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Picking Attorneys is Like Picking Kickball Teams: Don't Pick Yourself

Snarf Zagyg

Notorious Liquefactionist
After posting the first thread about how to pick an attorney, I realized in order to address the question I first offered, I must first answer a more simple question, as first posited by the Hon. Jimmy McNulty- “What the eff did I do?” The answer, Jimmy, is that you tried to represent yourself. Don’t do that. Really. But given that I am writing about legal matters, I can’t address any issue without contradicting myself, so, instead, I shall say ... eh, you probably shouldn’t do that.

A person who represents themselves is called pro se, which is Latin for “either a dumbazz, or a prisoner, but probably both.” There are several times that you might want to represent yourself; briefly, but not exclusively, these times are as follows:

1. You are suing someone for taking your cheese, or your security deposit, or something else that isn’t worth much. Well, maybe it’s worth a lot to you, sucker, but not to an attorney. Most attorneys can't be bothered to get out of bed, let alone answer the phone, for a claim less than $30,000. Anyway, these are called “small claims,” and the courts will simplify the matters for you.

2. You are dealing with something small and uncontested, or something where there is usually assistance available through your local court system. Some uncontested divorces. An easy will. A temporary restraining order so Brenda will stop getting all up in your bidness.

3. You’re a prisoner. Seriously, you have a lot of time. Why not?

4. You’re crazy and you like to write long rambling screeds. Wait ... uh ... moving on.

“Hold on,” you say, “why do I need to pay Mr. Fancy Pants with his smart book learning? I’ve seen every episode of Law & Order, I can watch youtube videos on how to accomplish anything, including building small tactical nuclear weapons, and I can use that google scholar to look up cases and stuff. I mean, I’ve met lawyers before. They’re all dumb as a box of rocks that ate a bag of stupid. It can’t be that hard!”

And you will tell yourself this, over and over again, until sometime many months from now, when you’ve lost and you don’t even know why. Allow me to explain-

a. Law is a different language. You’ve probably read through one of those of those shrink-wrap contracts that you’ve agreed to, and through which you’ve given up your soul and agreed to binding arbitration in the U.S. Virgin Islands (just kidding- of course you haven’t read it, and thank you for the soul), but most people think of “lawyer-ese” as just being really technical English. But it’s more than that. It’s really technical English, combined with Latin, combined with legal French, combined with archaic English, combined with random splatterings of WHEREAS and COMES NOW that only make sense if you understand that lawyers just keep copying other lawyers’ work, and have since Ugg first brained Flogg with a rock, and Flogg retained Eep, Flick, and Mr. Chompers for a lawsuit against Ugg. In addition, many of the words will have a technical-y meaning that doesn’t fully map on to the meanings of words that you understand when you them. A "prayer for relief" isn’t always res ipsa, my friend. That’s a lawyer joke, and like all things dealing with the law, it isn’t funny. But what it means is that a prayer for relief is not the same thing as yelling, “Xenu, if you just get rid of this hangover that's killing me I promise I'll never drink again, or at least not for two more days!”

b. Deadlines, man. Litigation is a mix of apathy and terror. And the reason for this are the deadlines. Simply put, there are three type of deadlines; those that don’t matter, those that might matter, and those that will kill you deader that Armie Hammer's career if you miss them. A good attorney understands the difference between these deadlines; a pro se litigant is wondering why the fancy-pants lawyer took forever to answer the Complaint, but that stoopid appellate court isn’t paying any attention to him just because he was a few days late filing a silly notice. In other words, some deadlines you can miss without any problems, other deadlines you can miss but still fix, and then there are the deadlines that will kill you case completely if you miss them. And you have to know which deadline is which. In addition, "time" is a relative measure in the world of the law; some deadlines start when something is mailed, some when you receive it, sometimes you calculate the deadline using the actual days provided, sometimes you calculate the deadline using the actual days- but skipping weekends and certain holidays. Trust me on this- even experienced attorneys can get tripped up on this, and it's nearly impossible to try and understand all of this if you've never experienced it before.

