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Can I (and/or should I) represent myself in my Defense Base Act claim?

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Best DBA Law - Can I represent myself in my Defense Base Act case?

“When I seek out professional advice, I want honesty, I want frankness, I want advice straight-up, with no B.S. So should you.”

Defense Base Act Lawyer and author of the 5 Star book Win Your Defense Base Act Case  Bill Turley
 
 
 

Can I represent myself in my Defense Base Act case?

Yes, you can represent yourself in your Defense Base Act case. There is no rule or law that says that you have to have an attorney represent you with your Defense Base Act case.  
 

It’s called “Pro se” 

When you represent yourself in a Defense Base Act case, it’s called “Pro se.” It’s a Latin term, for loosely interpreted “I’ve got this myself.”
 
Or, more formerly (or more precisely). Litigants or parties representing themselves in court without the assistance of an attorney are known as pro se litigants. “Pro se” is Latin for “in one's own behalf.”
 

It’s a court case

Don’t lose sight of the fact that a Defense Base Act case is a court case. You will have a Judge (called an Administrative Law Judge). You have substantive law and procedure that must be followed.
 
You are up against a Defense Base Act insurance company that is trying to not pay you the benefits that you’re entitled to under the law.  They aren’t going to “give” you anything.
 
At the end of the day, the DBA insurance company is going to attack you and your character. They do it to everyone. One of the main parts of my book - Win Your Defense Base Act Case is helping you to avoid the tricks and traps laid by the DBA insurance company.
 

“I’ll be good because I have a legitimate case” and other thoughts that will cost you A LOT of money

Don’t think for a second that just because you have a “legitimate” case, that you’ll be fine. 
 
Instead, you should be thinking that without a lawyer, the DBA insurance company is thinking that beating you will be like taking candy from a baby. 
 
Heck, my labrador thinks the same thing about babies with candy. Only he wags his tail before and after he snatches the kids candy (and ice cream). He’ll even lick the ice cream from the kids hands for them, too.
 

I’m not suggesting that you should be representing yourself

I’m not suggesting your should represent yourself. Not hardly. But let’s look at some reasons why you may want to represent yourself or think you have to represent yourself.
 
And, I’ll also talk about some of what you may be facing.
 
But to reiterate, “Don’t try this at home kids.” Like many things in life, just because you can do something, doesn’t mean you should actually do it.
 

“I’m representing myself in my Defense Base Act case because I don’t trust lawyers..lawyers are all a bunch of liars and they are not trustworthy...”

Ok. I can understand where you’re coming from here. I have tried cases before juries where I asked the panel in voir dire (when the lawyers get to ask the potential jurors questions), “Who here doesn’t trust lawyers? Go ahead and raise you’re hand if you don’t trust lawyers.”
 
I have had every hand go up, but a couple. The folks that that didn’t put their hands up either had children that were lawyers or they are lawyers themselves. So, I get it.
 
If you don’t trust lawyers, and think they are all out to rip you off and/or take advantage of you - I understand.  Unfortunately, there are a lot of lawyers out there that fit that bill. I’ve seen them. It’s not a myth that some lawyers are bad.
 
But, would you leave some room that there are some Defense Base Act lawyers that are good, honest lawyers? You don’t have to hire us.
 
If you want I can give you a short list of really good, honest DBA lawyers that you should call. Don’t get me wrong. These lawyers aren’t my friends. They don’t work with me. I don’t get anything if I tell you their names. They are actually my competitors. But I would rather see you call them, than you tank your case by trying to represent yourself in your DBA case.
 

“I don’t want to have to pay a lawyer to represent me with my Defense Base Act case.”

Or, “I can’t afford to hire a lawyer for my Defense Base Act case.”

I address this in my Top 10 DBA questions article. Here is an excerpt from the article:
 
You should never, ever pay a Defense Base Act lawyer directly. If a lawyer asks for money to represent you in your DBA case, you need to say, "No." In fact, it is against the law for a lawyer to charge you to represent them in your DBA case.
 
All attorney fees under the Defense Base Act have to first be approved by the Judge and/or the Department of Labor.
 
