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April 8, 2014
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Vail Daily column: The dangers of being pro se

Let’s say you’ve got a hot appendix. Let’s say that little bugger needs to be popped out quick before it causes untold mayhem. Let’s say too, like me, you’re more used to the world of books and words than having developed proficiency with a scalpel. Who you gonna call? Well, more likely than not, one of the fine surgeons in our beautiful valley.

And more likely than not, it wouldn’t take a lot of convincing for you to grasp that concept; if you’ve got a hot appendix or other serious medical problem, then it’s better to call a doc who deals in those particular maladies than to try and do it yourself.

Call A Pro

We can extend this enlightened thinking to all sorts of other fields; if you don’t know anything about computers, motor vehicles, horticulture, dentistry or picking winners in the stock market, then it is likely wise to call a pro. A simple concept really that proves the inverse of the “penny wise and pound foolish” axiom. Stated otherwise, “when it counts, go with a pro.”

OK, let’s hold that thought a sec.

Last week, I was in court in Jefferson County. You’ve seen the JeffCo building in which the courts are housed that lawyers refer to in the vernacular as the Taj Mahal. It’s that gleaming be-domed imposing edifice just north of Interstate 70 on the edge of Golden.

I was in District Court in Jefferson County on a defendant’s verified motion to vacate default judgment and for immediate stay of execution. First of all, hold on to your undies; no one was about to be put to death here. In this case, the “execution” referred to was the “execution” of a judgment; in other words, the moving party (the defendant) was asking the court to hold off on letting the prevailing party — in this case my clients — from collecting monies due to them resulting from an earlier judgment in their favor. For the sake of clarity, allow me just a moment to tease apart what is admittedly the mouthful of apparent legal mumbo jumbo contained in the motion and elucidate what we all were doing there.

In short, my clients sued another party. Among other things, my clients sought money damages; if they won, they argued to the court, then they were due money for the defendant’s breach of contract and, in this particular case, they were due treble damages (that is a multiplication of the money damages times three) under a controlling statute. Sadly, for his sake anyway, the defendant was “pro se,” which we will come back to in a moment as, after all, being pro se is the subject of this column.

Understandably, the defendant didn’t know his legal head from the other end of his anatomy and, while I am confident that even if he had, we would have prevailed in this particular litigation. In Star Warism, if not the force, then at least the facts were with us. Nonetheless, the defendant decided by whatever twisted logic to attempt this particular legal surgery on his own — that is, without legal representation. And the results were predictable.

‘Pro Se’

I know I’m hopping back and forth here like a vigorous game of checkers, but hold on to that second thought a moment as I explain what “pro se” means.

You remember that whiny Eric Carmen song from 1975, “All By Myself”? I hope for your sake, you do not. Anyway, the self-pitying refrain had something to do about the hopelessness of going it alone. I’ll spare you the remaining maudlin details. Being pro se in legal matters is something like that; instead of retaining the legal equivalent of a doctor with a scalpel to address your hot appendix, one decides that this legal stuff is more intuitive and comes to the determination to go it alone even though the other side is lawyered up. This is most times akin to taking on a division of the United States Marine Corps with a pea shooter. Presumably, in theory, it can be done but the odds are certainly not with you.

What pro se means is “in one’s own behalf.” A party — in our particular case, the defendant against whom my clients were seeking damages — decided not to hire an attorney and, instead, to represent himself. As was predictable, this was a bad call.

So before we got to the Taj Mahal last week, here’s what happened. We filed suit against the bad guy and had him served. “Served” means he was formally notified that a suit had been filed against him. According to the rules under which civil lawsuits operate in this state, the defendant had 21 days to answer the complaint but, oops, he failed to do so. Presumably, once he realized his mistake, he asked the court for extra time which the court in this case granted, advising strongly that he retain legal counsel to assist him. But, oops, he missed the deadline again.

Default Judgment

After an appropriate period of time, we moved for a default judgment which said, in essence, “Your Honor, the defendant never answered. By application of law, he has admitted the allegations contained in the complaint and we are entitled to the relief requested.” The court agreed and judgment was entered in my clients’ favor in an amount approaching a million dollars. Next, we began to collect upon the judgment.

Once we had collected about a third of what was due, presumably the defendant woke up. If one wishes to object to a default judgment, then, by the rules, he must do so within six months. The defendant finally consulted with a lawyer, and at five months and 29 days, filed the motion referred to above. In effect, what the motion said was, “Hold on a blessed second! I have a good reason why I didn’t answer the complaint!”

‘Excusable Neglect’

Except when we went to hearing last week the defendant showed up once again without a lawyer. And, as it turned out, he didn’t have a good reason why he hadn’t answered the complaint. Instead of “excusable neglect” for failing to answer the complaint, he was simply neglectful without what the court would recognize as a real or good excuse. So instead of giving him another swing of the bat as he was asking for, the court sent him packing and upheld the judgment.

Had the defendant had a lawyer in the first place, at least he would, presumably, have answered the complaint in time and at least been able to offer a defense. As it is, he went down in flames even before he had the chance to argue why he should not be held accountable. The result: We continue collecting the nearly million-dollar-plus-interest judgment against him. The moral: Despite what may be the temptation, when you’ve got a legal problem, most times it makes sense to get a pro.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at either of his email addresses, robbins@slblaw.com or robbins@colorado.net.

What pro se means is “in one’s own behalf.” A party decided not to hire an attorney and, instead, to represent himself. As was predictable, this was a bad call.


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The VailDaily Updated Apr 8, 2014 04:37PM Published Apr 8, 2014 03:27PM Copyright 2014 The VailDaily. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.