c. Procedure. Building on (b), procedure matters. Attorneys will understand that the local jurisdiction has a rule that states that all motions are to be submitted in 12 point font, except on Wednesday, when it is to be 14 point font. They will know that Judge Hammer wants a memorandum of law, and Judge Anvil wants a courtesy copy sent to chambers. They understand that this jurisdiction has replies as of right, and the other jurisdiction requires leave of the court for a reply that is rarely granted. And you might say to yourself, “Self, what about justice? Who cares about empty formalism?” To which I reply, “Empty formalism is the way that the legal system kicks out stupid people and stupid lawyers, so it can concentrate on advancing important cases about allocating resources between banks, and redistributing money from the poor to the wealthy.”

d. Not all precedent is created equal. Of course, the biggest mistake that pro se litigants make is treating all precedent as created equal, except that one thing they have found, which is THE ONE PRECEDENT TO RULE THEM ALL. It doesn’t matter what it is- a facebook post, a case from 1933, an article from People magazine ... they have a winner winner chicken dinner. But it doesn’t work like that. The United States (except for Louisiana, which really isn’t part of the United States, and should be avoided at all costs) follows the common law system, so named because it was invented to keep the common people out of it. But of relevance to the pro se litigant, the common law system is hilariously complex. Let’s say you find language in a case that may support your action. Has it been overruled by another case (a later court said, “Yo, dawg, we’re not doing that anymore.”)? Has it been distinguished by another case (another court said, “Yeah, that was okay, I guess, for those idiots back then, but us awesome people will use a new rule!”)? Is it from another jurisdiction (“Sure, that’s how the hippies in New York do the law, but here in Alabama, we hang people that play ultimate Frisbee.”)? Is it dicta (that’s when the court just rambles on, and no one cares what it’s saying)? Is there a statute that applies, overrules, or otherwise modifies the holding of the case (because we’re a common law system, except when we’re not)? In short, you might not even know what you do not know, and end up in a Rumsfeld-ian land of the unknown unknowns.

e. Empty formalism doesn’t matter. Wait, wut? Doesn’t this contradict (c)? Well, yes. We are discussing the law, so we must contradict ourselves! Here’s the thing- many people have this notion that there are “magic words,” or “loopholes,” or other silly things that they can use to win a case; at the most extreme ends are the “gold fringers,” the people that concoct theories about copyrighting their names, or the fringe on a flag, or loopholes in the rules that they believe must be followed. But the law has developed rules about rules to deal with gaming with the system. So you have to know when empty formalism will prevail, and when empty formalism will get laughed out of court! Huh. Okay, let’s get more concrete. Let’s say that there’s a statute that says you are immunized from all claims against you for a dog bite on your property so long as you have a sign that includes the words, “DOG ON PROPERTY.” That’s what the statute says. Now, Mr. Pro Se Loopholer thinks it would be funny to put up a sign that says, “DON’T WORRY, THERE’S NO DOG ON PROPERTY.” A few days later, Mr. Kibbles, Loopholer’s rabid chihuahua, proceeds to bite his way through an entire Boy Scout troop worth of ankles and knees. Mr. Loopholer goes to court and reasonably says, “A-ha! You can’t sue me! I had the language from the statute! My sign included the words, “Dog on property.” Suck it, law people! Win for the common man! Those Boy Scouts can hobble off to another defendant.” But then someone will say, “Oh, I’m sorry. You’re estopped from claiming the protection of the statute.” Say, what? Estoppel is a fancy French term for- you’re not allowed to do that.* Yes, defeated by the French. And here’s the thing- no matter how much research on the statute Mr. Loopholer did, he wouldn’t have known that. He just, well, had to know it.

I could continue on, but I trust you understand the concept at this point. Lawyers are like pain receptors; a necessary evil that you really, really wish you didn’t have, but you kinda, sorta need so that you know that your housecat is trying to gnaw off your leg in the middle of the night.** The good news, such as it is, is that if you decide to go pro se, there are various court rules and presumptions that give you the benefit of the doubt, which means that the Judge will smile at you a lot before you lose.

Now, with that out of the way, the next post will go back to the main topic of how to choose a good .... hmmm..... not completely terrible and morally bankrupt attorney.

*There is another interesting topic, regarding the differences between law and equity and when those differences matter and when they don’t. But to simplify- there’s a difference between money, and what’s right, and America prefers money. Usually. Except when you're estopped from preferring money.