The Defense Base Act insurance company should be paying your attorney fees. At the end of your case, the DBA insurance company will send you a check for a lump sum settlement and send your lawyer a separate check for their attorney fees and costs. Top 10 DBA Questions Question No. 6.
 

Will the DBA insurance carrier get pissed off and stop my benefits if I hire an attorney?
 
"I'm afraid my DBA benefits will be stopped if I hire a lawyer (or I won't get my benefits if I hire a lawyer)"

This is Question No. 3 in the Top 10 DBA questions article. Here is another excerpt from the article.
 
I have heard folks say this.  This a very common question and concern. I get it. You don't want to rock the boat. If you're getting you're DBA benefits, you might be thinking, let's not piss off the insurance carrier.
 
But based upon my experience (and I have been doing this a long time); I don't know of a single instance where the DBA insurance company has either stopped paying benefits or not paid DBA benefits due to the Claimant (the injured overseas civilian contractor in a DBA case) hiring a lawyer. It just doesn't happen.
 
We have a very professional relationship with the DBA insurance companies, the insurance adjuster and their lawyers. I advocate maintaining a good working relationship with them. Even though they are the "enemy" - treating them with respect, courtesy and decency is always recommended. By both you and our office.
 
While I understand some folks being afraid they will upset the DBA insurance company if they hire a lawyer, you should know that we have been successfully handling case with these insurance companies for years. Top 10 DBA Questions Question No. 3.

 

“No one knows my case as well as I do.”

This can also be true. And I sure understand the thought.
 
But what you don’t know is the law and the procedure.
 
What you can expect the Defense Base Act insurance company lawyers to do is to try and paper your butt to death. For example, the DBA insurance company is going to serve (meaning send you) interrogatories. These are questions that you have to respond to. They are going to try and win the case, because you don’t know what you’re doing. Which, usually works.
 
I address this later in this article. So, don’t miss it, if you plan on going ahead in order to represent yourself.


“I have tried to hire a lawyer, but no lawyer will take my Defense Base Act case”

This might be the only legitimate reason for you to not have a lawyer for your DBA case. However, you don’t want to tell the Judge this or the insurance company this. If you do, they will think (probably rightly so), that there are problems with your case and that you should lose.
 
If you can’t find a lawyer to take your DBA case, you need to listen to why whey won’t take y our case. Although this might be hard for some folks, you need to stop talking and really listen. And then listen even more.
 
Find out what these lawyers are saying is wrong with your case. Can you fix it? Can they tell you how you can fix your case?  What evidence is lacking or what is the problem?
 
What can you do in order to address the issues?
 
Sometimes problems with your case are fixable. Either you need some type of evidence or witness or whatever.
 
Once you try and fix or address the problems, then you might want to try again to find a lawyer for your case.
 
Here's another thought. The lawyers that you call are sizing you up. If you're going to be a "difficult" client and/or hard to get along with, then it is going to be more difficult for you to find the right lawyer.  You don't want to be a "know it all."  Not to suggest that you can't have input.  But you're hiring a lawyer for a reason. If you're not going to listen to your lawyer, then you either need a new lawyer or you may deserve yourself as a client. Just saying. 
 

Your case can be dismissed because you haven’t followed the court’s orders

Here is how this plays out. The DBA insurance company serves discovery on you (Interrogatories, Requests for Production, Requests for Admissions).
 
You either don’t respond or don’t respond adequately. You have 30 days in order to respond. Here is what you need to realize here. Anything that you don’t produce or refer to in discovery (that was the subject of the discovery), you won’t be able to use as evidence for your trial.
 
So, don’t get all cute. If it’s something you will need to win your case, you had best give it to the DBA insurance company with your discovery response.
 
The Judge will issue as an Order to Compel Responses or Additional Responses. You don’t comply with the Order.
 
The insurance company then files a “Motion to Dismiss Case Because of Non-Compliance with Discovery Order” in which the insurance carrier requests that your case be dismissed. 
 
The Judge then issues an “Order Instructing Pro-se Complainant to Show Cause” on or before a date stating why your claim should not be dismissed.
 
Then your case gets dismissed, before you even get your case to trial.
 
You don’t think this happens? Not so. It happens. Too often.
 
The umpire just called you “out” before you even got up to the plate. To use a baseball metaphor.
 

