DO I REALLY NEED TO HIRE AN ATTORNEY?
Updated: Mar 13
Do I really need an Attorney?
As Mobile Notary and Investigative Process Server, I get asked this question at least once a week by well intentioned Clients. I hear "but I have a membership to a Legal Documents Service". Recently, I even had a potential client tell me about an application that will "train you how to write your own filings and be your own Attorney" ( yes, their site really said that). The Client then proceeded to tell me from that he learned he should keep asking for a continuance to annoy and bully the opposition into eventually not showing up for Court. (Personally, I couldn't in good conscience serve this client as a rule, I will not be a party to engaging in my mind is less than ethical. )
I get it.. no one ever wants to hear the phrase " You need to hire an attorney. " I understand attorneys are expensive.. BUT YOU ARE PAYING FOR THEIR EXPERIENCE AND EDUCATION.. Some clients take this suggestion to hire Council to mean I'm insulting their intelligence when in reality I'm attempting to look out for their best interests as much as I can without crossing a line to practice law. In this month's blog, I'm going to share a story of an experience I had last week to illustrate why, YES, YOU ABSOLUTELY SHOULD HIRE AN ATTORNEY.
A few weeks ago, I had a former pro se client ( a lay person who acts as their own attorney) call our office. "Mike" as we will call him ( names have been changed to protect Client Confidentiality) was upset. First, let me set the scenario. "Mike" had retained me to file, and Serve a motion that he wrote regarding a domestic issue. I'm almost certain an actual attorney more than likely would have advised "Mike" not to file because the matter the filing was about hadn't even occurred at the time ( but I digress). Noticing there is no Summons attached to the Complaint for me to fill out and return to him or Court, I ask "Mike" if he intended to have a Summons issued along with his complaint. Being impatient, unversed, as well as unfamiliar that what I was suggesting was standard, " Mike" replied " No. File exactly what I sent you, and then serve it. " Being unaware of usual Procedure, "Mike" cost himself an additional, and pretty exorbitant cost of Court Xeroxing for a Service Copy to his Defendant, and incured the exorbitant charge again for a Copy for me to return to Court. The attachment of a Summons would have provided 2 copies of those documents FREE. At the time of filing, even though I recommended repeatedly having a Summons issued the best I could in as many different ways as I could without crossing the line of giving legal advice, "Mike" would not move from his position. During the Course of Service, "Mike", unaware that the types of service he was requesting were not legally proper service, cost himself additional money by suggesting I do things I can not legally do. "Mike" got further impatient when I wouldn't comply with requests to posting to a door or serving a minor. ( I legally couldn't serve the documents to someone else at that point because his Defendant hadn't even had the opportunity to accept Service.) By the time Service was over with however, " Mike " was pleased because I successfully located and served his Defendant.
Fast Forward, and 4 months later and "Mike" called to claim Opposing Council has moved to have service quashed ( having it dismissed). Not being aware of proper Procedure, "Mike" didn't sign and have the complaint independently Notarized, arguing instead that I, and /or the Court Clerk should have prevented him or advised him that his filing wasn't correct.
As a Process Server, there is only so much I can do legally to assist a Pro Se Client. While I'm Confident in that I provided the best Service I could in those circumstances, in not hiring an Attorney in the first place Mike has cost himself time, money, and if Opposing Council choses to challenge the proper format of the Document quite possibly his case.
Normally when working with Qualified, and Professional Attorneys and Paralegals, If I see something I think it out of place, I usually ask if there is a reason whatever I notice is off or if the Attorney meant to do it this way. 99% of the time the Attorney or Paralegal is awesome enough to explain why it is that way or thank me for catching something missed before a document is served. However, when it comes to a Pro Se Client, I can't point those things out because if I did so it would be practicing Law without a license. Additionally, a Pro Se client SHOULD NOT assume because the Clerk of Court accepts their filing they have Standing, Merit, or that their document is Correctly Formated. Like a Process Server, a Clerk CAN NOT ADVISE , and is simply there to admit the documents to the Court for consideration and record the date and time those documents were submitted.
I decided to share this story because many clients feel like an Attorney is just too expensive and that they can represent themselves better anyways. Ive had pro se clients from Fast Food Workers to Doctors. Representing one's self in Court isn't about lack of intelligence or station in life, or even education...
PAYING FOR AN ATTORNEY IS SIMPLY A MATTER OF getting the Experienced litagating of your type of case and Education in the Law and as such Civil Rules of Procedure. It's about the fact a lawyer deals with these matters every day. It's about the fact that they know the Law and Civil Procedure in ways you or I don't or ever could.
Don't get me wrong, many simple cases or small claims are negotiated well by Pro Se Clients but it's because hopefully the Complaint is clear, Organized, and the matter at hand is cut and dry. Judges in these Court venues are used to dealing with these types of issues and are often very skilled in not just mediating between the two parties in fairness but also in their explanation of the Law by which they are ruling. However, on the same token, some cases in even in Small Claims can become just as murky as a Circuit Court or Superior Court Complaint and an Attorney is still required.
