Legal Representation Explained
Understanding legal representation requires a brief foray into some law and civil procedure. Attorneys may represent individuals in court as attorneys of record and act in a representative capacity. In general, the term "to represent" means to act on behalf of another. See Black’s Law Dictionary (4th ed. 1968).
Although representation can take many forms and includes various actions, the general concept is that attorneys serve as advocates for their clients in court. They act in their client’s stead, on the client’s instruction, when their client is disabled or is unable to appear. Attorneys are legal advocates not representatives. See N.J. Guideline Appendix B-103.
In general , actions taken in the name of another in a representative capacity are referred to as representative actions. Examples of such actions include: bringing or defending a suit, contracting, submitting the claim of another to arbitration, appointing an agent to take effect on death, making or revoking a will, making medical decisions for an incompetent person or a minor or any other action taken on behalf of another. Appellants, however, advance a much broader definition "to represent" in their dictionary so that it includes conduct in a fiduciary or agency relationship. See Black’s Law Dictionary (7th ed. 1999).
When An Attorney Can Appear In Court On Your Behalf
As a general rule, a lawyer can go to court for you in a civil matter. In other words, a lawyer can represent you against someone else or against an organization or government body. Common civil matters that lawyers appear in court for their clients include lawsuits, quiet title actions, injunctions, business disputes, collections, and employment disputes.
However, lawyers cannot represent you in court for any criminal law matter. Many people are surprised to learn that the Florida Courts require all criminal defendants to be represented by a licensed attorney or to go to court without a lawyer on their own. A Florida prosecutor will not deal with an individual in a criminal case if that individual is not represented by a lawyer.
Similarly, a lawyer cannot get involved in a family dispute unless that family dispute is the subject of a court’s jurisdiction. For example, in a child custody case, a lawyer can appear in court for one of the parents. But if there is an argument between parents over a visit, the lawyer will not be able to go to court over it.
There are also some situations, mostly under court orders, where a lawyer can go to court on behalf of a dead person’s estate. Again, this is a specialized area of law where lawyers go to court to either defend their clients or to begin a proceeding.
Different Types of Court Appearances
While most cases that will require a court appearance will have the ability to be handled by a lawyer, there are occasions where the presence of a non-lawyer may be required in court appearances.
Preliminary Hearings – The first setting in which you will likely appear on a misdemeanor criminal matter, and occasionally an infraction, is the preliminary hearing. This is generally a ‘probable cause’ or ‘first appearance’ hearing in a case where the police officer has not yet had a chance to file a report in the case, so the evidence presented to the Judge may not be complete. It is important that any statements to the court or a jury that may come out of these hearings are planned, so as to avoid the need to have to repeat them later on in the proceedings.
If you take a plea at a preliminary hearing, often times that plea agreement will be entered into the record immediately. In some circumstances, you may be required to have a separate sentencing hearing at a later date.
Trials – The only other ‘mandatory’ appearance that will require the presence of an attorney or a non-lawyer is the trial. A trial can be held before either a Judge or a Jury. In the case of a Judge trial, the Judge will decide all of the relevant factual issues in the case. On a Jury trial, the Judge only decides issues of law, and the jury is the finder of fact.
You may not always be able to testify on your own behalf at trial in a case. In a few cases, the Court will require someone to get in the witness box and actually testify. In those cases, it is likely that there are constitutional issues and separation issues present. Those issues must be dealt with on a case to case basis.
Post-Judgment Proceedings – Two particularly common post-judgment matters that will often require an attorney’s presence are Probation Violation Hearings and Appeal Hearings. These two proceedings are outside of the scope of this particular blog entry.
Why An Attorney Sitting in Court Is Beneficial
When it comes to appearing in court, one of the biggest advantages of having a lawyer represent your case is all of the legal expertise they bring to the table. Lawyers have extensive legal training that covers a wide variety of areas, so they are able to navigate through the legal system and handle different types of cases. Even if you think your case is simple, having an experienced professional handle even the most minor litigation will ensure that all filings are properly processed and that you don’t run into problems in the future because you unknowingly disobeyed legal procedures.
