The legal profession has many corny and downright cliché adages that often wind up on a pillows, coffee mugs, or some other last minute gift for the lawyer in your life. From experience, I can tell you that I have rarely, if ever, relied upon colloquialisms like “A good lawyer knows the law, but a great lawyer knows the judge” or “When the facts are on your side, argue the facts. When the law is on your side, argue the law. When you have neither, just scream like hell.” From experience, however, I have seem the maxim “A man who represents himself has but a fool for a client” ring true in courtrooms across Northeast Florida time and time again.
Formally referred to as pro se representation from the Latin phrase “for one’s self,” I contend that most lawyers and judges view the term pro se as a proverbial four letter cuss word that should rarely if ever be uttered in court. While many of my most entertaining “war stories” involve pro se litigants, I would gladly trade them all in to have back the time and energy spent dealing with a pro se litigant on the other side—especially in criminal court. That’s because most pro se litigants lose, and they lose badly.
While a court will conduct what is known as a Faretta inquiry, which outlines whether a person is legally capable of self representation, the inquiry is essentially whether a person can read, write, and is not absolutely crazy. A judge is not permitted to treat a pro se litigant any differently than an attorney with 30 years of experience, and the self-proclaimed counselor may not ask the Court for legal help. So, the old maxim usually rings true; pro se litigants lose, those experienced in the court system look at them as fools, and they often are treated as such.
The “practice of law” is another good saying that actually means something because even at game time during a trial or a hearing, you are still just practicing. Making and learning from mistakes is part of the “practice.” After all, a walk through any legal library displaying the old case law books (yes back in the day you had to actually look up a case in a book) should be a very apparent reminder that for every case in those books there is a winner and there is a loser. The law is tough, confusing, and—frankly—sometimes outcomes or legal doctrines do not make sense. However, a lawyer with some practice in the minefield of law can help you navigate the treacherous trails of the court system.
If you cannot afford an attorney, one will be appointed for you.
Fortunately for the indigent, there is a recognized fundamental right to subsidized attorneys. However, many people who have been appointed a free lawyer or who can afford a lawyer think they can do it better themselves. Unfortunately, pro se litigants reinforce what we say about them by not contemplating the complexities and importance of four broad areas of criminal practice: procedure, discovery, the law, and strategy.
Hundreds of pages long and thousands of words dense are the Florida Rules of Criminal and Appellate Procedure. This is the rule book. It lays out deadlines, how to obtain information from the State, what information you must provide to the State, and how to properly preserve and prosecute an appeal. It is foolish to believe that the Rules are not a sword for those who understand them.
For those who do not understand the significance of procedure, like the foolish self-proclaimed lawyer, significant rights and strategic opportunities may be missed. For instance, every person has a right to a speedy trial within 90 days after an arrest for a misdemeanor offense or 175 days after an arrest for a felony. There are rules governing when a criminal defendant may waive or avail him or herself to the protections of the speedy trial rule. One not familiar with this rule may waive the right to a speedy trial or not know that one can be demanded even after a waiver. The effect can be detrimental, especially if the State is not ready to prosecute the case and a demand for speedy trial could have caught them at a disadvantage.
Similarly, there are many rules pertaining when and how the State must provide the evidence against a criminal defendant. One who is ignorant to this process would be ill-equipped to present themself without enacting the procedure forcing the State’s disclosure of evidence. Furthermore, not only realizing that most criminal cases will allow for depositions of all witnesses, but also the process and tact required to effectively and properly administer a deposition are critical.
Among the biggest procedural blunders are those concerning appellate deadlines. A pro se litigant often overlooks the necessary deadlines and documents required to be be filed to preserve their right to challenge a court’s ruling. Again, the State, the judge, and even sympathetic bailiffs cannot and will not help a pro se defendant. Blowing a deadline often means it is blown for good, and even a great appellate issue is lost due to the foolishness of thinking it a good idea to charge against a government’s prosecution without counsel.
The procedural pitfalls alone should be enough to sway one from self-representation. Even one mere procedural mistake could cost you years of your life.
