An Introduction to Self-Representation Mistakes

Representing yourself in court, whether at trial or during the appellate or post-conviction process, can be empowering and daunting. The legal system is complex, and without the guidance of an experienced attorney, it’s easy to make mistakes that could jeopardize your case. Many self-represented individuals (often referred to as “pro-se” litigants) unintentionally undermine their arguments by falling into common traps. If you’re considering representing yourself, avoiding self-representation mistakes is essential to improving your chances of success.

The Right to Self-Representation

Before delving into some self-representation mistakes to avoid, it’s important to understand your legal right to self-representation, particularly in criminal cases. The Sixth Amendment to the United States Constitution guarantees the right to legal counsel in criminal cases. However, it also recognizes your right to self-representation.

In the landmark case of Faretta v. California, 95 S.Ct. 2525 (1975), the U.S. Supreme Court affirmed that individuals have a constitutional right to represent themselves in criminal cases if they choose to do so. When you opt for self-representation in a criminal case, the court can, and may, appoint advisory or standby counsel. However, in a civil case there is no constitutional right to counsel. Therefore, if you don’t represent yourself, you will need to hire an attorney.

Common Self-Representation Mistakes

If you will be representing yourself during a trial, the direct appeals process, or in some other post-conviction proceeding, here are some fatal self-representation mistakes individuals who represent themselves often make:

1. Not Understanding Court Rules or Procedures

One of the most common self-representation mistakes is not fully understanding the court’s procedures and rules. Every court, whether it’s at the trial level, the direct appellate process, or a post-conviction proceeding, has its own set of rules that govern how or when evidence or filings must be presented. These rules are strict, and failing to follow them can result in your case being dismissed or your arguments from being considered.

Tip: Do thorough research into the court’s rules. Many courts have self-help resources available to assist pro se litigants. For example, the court website may include forms, guides for filing motions, submitting evidence, and general court etiquette. If available, attend some court hearings in advance to observe how the process works. Make sure you know the procedural steps well ahead of time.

2. Failing to Make Proper Objections.

Many self-represented litigants either fail to make trial objections when necessary or fail to do so in the right way. This can be a critical mistake. Objections help preserve rights and ensure that the court is only considering admissible evidence.

For instance, if a witness offers testimony that’s irrelevant or is hearsay, failing to object could mean that the court accepts it without question. Similarly, if opposing counsel introduces evidence improperly, you must object to prevent that evidence from being considered.

Tip: Learn the common grounds for trial objections (e.g., relevance, hearsay, speculation) and how to properly raise them. When making an objection, be concise. Say only, “Objection, Your Honor. Relevance” or “Objection, Your Honor. Hearsay.” It’s important to remain respectful and avoid arguing with the judge. If you’re unsure about when to object, err on the side of caution and raise the issue. You can always ask for clarification from the judge.

3. Getting Emotional

Court is not the place to show intense emotions, no matter how personal or distressing your case may be. Self-represented litigants are particularly vulnerable to letting their emotions affect their performance. This can happen at trial when giving their testimony or when cross-examining a witness. Emotional self-representation mistakes also happen when pro per individuals write motions or briefs. Becoming overly emotional can undermine your credibility and make you appear unprofessional or irrational.

Tip: Stay composed and focused on the facts. If you feel emotional, take a moment to collect yourself before speaking or writing. Practice deep breathing. Remember that your credibility and the strength of your case rely on your ability to present yourself clearly and logically. If you’re feeling overwhelmed, consider seeking support from a friend, family member, or even a counselor. They can help you manage your emotions during the trial or in brief writing times.

4. Failing to Prepare Witnesses

If you have witnesses who are crucial to your trial, failing to prepare them properly can be a serious mistake. Without the proper preparation, witnesses may struggle to answer questions clearly or may even inadvertently hurt your case by offering damaging testimony.

Tip: Before the trial, take time to meet with your witnesses and go over their testimony. Ensure they understand the questions they will be asked and remind them to stick to the facts. If possible, conduct mock testimony sessions with your witnesses to help them feel more comfortable. Remind them to remain calm and only answer the questions asked, without offering extra details that could open up avenues for harmful cross-examination.

5. Focusing to Much on the Emotional Aspect of Your Case

While your case may have emotional significance for you, the court and jury is concerned with facts and the law. A common mistake self-represented litigants make is focusing to much on the emotional aspects of the case. This detracts from the legal issues at hand.

