Pro Se Litigants--An Ethical Dilemma?

Copyright 2009 (all rights reserved)

By Rudy S. Apodaca

A Presentation for a State Bar of Texas Webcast entitled Pro Bono/Pro Se Issues: Conflicts for Justice? broadcast on June 18, 2009

    “Lest the citizenry lose faith in the substance of the system and the procedures we use to administer it, we can ill afford to confront them with a government dominated by forms and mysterious rituals and then tell them they lose because they did not know how to play the game or should not have taken us at our word.” Moore v. Price, 914 S.W.2d 318, 323 (Ark. 1996), Mayfield J., dissenting

    That quote from Justice Mayfield’s dissent, an Arkansas jurist, is at the heart of this essay. Of course, to balance his admonishment, I’ll refer to the “legal maxim” that’s been around as long as I can remember. You too, I’m sure, have heard it many times. “A person who represents himself has a fool for a client.” What some of you may not have heard is the second part of that caveat, which continues, “. . . and an ass for an attorney.”

    When I was in the middle of writing my essay, a neighbor called and asked me to join him for coffee at Starbucks. I tactfully declined, explaining that I was working on my paper and was eager to finish it.

    “What are you writing about?” he asked.

    I read and explained the title to him, Pro Se Litigants—An Ethical Dilemma?

    “That certainly sounds boring,” he replied bluntly.

    I explained that my paper was part of a webcast panel discussion to be viewed by possibly 100+ attorneys throughout Texas and elsewhere who might find the topic both interesting and relevant since lawyers have to deal, often painstakingly, with self-represented parties.

    “Besides,” I added, “some lawyers might also perceive the appearance of a pro se litigant as one less job for an attorney.”

    He laughed and quickly said, “I’ve changed my mind. I can see why attorneys wouldn’t find the subject boring.”

    So I hope you don’t let my neighbor down.

    Some of you might think that pro se litigants have been with us for only a couple of decades. Not so. Although it wasn’t until almost 35 years ago that the United States Supreme Court, in Faretta v. California, 422 U.S. 806 (1975), spoke on the subject, the opportunity for parties in a lawsuit to represent themselves existed long before that; since Colonial times, as a matter of fact.

    As the Court in Faretta pointed out, “[i]n the federal courts, the right of self-representation has been protected by statue since the beginnings of our Nation.” Indeed, the Judiciary Act of 1789, 1 Stat.73, 92, enacted by the First Congress and signed by President Washington one day before the Sixth Amendment was proposed, provided that “in all the courts of the United States, the parties may plead and manage their own causes personally or by the assistance of counsel.”

    In order to garner the support of the people for the new Constitution, the Right of Self-Representation, a serious concern of theirs, was one of the first laws passed after the War of Independence. Ironically, although the right of persons to represent themselves has enjoyed constitutional status in some states, it actually pre-existed the ratification of our nation’s Constitution.

    Since enactment of the Right of Self-Representation in 1789, the right to represent oneself in a legal proceeding has been addressed by the Code of Conduct for United States Judges, the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, the Federal Rules of Evidence, and the Federal Rules of Appellate Procedure.

    In addition, Section 1654 of Title 28, United States Code, provides: “In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein.”

    One might ask, if the right of a party to appear pro se has already been established in our courts, is it any wonder that pro se parties have found their way into other venues, such as arbitration proceedings and mediation conferences? As pro se litigation grows in our courts, we should expect that pro se appearances in mediations and arbitrations will likewise increase. This is especially true when we consider that arbitration affords a more relaxed setting where the Rules of Evidence don’t technically apply. In addition, the forum is chosen particularly to avoid lengthy delays and costs involved in court litigation, a common objective of the pro se litigant.

    It isn’t necessarily my intention to argue one way or the other whether pro se litigation is a good thing. I address only the reality that it is a growing phenomenon. Pro se litigation is here with us, whether we like it or not. But what is also clear is that there’s a difference of opinion among judges and lawyers how best to handle the problems that come about as a result of such litigation.

    I’d like to make a disclaimer. As I relate to you the product of my research into this subject, let me state that unless I’m stating my opinion, and with one exception at the end of this essay, I’m only reporting to you the information I’ve uncovered. So please don’t “shoot the messenger,” no matter where you stand on the question of pro se parties.

