Pro Se Legal Representation in Debt Collection and Other Cases

by Kenneth H. Gibert, YourLegalLegUp.com

Pro se legal representation means representing yourself rather than hiring a lawyer to do it for
you. You have the right to do that in essentially any court proceeding, whether as defendant or plaintiff,
and whether the matter is civil (for money) or criminal. Pro se is a Latin phrase meaning "for oneself,"
and you will sometimes see it called propria persona (abbreviated to "pro per"). In England and Wales,
the comparable status is called “litigant in person.”
Some Think It's Scary
Although many people fear the thought of representing themselves in court, pro se
representation is not rare. According to National Center on State Courts in 1991-92 71% of domestic
relations (family law) cases had at least one unrepresented party, and in 18% of the cases both parties
were pro se. It is a growing trend in debt collection law as well as family law and other matters.
The right of self-representation has long been established in the United States. It predates even
the ratification of the Constitution, as Section 35 of the Judiciary Act of 1789—enacted by the first
Congress and signed by President Washington, states that, “in all the courts of the United States, the
parties may plead and manage their own causes personally or by the assistance of counsel." Most states
have a similar constitution provision.
Will the Courts Protect You from Mistakes?
The California rules of Civil Procedure explicitly express a preference for resolution of every
case on the merits, even if resolution requires excusing inadvertence by a pro se litigant that would
otherwise result in a dismissal. The Judicial Council justifies this rule with the argument that "Judges
are charged with ascertaining the truth, not just playing referee.” And the Council suggests "the court
should take whatever measures may be reasonable and necessary to insure a fair trial."
Although most states and the federal courts share this bias in favor of hearing courts on “their
merits,” (based on what is actually fair), pro se litigants cannot rely on any special treatment. Some
courts explicitly will not extend favorable treatment to non-professional litigants.
Pro Se Litigants Often Do Very Well
They may not need any extra help. According to Erica J. Hashimoto, an assistant professor at
the Georgia School of Law, criminal defendants are “not necessarily ill-served” by the decision to
represent themselves. In state court, pro se defendants charged with felonies probably fared much better
than represented defendants. Of the 234 pro se defendants studied by Ms. Hashimoto, “just under 50
percent of them were convicted on any charge….for represented state court defendants, by contrast, a
total of 75 percent were convicted of some charge.” And just 26 percent of the pro se defendants ended
up with felony convictions, whereas 63 percent of represented defendants in Ms. Hashimoto's study
did. In federal court…the acquittal rate for pro se defendants is virtually identical to the acquittal rate
for represented defendants.
Of course there could well be other important variables that the Hashimoto study did not
include, but it seems clear that there is nothing like an “automatic penalty” for daring to represent
yourself. And as I have pointed out many times elsewhere, there are certain types of cases and
situations where pro se representation may actually be an advantage. In debt collection cases, for
example, the economic factors often outweigh legal issues, and a vigorous pro se defendant can gain a
significant advantage by being able to take energetic steps in his or her favor that a lawyer—always on
the clock—would pragmatically be unable to take.
Courts are not always favorable to self-represented people for various reasons, but even with
that bias, pro se plaintiffs have recorded some significant victories in civil courts. For example, Robert
Kearns, inventor of the intermittent windshield wiper who won more than $10 million from Ford for
patent infringement; Reginald and Roxanna Bailey, a married couple, together won $140,000 from
Allstate Insurance in a federal jury trial in Missouri, and George Cofield, a janitor, won $30,000 from
the City of Atlanta in 1980. Among others. Pro se defendants encounter fewer prejudices and have
many more victories. These victories often occur in less easily reportable fashion, being simply the
unheralded dismissal of a debt collection action.
Pro Se Representation in Debt Collection Cases
As pointed out above, defendants in debt collection cases have some significant economic
advantages in conducting their cases. They also have fewer of the disadvantages that many other types
of cases have. This may simply be because debt collection cases tend to be document-intensive rather
than witness-intensive. In the somewhat unusual case which actually goes to trial, the court is
confronted with basic evidentiary questions: can the debt collector produce enough evidence? And is it
“admissible” in court for the court's consideration? Little finesse is required.
This basic legal simplicity, the fact that debt defendants were obviously brought before the court
against their wishes, and the general economic difference between typical debt defendants and
plaintiffs often seem to create a favorable impression on the judges.