Now and then I get calls from people who are representing themselves in product liability litigation. (An individual who represents himself in litigation is called a pro se litigant.) Usually these callers have worked their cases to a point and have questions. Sometimes the questions are rather modest: “I’ve been offered this amount of money to settle? Is that fair?” Other times the questions are ominous: “The judge now says I need an expert witness. What is an expert witness?” The first question is a mere judgment call. Is $150,000.00 enough to compensate you for the pain and suffering of a failed artificial hip? That is mostly for the injured person to decide (though lawyers have plenty of insight into the value of such a claim). The second question poses a serious threat to your case. If an expert witness is required to prove your case, and you don’t have an expert witness (or worse, you don’t even know what an expert witness is) your lawsuit will be lost. And quickly. (You can read about expert witnesses here.)
I get the impulse to “do it yourself.” Prior to attending law school, I sued my landlord in small claims court for the return of my security deposit (I won). I also tried to replace the steering box in my 1974 Ford Bronco (that didn’t turn out so well).
These phone calls from pro se litigants are often interesting. Plainly some people have developed a distrust of lawyers. For others, the thought of paying legal fees for a good attorney seems unpleasant and undesirable, even overwhelming. Some may be trying to litigate their claim “on the cheap.” But the real question is: does it work? Can a person represent himself or herself successfully in a product liability injury case?
Do You Really Need a Lawyer?
Here’s the quick answer: No. Technically a person does not need a lawyer to bring any civil action. You can always represent yourself (as an individual) in a lawsuit.
The pro se litigant has a long road. If you’ve read my blog at all, you know how complicated it is to identify a viable product liability case, to gather (and pay for) the relevant medical records, to draft the complaint, to make all the proper case filings, to meet all deadlines from the multidistrict litigation’s case management orders, and to position your case for trial or to negotiate for the highest possible settlement. It’s a slog.
Can a pro se litigant handle it? It’s possible. But you should expect to spend hundreds of hours researching the claim, reading court orders, double and triple-checking deadlines and court filings. One misstep and the case can be dismissed. I would say that the life of a pro se litigant is stressful and difficult at best, and the defense lawyers representing the companies will know immediately that they are dealing with a pro se plaintiff and will reduce settlement offers accordingly. It’s just the way of the (defense) world.
It’s impossible to say whether the defendants will make an offer to a pro se plaintiff that is less than net amount an injured person represented by a competent attorney could expect, but in many cases that is exactly what happens. The pro se plaintiff often gets much less in settlement.
So if you choose to represent yourself, be careful, and be ready to do a boatload of research and work on your case.
By the way, here’s another answer: you do not need a bad lawyer. You should always take the time to research the lawyers and the law firms you are considering. I wrote about this subject some time ago, which you can read here. But my answer is that you do not want to hire a bad lawyer.
So the real question then becomes:
Will a Competent Lawyer Improve My Case Result?
I am sure some law professor at some point has done a study of the results obtained by pro se litigants: the wins and the losses and the weak settlements and the strong settlements. I have not done such a study. But I have practiced law for many years, and I am quite certain a good lawyer who is knowledgeable about the subject matter will get good results for his or her client, and often considerably better results than the client would get on her own.
Did I Miss Something?
Beyond that, the lawyer is responsible for all the headaches and all the responsibilities of the litigation, from start to finish. If there is a deadline, the lawyer must know it and must comply with all filings by the deadlines. Your lawyer will let you know if you need to make a litigation decision, and will inform you of the scheduled date for your deposition, and will let you know of upcoming hearings. You will be freed from the stress and anxiety and chaos of litigating your own case. You will not wake up in the middle of the night and ask: did I miss something today? The psychic benefits of hiring a competent lawyer can be substantial. Instead of poring over discovery, you can do things like focus on your surgery rehabilitation, or read a book, or take a nap.
But Lawyers Are Expensive!
Lawyers are not cheap (and if they are they are probably not worth hiring). But lawyers are expensive the way surgeons and hospitals are expensive, the way a comfortable, reliable car can be expensive.
In a product liability injury case, the minefields are everywhere. After all, you are suing huge corporations who make billions of dollars each year, often on the product that harmed you. These corporations have truckloads of money to spend on armies of dark-suited lawyers, all working feverishly to make your case go away.
So at the end of the day, I’d say it is a dangerous game to represent yourself in any litigation, but especially in complex product liability litigation. Hire a good lawyer, and if your case has value your lawyer will find the value.
As always, good luck.
Note: this article is not legal advice.