Do-it-yourself law: You might save money, but don’t count on it

Wandering the Internet can leave people with the heady feeling that they can do anything. In the cyber realm, after all, anyone can book airline reservations, file income tax returns or diagnose an illness and everyone is a political pundit.

Computers help thousands of Marylanders every year take their divorces, estates and other disputes to court without a lawyer. They can buy boatloads of legal forms online or from office-supply stores and follow the instructions for filing their cases.

Better yet, the state makes many forms available online for free and offers free help with family cases in every one of its circuit courts. Now, most family cases, such as divorce or child custody, heard across the state have one or both sides representing themselves. In Baltimore City, the percentage is approaching 85 percent.

But inside Baltimore-area courthouses, judges and lawyers say many of these do-it-yourselfers are making a hash of things. Too often, they unknowingly violate the rules of pretrial processes and cause delays. Trials have to be rescheduled when neophytes lack the necessary evidence.

“A lot of these people don’t know what the devil is going on,” says retired Baltimore County Circuit Judge John Fader.

Court delays drive up others’ legal fees. What’s more, judges and lawyers express frustration over cases where the quality of justice has suffered in the absence of skillful representation. 

“I had a case 15 years ago of two millionaires in their second marriage, both millionaires in their own right,” Fader says. “They decided to go to the library and prepare their wills themselves.”

Although the wills they produced were legal, Fader says they didn’t include a common clause in case they died within 30 days of each other. That omission tied up the couple’s estate for months and cost upwards of $300,000 in attorneys’ fees.

“The whole thing was unbelievable,” says the judge. “No lawyer in the state of Maryland would have missed that unless he was just clueless.”

Laypeople arguing on their own behalf isn’t new. Since 1791, Americans have had the right to represent themselves—pro se, in legal parlance—under the Sixth Amendment to the Constitution. What’s new is the surge in do-it-yourselfers in civil matters that began with broad access to the Internet. 

A Google search for “legal forms Maryland” produces 2.4 million hits. Many who chase down those links can’t pay a lawyer or believe they can save money by filling out forms and appearing solo before a judge. 

In Baltimore’s family-law division of the circuit court, the numbers of people representing themselves took off in 1997, according to circuit Judge Audrey J.S. Carrion. 

Now, she says, most contested cases she hears involve at least one do-it-yourselfer. Dealing with so many untrained actors tests Carrion’s resolve to have cases heard promptly. They have questions about even the most basic court procedures.

“‘How do I get a trial date?’ ‘Do I have enough information?’ They’ll come with no records to identify their contact with the minor child,” Carrion says. “That causes another delay.”

Laypeople in over their heads can drive up attorneys’ costs, which are passed on to clients. Take the discovery process, which allows opposing sides to review each other’s evidence. 

“Pro se’s don’t know how,” says Towson attorney Stacy LeBow Siegel. “Having to do things over again increases fees for your client.”    

Attorneys avoid using the phone to communicate with self-represented opponents. “They spin, they forget,” Siegel says. “I do everything in written form so I don’t have to worry about being misquoted.”  

Extra efforts are reflected in her bill. “A pro se in a complicated case is going to make it more expensive,” she says.   

At trial, judges say there are other problems, including procedural delays. “When there are two litigants without representation, it becomes a matter of the court getting information to make decisions concerning a minor child,” says Carrion. In such instances, Maryland judges are encouraged to make their own, independent inquiries.  

Otherwise, rules prohibit judges from helping litigants in their courtrooms. Lawyers say judges go as far as the rules allow, helping laypeople question witnesses, for instance.  

“Judges will bend over backwards, to the point you can feel like your client is at a disadvantage,” says Siegel, a family law expert who teaches at the University of Maryland School of Law.  

Nevertheless, attorneys take care not to be seen as taking advantage of a layperson representing himself. “You can’t be too technical, too proficient. You never want to upset a judge,” Siegel says.   

Do-it-yourselfers often return attorneys’ professional caution with a lack of trust that stands in the way of resolving cases outside the courtroom. “It ends up you’re litigating cases you should be settling,” says Towson attorney Mary Roby Sanders.  

Yet judges and lawyers concede that they have encountered laypeople who have managed their cases just fine. Those mentioned most often are simple uncontested divorces between couples without children or lots of assets.  

Although research is scarce, indications are laypeople would fare better with a professional advocate. Research by the Women’s Law Center of Maryland found that in contested child-custody cases, parties who hire lawyers were awarded sole custody significantly more often.  

The center also found that custody cases settled, usually with attorneys’ help, ended up back in court for modifications far less often. So, the center recommended that the court system work to increase access to legal advice.  

In Judge Carrion’s eyes, do-it-yourself lawyering has become a crisis. This summer she sent letters to Baltimore attorneys urging them to accept modest pay for representing low-income people in complex family-law cases.   

Though Maryland lawyers average 50 hours of volunteer legal work a year, most don’t want to lose money taking difficult family cases as freebies. Neither can lawyers take a percentage of a client’s award as a fee in domestic cases under state rules of professional conduct.   

The Maryland Volunteer Lawyers Service is hoping that its offer of $80 an hour will result in representation for 120 low-income Baltimoreans this year.  

Expert help for people representing themselves in family-law cases is more widely available in Maryland than in most states, according to the National Center for State Courts. Chief Judge Robert M. Bell of the Maryland Court of Appeals has backed self-help projects over the objections of colleagues who argue that Maryland is promoting do-it-yourself lawyering.  

“Access goes hand in hand with trust and confidence, which really drives the whole mission of the judiciary,” says Bell. “Pro se’s can have physical access to the courts, but if they don’t understand the system, they lose trust and confidence.”  

Lawyers and judges think more free help for do-it-yourselfers should make courtrooms run more efficiently. But if asked, they won’t hesitate to say, that if you can afford one, hire a lawyer. Or, at least consult one about your rights and obligations under state law before going to court solo.  

“I’m the personal representative of an estate,” says Fader, the retired judge. “I don’t know anything about estates. I hired an estate lawyer who knows what she’s doing.”

Carol Frey is a freelance writer based in Arlington, Va.