By Caterina Sorrento
University of Baltimore School of Law

Lawyers and laypeople alike understand that navigating the civil legal system is not for the faint of heart. Maryland statutes and judicial opinions are readily available to anyone with access to the internet, but, nevertheless, very few pro se civil litigants who grapple with the judiciary win.^[1] Because procedural rules apply equally to “laymen and lawyers alike[,]” Maryland trial courts are encouraged to warn pro se litigants of the innate challenges they may face. and the inability of the trial judge to assist^[2]  Pro se litigants, lacking the acumen and legal training to accurately analyze the law, run a real risk of undermining their causes.^[3] In contrast, a lawyer is presumed competent to research the law, decipher its contents, and zealously advocate her findings before the tribunal. Accordingly, it is crucial for lawyers to ensure high-quality research fuels their legal analysis.

The bare bones of legal analysis is formulaic; facts + law = result. With such a simplistic formula, it should be relatively easy for even the layperson to plug in the relevant facts, apply the law, and predict the result.  After all, the Maryland Code and court opinions are available online. How hard could it be, right? Well, a 1L whose Civil Procedure midterm grade was just released might disagree; I certainly did!

So might pro se plaintiff Bernard Tretick, whose decision to sue Kevin Layman (ironic, I know) in Maryland ended with a lengthy appellate court opinion. The court declined to address his twenty-two “at least minimally understandable” but “totally deficient” assertions that were not properly preserved and/or pleaded.^[4] Much like my Civil Procedure professor reading my midterm exam, the court was simply unable to identify what Tretick was arguing.^[5] Maryland appellate courts will not generally “review or decide any point not raised below,” so Tretick was barred from taking a second bite at the apple on appeal.^[6]

Tretick might have avoided most, if not all, of his mistakes with the help of an attorney. Then again, even lawyers have drafted briefs so riddled with incoherent, ungrammatical statements that “it is hard to believe the author is even a college graduate.”^[7] Surprisingly, this happens more often than one might think. For instance, a U.S. District Court opinion suggested that an attorney who filed such a brief “give serious consideration to not practicing in the [U.S.] District Court until such time as they have demonstrably enhanced their practice skills.”^[8]

But the pro se litigant’s missteps don’t stop there. Let’s turn our attention to something equally concerning: presenting a brief that contains superficially developed arguments supported only by pitifully-cited boilerplate or bad law.^[9] Poor brief drafters lose on summary judgment at a higher rate than their counterparts who draft well-developed briefs.^[10]

This brings us back to the legal analysis formula. Drawing comparisons between the law and the facts of a particular matter is only helpful if you locate the right law. Unlike the pro se litigant who is likely unaware of mandatory and persuasive authority, lawyers should know the importance of the weight of authority in legal research. Still, a recent survey of state and federal judges revealed that judicial clerks often find controlling case law that should have been included in attorneys’ court submissions.^[11] Like a pro se litigant who doesn’t know which law or rules are applicable in a given case, an attorney’s failure to include precedential case law can materially, and negatively, impact the lawyer’s advocacy.^[12]

The pro se litigant did not devote three years to law school trying to perfect his research and writing skills; you, the lawyer, hopefully did Do not, however, take the touchstone skills from your first year of law school for granted. And, if you do find yourself needing a reminder of those skills, several courses are available to help lawyers and law students brush up on essential legal research skills. Who knows? Maybe researching a course will be all the reminder you need!

And 1Ls: don’t panic if you did poorly on your Civil Procedure midterm like me. Unlike Tretick, your fate is not yet sealed. Final exams are right around the corner, and that’s your built-in chance for a second bite at the apple!

[1] See Lauren Sudeall & Darcy Meals, Every Year, Millions Try to Navigate US Courts Without a Lawyer, Conversation (Sept. 21, 2017).

[2] Tretick v. Layman, 95 Md. App. 62, 68, 70 (1993).

[3] Margaret Martin Berry, Accessing Justice: Are Pro Se Clinics a Reasonable Response to Accessing Justice: Are Pro Se Clinics a Reasonable Response to the Lack of Pro Bono Legal Services and Should Law School the Lack of Pro Bono Legal Services and Should Law School Clinics Conduct Them?, 67 Fordham L. Rev. 1979, 1891 (1999).

[4] Tretick,  95 Md. App. at 85-86.

[5] Id. at 65

[6] Id. See also Mung Sen Tu v. Sate, 366 Md. 406, 435 (1994) (explaining that parties may not take a “second bite of the apple” on appeal by using different legal theories, especially when attributable to his or her own negligence or incompetence.)

[7] Scott A. Moss, Bad Briefs, Bad Law, Bad Markets: Documenting the Poor Quality of Plaintiffs’ Briefs, Its Impact on the Law, and the Market Failure It Reflects, 63 Emory L. J. 59, 82 (2013).

[8] Vandeventer v. Wabash Nat’l Corp., 893 F. Supp. 827, 859 (N.D. Ind. 1995) (noting that “The final reason for publication is to issue a specific warning to those who might want to engage in a repetition of this kind of adversarial misbehavior.”)

[9] See Moss supra note 7 at 82, 85.

[10] Id. at 90.

[11] Jake Heller, You’re Bad at Legal Research, and Your Judge Knows It., Above the Law (May 24, 2018) https://abovethelaw.com/2018/05/artificial-confusion-youre-bad-at-legal-research-and-your-judge-knows-it/.

[12] Id.