Self Representation – A Family Court Tragedy

There are few areas of the practice of law where the client needs help more, and where the WV Bar and our Courts are such failures, than the self-represented     “pro se” party in family law, divorce and custody matters.

1. Criminal defendants get Court Appointed Lawyers;

2. Personal Injury victims get “free lawyers” on contingent fees, at least if there are serious injuries and a pool of money to collect from (insurance);

3. There is money in personal injury. Doubt me? Watch daytime t.v. and see who is advertising.

3. Defendants in personal injury suits get free defense lawyers, paid for by their insurance companies.

4. Doctors in med mal cases and lawyers in legal malpractice get free lawyers, albeit after some hefty deductibles;

5. Juvenile defendants get a Court Appointed lawyer.

6. Their parents get lawyers to defend abuse and neglect cases.

7. Social Security Applicants can always get a lawyer or a “benefits consultant” to help them make their case;

8. Workers Compensation claimants get lawyers;

9. Wealthy parties always have a lawyer.

10. Victims of “insurance bad faith” get their fees paid by the insurance companies.

11. People fighting over an Grandma’s Will often get to use “estate money” to fight their cause.

12. Government and public interest litigation always have paid lawyers.

13. Victims in mass litigation, toxic tort, consumer fraud, and other matters where big money is at stake always have lawyers, as do the moneyed interests on the other side; not so the victim of consumer fraud, who often have only the WV Attorney General Consumer Fraud division.

14. Yep, governments have lawyers, insurance companies get lawyers, big business and the wealthy get lawyers, indigent parties get lawyers, and personal injury claimants – ALL have lawyers.

15. But middle to lower middle income family law litigants don’t have lawyers!

16. And Legal Aid has fallen on hard times, so their “clients” are being sold the “Kool Aid” of self representation after a “free class”. Imagine trying to complete law school in some free classes.

 17. Not only to they have trouble affording a lawyer, but the courts, and even sometimes unwitting lawyers,  trick them into thinking they do not need a lawyer. I say, Hogwash!

18. I talked to a gal today who called a lawyer in what used to be known as a “paternity case”, now “allocation of parental rights”;

19. She called a well known and popular local lawyer.

20. She recalls the lawyer telling her, “I am busy this month. You don’t need a lawyer to file your answer or go to mediation with you.” What??!!

21. I hope the young woman misunderstood, because that advice, if given in that context, constitutes malpractice.

22. Why? Let me give some reasons:

     a. The Mother is single, young, and undereducated;

     b. She is scared;

     c. She knows nothing about the “caretaking functions” standard that virtually assures her primary residential care and $400/mo. in child support.

     d. Even if she did, she doesn’t know how to prove caretaking functions;

      e. She does not know the impact in court of the father’s DUI conviction or his former drug use.

     f. She does not know to get her own clean drug test, or to request that he take the test!

     g. Without knowledge of the law and training in arguing and proving the facts, she has no leverage at mediation;

     h. The father of the child HAS an experienced lawyer!

     i. Father paid NO child support the first year of the child’s life (That’s $4800!), and he underpaid by $100/month for the last seven months. That’s 3-4 times my fee.

     j. Even younger lawyers (under 40) tend to have limited negotiating skills; imagine a 20 year old h.s. graduate.

     k. She does not know where the good conflict and therapeutic counselors are.

     l. Where does she start? She doesn’t even know there ARE Family Court Rule or Rules of Civil Procedure, or Rule of Evidence!

23. Note to my misguided  colleague: I now represent several of these sad young women, who were told “by someone”, “the man now gets 50%.” One agreed to 50%/50%, but, in one year, he took the child for just 9 overnight stays and paid no child support! Think the mediator protected her? Think again! The mediator will not represent you.

24. But, since he still  “Want(s) my 50%.”, she is headed to an expensive trial to ask the Court to modify a one year old plan.

Summary: Hire a lawyer, at least as a $200-$500 consultant!
     a. Don’t believe “them”; you do not know how and cannot effectively represent yourself.

     b. The Court cannot do more than a cursory review. In a trial, you have a crap shoot.

     c. Does she/he talk better than you do? You are even in more trouble.

     d. The mediator wants a settlement and to appear to be even-handed. She will not advocate for the “right side”.

Spend that few hundred dollars on the right lawyer. You will never be sorry that you did!



This post was written by Burton Hunter

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