**Yeah, you think Buttons is your pet and your friend, but Buttons really, really just wants to eat you. You’ve been warned.
 
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Ryujin

Legend
Interesting that Louisiana is the outlier in the US. In Canada it's Quebec. Must be a French thing.

You can sometimes work your way about the precedent issue by searching for court cases in which the precedent case is referenced. Look for the later ones, because they may name (or be) the new precedent. Sites like CanLii, that I posted a link to in the other thread, are useful for that.

SovCits are some of my favourite people. They're like the legal system's Slinkys; not good for much, but fun to watch metaphorically fall down the stairs.
 

Snarf Zagyg

Notorious Liquefactionist
SovCits are some of my favourite people. They're like the legal system's Slinkys; not good for much, but fun to watch metaphorically fall down the stairs.

Oh yeah. I have ... stories.

That whole "copyrighted name" thing is a trip. And whenever you see a legal document that references the Torah and/or the Real(tm) Constitution, grab yerself some popcorn.
 

Ryujin

Legend
Oh yeah. I have ... stories.

That whole "copyrighted name" thing is a trip. And whenever you see a legal document that references the Torah and/or the Real(tm) Constitution, grab yerself some popcorn.
I frequently find myself falling down the rabbit hole of SovCit videos, on Youtube, and don't come out of it for days. Always funny when a Canadian knows more about American Constitutional Law than an American who claims to be "educated" in it.
 

Snarf Zagyg

Notorious Liquefactionist
I frequently find myself falling down the rabbit hole of SovCit videos, on Youtube, and don't come out of it for days. Always funny when a Canadian knows more about American Constitutional Law than an American who claims to be "educated" in it.

I mean ... I'd hate to see what the algorithm is recommending for you!

As for the law, the issue is that they don't actually want to understand it. They are, for lack of a better term, loopholers. They believe that the law is just "magic words" and "incantations" that they can invoke, and they don't bother to try and understand how the legal system actually works, but instead just construct a fantasy world where only they understand it, and their understanding, weirdly enough, always benefits them. It's basically the advanced and paranoid version of this classic that we see played out over and over again, usually by the uncle forwarding you something in ALL-CAPS-


ETA- that said, we should probably avoid going any further down this tangent in order to ensure that we don't touch on topics that are too close to politics, and it's hard to go near American Constitutional Law without that popping up.
 

Maxperson

Morkus from Orkus
A person who represents themselves is called pro se, which is Latin for “either a dumbazz, or a prisoner, but probably both.” There are several times that you might want to represent yourself; briefly, but not exclusively, these times are as follows:
I have a question. What's the difference between pro se and pro per? I've seen both used. Anecdotally, pro se more than pro per.
A "prayer for relief" isn’t always res ipsa, my friend. That’s a lawyer joke, and like all things dealing with the law, it isn’t funny. But what it means is that a prayer for relief is not the same thing as yelling, “Xenu, if you just get rid of this hangover that's killing me I promise I'll never drink again, or at least not for two more days!”
So what you're saying is that I should retain a lawyer to get rid of this persistent itch?
b. Deadlines, man. Litigation is a mix of apathy and terror. And the reason for this are the deadlines. Simply put, there are three type of deadlines; those that don’t matter, those that might matter, and those that will kill you deader that Armie Hammer's career if you miss them. A good attorney understands the difference between these deadlines; a pro se litigant is wondering why the fancy-pants lawyer took forever to answer the Complaint, but that stoopid appellate court isn’t paying any attention to him just because he was a few days late filing a silly notice. In other words, some deadlines you can miss without any problems, other deadlines you can miss but still fix, and then there are the deadlines that will kill you case completely if you miss them. And you have to know which deadline is which. In addition, "time" is a relative measure in the world of the law; some deadlines start when something is mailed, some when you receive it, sometimes you calculate the deadline using the actual days provided, sometimes you calculate the deadline using the actual days- but skipping weekends and certain holidays. Trust me on this- even experienced attorneys can get tripped up on this, and it's nearly impossible to try and understand all of this if you've never experienced it before.
Oof! Yeah. Early on I was working for a personal injury firm and there was a case dealing with I think it was a 7 car accident. As you know, that means everyone was suing everyone who was behind them. Well, except for the last guy. Lots of trees gave their lives to make that case happen.