Tip: Focus your trial or post-trial arguments on facts, legal principles, and relevant evidence. It’s important to present the case’s situation in a way that supports your legal position. Use facts to tell your story and avoid veering off into emotional pleas. Courts and jurors are not swayed by emotion alone, they require logical reasoning and evidence.

6. Misunderstanding Legal Terminology and Precedent

Legal jargon can be confusing and overwhelming for those unfamiliar with the law. It’s easy to make mistakes and misinterpret terms or legal precedent contained in case law. Misunderstanding key terms or legal intent can lead to flawed arguments or self-representation mistakes in the handling of your case.

Tip: Take time to familiarize yourself with the key terms and concepts of law that will come up in your case. Many courts have glossaries of legal terms available online or in person. If you don’t understand a legal term used in your case, ask the judge or advisory/standby counsel for clarification. Don’t hesitate to speak up and ensure you’re on the same page with the court. Read older case laws that are similar to your situation.

7. Failing to Present a Coherent Argument

A frequent mistake made by self-represented litigants is failing to organize their case or filings in a clear, coherent way. In a legal setting, structure and clarity are crucial. If you’re not careful, your arguments can become disjointed, repetitive, or confusing to the judge or jury, which can hurt your case.

Tip: Before going to court or filing a brief, outline your main arguments. Stick to a clear structure, and ensure that each point you make supports your overall legal argument. Focus on presenting a logical progression of facts and evidence. Be concise and avoid going off on tangents that don’t directly relate to your case.

8. Ignoring Settlement Opportunities

Many self-represented litigants focus solely on the trial process and fail to explore settlement options. This is a critical error because trials can be expensive, time consuming, and unpredictable. Settling a civil case outside of court or accepting a favorable plea offer may be a beneficial option. This is especially important when both parties are willing to negotiate.

Tip: Consider settlement options at every stage of your case. If the other party offers a settlement or suggest mediation, don’t dismiss it out of hand. It may be in your interest to resolve the case without going to trial. You can also propose a settlement, or counter-settlement if you believe it might be beneficial.

9. Not Asking for Help When Needed

Pride or fear of admitting a lack of knowledge often prevents self-represented litigants from asking for help when they need it. Whether it’s understanding a procedural issue, filing a motion, or preparing evidence, many people fail to seek the assistance they need out of fear of looking unprepared or uninformed.

Tip: If you are unsure about something, ask! Many courts have resources for pro se litigants, such as legal clinics, online guides, or even pro bono attorneys. While they can’t give you specific legal advice, they can often point you in the right direction and help you avoid common mistakes. Don’t let pride or fear stop you from seeking the help you need.

10. Underestimating the Complexity of Legal Procedures

Finally, many self-represented individuals underestimate how complex legal procedures can be. Legal processes involve strict deadlines, paperwork, and procedural requirements that can be overwhelming if you’re not familiar with them. Missing a deadline or filing something incorrectly can have severe consequences.

Tip: Plan ahead and stay organized. Keep track of all deadlines, filings, and court dates. If you’re unsure about any step in the process, don’t hesitate to ask the court staff or seek additional legal help. Being proactive and organized will help you stay on track and avoid falling behind.

Self-Representation Mistakes are Avoidable: Real Life Examples

If you know your case and can confidently present it to a judge or jury, you can have success, even without formal legal training. In my post, Cases Are Won Through Self-Representation, I identified several criminal and civil cases where individuals representing themselves were successful.

One of the successful individuals identified was Stephen Karban, an Arizona prisoner and author of Arizona Department of Corrections: An Insider’s Look at Chaos and Corruption. Karban, a prisoner with no formal legal training, was issued a false disciplinary citation by corrections officer, Jacklyn Ostrander. After complaining about Ostrander’s behavior, the prison’s Deputy Warden, Vivian Baltierra, transferred him to another prison. Representing himself, Karban successfully sued Vivian Baltierra for the violation of his First Amendment Rights. Even while wearing a prison uniform, Karban secured a favorable verdict and financial judgment against Ms. Baltierra for her actions.

My Final Thoughts

Representing yourself in court is challenging, but it’s not impossible. By avoiding common self-representation mistakes, stay organized, and staying composed, you can improve your chances of success. The key is to be well-prepared and stay focused on the facts and legal principles that govern your case. While it can be a steep learning curve, with the right mindset and effort, you can effectively navigate the legal system and present your case to the court.

If you, or someone you know, will be representing themselves in either a criminal or civil matter, our books are crucial resources in the pursuit of justice. Purchase your copy today or on behalf of someone incarcerated.