By Frederick Ray

Most prisoners are completely ignorant of the law and the process used in the practice of law and litigation. As a result of this lack of knowledge, prisoners become victims of manipulation by “fraudulent” jailhouse lawyers and “incompetent” attorneys. Living within a pervasive environment and culture of hopelessness in prison, it’s easy to manipulate a prisoner with false hopes by someone who can fluently speak the legal language.

Quoting case law and procedural rules off the top of the head convinces the prisoner into believing that the jailhouse lawyer or attorney is competent to assist them with their cases. The prisoner, being completely ignorant of the definition of competence becomes convinced that “competence” is defined by the ability to speak legal jargon. Numerous prisoners have had valid claims denied as a result of “incompetent” jailhouse lawyers and attorneys’ failure to properly develop an argument in support of the issue, resulting in the waiver of the issue.

Just about everyone in prison knows of someone who has been a victim of manipulative, false-hope preaching “fraudulent” jailhouse lawyers and “incompetent” attorneys. Therefore, the question is, what is the definition or criteria for legal competence to protect yourself and associates from this manipulation? The answer is, you must educate yourself on the definition of “competence.” This knowledge should be your measuring stick used for anyone to litigate in your name, not his/hers; therefore, you must be certain the person is competent in his/her knowledge of the law, and the process used in litigation.

It’s mandatory that you examine and investigate the competence of anyone you trust with your case. Trust is not given, it’s earned. How do you make that determination? Well, answers to the following questions could help. Before accepting legal advice from anyone (jailhouse lawyer or attorney), you should first ask them:

  1. What is the doctrine of “Stare Decisis”?

It’s the idea that reported past court decisions establish legal principles which control future court law decisions based upon similar facts: case law.

  1. What is the difference between the “holding” and “dictum” in a case law opinion?

The “holding” is the answer to the legal question presented in the case and the court’s reason for the answer. “Dictum” is something stated by the judge about something not necessary to answer the legal question presented in the case.

  1. What are the components of a properly developed legal argument?

I.R.A.C. = Issue/claim, Rule of law governing the issue, Application of the rule of law to the facts supporting the issue, Conclusion, which is the result of applying the law to the facts supporting the issue.

  1. What is the difference between a “question of law” and a “question of fact”?

A question of law is whether the law has been followed, or the correct law has been applied. A question of fact is whether something is true or not.

  1. What is “Standard of Review”?

It’s the rule of law used to measure “how” and “what” will be examined to resolve the dispute.

  1. What’s the definition of “previously litigated”?

It means the merits of the issue have already been presented and decided by the court.

  1. What is “waiver doctrine”?

If an issue wasn’t objected to at trial and wasn’t raised in the trial court or on direct appeal, the issue is forfeited (waived) and cannot be raised later except under an anI.A.C. (Ineffective Assistance of Counsel) claim for failure to preserve and litigate the issue.

  1. What is the difference between “precedent” and “persuasive authority”?

“Precedent” is a reported case that has similar facts creating a legal principle for future cases with similar facts — the decision, in that case, controls the outcome of the issue being litigated. “Persuasive authority” does not control, it’s merely used to persuade the court to rule favorable due to an excellent discussion of the legal principle controlling the issue being litigated.

  1. How many cases have you won and how many trials have you done?

Success is the ultimate measuring stick for competence. If they have succeeded, they should prove it with evidence. Hearsay of success and competence is not reliable evidence to trust someone with your rights.

The above questions involve some of the “fundamentals” of litigation. The answers are “fundamental knowledge,” and if anyone doesn’t know these fundamentals, their competence is suspect. This fundamental knowledge applies to civil and criminal litigation. Lack of this knowledge doesn’t necessarily mean the person doesn’t know what they are talking about when it comes to the law, lack of this knowledge means you should not trust them with your rights. What’s important is if you had to choose between someone who knew these fundamentals and one who did not, or someone with proven success and one without it, it’s likely you’ll choose the competent one.

However, lack of success should not be the sole reason to reject assistance. There are competent jailhouse lawyers and attorneys who haven’t succeeded because the court failed to follow the law. There’s no such thing as someone being “the best” in the knowledge of the law. No one knows everything, nor can they guarantee a win. There is only “competence” to practice law for a favorable outcome. After all, the court must follow the law for anyone to get relief. Our personal experiences in litigation remind us that the courts sometimes do not follow the law; that’s why there is a necessity for appellate courts.

Who’s the best or the worst is not important. What’s important to know is the difference between “incompetence” and “competence.”? You must know how to make that determination before trusting anyone with your litigation rights. If you don’t know what a legal error looks like, how can you identify one? If you don’t know the definition or criteria for competence, how will you know if a jailhouse lawyer or attorney is competent?

The purpose of this knowledge is for your benefit and protection, not to chop anyone down who provides legal assistance. You are responsible for yourself, not the person assisting you. Part of that responsibility is to make sure you examine and investigate the competence of that assistance. Would you buy a house without looking at it? Would you buy a car without taking a test drive? Trust is not given, it’s earned.

The same principle of protection should be utilized when you allow a jailhouse lawyer or attorney to advocate issues on your behalf. If you value your freedom and constitutional rights, you must educate yourself to protect yourself. Knowledge is your power and protection from the manipulative and deceptive devices of the system and those who work within it.

Always be mindful: If you have an expectation of somebody, the best example is yourself, and if you don’t do anything different, you won’t get anything different. Knowledge is power, ignorance is weakness. Education is liberation.

Note: For educational purposes only. Always research the law yourself to verify the accuracy of anyone’s legal analysis.

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