Just this week another potential client asked questions about the workers’ compensation case they were handling, pro se. Pro se is a Latin phrase meaning, alone or on one’s behalf, an in the courts it means simply without a lawyer. Of course knowing one Latin phrase doesn’t make you a lawyer. In law school we were taught that a lawyer representing themselves has a fool for a client. And so today we once again ask, should I act as my own lawyer?
This is really the question you are asking, although I will guess 99% of you won’t admit it to yourselves. Whether it be personal injury, workers’ compensation or divorce those unpresented are essentially performing heart surgery on themselves. You don’t know the rules, you don’t really know which facts will be important to the judge and you haven’t a clue about what not to offer to avoid killing your own case.
If I could borrow from Warren Buffett’s investment rules allow me to frame rules of engagement for the legal system. Generally speaking like investing there are only two rules for litigation.
Rule Number 1: Don’t lose the case.
Rule Number 2: Never forget rule No. 1.
So what happened with this supposed client? Essentially they plead their claim to me and asked me what I thought. Like so many other potential clients they did not know the essential things they would need to prove their case and so when they described the facts they fell woefully short of the mark. These well-meaning people, the wife, assumed liability and assumed that the employer’s HR department did the same. I sort of read between the lines and understood the HR department was making no such assumption and was setting these folks up for a notice defense. [A notice defense is one that complete knocks the case out of the courts because the employee failed to do what is required to present a claim. Hint, you need to put your supervisor on notice of the claim within a certain number of days. If you don’t the employer doesn’t have to pay. Period. End of story. The game is over before it even begins.] Now don’t assume just because the HR Manager is talking to you that they are accepting the claim or that they will not claim later on that you didn’t give them notice. I don’t like verbal notice for the reason that people lie or later on forget you ever talked to them about the specific injury or incident you come to the lawyer with. The HR folks will claim you spoke about another incident/injury or else you did speak about this one but not as it being work related.
Are you getting a clear picture of why pro se litigation is like forming your own heart surgery? Not knowing the rules, the law, and what is required to win, is like being anesthetized, out cold, unconscious and completely unaware of what is going on around you.
Get a clue and hire a lawyer. If the lawyer doesn’t want your case he or she may still give you some valuable advice and if they do want it, then it’s because it has value for both you and them.
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