According to a New York Times article, more and more people are representing themselves in court. I have had much experience counseling debtors who have initially elected to seek bankruptcy protection without the benefit of counsel. There are many reasons for this: the lack of money to hire an attorney being one of them, if not the biggest. Another, and perhaps more troubling reason is that pro see filers have a belief that a judge will help them through the process.
From the article:
Judges complain that people miss deadlines, fail to bring the right documents or evidence and are simply unprepared for legal proceedings. Such mistakes make it more likely they will fare poorly – no matter the merit of their cases.
This applies in any courtroom, and in any legal proceeding. If you want to represent yourself, you have to be prepared. That means, you have to know what the legal issues are (not what you think the legal issues are or should be) and have your ducks and documents all lined up. It also helps if you know the law.
But relying on the judge to help your is tantamount to ignoring that the role of the judge actually is. As the Times discusses:
Overseeing a proceeding where one or both sides lack lawyers puts a judge in a difficult position: The judge is supposed to be neutral but also has an interest in moving things along.
“If you see a person making a terrible mistake, you can’t always jump in and save them,” said Judge Borbely, the circuit court judge in Vermilion County, Ill. “You cannot take the role of an advocate.”
To ensure fair outcomes, courts must do more to help people navigate the courts, said John T. Broderick, the chief justice of New Hampshire. “If you and I went to the hospital and they said, ‘Do you have insurance?’ and we don’t, and they said, ‘There are some textbooks over there with some really good illustrations,’ ” Judge Broderick said, “we would think that was immoral.”
At the same time however, while courts can and do offer navigation assistance (such as the Pro Se Clerk at the US Bankruptcy Court), they cannot offer legal advice and the judges cannot be your advocate.
My Experiences
A few years ago, I was sitting in a creditor’s meeting waiting for my client’s case to be called. The case before mine was a woman who was proceeding without an attorney. She owned her home, which at that time had equity, and I believe shared it with a relative who accompanied her to the meeting. The trustee asked her “do you have a copy of your Declaration of Homestead?” (which in Massachusetts is a requirement if you intend to use the Massachusetts Homestead exemption).
“I don’t know what that is,” the debtor responded.
The trustee explained to her that it was a document that she would have had to complete and record with the local registry of deeds.
“I don’t think I did that,” the debtor responded.
My client leaned over and whispered in my ear “she’s in big trouble, isn’t she?”
My heart sank. Without the homestead declaration, she could lose the home. I never did find out what happened to that debtor.
A few months ago, I met with a debtor who presented me with a seemingly impossible situation: a looming foreclosure, no reliable income coming into the household, and no reasonable expectation of anything changing in the foreseeable future (there were also other issues that complicated this debtor’s situation). After I explained the debtor’s options (which included seeking alternative housing for him and his family), he came right out and told me “I’m not sure I want to hire a lawyer. I think I can do a better job myself because the judge will feel sorry for me.”
That’s really not a good game plan because that’s simply not what judges do. Yes, they are human. Yes, they can be compassionate and feel empathy. But they are charged to enforce the law, not act on sympathy.
If you are reading this and you’re thinking “I can file bankruptcy myself”, do yourself a favor and speak to an attorney. If you’re indigent, there are likely legal programs in your area that may be able to offer assistance. If you’re not indigent, seek out an attorney who, like me, offers payments plans (bear in mind, the Bankruptcy Code imposes some limits on the types of payment plans that attorneys may offer). While forms are available at office supply stores and online, properly preparing a consumer bankruptcy case is not about “filing forms” and being sure that they are filled out correctly. The temptation to proceed without an attorney may be fueled by the desire to save money, but filing without an attorney may very well be the biggest (and perhaps the most costly) mistake you ever make.
For Massachusetts residents:
The Volunteer Lawyers Project of the Boston Bar Association
Related posts:
- Leaving Home and Keeping the Homestead: A Look at Homestead Termination in Massachusetts
- Why Bankruptcy Lawyers Require Fees Before Filing
- Wondering What a Bankruptcy Attorney Really Does?
- Still Think You Can File Bankruptcy Without An Attorney?
- Leaving Home and Keeping the Homestead: A Look at Homestead Termination in Massachusetts
Tags: attorneys, Bankruptcy, Petition Preparers and Fees, pro se
