Don't Represent Yourself in a Personal Injury Case
By Law Offices of Jeffrey S. Glassman, LLC, Massachusetts
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In any legal action, individuals have the right to represent themselves in court. But just because they can doesn’t mean they should. The notion is understandable. You’re facing a mountain of medical bills. Your injury has left you out-of-work and struggling to pay your mortgage. You can’t afford a lawyer, and even if you could, why should s/he get a cut of your compensation?
Here’s why: For one thing, you are far more likely to lose your case if you don’t hire a personal injury lawyer. The Boston Bar Association Task Force on Unrepresented Litigants studied this very issue and found that in most cases, “pro se” litigants do not obtain results as favorable as those with counsel. (“Pro se” is Latin for “on one’s own behalf” or “for oneself.”)
The second answer is that you CAN afford an attorney who works on contingency fee. These agreements don’t require clients to pay money upfront and attorney’s fees aren’t collected if the client doesn’t win. M.G.L. Ch. 231, Section 60I outlines contingency fee agreements and limitations, so you aren’t overcharged.
Motivations for Pro Se Litigation
While those facing criminal charges have a constitutional right to legal representation, the same is not true for civil litigants. In criminal court, the government will appoint a lawyer if you can’t afford one. In civil court, there is no entitlement to this benefit.
But recognize that it is absolutely a benefit. Most people forego a personal injury attorney because:
• They believe they can’t afford it.
• They’ve had personality conflicts with another attorney.
• They misunderstand the legal system and think they can do it on their own.
While we understand these motivations, the problem is pro se representation usually ends up being a very costly mistake.
A national survey of judges by the Justice Management Institute (JMI) revealed that some of the principle problems that arise when someone chooses to represent himself or herself include:
• Litigation delays
• Difficulty with judicial impartiality (unfavorable to pro se litigant)
• Maintaining courtroom control
• Difficulty in getting pro se litigant to comply with court procedures and evidentiary rules
• Opposing attorney pressing an advantage over pro se litigant
And that’s if you even get your foot in the door. Many tort actions brought by pro se litigants are decided in favor of defendants in the form of a summary judgment – which means as a matter of law – before the case ever goes to trial. The problem, usually, is that plaintiff failed to adequately state a legal cause of action, missed a deadline or botched some other procedural formality.
Pro Se Litigation Pitfalls
Let’s assume that a pro se litigant has a basic understanding of legal processes and is knowledgeable enough to properly state a claim. There is still so much that can go wrong. At the very least, even if these individuals prevail, they are probably going to walk away with much less than they would have had they hired a lawyer.
Among the problems that can arise for civil plaintiffs representing themselves in a personal injury lawsuit:
• Determination of Case Valuation. Before a case is ever filed, its value must be ascertained. This involves careful analysis of extent of personal injuries, the number of defendants, the amount of insurance money available and the complexity of the legal issues involved. To say nothing of proving your case without expert witness testimony or accident reconstruction.
• You Don’t Have an Investigative Team. The majority of personal injury law firms have an experienced team of investigators, prepared to delve into even seemingly innocuous details of your case that could have an impact. You can bet the defense side does too. Pro se litigants are at a significant disadvantage when going to bat for themselves.
• Low Settlement Offers and High Expectations. Insurance adjusters know they have the advantage when they’re dealing with someone who lacks legal representation. They often take advantage of this by throwing out low-ball offers. But because pro se clients usually don’t have an accurate idea of their case valuation, they are more likely to accept lower offers. They may even decline reasonable ones. In many cases, people who are representing themselves are heavily emotionally invested in the outcome of the case. Of course, personal injury attorneys need to zealously represent their clients, but they are trained to remain focused, without letting emotions rule. This helps ensure settlement negotiations stay within boundaries that are reasonable.
• Lack of Procedural Knowledge/ Case Monitoring. When you don’t know the ins-and-outs of civil litigation, it is tough to learn on-the-fly, especially when you are emotionally invested in the outcome. It’s more than just filing a complaint. There are depositions, document productions, interrogatories, requests for admission and more. You have to know not only how to state your claim but how to prove it within certain legal parameters.
Unlike in criminal defense law, the proof burden is on you. This trips up most pro se litigants, resulting in grave mistakes that can cost you the case. Remember – the judge isn’t allowed to give you legal advice from the bench. Beyond that, personal injury cases can take time. Sometimes years. It’s imperative that the case be properly monitored at every phase. Hiring a lawyer ensures the matter is properly monitored during the entire process.
Additionally, when a person opts for pro se representation in a legal matter involving serious personal injury, it can result in the perception – unfair though it may be – that the plaintiff isn’t taking the matter seriously. This too can be detrimental to your case.
Although some people believe the truth will be enough to prevail, this simply isn’t true. Overwhelmingly, success in a personal injury lawsuit is contingent upon the assistance of someone with extensive legal knowledge, skill and experience.
If you are considering representing yourself in a personal injury lawsuit, at least do yourself the favor of taking advantage of a free initial consultation with an experienced injury lawyer.
ABOUT THE AUTHOR: Jeffrey S. Glassman
The Law Offices of Jeffrey S. Glassman LLC has been a personal injury law firm in Boston for two decades. Attorneys show their clients they understand how physical, emotional and financial pain can occur as a result of an accident. They provide caring, aggressive and high-quality representation to victims of accidents.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.