To retain or not to retain – that is our question.
I know what you’re thinking right now: “Why in the world would I ask a lawyer if I need a lawyer? Of course the lawyer is going to say, YES!”
Right off the bat, let me admit that asking a lawyer if one needs a lawyer seems to be an inherently self-serving question. Fair enough.
With that said, the answer to our question isn’t always a resounding, yes! I routinely hear legal issues that can be addressed without a lawyer. I regularly inform potential clients that they are “throwing good money at bad money” to retain a lawyer and pursue a lackluster claim or cause of action. Unfortunately, like most legal issues, the answer to whether or not you need to retain a lawyer is not always a simple yes or no.
The biggest problem with our question is that most people ask the question AFTER a decision has been made in one’s case. At this point the client then comes to my office requesting to change the decision. Unfortunately, in many instances the decision has been forged into stone.
Here are some common issues that I see with people that decided to move forward with litigation unrepresented (i.e pro se):
Not knowing the full repercussions of what they are facing:
This issue is particularly true with Order of Protection Hearings. The fact that Order of Protections (restraining orders that involve household members) are generally hand written and poorly worded gives the accused a false sense of security regarding the potential severity.
In this respect, often an individual is accused of an Act of Abuse under the family violence protection act. This individual (i.e. Respondent) is then personally served with a copy of the Petition for Order of Protection and Order to Appear before a Special Commissioner on an assigned date and time. For any number of reasons, the Respondent believes that the Hearing is “no big deal,” and that they can “handle it on their own.” The person then appears before the Special Commissioner and is thrown into a quick hearing where everything “happens in a blur.” The pro se litigant is unfamiliar with the rules of evidence, objections, and procedure. Despite this lack of knowledge, the pro se litigant is treated no differently than if she was represented by counsel. An Order of Protection is entered. Down the road the person discovers that the Order of Protection negatively affects their security clearance, or prevents them from owning or possessing a firearm while the Order is in place. The person then discovers that they need their clearance and/or firearm to keep their job, and they need their job to keep their home.
It’s not until this point that the individual realizes the severity of the Order. Based on this realization the person comes into my office for information on fighting the decision, unfolding a a new issue:
No Objection, No Appeal:
Everyone has seen the classic television show where the indignant lawyer springs out of his chair, yelling: “Objection your honor – hearsay!” That slice of television is an objection in action, in particular an objection to witness testimony based on the rules of evidence. The party to a case has the ability to object to testimony on evidentiary grounds such as hearsay, any legal element presented by the unique facts of the case, a Judge’s decision based on statutory and/or case law, or any evidence being proffered to support one’s position.
New Mexico law is clear on objections: No objection = No appeal-able issue. As stated in Benz v. Town Ctr. Land, LLC, 2013-NMCA-111: “To preserve an issue for review on appeal, it must appear that appellant fairly invoked a ruling of the trial court on the same grounds argued in the appellate court.”
In other words, speak now or forever hold your appeal-able issue.
As mentioned above, the problem with moving forward without a lawyer is the fact that often the pro se litigant is unaware of the potential repercussions and necessary rules of evidence and procedure. Additionally, often the case seems to “flash by in a blur,” statements are made, evidence is introduced, and a decision is rendered.
Possibly evidence was entered such as a statement or picture from a website, or social media. Unfortunately, no objection was made during the hearing such as “lack of foundation” or “lack of authentication.” Consequently, the otherwise inadmissible statement or picture was entered into evidence without objection. Potentially, this statement or picture forms the basis for the Judge/Special Commissioner to enter an order of protection. Let’s take one more logical leap and assume that the order of protection prevents the gun enthusiast from owning or possessing a firearm. Unfortunately, at this stage in the process the likelihood of success on appeal is greatly diminished because one will be unable to specially point out where — in the record — the pro se party invoked the court’s ruling on the issue under review. In other words, you cannot hang your legal hat on a rack that was never created with the requisite objection.
Objections under the New Mexico Child Support Guidelines:
The importance of objections is particularly relevant with issues involving child support. In New Mexico child support is governed by clear guidelines. This is one area of family law where the judge’s decision is shackled by law, and not the amorphous “best interest of the child standard” that governs custody and time-sharing issues. For any number of reasons, the assigned Judge could fail to follow the child support guidelines. Possibly the judge includes gross income that is not applicable. Potentially the judge increases one’s child support obligation notwithstanding the fact that the party requesting the increase bears the burden of proving the material change in circumstances and the requisite increase/decrease in child support of 20% is not present. Possibly the judge calculated child support based on a Worksheet A in lieu of Worksheet B, failed to include insurance premiums paid for the child, did not include one’s work related child care expenses, or otherwise failed to rule in accordance with the provisions of the child support guidelines of Section 40-1-11.1 NMSA 1978.
Despite the judge’s failure to follow statutory law regarding child support, because an objection was not properly laid, the issue will not be heard on appeal.
Whether or not you need a lawyer in your case depends on a litany of varying facts and circumstances. What I can tell you without a shadow of a doubt, however, is that you need to speak with an experienced attorney before diving into the shark infested waters of litigation. If you blindly jump into litigation without an understanding of the repercussions that could dramatically affect your life, you will be guilty of the age old adage: “He who represents himself has a fool for a client.”