Judge Carlucci: The high cost of not having a lawyer

After 43 years as a trial lawyer, I became a judge in August of 2022. Because I was a practicing attorney for so long, little about this job was really new to me. One matter which was a complete surprise is the high number of litigants who choose to attend court proceedings without a lawyer. Many of them complain that “I can’t afford a lawyer,” even though they never even tried to retain an attorney, at reasonable cost. Although I must accept their decision to proceed without counsel, I am often disappointed about their complete lack of preparation, and very poor presentation of their case. I often wonder if self-represented litigants had given any consideration to the very high cost of walking into a courtroom without a lawyer.

1. Lawyers understand how to present evidence: Trial lawyers understand that having strong evidence and presenting a strong case are very different things. Through years of experience, they know the proper sequence of witnesses and written exhibits. Non-lawyers usually know what they want to say, but rarely know how to say it.

2. Cross-examination is an acquired skill: I spent over three years as an assistant district attorney. I was in courtrooms every day. By the end of that time, I understood how to make a point through cross-examination. Self-represented litigants never get there.

3. Lawyers know the law: The law is a moving target, changing with each new statute and each new appellate court decision. Attorneys usually concentrate within a few areas of the law, in order to stay current with those changes. No self-represented litigant will know the law like an experienced attorney, within their area of practice.

4. Lawyers know the system: There is more to winning a case than knowing the law. Attorneys know what documents are required, how to prepare them, and when and where to file them, can make all the difference. A missed document might mean losing the case. By the time self-represented parties figure that out, it may be too late.

5. Lawyers know the Court: The idea that any attorney has some “special relationship” with a judge is usually nonsense. What is certainly true is that experienced trial lawyers come to understand how local judges think and work. With that understanding, those attorneys prepare documents and make courtroom arguments which have been successful in the past, and are therefore likely to be successful again. It takes attorneys years to acquire that skill and understanding. Once again, self-represented litigants never get there.

6. Lawyers know how to keep secrets: By law, an attorney is not permitted to disclose confidential discussions with their client. For that reason, an attorney is expected to keep client confidences, and not to reveal them to third parties. When a party represents themselves, they have no such protection. As a result, they may be required to reveal matters which they would prefer to keep private.

7. Lawyers know how to negotiate: Criminal cases usually end in a negotiated guilty plea to some charges, and civil cases almost always end in a compromise. Over time, lawyers become masters of clever negotiation. Self-represented parties may have some of that skill, but they are rarely a match for an experienced lawyer.

8. Lawyers know one another: The idea that any group of attorneys is an “old boy network” is simply nonsense. Many effective courtroom lawyers are women. I have seen fine legal work performed by attorneys who are both old and young, women and men, and from every background. What most of them have in common is simply that they know one another. When an attorney makes a sound argument to another attorney who knows them, they are usually taken seriously. A non-lawyer whom the attorney does not know or trust does not have that advantage.

9. Lawyers provide their independent judgment: In a 1682 book titled “Humane Prudence,” author William De Britaine made the observation that “he will be his own Counsellour, shall be sure to have a Fool for his Client.” The best courtroom lawyers generally hire an independent attorney to represent them in their personal legal affairs. The reason is obvious. Everyone needs the benefit of independent advice when making important financial or personal decisions. If the best lawyers routinely hire other lawyers to represent them, non-lawyers certainly should do so.

10. Peace of mind: When self-represented litigants appear in court, they are nearly always nervous. Some even cry. If they lose their case, they never know if they lost because their case was weak, or because they did not know how to present it. When parties have the benefit of counsel, they generally know what to expect. Even if they lose, they at least know that they gave it their best shot.

I understand that many folks must appear in court without the benefit of legal representation, and I sympathize with each one of them. For those who have a choice, however, the value of having a lawyer by their side usually far outweighs the cost.

William Carlucci, Judge, Lycoming County Court of Common Pleas

(Published in the Williamsport Sun Gazette on May 4, 2024)