing laboratories" used by manufacturers to obtain EPA pesticide registrations) (two cases consolidated on appeal), http://scholar.google.com/scholar_case?case=16051138759815857871&hl=en&as_sdt=3,38

    [2] E.g., United States v. Dougherty, 473 F. 2d. 1113, 1129 (D.C. Cir. 1972), http://scholar.google.com/scholar_case?case=12593049014369662351&hl=en&as_sdt=3,38 (vacating convictions because defendants were denied the right to appear pro se) (internal quotation marks omitted).

    [3] E.g., id., 473 F. 2d. 1131-1138 (declining to overturn district court's denial of a jury nullification instruction; "[i]n the last analysis, our rejection of the request for jury nullification doctrine is a recognition that [t]here are times when logic is not the only or even best guide to sound conduct of government"). I won't delve further into that topic in this post other than to observe that I fulfilled my 2L and 3L law school writing requirements delving into the history of the many state constitutions containing a provision allocating to the jury the *right* to decide both the facts and the law in both criminal and civil cases; the judiciary's current refusal (except in Maryland) to advise jurors of that right and branding it as only a jury power improperly exercised when used, properly viewed, is only one facet of the long-term trend of American judges wresting prior control of case decisions from juries in aid of outcomes more subject to influence by judges.

  41. db says:

    @Anonsters:

    I don't really believe that, in most cases, lawyers have specifically engineered the system to their benefit, but I bet there are such cases. What frustrates me is this: the Law is a human construct, ostensibly built to serve humans. Its very purpose is to reduce violence and to provide for peaceable methods of conflict resolution between aggrieved parties.

    As an engineer, I see a significant difference between the practice of law and that of engineering. Engineering deals with using an understanding of immutable physical laws to our advantage. Law deals with a similar concept except the laws are mutable (although much of law has ossified) and outcomes of legal disputes can turn on a clever argument. I have never successfully argued with Nature, only found ways around it.

    Further, as I wrote above (hopefully uncontroversially), I see the purpose of law to be reducing violent interactions and peaceful resoultion of conflict. What is harder to get agreement on, but what I see clearly, is that the law can easily be used to damage others without the obvious indications of phyisical violence. This violent application of law concerns me because I see it as being encouraged by the legal system's fetish of procedure over justice.

    I love it when I read things like Ken's coverage of the Prenda saga, because it shows that there are agents in the legal system who recognize this and are willing to do something about it. At the same time however, it appears these wins for justice are far from common, and based on anecdotal evidence, far less common than the abuses.

  42. As one who has been involved in a giant copyright and contract case, I have to agree with Clark 1000% here. The execution of the system is very complex and attempting to become a football player by reading up on the rules is beyond stupid.

    However, a client that is actively engaged and trying to understand the law can add an enormous amount of value to a lawyer. I'd spend hours and hours kicking ideas around with my attorney (Lance Venable, great guy) in our case versus Blizzard. Having a competent lawyer to filter all your own armchair lawyering is very valuable, provided you're not just being a pain in the ass.

    A lot of my research led to Lance's verbal delivery of the famous (to us) line before the 9th Circuit Court of Appeals: "the DMCA is not the Digital Millenium Contract Act". Three months after oral argument, that appeals panel absolutely destroyed the district court's ruling. They reversed the copyright ruling, severed me personally, and vacated a summary judgment order on tortious interference saying it should have gone before a jury.

    I never would have been able to compose that argument so eloquently, but Lance would not have been able to find the weak spots in the case without my seed ideas and questions.

    So my meta-lawyer advice is mostly the same as Clark's: get a goddamn attorney. But also, stay involved. It makes a big difference.

  43. Paul E. "Marbux" Merrell says:

    @ ShelbyC: "It certainly ought to be a goal of the justice system, among other goals, to reduce the complexity to a point where fewer people have to rely on expensive help to navigate the system."

    Federal Rules of Civil Procedure 1: "These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding."

    But Rule 1 is most commonly cited as the rule that allows judges the discretion to ignore many other rules, which includes in its practical effects: [i] rendering a lot of other rules superfluous except for the sage guidance that those who ignore the rules do so at their own risk; and [ii] a lot of time and fees wasted arguing over whether one of those other rules should be enforced, with an unpredictable result. So the obvious purpose of the rule gets frustrated by its interpretation.

    In reality, judges are pretty limited in their legal authority to hold down litigation expenses and in my experience rarely give a flying f–k what the expenses are; they're someone else's expenses.

  44. Doctor X says:

    It boggles the mind. Surgeons get other surgeons to do their surgery. However, I think part of it is the inability to see the expense as worth it–getting an attorney is expensive. Period. You are healthy, otherwise doing well, why should you have to spend $$$ on "these bastards!"

    Besides, I have a Reasonable Argument. The jury and judge are Reasonable People. Stop laughing!

    I just need to explain it to them.

    And now I have to spend $$$$$$ to correct the F-up I just made of my life, if it is even possible to correct such F-up.

    E-R-E-I-A-M-J-H

  45. Shane says:

    @Rhonda Lea Kirk Fries

    Nobody really says that they like what you said, but sometimes they do. The example you gave, did it for me. Point taken, integrated, understood and never lost.

