I recently was talking with a library specialist who helps self-represented litigants. She has frequent contact with pro se litigants because the public library at which she works houses a law book collection that normally would be found in a courthouse or law school library. I had asked her about the questions that pro se litigants ask most frequently, with the goal of creating educational materials that are focused on those matters. She surprised me when she said, “People want to know what lawyers do.”
It was so fundamental that it hadn’t occurred to me. Of course people would want to know what lawyers actually do as they are trying to fulfill that same role and be their own lawyer. Before I chose law as my career, I had sometimes wondered the same thing because to me there was a mystique about it, probably stemming in part from the long black robes that everyone wears from law school graduation ceremonies on up to the Supreme Court, part from the Latin terms and phrases legal professionals would throw around with ease and authority, and part from the fact that I had never even met a lawyer until I was in my late 20s.
The answer to the question is straightforward: Lawyers advocate for their clients.
The primary and paramount role for any lawyer is advocate. The Spanish word for lawyer is “abogado,” which translates literally to “advocate.” The word “advocate” is both noun and verb: it is what lawyers are and what they do.
Lawyer as advocate is part and parcel of our adversarial system of justice. The idea behind the adversarial system is that the truth (“verdict” or “verum” is Latin for “truth”) emerges or is determined when each side in a contested dispute puts on its best case before a neutral decision-maker. You present your case to the court, your adversary presents his case to the court, and then the jury or judge determines the truth and decides who wins. Zealous advocacy on your behalf by a skilled practitioner is integral to that system.
In fact, every single term we have to refer to a party who appears in a lawsuit without a lawyer presupposes the existence of an advocate. The terms “pro se” and “pro per” translate to “for oneself” or “on one’s own behalf.” The term “self-represented” also is used frequently. The norm and the expectation are that parties are represented by lawyers, and that expectation is baked into the vernacular. There simply are no equivalent terms outside of the legal arena. In what other circumstance does speaking for yourself require a special label?
On the other hand, our Constitution guarantees access to the courts, without reference to whether you are represented by a lawyer. The First Amendment prohibits legislatures from enacting laws that would infringe upon the right “to petition the Government for a redress of grievances.” So, perhaps we need a better term to describe people who speak for themselves and present their own best cases in court.
Back to the topic of lawyers as advocates. How do they do that? In a nutshell, they:
1. Identify and define the dispute first by learning the facts and the applicable law, and then by pleading to the court.
2. Gather relevant evidence.
3. Present to the court the evidence and arguments that prove your side of the dispute and disprove your adversary’s side.
In addition to putting together your best case, lawyers also take your problems onto their shoulders. They ease your mind when you know you’re not in it alone. This is true whether the lawyer is representing you or coaching you as you represent yourself.
How you can help your lawyer be the best advocate for you, or how you can achieve those things for yourself, will be the subject of future columns. So stay tuned because we will be tackling topics including evidence, rules of procedure, legal research and writing, and discovery.
© 2016 by LawYou America, LLC