Anyway, one day I'm going over a document that arrived and lo and behold, the judge dismissed one of the lawsuits with prejudice because the attorney failed to meet a deadline. A few days later we received another filing, this time from the attorney begging the judge to reconsider and not hold his mistake against his client. Apparently his paralegal had copied the due date from the court website that had it down wrong and that was why he missed the deadline. Some time later the response from the judge arrived that essentially said, "Too bad, so sad. I gave you the correct date in court, so it doesn't matter if the website got it wrong, you shouldn't have relied on our website."

I felt really bad for the lawyer's client.
c. Procedure. Building on (b), procedure matters. Attorneys will understand that the local jurisdiction has a rule that states that all motions are to be submitted in 12 point font, except on Wednesday, when it is to be 14 point font. They will know that Judge Hammer wants a memorandum of law, and Judge Anvil wants a courtesy copy sent to chambers. They understand that this jurisdiction has replies as of right, and the other jurisdiction requires leave of the court for a reply that is rarely granted. And you might say to yourself, “Self, what about justice? Who cares about empty formalism?” To which I reply, “Empty formalism is the way that the legal system kicks out stupid people and stupid lawyers, so it can concentrate on advancing important cases about allocating resources between banks, and redistributing money from the poor to the wealthy.”
Yep. It was drilled into me over and over again to always check the local court rules as they often have different requirements. It's even worse when you get to Federal Court as each judge seems to have a pathological need to have personal requirements that differ from every other judge.
 

Snarf Zagyg

Notorious Liquefactionist
I have a question. What's the difference between pro se and pro per? I've seen both used. Anecdotally, pro se more than pro per.

1. Pro se and pro per mean the same thing. Pro se literally means for oneself, while pro per is an abbreviation (of in propria persona, which means "in their own person" I think. But they are the same. Pro se is the much more common term.

2. However, there is also in forma pauperis (um, in the form or manner of a pauper ... aka, poor person), which is something you will see prisoners do.

3. So I have seen people refer to (2) as "pro pauperis" and even occasionally, um, "pro per" (like "pauper!"), confusing the terms.
 

Ryujin

Legend
I mean ... I'd hate to see what the algorithm is recommending for you!

As for the law, the issue is that they don't actually want to understand it. They are, for lack of a better term, loopholers. They believe that the law is just "magic words" and "incantations" that they can invoke, and they don't bother to try and understand how the legal system actually works, but instead just construct a fantasy world where only they understand it, and their understanding, weirdly enough, always benefits them. It's basically the advanced and paranoid version of this classic that we see played out over and over again, usually by the uncle forwarding you something in ALL-CAPS-


ETA- that said, we should probably avoid going any further down this tangent in order to ensure that we don't touch on topics that are too close to politics, and it's hard to go near American Constitutional Law without that popping up.
True enough. Makes me want to go down the Tenth Amendment route, which I shouldn't.
 

MGibster

Legend
I think a lot of Americans are getting a crash course in how civil and criminal trials work in New York, Georgia, and through the federal government thanks to some politicial situations I'm not going to get into specifically. I always knew there were rules covering how you introduced evidence into a civil trial but I wasn't one of those people who possessed that esoteric knowledge until recently (and that knowledge is specifically about New York). There are a lot of moving parts to a trial and it requires a good amount of coordination. It's no wonder there are all sorts of rules surrounding the whole process.
 

Ryujin

Legend
I think a lot of Americans are getting a crash course in how civil and criminal trials work in New York, Georgia, and through the federal government thanks to some politicial situations I'm not going to get into specifically. I always knew there were rules covering how you introduced evidence into a civil trial but I wasn't one of those people who possessed that esoteric knowledge until recently (and that knowledge is specifically about New York). There are a lot of moving parts to a trial and it requires a good amount of coordination. It's no wonder there are all sorts of rules surrounding the whole process.
Most of the United States: I got my precedent from The Supreme Court, which is the highest court in the State!

New York: "Supreme"? Yeah, that's just regular court.
 

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