In simplest terms, Pro Se means self-representation in legal matters. In the United States, the Constitution legally protects the concept. Without it, the government could not claim “equal justice under law,” at least in principle.
Marshall H. Tanick of Mansfield, Tanick, & Cohen, P.A. wrote the article Self-Representation: THE Perils of Pro Se. He mentioned that there are many reasons people represent themselves. However, the greatest is likely financial; it simply costs too much for the average person to hire an attorney. This is the foundation of Pro Se representation. In order to ensure every citizen has access to equal justice, those who cannot afford an attorney can represent themselves.
There is a problem, however. While the existence of pro se allows for equal justice under law in that everyone has access to the justice system, it doesn’t provide equal access to quality representation. I’m not knocking anyone’s ability to research a matter. Yet how often did we “know” something, only to find out that we didn’t know what we thought we knew?! Thus, pro se is often prosaic, that is unimaginative, pedestrian, or lackluster representation in comparison to having a qualified attorney handle the matter or at least advise a person in how best to proceed.
What does this mean for the average business owner? That depends. First, if you have a corporation (S or C) or a LLC, then it doesn’t affect you at all. You simply can’t represent the business. You need an attorney. If you’re a sole proprietorship, then pro se is an option. However, it may not be the best option, particularly if you do everything on your own.
Pro Se in its Proper Place
The challenge for pro se litigants is their inexperience with both the law and trial procedure. Mr. Tanick spoke of Daniel R. Kelly, a colleague who successfully represented clients against pro se litigation. In one proceeding, Mr. Kelly represented an employer being sued, along with the National Labor Relations Board, in Federal court against a claimant representing himself. While the pro se individual did a “reasonably good job” in the case, he made legal and tactical blunders on which Mr. Kelly rightly capitalized in order to secure a prompt dismissal of the case.
In light of the preceding, why would anyone take a chance on pro se litigation? Standard Legal listed a number of reasons in their article The Law and Self-Representation: Handling Legal Matters “Pro Se,” based on studies conducted by various legal organizations and bar associations:
- Lawyers are too expensive.
- Many feel that lawyers do not deliver quality services, fail to return telephone calls, and treat their clients in an unfriendly or unprofessional manner.
- For many, their cases or situations are simple enough to handle themselves or involve simple legal document preparation and filing.
- People know their own situation best and believe that they are in the best position to address any issues that may face.
- People want to be in control of their own lives, circumstances and situations.
The reasons above are compelling. No doubt you identify with a number of them, and this likely moved you to adopt pro se litigation. Yet the dangers of self-representation are formidable, and can have serious impact on a person and a business.
Is there a happy medium between pro se representation and hiring an attorney? Yes. Mr. Tanick points out “Some of these problems can be avoided by a mixture of pro se litigation coupled with professional advice. On occasion, the benefits of pro se litigation can be achieved while avoiding some of its detriments.” Therefore, while you may find it more economical and effective to represent yourself under certain circumstances, make sure to seek out professional counsel from a qualified attorney. Although there is a cost to the consultation, you’ll most likely spend less than you would if an attorney represented you in court. Doing so takes pro se out of the realm of the prosaic and elevates it to a station of inspiration.