family attorney Archives

I have had potential clients ask me, often with a cautious hope, whether their particular type of legal matter, is something that they can handle for themselves. It is a question one would never ask a physician, an electrician, or an auto mechanic, but one that I believe, is often asked of attorneys. I tell those individuals that the answer to that question depends on how comfortable they are with understanding and researching the law, presenting evidence, cross-examining witnesses, rebutting legal arguments, and making a persuasive argument to the judge. Really, though, it is how quickly a person can gain and condense the specialized education and 26 years of experience that I have, into the time that person has to prepare for their hearing.

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Recently, I appeared in Hillsborough County Court, in Tampa, for a Small Claims Pretrial Conference before Judge Gabbard. My client was being sued over a nominal credit card debt, the type of case that over the past five years, has been prosecuted with greater and greater frequency. Like many different types of court divisions, such as traffic, criminal or even some family divisions, the court calendar was a cattle call. Of that the cases on that calendar, two individuals had decided to represent themselves. The first was being sued, on behalf of a debt to a person who had owned the company he had recently purchased. As the plaintiff was not suing the company, only the former owner, this was a debt for which the individual standing in Court was not responsible, and legally, could never be held responsible. The plaintiff’s attorney was not about to point this out to the defendant, though he did try to change the subject whenever the judge tried to imply to the defendant—judges cannot give legal advice to either party, that the plaintiff had sued the wrong person. Without any help or advice from an attorney, the defendant proceeded into a side room of the courtroom, and began discussing the terms of a repayment plan for settling a debt that he did not owe. The second, unrepresented litigant, was a young woman suing someone on a debt. In explaining to the judge why she had not gotten service on the defendant, she expressed frustration that the Sheriff’s process server did not do more to serve the defendant, when she was convinced the address she had provided was correct. Again the judge could not advise this plaintiff, all she could do was reschedule the case for another pretrial conference, and tell the plaintiff to make sure she obtained service on the defendant.

In less than five minutes after their hearings, I told each of these strangers what they needed to know before and for the next time each comes to Court—perhaps to the irritation of the collection agency attorneys gathered in the Court room. The two pro se litigants were fortunate that I did so, but the point is, neither of these individuals had any business going into Court without an attorney, or without even having consulted an attorney.

While these situations played out in the civil division of the Hillsborough County Court, I have encountered similar situations in St. Petersburg and Clearwater, especially in the context of Family Law cases. I think in every domestic violence calendar (the hearings in which a Family Law Division Judge rules on entering or dismissing injunctions for the protection against domestic violence (commonly known as, “restraining orders”), that I have attended, at least one unrepresented respondent agreed to an injunction being entered against him. Similarly, at least one unrepresented petitioner agreed to dismiss her attempt to get an injunction. In those situations, no testimony is taken, the judge moves onto the next case, and I am not sure the individual parties know exactly what just happened. And for those injunction cases in which one party has an attorney and the other does not? There is clearly a mismatch, as the one without the attorney is required to follow the same procedural and evidentiary rules that govern the actual attorney. As long as the lawyer is on his or her game, the pro se litigant will be kept from testifying to what someone else told him or her (hearsay) and kept from showing the judge what some law enforcement agency wrote about the incident (more hearsay). From a professional standpoint, this makes for a very effective and satisfying presentation on the part of the attorney, and a very ineffective and even frustrating presentation on the part of the person representing himself or herself. Why then, do pro se litigants go into that dark night so easily and willingly?

I am sure finances have much to do with it. But given the number of attorneys out there, it is hard to believe a party cannot find an attorney whose fee requirements, or payment plan, can fit their budget. And even if one cannot afford to have an attorney there beside them, at least they should consult with one beforehand, to get a better idea of their rights and how to handle the hearing. I am willing to bet that almost every private and practicing attorney in a county, state or country, will sit down with a potential client, upon request, and advise them of their rights in the area of the attorney’s expertise. Depending on the attorney and the attorney’s experience, it might cost a consultation fee, but the knowledge the person receives, will be well worth the value—both when walking in the courtroom, and when walking out.

Mark Hanks

Your Family Lawyer

Attorney Hanks, P.A.