    Your lawyer saved you tons of pain, even if he ignored or out right denied the facts.

  46. Rhonda Lea Kirk Fries says:

    @Shane,

    FTR, I have a great lawyer, and I've been lucky to call him friend for more than 25 years. (That doesn't mean I received free legal services, nor did I expect them. No one–not even a lawyer–should be expected to work for free.) He knew I didn't write the libelous post, but his overriding goal was to get me out of a POS lawsuit with as little damage as possible.

    And this is what good lawyers do–save their clients time and money, so that expensive damage control is not required in the aftermath. Doctor X alluded to this in the post above yours–it is far more expensive to fix a pro se litigant's screw-up than it is to do it right from the get-go.

  47. Is there any justification for the seemingly arbitrary 7-day deadline in this case?

  48. Sami says:

    Missing a deadline seems like an incredibly trivial fuckup. By which I mean, I kinda see the judge's point that he should have known better.

    @Xenocles: The trouble with the law being "simple" is that life isn't and people aren't. Complexity in law is not inherently bad.

    For a very reductive example: Killing someone should surely be against the law. We depend on the social contract in part to prevent people from stabbing us if we tread on their toe by accident and suchlike.

    However, "killing someone is murder and bad" is an over-simple law, because what about self-defence? Self-defence should be allowable, right? Well then how are you defining self-defence? What level of threat is justification, what manner of killing represents a fair demonstration of the principle of self-defence?

    Right there, the law starts to get complex, and it *always will*.

  49. En Passant says:

    Harry Johnston wrote Nov 14, 2013 @5:53 pm:

    Is there any justification for the seemingly arbitrary 7-day deadline in this case?

    Yes. The court (as a judicial system, not the particular judge) made the rule, probably long ago. Every court has rules. That's the only justification a trial court needs, so long as the supreme court of the state or the USA doesn't overturn those rules or vacate some holding based on them.

    Local rules of court can be found at most any local law library or by request and reasonable copy fee from the clerk of the court system. They are not a secret.

    The usual justifications for filing deadlines are to reduce burden on courts from untimely filings, protection of litigants from ambush by untimely filings, etc. While some may appear to be arbitrary, and some may even be arbitrary, most such rules actually do serve some reasonable purpose. Many courts will grant at least one extension of filing deadlines upon motion of a litigant stating good reasons that the extension is necessary.

    If you want arbitrary, I know of at least one county court system that requires pleadings to be filed on recycled paper. I've never heard of it being enforced, but any judge could do so if he chose.

  50. G Thompson says:

    To paraphrase Albert Einstein:

    'In theory, the theory and practice of law are the same. In practice, they are not'

  51. Deathpony says:

    Clark,

    While I have sympathy for your sympathy for pro se litigants, I think your inherent biases are making you see only one side of the coin. The side where the pro se litigant is Jo Public fighting the good fight against government overreach and the power of the state, and where (if I interpret your post correctly), the litigant has a fundamentally sound case if only they could shut up long enough to get a lawyer to assist them in presenting it.

    My experience in Australia, is that pro se litigants are almost always the plaintiff, almost always suing private individuals or companies, not government institutions (though someties both), and usually on the basis of the "vibe" and a feeling of what the law ought to be. This usually involves a 347 page statement of claim which uses the words "fraud" and "conspiracy" a lot without any actual evidence of same and without bothering to disclose an actual cause of action.

    In other words, its not your free thinkers and and idealists, its downright nutbars who dont respond well to a world that actually operates rationally.

    The burden borne by private individuals let alone companies has to be seen to be believed.

    I am stuck peripheral to one of these at the moment, where the litigant in question launched action against 47 defendants all of whom have to trudge along to court for every directions hearing and expend money on real lawyers to ensure this gets dealt with properly. Money they wont get back because when he finally loses completely, costs in the cause awards wont mean a damn because his total debt will radically exceed his finances. Thats ignoring the time and angst of getting hauled into the supreme court by a fruitcake against your will.

  52. JTM says:

    @Gaelen "Castle reference!"

    I went into the link hoping for sexy Nathan Fillian awesomeness. I came out of it with a feel-good legal comedy to watch. I can't decide whether I'm ahead or behind on that one.

  53. Rhonda Lea Kirk Fries says:

    @Deathpony,

    Here's an infamous example of your point, although it occurred in the US rather than Australia. She no longer has her own Wikipedia page, but someone snagged it before deletion so the lesson would not be lost.

    http://home.snafu.de/tilman/Barbara_Schwarz_17.12.2007.html

  54. wolfefan says:

    @Anonsters –

    Hello! Nice to see you here! I used to read and enjoy you over at VC. I've missed that doggie avatar!

  55. Anony Mouse says:

    Then there's this guy. I particularly like the lawsuit he filed that had 57 pages just for the list of defendants.

  56. Deathpony says:

    @ Anony mouse

    In fairness to that guy, suing Kanye West and Kim Kardashian for being terrorists isnt crazy, its damn public spirited.

  1. November 15, 2013

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