No one forces any party to get an attorney. It’s for that party’s own convenience. On the other hand, the party litigating pro se (self represented; also “pro per”) usually does so for lack of funds to pay for an attorney. The party with an attorney saves his/her own time and effort; the party without any attorney must work full-time as his own attorney. He is required by the courts to follow every rule and meet a standard of the court’s own making. Right now the courts refuse to award any attorneys fees to a litigant operating as his own attorney with the rationale being that the pro se did not expend any money for a “real” attorney to represent him.
Why should the “wealthier” of the two parties be rewarded for paying for an attorney? Or rather, why should the person representing himself be denied compensation for all the work he had to do in a case? When a pro se litigant is a defendant in a case, it becomes even more unfair, because he is the one being hauled into court by someone else and being forced to defend himself.
Many people operating pro se work a regular job. Is one to assume that those people magically get to attend every court appearance for free or that the filing of a document in court may not require them to take time off from work? Who’s paying? I would argue that the pro se litigant pays as much as the wealthier one and that pro se litigants should be able to recover “attorneys” fees just like those who pay to have someone else represent them so they can go about their lives carefree.
The legal system is entirely unfair in this regard. Either all parties are entitled to fees or no parties are entitled. I prefer that no party get fees. Often the legal system requires that each party pay his/her own way, however, there are many statutes that allow for the award of attorney fees and costs. In many states if you simply make a motion and lose or oppose a motion and lose or you act or don’t act, you can be subject to sanctions and have to pay the other party’s attorneys’ fees. The whole process should be done away with. If the wealthier party can afford an attorney, good for him, but the less fortunate should not be penalized which is precisely what’s happening now.
A lawyer can change anywhere from $250 to $1,000 or more an hour. That’s well beyond above your average worker’s salary. That means you might have to pay those exorbitant costs if attorneys’ fees are awarded against you. And since the attorney can just claim that he spent 10 hours working on a motion, for example, you’d have to pay for his 10 hours and more in the way of costs (filing the motion, travel, parking fees, etc.). He has offered no real proof, for one thing. It’s simply his word. And if he did spend 10 hours preparing a motion, you can bet the pro se litigant was forced to spend ten times as much time on a motion or an opposition to the attorney’s motion because the pro se has far fewer resources to pull from.
If the wealthier party had to absorb his own costs at all times, maybe then they’d be a little more judicious in how they work the case. A wealthier party up against a less fortunate party will try to take advantage, knowing that the opposition can never prevail in getting his or her own attorney fee awards. They’ll just keep rolling over you.
This is not a justice system. This is a farce.