Statistically, how much less likely is a pro se litigant in "regular" court (i.e. not arbitration or small claims court) to win against a litigant with a lawyer than another litigant with a lawyer would be? For example, what percent of pro se plaintiffs or defendants have won lawsuits compared to those with lawyers?
In the federal courts, going pro se is associated with a massive failure rate.
According to research from the University of Chicago Law School, defendants and plaintiffs have roughly equal success rates when both sides are represented by counsel, regardless of who their attorneys are.
Pro se plaintiffs, meanwhile, win judgment in only 4 percent of cases against represented parties, while pro se defendants win judgment in 14 percent of cases against represented parties.
Statistics are difficult to come by and straight comparisons are not valid:
Greiner and Pattanayak’s observations about the difficulty in measuring the impact of self-representation on outcomes because of the trouble in separating the ‘hopeless, sure-win, or representation-makes-a-difference cases.'
… whether lawyers change case outcomes is very difficult to determine empirically. There are many confounding factors, including what counts as a good outcome, how outcomes can be measured, the strength of the case, the quality of the lawyer, the ability of the litigant, the nature of the forum, the approach of the judge, and the complexity of the law on the issue.
This 2018 report has the following info:
- in the Federal Administrative Appeals Tribunal unrepresented persons were successful 22.5% and represented 51.3%
- the County Court of Victoria had 43 Judicial Registrar reviews of which 23 settled - 14 with representation, 9 without.
- the Supreme Court of Queensland said SRL were successful in 4.9% of civil and 18.9% of criminal appeals and there was, therefore, a ‘need for increased legal aid funding and pro bono assistance at appellate level’.
- The High Court of Australia kept statistics between 1992-93 and 2005-06: 1.5% of SRL succeeded in their appeals compared with 27.7% of represented.
The report surveys united-states outcomes:
Sandefur’s meta-analysis of such US studies concluded that parties are more likely to win when legally represented but the relative advantage of being legally represented or an SRL varies significantly. She noted that legal representation is most likely to be advantageous in adversarial settings and in procedurally complex areas of law. In contrast, Greiner and Pattanayak found no significant effect on outcomes for SRLs in their randomised trial, nor in the other literature on outcomes for SRLs.
However, more SRL felt that the outcome was fair and were satisfied with the process than represented litigants. SRL are more likely to proceed to adjudication than to settle and this may both affect their relative success and their satisfaction with the process.
There is a lack of understanding by some SRLs that court is seen as a last resort and that most lawyers will take a conciliatory approach in order to settle before adjudication. Toy-Cronin highlights that it ‘comes as a surprise to many LiPs that much litigation work occurs outside the court and that through the preparatory stage and right up to the door of the courtroom, there is encouragement to settle.;
Toy-Cronin argues that many of these reasons represent the tension arising from the projected accessibility of the court and protecting the scarce resource of hearing time in court. In essence, SRLs ‘lack strategic overview [which] means they do not know where a reasonable settlement lies, [they] can be difficult to communicate with, and … expect resolution by way of adjudication.’
That is, a SRL is more likely to want their day in court. Lawyers don't because they know court is an all-or-nothing coin toss on the contentious issues and completely unnecessary on ones where the law and fact are reasonably certain.