Do I Need An Attorney?

Thu, 06 Nov 2008 23:57:57 GMT

There are many circumstances in the United States when a person is entitled to represent himself in legal matters. The Supreme Court has found that the Sixth Amendment to the United States Constitution which guarantees the right to counsel also allows a person to represent himself at trial. Similarly, many states have constitutional provisions which allow self representation. However, this right to self representation has limits and there are certain circumstances when legal counsel is necessary.

What is Pro Se Representation?

An individual who represents himself in a litigation matter is called a pro se litigant. A pro se litigant has the right to call witnesses, make petitions of the court and otherwise zealously represent himself in a court of law.

There is no requirement that a pro se litigant be an attorney or have any legal training. However, by definition a pro se litigant may only represent himself. He may not represent other people because if he did he would be guilty of the unauthorized and unlicensed practice of law.

For individuals who wish to represent themselves, there are state and private resources available to help them. Many state bar associations provide assistance to pro se litigants. The internet and law schools also have legal materials available.

When is Pro Se Representation Prohibited?

Most state laws limit pro se representation when the pro se litigant is acting not only on his own behalf but also on behalf of others. For example:

Representation of a Corporation: generally, a licensed attorney must represent a corporation in a legal proceeding. This is to protect the rights of all of the corporation’s shareholders.
Representation of a Probate Estate: similarly, a licensed attorney must represent a probate estate. Generally, an executor may not act pro se because the rights of all potential heirs and beneficiaries must be adequately protected.

Further, while many pro se litigants may act on their own behalf at trial that does not give every pro se litigant the right to proceed without counsel. For example:

Appeals: Most Federal Court of Appeals do not generally allow pro se litigants to present arguments before the court.
Judicial Discretion: Sometimes a trial judge has concerns about a pro se litigant’s ability to adequately defend himself or about a pro se litigant’s ability to maintain the decorum of the courtroom and not be disruptive to the proceedings. In those cases, the judge may determine that the pro se litigant needs the advice of a licensed attorney who can advice him behind the scenes or at trial. The judge may also appoint counsel if necessary.

When is Pro Se Representation Discouraged?

There are also situations when an individual may be legally entitled to represent himself but when it might not be a good idea. For example, if you are a defendant in a criminal trial and your liberty is at stake then it is often advisable to retain counsel or to have counsel appointed to you. Also, if you are involved in a complicated bankruptcy or civil proceeding where the outcome could greatly affect your personal finances, an attorney’s help is advisable.

Only you can decide if you are competent to represent yourself and if you are willing to take the risks associated with proceeding as a pro se litigant. If you are unsure about how to proceed it is worth discussing your case with the local bar association or a licensed attorney in order to get a better idea of how to proceed.

Do You Swear to Tell the Whole Truth? The Admissibility of Lie Detector Tests

Thu, 06 Nov 2008 20:40:03 GMT

One of the greatest challenges for the judge and jury in the courtroom is to determine which witnesses are telling the truth. While witnesses must promise to tell the truth before taking the witness stand, judges and juries often hear conflicting testimony that indicates someone is being untruthful.

It might seem like the technology of the polygraph, also known as the lie detector test, could take the guess work out of determining who is lying and who is telling the truth. However, the results of lie detector tests are not always admissible in court.

Different Jurisdictions Have Different Rules

The United State Supreme Court has left the question of the admissibility of lie detector evidence up to individual jurisdictions. Different jurisdictions have handled this question differently. Some courts allow lie detector evidence in certain proceedings only or only when both parties agree to its admissibility. Other jurisdictions do not allow lie detector evidence to be entered at all.

The Argument Against Lie Detector Admissibility

Those who are opposed to allowing the results of lie detector tests to be admitted in court argue that jurors would accept the results of the test without consideration for the test’s accuracy. The accuracy of lie detector test results can vary depending on the person administering the test, the machine used and the person taking the test. They are not always accurate. Jurisdictions which do allow the results of lie detector tests to be considered in court allow each party to present evidence as to why that particular test is or is not reliable.

The Argument For Lie Detector Admissibility

Those who argue for allowing the results of lie detector tests to be admitted in court argue that the tests are reliable most of the time. Therefore, proponents argue it is useful to prove whether a person is telling the truth or lying. However, many experts disagree with the assumption that lie detector tests are reliable in most situations. Accordingly, when the Supreme Court left the admissibility of lie detector results up to the individual jurisdictions it commented that there is no reliable evidence about the accuracy of lie detector tests.

How a Lie Detector Works

In order to understand why different courts have different rules about the admissibility of lie detector test results it is important to understand how a lie detector test works. Essentially, the polygraph machine is attached to the person’s body and the examiner asks a series of questions to the person. The test then measures the person’s physiological responses to the questions to determine if he or she is telling the truth.

Although lie detector test results are not always admissible in court, many attorneys and law enforcement officers continue to use the technology when questioning witnesses and suspects. If law enforcement administers a polygraph test to a suspect then they need to issue the Miranda warnings prior to conducting the test.

If you have any questions about the use or admissibility of lie detector tests in your jurisdiction then you should contact a local attorney or your local bar association for additional information.

What are Contingent Fee Agreements?

Fri, 07 Nov 2008 00:52:18 GMT

Some attorneys will accept cases on a contingency fee basis. In short, this means that the client does not pay attorneys fees unless the client is successful in his or her case. In many situations, particularly personal injury cases, this is beneficial to the plaintiff who may not have the money to hire an attorney pursuant to a traditional fee agreement but might be willing to pay the attorney out of a future award or settlement.

The Details of a Contingent Fee Agreement

A contingency fee agreement is a written contract between the attorney and the client. The attorney’s fee for working the case is typically calculated as a percentage of any future court judgment or settlement related to the case.

The Pros and Cons of Contingent Fee Agreements

The most important benefit to this type of fee agreement is that it allows some clients to access the court system when they would not otherwise be able to afford an attorney. It also serves as a motivation to the attorney who needs to be successful in the case in order to get paid. Finally, it might serve a benefit to potential defendants and to the court system by weeding out cases that do not have a good likelihood of winning. Plaintiff attorneys are unlikely to assume the risk of working for free if they do not believe that they will be successful in the case. Attorneys who are paid by the hour, however, may be more willing to take a chance on a case without a strong likelihood of success.

On the other hand, contingency fee agreements may lead some attorneys to minimize the number of hours spent on cases for the greatest return. Further, they might end up costing clients more money than fixed fee agreements if the agreement is for a high percentage of their eventual recovery.

The Ethical Considerations of Contingent Fee Agreements

The American Bar Association’s Model Rules of Professional Responsibility allow attorneys to take into account whether a fee is fixed or contingent when they enter a fee agreement. Generally, attorneys can earn more pursuant to a contingency fee agreement because of the inherent risk in the fee arrangement and because of the delay in payment.

The Model Rules of Professional Responsibility are the basis for many state rules of professional responsibility. They go on to explain that a contingent fee must be in writing. The written fee agreement must clearly explain the percentage of the eventual settlement or judgment that will be the attorney’s fee. It must also explain who will be responsible for court costs and other litigation expenses and when those expenses will be paid. It should also clearly inform the client that court and litigation expenses will need to be paid, regardless of who prevails.

Finally, there are a few situations when contingency fees are prohibited. Those situations include domestic relations cases. For example, an attorney cannot represent a client under an agreement that makes the attorney’s fees contingent on a divorce being granted. Further, an attorney cannot represent a defendant in a criminal trial on a contingency basis.

Contingent fee agreements are important and helpful to many plaintiffs and plaintiff attorneys. However, in order for them to be ethical and legal they need to be explicit and reasonable.