Here is how this usually plays out - How your Defense Base Act case is going to be dismissed

I know I’m telling you stuff that you don’t want to hear, don’t understand or just don’t agree with. I get it. None of that matters now.
 
When you represent yourself, you have to assume the Judge is going to hold you to the same standard of knowing the law and knowing the procedure as lawyers are held to. Depend on it. Or, at least you should be depending on it. 
 
Here is an excerpt from an Order in a real case.  It sucks. I know. But you need to hear this. The short version is the DBA case was dismissed because the Claimant (the person bringing the DBA claim) didn’t follow the proper procedure. So the case was dismissed. Meaning, the Claimant got nothing.
  
An additional order was issued, giving Claimant 10 days from the receipt of the order to show cause why the court should not refuse to allow into the record any materials relevant to subjects associated with the discovery requests which he had failed to answer. The order warned Claimant that his failure to show cause would result in exclusion of such evidence and likely make it impossible for him to respond to a motion for summary decision filed by Employer, which could result in a dismissal of his case. The order was received at Claimant’s address. The Court has received no response of any type from Claimant.   
 
Employer moved for the exclusion of any evidence to which any discovery request made by Employer, but ignored by Claimant, would be relevant.  Employer then also moved for summary decision, arguing that the record contained nothing that would raise a genuine issue of material fact that would connect Claimant’s stroke to his work for Employer.  
                                              
An order was issued stating that Claimant had 20 days from receipt to file an answer to Employer’s Motion for Summary Decision. The order warned Claimant that a failure to respond could lead to a dismissal of his claim.  Claimant has not responded.
  
An order was issued stating that Claimant had 20 days from receipt to file an answer to Employer’s Motion for Summary Decision. The order warned Claimant that a failure to respond could lead to a dismissal of his claim.  Claimant has not responded.
 
  Law
 
The administrative law judge may enter summary decision for either party on an issue if the pleadings, affidavits, material obtained by discovery or otherwise, or matters officially noticed show that there is no genuine issue as to any material fact and that a party is entitled to summary decision.  The non-moving party may not rest upon mere allegations, speculation, or denials in his pleadings, but must set forth specific facts through affidavits, material obtained by discovery or otherwise, on each issue upon which he would bear the ultimate burden of proof.  The response must set forth specific facts showing that there is a genuine issue of material fact for the hearing. 
  
Analysis
 
Claimant has failed to submit anything for consideration in ruling upon the motion for summary decision. Therefore, the record contains nothing that could create a genuine issue of fact as to whether Claimant suffered an injury, worked for Employer, or was exposed to conditions while he worked for Employer that could have caused his injury. Accordingly, Employer is entitled to Summary Decision.
  
Order and Decision
 
Employer’s motion for summary decision is GRANTED.  The claim is DISMISSED.

 
Again, this was an excerpt from an actual case. Forewarned is forearmed. Like I told you. What I said. It's like taking candy from a baby. Only, you're the baby and the candy is your DBA case that could be worth 5 figures, 6 figures and sometimes more. 
 

The Pre-trial Order

Suppose you get past the Discovery phase and the evitable Motion for Summary Decision. The next hurdle you’re going to face is the Pre-Trial Order.
 
This is basically a scheduling document which states when certain events must occur. If you don’t meet these dates, then you will be subject to having your evidence excluded.
 
Do you see the theme here?  At each step, the DBA insurance company is trying to make it so you have no evidence in order for you to win your case at trial.
   
 

Let’s suppose that by some stroke of luck, that your case actually makes it to a Defense Base Act trial with you representing yourself

Here are some issues if you somehow actually get your case to trial.
 

You have the burden of proof

Meaning, that for each element in your case, you have to prove that element (or fact) in order for you to win. I suggest that you check out this article on Defense Base Act evidence.
 

Proving you have a higher wage earning capacity, because you’re competent

 
If you have an unscheduled injury, then your case is going to come down to your loss of wage earning capacity.  The more competence you show in bringing your case, the more likely that you have a higher wage earning capacity. So, in effect, by effectively representing yourself, you are potentially harming your case. Do you see the irony in this?
 