Lawyers also have the knowledge to strategically plan out your case. Even if your case seems more like a slam dunk, there could be unforeseen legal issues that you may not be able to visualize just yet. Your lawyer will be able to calculate what needs to be done by when so that you can have a solid plan going into the courtroom.
Perhaps the least understood benefit of having a lawyer represent you in court is the ability to act professionally in a courtroom environment. A lawyer can help keep you from getting emotionally involved with the case and acting out based on those emotions, which can be very damaging when involving a case that requires a judge or jury to view the evidence without bias. They can also help you gather the necessary information required by the court, or obtain witnesses if need be.
Selecting the Right Attorney to Appear In Court
Selecting the right lawyer to represent you in court can be crucial to the success of your case. A knowledgeable and experienced attorney who specializes in the area of law relevant to your case is likely to achieve more favorable results than an inexperienced lawyer or one who specializes in a different area of law. When selecting an attorney for court representation, you should interview several candidates and ask questions to determine if they are qualified, experienced, and honest . Consider the following questions to help you make the right choice:
• What area of law do you specialize in?
• Where did you get your degree?
• Where did you practice law prior to becoming an attorney?
• How many years of court representation do you have?
• Have you defended other clients against similar charges?
• Do you have up-to-date knowledge of local laws, ordinances, and statutes?
You should also look at potential candidates’ online reviews from former clients to help you make an informed decision. If you cannot find any reviews online, you may want to conduct some interview follow-ups with each candidate. You should ensure that the lawyer you hire makes you feel comfortable and confident in his or her skills.
What Your Attorney Should Do in Court
When you are represented by a lawyer in court you can expect your lawyer to be your advocate. Your attorney should be able to give you a decent idea of the judge’s ruling based on your research, and answer any questions you have.
Once you have established a good relationship and your attorney knows your side of the case and your goals, there shouldn’t be many surprises once you walk into that courtroom for the first time.
Your attorney should communicate the strategy to you, in a way that matches your expectations and responsibilities. You should be aware of who presents first, what document you will hand to the judge, what the judge may ask you, etc.
Your attorney should never present something in court unless you agree to it first, and he or she should at all times give you control over the case. While it is your attorney’s job to counsel you on good strategies, when it comes down to the courtroom you are ultimately in charge.
Other Options for Appearance in Court
Perhaps one of the best-known alternatives is self-representation, or pro se representation. This means that you not only do the breathing and talking, but all the thinking and arguing and know about handling evidence and witnesses. You get no help if you don’t have a lawyer. I do not advocate this, in general. There are models where self-representation is generally accepted, like small claims courts, but lawyers will still often represent people even there. The legal system, at least here in Virginia, is not set up to help you to win or to find the right answer. The goal, whatever the system operator may think, is to make you lose and the other party win. That’s what the system is set up for. So if you can convince the system operator, that’s what they’ll do for you.
Another option is mediation. In some cases, there are local requirements for mediation. In most cases, all that is required is that both parties agree. But just because something is required or just because you could do it is not a good reason to do it. Mediation requires extensive training in how to conduct a mediation. I have done hundreds of hours of mediation instruction and practice, and many more hours reading writing and thinking about it than I could count. The process is complicated and there is a lot that could go wrong. In some (but not all) cases , fraud can be used to back out of an agreement. A good mediator helps to avoid these problems while still helping to get the right settlement for you. For my realsession on mediation, see this post on Settlement Alternatives.
So if you are going to mediation, you want someone who is experienced at mediation. That’s not something (at least in Virginia) you have to be a lawyer to do. It’s not even clear that it’s a great idea for a lawyer. But it is clear that some lawyers do it really well, and every now and then you find someone who does it great and has taught other lawyers to do it great.
The pros of mediation are that unlike court, mediation is in a conference room, not the actual courtroom. The lawyers probably won’t have to go, and will talk about other things that are somewhat likely to be confidential. The cons are that some of the training will not have been done, even if in most situations it’s not a big deal, and also the mediation is not supervised by any court.
An alternative is to not get into the legal system at all and work things out yourself. This is, obviously, a big gamble, and may not fit well into most problems you usually think of that involve lawyers, such as divorce and business disputes. It also doesn’t work if the other side doesn’t agree. If you can do it and it works great! If you can’t get there, consult with a lawyer.