Discovery is what lawyers call the information or the evidence of the case. Discovery is tied to procedure in the sense that you need to understand what documents to file and when to file them, as well as the practical considerations of how to obtain the discovery.
To be redundant for a purpose, no one will hold a pro se litigants’ hand, and merely navigating how to obtain documents from the State can be confusing. In each county of the 7th Judicial Circuit there is an individual State Attorney’s Office. Each office has its quirks; one go-to person for obtaining documents and different methods for paying for such documents. (Yes, you have to pay to receive the evidence against you.) Further complicating the matter is the mandatory electronic service requirement for discovery.
If you plan on representing yourself, you better be tech savvy because the State is only obligated to follow the Rules, and the Rules justify electronic service. Sure, there are discs and other tangible documents that will need to be retrieved from the State Attorney’s Office. I hope you know who to call.
Just obtaining the information can be difficult, but what you do with it once received can be even worse. Oftentimes discovery can be thousands of pages, or hours or even days of recorded interviews. One who is ill-equipped in knowing where to start will miss an opportunity to attack a weakness in the State’s case or understand when the State has you dead to rights. Additionally, oftentimes discovery will need to be analyzed by an expert. Expert analysis and testimony are becoming increasingly important. From mental health defenses to ballistics analysis, an expert witness can make or break your case.
Before you decide to represent yourself against a criminal prosecution ask yourself: “Can I explain my case well enough to an expert that they can help defend me? Do I understand the type of expert witness I may need to assist in my defense?” Along with the increasingly long laundry list of other reasons not to represent yourself, if the answer is no, you should call Delgado & Romanik, PLLC, at 386-222-6677. Our criminals defense lawyers will be happy to assist you.
It seems obvious, but yes—there is more than the law that has allegedly been broken that comes into play. There is evidentiary law, constitutional law, laws interpreting sentencing issues, discovery issues, issues concerning the sufficiency of the evidence to support a charge, and more.
Sure, a driving while license suspended charge can often be defended by understanding the facts and the basics of the law against driving while license suspended, but most cases are not so cut and dry. Additionally, even a straightforward law like the one concerning driving while license suspended can have complicated implications. For instance, the type of suspension a person was allegedly driving on can affect whether the charge can be treated as a felony, the length of the suspension, and the requirements for reinstating the license. This is a modest example of how even an “easy law” can have far reaching consequences beyond just the determination of whether a person was driving on a suspended license.
To take us back to the “law library” example, many of the cases in the law books deal with new arguments. At first, a trial judge rules in favor of or against a new argument, but the appellate judge can rule otherwise. Just like that, we have a new way of arguing an issue. Has the self-represented criminal defendant kept up with the evolving case law that affects their case?
Without an understanding of how the intersection of all aspects of the practice of law can be applied to advance a new argument, you should not be risking your liberty because of foolish arrogance. Even if a lawyer is objectively correct about his or her assessment of the law, it takes tact and experience with the judges and the system to effectively make and win the argument. A person who has no legal training or experience, and who is emotionally involved in the case, has no business tackling the complicated and ever-changing body of laws that can cover a single issue in a case.
Bringing procedure, discovery, and the law together is really where a good lawyer earns a living. Sometimes it makes sense to waive speedy trial, while other times it does not. Many cases will require an expert in order to properly defend, while other cases can be lost with the wrong expert. A properly timed objection can prevent the State from introducing harmful evidence, whereas forgoing an objection that may be technically valid can open the door to an issue that can be used to the defendant’s advantage.
Just like welding, cruise boat captaining, and brain surgery, the only way to be good at something is with practice. Pro se litigants have no practice and as a result put themselves in a position where they are effectively performing their own brain surgery. It is wholly unreasonable for anyone to tell a doctor, “I’ll handle my brain surgery.” Your life is on the line at the operating table, just as it is in the courtroom. If you are seriously considering representing yourself against a criminal prosecution, please call the experienced criminal defense lawyers at Delgado and Romanik, PLLC. We will talk you out of it.