Doing It Yourself
There are many reasons for not retaining counsel, and they are usually expressed with a dollar sign. In truth, small businesses do not have big budgets for legal fees. Except in emergencies like being served with a summons or being arrested, representing yourself may make some sense. The tools exist out there, but how do you use them? And are you just postponing the inevitable, even increasing the likelihood of being hit with a big bill from the lawyer you didn’t want to retain in the first place?
We’ve evolved since the days of sleeve garters and eye shades, when lawyers drafted their own forms. Of course, there were form books to consult and old files to use as models. Then there were printed forms, available in specialty stationery stores to lawyers, and savvy lay people as well. All you needed to do was have your secretary insert five pieces of carbon paper and fill in the forms on the typewriter.
As big-box office supply stores proliferated, commonly used forms became more available to non-lawyers. But filling them out neatly and accurately, in as many counterparts as necessary, may have posed a problem in the absence of instructions, to say nothing of typewriters and carbon paper.
Now, with everything available online, preparing your own legal paper is actually doable, and the results at least look more professional. Following clear instructions with meticulous care, you might be able to “do-it-yourself” successfully. Simple wills, leases, contracts, divorce-yourself kits — available for a long time. Now, you can even “incorporate yourself” kits.
The threshold questions, the ones you would consult your attorney for, are not answered by the pre-printed forms and kits. Forming a corporation, for example, is ministerial and mechanical, but the individual considerations that go into making the decision to incorporate and choosing the most appropriate business entity can’t be addressed in a package.
You can prepare your own divorce papers. You may even be able to consult with a pro se clerk in your local court’s matrimonial part, but you still may not be fully aware of your rights and obligations under state law.
Employment contracts are pretty straightforward, at least until you have to prove that you didn’t mean to create an employer-employee relationship. With any legal transaction, there may be tax implications, regulatory fees, other liabilities that you don’t have the expertise to foresee, and that could easily wipe out any savings from not consulting a lawyer in the first place.
So, if you don’t have a legal budget the size of a small country’s GNP, can you safely take advantage of the opportunities out there to represent yourself? Are you asking for trouble down the line?
There’s no question that doing your own legal writing is risky, no matter how explicit the directions are. The do-it-yourself kits may actually provide useful instruction, because they’re intended for non-lawyers. Blank forms usually don’t come with directions. Asking your lawyer to look over your work is prudent, but asking her to look over your work without expecting to pay for her time is tactless and unprofessional.
If you need to bring an action in court to recover money or protect your property, you might be able to do it yourself. Courts have pro se clerks to help litigants who don’t have lawyers. Although the clerks will make it clear that they cannot practice law, most are helpful in making forms available, and advising litigants of deadlines that are typically strictly enforced. Be aware that some clerks, overworked, underpaid and underappreciated, can seem cranky. If the clerk doesn’t want to be bothered, wait for the next clerk or go back another day!
Some courts are actually created for pro se litigants. You can handle landlord-tenant issues, domestic relations problems like child support or visitation, workers’ compensation claims and actions for money damages under a certain amount. In these forums, paperwork is minimal.
Whether you bring the action or you are required to defend it, prepare to tell your side of the story by gathering up your supporting material and bringing it to court as evidence: pay stubs, bank statements, tax returns, contracts, damaged carpet, if necessary. Give the judge or hearing officer a clear, linear, chronological narrative. Don’t get belligerent, hostile, or aggressive. Avoid unnecessary displays of emotion. Be sure to preserve your right to appeal. You will be told how by the court officers. At the appeal stage, you may want to consult a lawyer.
Never, never try to represent yourself in a criminal situation. The consequences of representing yourself unsuccessfully are too serious. Courts have a panel of lawyers who will work at lower rates, and court-appointed counsel may be available to you.
The best way to protect yourself? Speak to your lawyer!
Tell her honestly that, although you value her counsel, your legal budget needs to be stretched. If she values your business, she may agree to provide a form for an independent contractor agreement, for example. So all you’ll need to do is add the date, the name of the new hire and the compensation. She may be willing to review your draft waiver, and tweak it as necessary. She may be able to recommend a local law firm that does pro bono work for arts organizations or individual artists. She might accept a very reduced fee for specific services. Or, she might accept a class card for herself or her children.
Like talented dancers, highly skilled lawyers make it look easy. But you know how hard it is to do a pirouette.