The law in every state allows people to represent themselves (known as appearing "pro se" or "pro per") in almost every kind of case. Despite the fact that a person with no training is allowed to do so, the real question is should they do so?
Cases/Situations Which Really Do Require a Lawyer
At LessonsInLaw.com, we are advocates of pro se litigants when it makes sense to do so. As a matter of fact, that's why we started the website and along with RebellionBooks.com to publish The Guerrilla Guides to the Law.
However, there are some legal areas which should not be done on a pro se or pro per basis.
- Preparation of real estate documents
- Probate of estates
- Criminal law
- Preparation of a trust
Preparation of Real Estate Documents
There are a zillion places to buy real estate forms both locally and on the internet but real estate documents should only be prepared by lawyers who have an active real estate practice. The law changes in this area on a regular basis requiring more disclosures, additional language in the documents, and other modifications to form language.
In addition, it is important to know what document to use for the real estate transaction. As an example, in recent years, there has been an incredible upswing in the use of what are known as "Quitclaim Deeds" (note: the term is not "Quickclaim"). A Quitclaim Deed has a specific use in real estate transactions and is not "just as good" as other types of deeds, despite what you read on the internet. Unfortunately, many title insurance companies won't issue title insurance on property where Quitclaim Deeds were used for the transfers. What this means is that to sell the property in the future or to re-finance it or borrow money against the property, it is likely the person will now have to hire an attorney and spend money to "clean up the title". This likely will result in a much, much higher fee than it would have cost to have had a lawyer draft and use the correct document in the first place. In some cases, if the transferring parties have passed away it can result in tens of thousands of extra dollars to correct a problem a lawyer could have spotted and fixed for a few hundred initially.
And that's just one example of the type of a mistake that could be made, there are thousands of different ways to mess up a real estate deal and not find out until years later.
Probate of Estates
The probate of an estate is what occurs when a person passes away and they had debts and/or property. The debts now have to be paid and the remaining property should then pass to the heirs either under a will or, if the deceased didn't leave a will, pursuant to the distribution of assets set forth in the law known as intestate succession.
There are a number of traps into which a person trying to probate an estate without a lawyer can fall. First, there are notices which need to be sent to creditors and posted/published to unknown creditors. If the person working to probate the estate, known as the executor or administrator, fails to properly notify creditors then they themselves can end up being personally responsible for the debt.
Probate can also require the preparation of real estate papers such as deeds. This can create not only the problems discussed in the previous section but it can also be a crime since a person who is not a lawyer generally cannot prepare forms for another entity, such as the estate in this case. An executor who tried to do so themselves could face not only personal financial liability if they made a mistake with the documents but could also be charged with a crime for practicing law without a license.
There are so many reasons a person shouldn't represent themselves in a criminal case that it's impossible to list and describe them all in a post like this, it would take a full book. However, I can give you a couple of reasons.
First, there's no need to. Every person who is charged with a crime that could result in going to jail for even a day is entitled to have a lawyer appointed for them if they cannot afford to hire one. So the old excuse of "I don't have the money" doesn't apply.
Second, to be effective in a criminal case the lawyer must remain unemotional and detached in the ability to make decisions. If it is a criminal case that is going to affect your life, it's impossible to do that.
Third, there is no way a layman can learn the Rules of Evidence and Rules of Procedure to have sufficient knowledge to act and react to the speed with which testimony and evidence is introduced during a trial. Most lawyers don't even do it well and they have studied evidence for years.
Last, it's not unusual for a lawyer to get charged with a crime, DWI seeming to be the most common. While you will see lawyers in court handling their own divorces, car wrecks, etc., you never see one in court representing themselves in a criminal case. That alone shows you how important it is to hire a lawyer.
Preparation of a Trust
Just as with real estate documents, there are forms to create trusts available from many places. However, creating a trust is much more than just a form. It takes an evaluation of the purpose of the trust, the person's assets, the goals, the short and long term plans, the tax implications, and a hundred other factors.
The choice as to type and then the creation of a trust truly does require the knowledge and experience that only an attorney can deliver. Just the other day I was reading a forum online where someone had tied all of their assets up in a trust using a set of forms purchased from one of the financial experts you see on television. Unfortunately, they should have used a revocable trust and instead used an irrevocable trust and were about to face tremendous penalties and potentially a lawsuit and were unable to access any of their funds for this as well as some other issues which had arisen. If the situation plays out as it appears it will they are about to spend 10 to 20 times what they would have spent having the trust done correctly to try and fix the problem.
Simply put, there are many, many situations which a person can handle themselves without a lawyer being involved. However, there are also those where the risk is too high to justify a "do it yourself" approach when you have no experience.
Here at LessonsInLaw.com, we strive to provide examples, books, and articles explaining situations where a person can effectively represent themselves so long as they are willing to devote the necessary time and work to prepare. But the reader should always remember there is a reason law school lasts three years and is so hard. The law isn't easy and not all sections are suitable for people who don't make a career of it. A smart pro se litigant knows when to fight for themselves and when to call in an expert!