The Best Defense by Charley Hardman

I had the misfortune of being in the gym Wednesday when the TV news bunch announced and discussed the decision of DC sniper suspect John Muhammad to discontinue representing himself in his murder trial. Followed the obligatory, all-knowing rantathon about what a mistake it was for him to have even thought of representing himself. One CNN expert (gorgeous hair and makeup, I might add) bared her incredulity at the thought of somebody "with a high school diploma" representing himself on a murder charge. "I mean, like, there's just no way! "

Stowing my disgust at her illogic, I still wanted to ask the classic Larry King question: "Whadya care?"

Seriously – why the pooh-poohing of the decision this guy made, when most people would tell you they'd be ecstatic to see him fry like a mosquito in a bug zapper? You'd think they would be happy to see him represent himself if it's such a disaster. But there was none of that expressed, perhaps partly because they had to appear objective (i.e., be dishonest).

There's something more though, and I'm pretty sure I know what it is. Most people are intimidated by somebody having the chutzpah to do something they would never think of doing. In their stilted life method, there are experts for everything and every expert in his place – with the non-expert expected to sit still, write out the checks (when applicable), and let what's gonna happen happen. That's the way it is. Sit back and ride it out, big boy.

Allow me to mention the glaring problem with that stance: Most experts suck. I'm not saying they don't have expertise; it's just that most experts are so jaded and overbooked that they're not as effective as touted in the "stupid client"/"perfect expert" fantasy which is routinely exerted beyond reason in news and entertainment media. When it comes to lawyer experts and somebody accused of an offense, lawyers often lack one of the most crucial ingredients, which would be the big P (passion). Rare is the lawyer who's as worried about the case as his client.

That may sound like just a cut on lawyers, but it also swings back as a great reason to have one. Yes, this subject of advantages/disadvantages cuts both ways in the lawyer/client argument. But while saying that, let's not forget it. In other words, why is it that the only thing we hear in most discussions of self-representation is what a disadvantage it is for the "client." Meanwhile, talk to anybody stuck with a lawyer and you're likely to hear a long list of things that utterly stink about the breed. For instance (again, at least one of these can also serve for a pro-lawyer argument):

Many lawyers were drawn to the profession for reasons other than a passion for, or ability with, law. It shows. I know many non-lawyers who, with a minimal few days of training, could smoke quite a few career law poseurs. If it weren't for obscure procedural squibs, often local in nature, that already large number would skyrocket.
Most legal cases involve a tremendous pile of fine details. Overbooked lawyers, running from case to case, some of which are continued over months, typically don't remember all the important details, or anywhere near.
Lawyers, in the short-term (and distorted market allowing), often have few to no incentives to do a good job for you. In procedures such as divorce cases, they can throw all sorts of hurdles in the mix which take you to the brink and beyond, while filling up their wallets just as happy as can be. You can almost see divorce lawyers winking at each other as they do their dance of client ruination. Anybody walking into a market where incentives are reversed from the ideal (e.g., buying a home with a "buyer's agent") should be on guard.
Significant matters are sometimes brought up and ruled on quickly in court without client consultation. Many judges pride themselves on speed. If you haven't spent days apprising your lawyer on details and what's important to you, your wishes can sometimes fall by the wayside as fast as the truth.
Lawyers promise the world, and usually deliver squat. They are, as a group, notorious pretenders and BSers.

If it seems that I'm selling self-representation as the perfect solution, or even the most desirable in a bare majority of cases, please lose that misunderstanding right now. But let's not overlook some of the advantages:

If your opponent doesn't have a lawyer, many judges will effectively take your lawyer out of the mix, abandon standard rules of evidence, or bar conventional direct and cross-examination. That can leave you with a $250/hr, muzzled-babysitter tab you'd often be better without. But if your opponent has a lawyer and you don't, the reverse applies! The results are often startling if the judge takes to you, which, in the case of pro se litigants going against lawyers, they often do.
Occasionally, a layperson can make a better pure lawyer than the lawyer he may have hired, even taking into account court procedures, hobnobbing with local judges, and the like.
Nobody will have more interest in winning your case than you. That can also be a problem, but is usually a plus when moderated with good sense and tactics.
Nobody will know all of the details of your case like you. When things go weird in court (which is guaranteed), the pro se litigant with a head on his shoulders will often prevail.

Know the relevant law inside and out. I don't mean talk to your cop friends about what they think the law is, or listen to your lawyer buddy's war stories from across the way. I mean know the law for your case – in your state, in your county, in your neighborhood. Know the appeals history for those laws. Sleep with the annotated code next to your pillow.
Leave plenty of time for research, practice, and more research. Take the local law librarian out for coffee. Ask her how her paralegal studies are going. Ask if she'll debate rules of evidence with you.
Read almost any book by Louis Nizer, one of America's all-time natural law forces. My Life in Court is a classic, though a little hard to find.
Spend at least one entire day in court before your first hearing, preferably in the same courtroom where you'll be. Take notes of everything you see. What's good? What's bad? What surprised you? Notice what things tick off which judges. What makes them happy, or at least content? Was there a key phrase a lawyer used which got a seemingly magic result? Find out more that evening at the law library.
Learn the number one rule of acting like a lawyer: Don't be a mouse. Judges typically don't want to run the cases; they just want to rule on them. Know the difference, and step in when it's time for you to take the lead. Just as important, know when it's time to step back. After years on the bench, judges tend to get the picture without a lot of pastel touch-up around the edges.
Don't pretend to be a lawyer if you can't pull it off. Don't imitate Tom Cruise in A Few Good Men. Be yourself. If you don't think that'll work, then don't continue down the pro se path.
Recognize that the American legal system is a flighty bird, usually teetering on the whims of whatever judge you end up with. Sometimes you're going to lose no matter what you do, no matter who your lawyer is (assuming you're white and your lawyer isn't Johnnie Cochran).

It's best in some cases to sit back and let a professional plead your case, but the heartache and risk involved in acquiring the right professional can often be worse than going it alone. Good lawyers are either far or few. And damn it's impressive when you find one! A real treat. I still remember an astounding performance I witnessed years ago when preparing for a case. Natural talent is out there, and it's far better than TV when you see it live. On the other hand, some people do well pleading their own case despite not having natural lawyer skills.

Without being there, I think the sniper guy made the right choice about representing himself – in both instances. It's a sad reflection of our lead-me-by-the-nose times when most people can't see that there are cons and pros to representing oneself. And even though the sniper suspect appears to be psycho, if one reads between the lines there was grudging admission that he did better than expected.

If you're ever in a situation where you're tempted to go pro se, don't simply quote the bromide that the lawyer who represents himself has a fool for a client. Give it a think! The man who would live by cliché is the real fool. Sometimes it doesn't hurt to test the waters with a pre-trial hearing, and sometimes it's okay to jump right in and swim by yourself, for yourself. In any case, remember that justice often occurs only by accident when in court. Do what you can to make the accidents go your way.

Charley Hardman (send him mail) was born in Washington DC. He has represented himself in 4 civil court cases — all with good result. He chose to have a lawyer in his latest court excursion, and reports that it was quite relaxing.