For complicated matters such as Domestic Disputes, Child Custody, and matters heard where large sums of money are involved, the retention of an Attorney absolutely should be considered, and retained. Many Pro Se Clients use the argument of expense but don't also realize that if their Attorney successfully argues their case often times reimbursement of legal fees are included in the Judgement. Another downside to being your own Attorney, in my opinion, the importance of their matter is lost.
Would you want a lay person to be your Doctor and give you Medicine for which they are not educated or experienced? Would you want a lay person to build your home who has no experience in home building, or safety codes? Would you want a lay person to Pilot the airplane you are onboard to your vacation destination without ever having had flown at the Controls? The resounding answer to all of those questions is OF COURSE NOT. It has baffled me over the years in my experience as an Investigative Process Server why clients believe they can litagate something as important as their Divorce, Child Custody, or other matter that upset them sufficiently to want to bring the Court Action in the first place, but can't make the distinction of also being too close emotionally to argue that case effectively. The same can be said for important legal documents that I encounter as a Mobile Notary.
Many times, I get Client calls to Notarize Documents like Powers of Attorney ( a document that allows someone else to act in your place) End of Life / Healthcare wishes also known as a Living Will or Durable Healthcare Power of Attorney. I very often hear where a client has downloaded something from an on line legal site promising to help them avoid attorney fees, and its their desire for me to " make it official" by affixing my signature and seal. A well known case regarding the use of an online legal documents provider, Aldrich v. Basile out of Florida.
In Aldrich v. Basile, Ms. Ann Aldrich had
"ordered" documents to make arrangements for her Last Will and Testament. The forms did not include something called a "Residuary Clause" which is used to determine how items NOT spelled out in the Will are distributed. As a result, two nieces who were not named in the Will who were also joined by the child of Ms. Aldrich's previously deceased Brother and laid claim to Ms. Aldrich's Estate. Arguing that the Will which had a handwritten wish that the legal documents service provider had not included, the Nieces, and Child of the Deceased Brother complained that the Will was not valid as in their opinion, the Will DID NOT MEET THE REQUIREMENTS of Florida's Probate rules. Florida Justice Barbara Pariente, in her concurring opinion, stated that the case reminded her of the old adage, “penny-wise and pound-foolish,” in that Aldrich had used a commercially accessible form apparently without legal advice, which determined the unintended result." In their Concurring Opinion,
The Florida Supreme Court ruled in favor of the nieces, and child of the deceased brother. The end result was Ms. Aldrich's Final Wishes were not honored. While Im always glad to assist a client in arranging their affairs, I also caution them that downloads do not take the place of a document prepared by a Lawyer not just versed in that aspect of the law, but also in the laws particular to the State in which they will be carried out.
Many times, I've been called to a Client's home to Notarize a Will when halfway through the signing process, I hear a family member or friend muse something like , " I didn't know a felon could administer a Will.", or the Document I'm being asked to execute is not germaine for example a Developmentally Delayed person, or one that has recently suffered a stroke can't execute any of the aforementioned documents according to the Law ( this is the subject of a forthcoming Blog Post about getting one's personal affairs and wishes known before it's too late). A consultation with a qualified Attorney would have not only saved those clients, and Ms. Aldrich the time and money of downloading those documents and calling me out, but also legal advice for preparation of the correct documents, and done so according to State Law. As evidenced by the Aldrich case, different state laws have some very different quirks that only an Attorney in that state versed in that particular aspect of the law would know versus an Attorney you have never met, and who has no idea of your specific needs or location generating some boiler plate document.
In closing, while hiring a qualified, skilled, and experienced Attorney may not be what you want to do for whatever reason, I always urge Pro Se Clients to become represented Clients when I believe its in their best interests. As an Investigative Process Server, I see the end result of a lot of cases that could have gone so much better and in a different direction had a Pro Se Litagant be represented by competant Council. While I'm always glad to help and guide a client through the Process of Steps filing, locating a Defendant, and getting them notified properly of the matter, I can not advise you how to argue the matter before the Court, or prepare your Court Filing. Locally, I'm glad as well to recommend a particular Attorney in your area of need that I have worked with to litagate your case, but, I simply can't tell you much more than that.. other than, "Yes, you do need an Attorney."
Chris Wilkinson is a Senior Investigative Process Server and CEO at Smoky Mountain Process and Legal Services in Knoxville, Tennessee. She lives with her partner and their 2 dogs in Knoxville, and enjoys exploring all of Tennessee's treasures Historical and Natural alike. If you have a question about the Service of Process, Mobile Notary, Skip Tracing, or Asset location, you can contact Chris at 865-347-7967 or at www.besttnserver.com