The Judge is sizing you up

 
You are going to be having to deal with the Judge during all of the pre-trial conferences and in between the evidence at trial. All the while the Judge is summing you up. If the Judge likes you and believes you, that helps. On the flip side if the Judge doesn’t like you or believe you - you will probably lose.
 
Each step of the way, the DBA insurance company lawyer will be trying to make look like a liar. By you interacting with the Judge yourself, as opposed to by your lawyer, you are just giving them more opportunity to question your credibility. Don’t think that all of this won’t happen to you, because you have a legitimate case.


When you lose your trial, when you represent yourself, the BRB (the court of appeal) is going to allow you to not follow the rules (before they deny your appeal)

When a claimant appeals to the Board and is not represented by counsel, the regulations provide that the Board may prescribe an informal procedure to be followed in such case by such party. 20 C.F.R. §802.219. The Board's established policy in these circumstances is that the claimant's letter requesting an appeal is sufficient to perfect the appeal and the Board considers the issue raised to be whether the Decision and Order is supported by substantial evidence. Walker v. Director, OWCP, 9 BLR 1-233 (1987).
 

But wait, there’s more:

“The Board has determined that in cases where a petitioner is not represented by counsel, the Board will no longer require that the petitioner file a statement before the appeal can be reviewed. Instead, in cases where a petitioner appears pro se, the appeal will be reviewed under the general standard of review of whether the decision of the administrative law judge is rational, in accordance with law and supported by substantial evidence. Employer's motion to dismiss the pro se appeal as abandoned in this case is denied.”  McFall v. Jewell Ridge Coal Corp., 12 BLR 1-176 (1989).
 
All this means, is that the BRB (the Court of Appeal) is going to assume that you don’t know what you’re doing. Because, let’s face it, you don’t know what you’re doing. And they are going to review your case anyway. All the while the standard is going to be this: if the Judge’s decision is rational and supported by substantial evidence - you are going to lose your appeal.
 
I know this isn’t what you probably want to hear. But, my job is to tell you like it is. Not to blow smoke up your skirt. Just to make you feel better.


What can I do if you don’t have a lawyer for my Defense Base Act case?

First, I suggest that you get a free copy of my book - Win Your Defense Base Act Case. In the book, I explain how to find the best Defense Base Act lawyer for your case. Once you have that information, then...
 
Second, get on the phone. Try and find a lawyer.
 
Third, ask the Judge if you can continue your case while you try and find a lawyer. If no lawyer will agree to represent you because of your impending trial date, ask the Judge to vacate the trial date, so you can hire a lawyer.
 
Ask the Judge for help. Even if the Judge refuses to allow you a continuance, there is a decent chance the Court of Appeal is going to allow you a do over because you asked to continue the trial date so you could hire an attorney.
 
Fourth, better yet. Ask that your case be remanded back to the District Director in order for you to hire a Defense Base Act lawyer. You need to send this request in writing, with a copy being mailed to the DBA insurance company and employer. Asking for your case to be remanded is probably your best bet.
 
You live to fight another day and your new lawyer can fix a lot of your screw-ups. Seriously. 
 

What can I do to learn more?

 
I suggest that you get a free copy of my book - Win Your Defense Base Act Case. I know law firms that make their young lawyers read my book. These are good law firms also. 
 
WIn Your DBA Case
 
 
 
Check out these:
 
 
 
Unfortunately, it’s sort of like reading a book on heart surgery and trying to do heart surgery.  It’s not that easy.
 
 

Need help right now?
 

Call us at 619-304-1000  - If you call after regular business hours, when you leave a message, be sure to repeat your name and telephone number twice, so we get it correctly. And be sure to indicate whether it's okay if we respond by text.
 
Text us at 858-281-8008 
 
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Or you can leave us a message on this web page.
   


   
        
 
This article isn't legal advice
 

These discussions and/or examples are not legal advice. All legal situations are different. These testimonials, endorsements, photos and/or discussions do not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter, or your particular case/ situation. Every case is different. There are any number of reasons why DBA cases are not won and/or are not as successful as folks might have hoped for.
 
Just because we have gotten great results in so many other Defense Base Act cases, doesn't guarantee in particular result in other cases. Including, your DBA case. Every case is different.
William Turley
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“When I seek out professional advice, I don’t want B.S., I want it straight up. I figure you do also.”
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