Thursday, May 7, 2009

Who Needs a Lawyer Anyway?

Parties to civil lawsuits often ask whether it is necessary to retain a lawyer, or they can litigate their own case (known as "in pro per" or "pro se" litigant). This is ultimately a party's own decision. The following are some points to help guide you through your decision making process.

Sometimes it is Not Your Decision
Sometimes is not your choice whether or not to retain a lawyer. For example, in California a business entity (such as a corporation or an LLC) can appear in a case only through an attorney. In fact, it is a misdemeanor in California for a non-lawyer to represent a business entity in a case. If your business entity sues or gets sued in the Superior Court, you have no choice but to retain an attorney. On the other hand, California court system allows disputes of $7,500 or smaller to be brought in the Small Claims Court. If you get sued in the Small Claims Court or you wish to bring your claim in the Small Claims Court, you may not be represented by an attorney. In these scenarios, the law dictates whether or not legal representation is possible.

Costs of Retaining a Lawyer
In scenarios other than the above examples, you need to decide whether it is cost-beneficial for you to retain a professional (i.e., an attorney) to litigate the case for you. Your cost-benefit analysis must considers two factors: your incremental costs and your incremental benefit. The costs of retaining a lawyer can vary, depending on the complexity of the case and the experience level of the lawyers you consider. Some simple matters may be performed for a small flat fee, and more complex litigation matters handled by specialized attorneys may cost several hundreds of dollars every hour. These costs you need to balance against the benefits of retaining a lawyer.

Benefits of Retaining a Lawyer
Litigation can often be intricate and complex. Litigating a case requires knowledge of the procedural rules, knowledge of the substantive laws, experience and some common sense. It is possible for a party who had a stong case to lose in court because the proper legal procedures were not followed. For example, if you file your lawsuit beyong the statute of limitations, you will simply have no case at all. On the other hand, when a defendant properly brings a demurrer motion to a complaint, she may be able to dispose of plaintiff's lawsuit in a very early stage. When the parties are involved in multi-million dollar lawsuits, they do not hesitate to retain the best attorneys money can buy. With smaller disputes, parties consider less expensive alternatives. In either scenario, a lawyer's assistance can prove invaluable. Just as you would seek a physician's help with a surgical operation, you should get professional legal help in litigation matters.

The Wisdom of Old Adages
We have all heard the saying “he who is his own lawyer has a fool for a client”. There is a good deal of truth to this. Litigation requires technical knowledge and skills, and proper focus. Parties to a lawsuit often get too involved in the dispute to be able to see the big picture. Retaining a lawyer not only provides you the lawyer's knowledge and skills, but also adds this element of "focus" to your lawsuit. Since your attorney is not a party to the disputes, your attorney can keep a "cool head" and advise you about the pitfalls and opportunities. As the saying goes "cooler heads will prevail."

The bottom line is how important is the outcome of this civil lawsuit to you. Say you have a $250,000 claim for damages, or your are faced with defending a $250,000 lawsuit. Do you feel you have sufficient knowledge, skills and focus to handle the lawsuit? Would you risk losing the case in order to save legal fees?

Photograph from Wikimedia, under creative commons license.

Robin Mashal is a partner at the law firm of Hong & Mashal, LLP, and can be reached at (310) 286-2000. His practice focuses on business law, real estate law and civil litigation. Hong & Mashal LLP is a California business law firm.

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