The Realistic Costs of Litigation, and Self-Representation

A trial court generally discourages self-representation, but it does not prohibit it. The results of representing oneself pro se can be interesting, cost effective, or uncomfortable as the Waukesha County case of Darrell Brooks is proving to be.

While the criminal system may provide defendants with a state appointed attorney as a matter of right, the same does not hold true for civil matters. Those looking to file or defend a civil dispute (e.g. tort claims, breach of contract claims, equitable claims or landlord/tenant issues) often have a difficult truth and decision to confront. Legal representation rarely comes cheap. Courts continue to see large numbers of self-represented litigants, in most cases because the litigant cannot afford access to legal counsel. Recently, courts began standardizing self-help forms to accommodate the rising number of self-represented parties, but this does nothing to assist with procedural matters or the ability to articulate a sufficient claim or defense.

All litigants must weigh the costs of legal representation against the actual amount in controversy. Beyond the obvious justice gap – the gap between legal needs and services available- potential litigants have to decide, at what point does it make sense to hire an attorney versus rolling the dice and representing oneself. To answer this question a litigant should ask themself, what cost would you be willing to pay in order to achieve the result you are seeking.

The main costs in litigation revolve around attorney fees, out of pocket costs, filing fees, experts, depositions, and transcript costs. These costs add up quickly during the course of a civil lawsuit and are estimable but indefinite. Any cost benefit analysis should assume that the matter will proceed to trial. In certain cases, the juice may not be worth the squeeze. This applies to small claims cases and circuit court controversies alike. While most cases do settle, a potential litigant should assume the claim will proceed to trial in order to fully weigh whether the results sought justify the cost.

Beyond the costs associated with litigating a dispute, a potential litigant, represented or not, must consider the likelihood of collection. A judgment does not necessarily guarantee payment. A judgment against an opposing party who has nothing is essentially worthless. If it is likely that the opposing party is insolvent or the judgment will force the other side to file bankruptcy, it may be impossible to ultimately collect on a judgment.

If you are considering filing or have recently been named in a lawsuit and are performing your own cost benefit analysis, please feel free to contact the West & Dunn legal professionals by phone at 608-490-9449 or online for a free consultation, who will be happy to assist you.