    Much of what I will convey to you, including statistics, is gathered from the writings of others as well as from my own experience dealing with court proceedings, mediations, and arbitrations.

    Aside from the fact that self representation has been around since Colonial times, there is today an important aspect of our federal and state constitutions and laws in our system that many believe gives rise to the right to represent oneself in our legal system. I speak of our federal and state governments’ pronouncements that all citizens shouldn’t be denied access to and fairness in, our courts. Unquestionably, the right to self-representation arises from the right of access to our courts. It could also be argued, as author Edward M. Holt did in his essay, How to Treat “Fools”: Exploring the Duties Owed to Pro Se Litigants in Civil Cases, 25 J. Legal Prof. 167, 168 (2001), that the constitutional bases for this right include “the Privileges and Immunities clause, the First Amendment right to petition the government for redress of grievances, the Due Process clause of the Fifth and Fourteenth Amendments, and the Sixth Amendment right to be heard.”

    Additionally, we shouldn’t lose sight of the role our judges play in the states’ respective Codes of Judicial Conduct modeled after Rule 2.6(A) of the ABA’s Model Code. That rule requires a judge to “accord to every person who has a legal interest in a proceeding . . . the right to be heard according to law.” Also, Rule 2.2 of the Model Code requires a jurist to “perform all duties of judicial office fairly and impartially.

    In California, a judicial officer charged with regulating judicial conduct not long ago addressed the need of the state’s judiciary to act in the interests of fairness to self-represented litigants. As a result, the state’s rules now express a preference for resolution of every case on the merits, even if resolution requires excusing inadvertence by a pro se litigant that would otherwise result in a dismissal. That requirement is based on the idea, first expressed in a published California case, Gamet v. Blanchard, that “Judges are charged with ascertaining the truth, not just playing referee. . . . A lawsuit is not a game, where the party with the cleverest lawyer prevails regardless of the merits.”

    There’s no question that pro se representation presents unique but not insurmountable challenges for both the pro se party and our judicial system. But let’s look at a few statistics; what do they show us?

    In Louisiana, for example, the courts there in 2000 tracked the results of pro se appeals versus represented appeals. The results showed that 7% of writs in civil litigation submitted to the court pro se were granted, compared to 46% of writs submitted by counsel. In criminal cases, the ratio was closer: 34% of pro se writs were granted versus 45% of writs submitted by counsel.

    I found interesting a study made by Erica J. Hashimoto, an assistant professor of law at the University of Georgia Law School:

    “After conducting an empirical study of pro se felony defendants, I conclude that these defendants are not necessarily either ill-served by the decision to represent themselves or mentally ill. . . . In state court, pro se defendants charged with felonies fared as well as, and arguably significantly better than, their represented counterparts. . . . Of the 234 pro se defendants for whom an outcome was provided, just under 50 percent of them were convicted on any charge. . . . For represented state court defendants, by contrast, a total of 75 percent were convicted of some charge. . . . Only 26 percent of the pro se defendants ended up with felony convictions, while 63 percent of their represented counterparts were convicted of felonies. . . . In federal court . . . the acquittal rate for pro se defendants is virtually identical to the acquittal rate for represented defendants.” Defending the Right to Self-Representation: An Empirical Look at the Pro Se Felony Defendant by Erica J. Hashimoto (2006).

    In the May/July 2003 issue of Dispute Resolution Journal, a study was presented by Elizabeth Hill entitled AAA Employment Arbitration: A Fair Forum at Low Cost. In it, Ms. Hill briefly discussed pro se proceedings. Here’s what she found:

    One-third of the lower-income employees in this study prosecuted their cases without legal representation. The data indicated that the arbitral forum was successfully navigated by these employees.

    The win-loss ratio for both lower-income employees with representation and those who proceeded pro se was .50. Moreover, the employees pro se did not face less substantial opponents than the employees with counsel. The lower income employees pro se defeated employers represented by 33 attorneys, six human resources representatives, and one corporate representative.

    As to damages awarded and damages demanded, lower-income employees pro se fared as well as lower-income employees with counsel. Although the data on demands and awards was limited, both groups obtained 100% of the monetary damages they originally demanded. The fact that the $67,174 average demand by the pro se group was less than the $93,448 average demand by the group with counsel may indicate that lower-income employees made a decision to retain counsel when larger amounts of money were at stake.

    In sum, these findings demonstrate that employees proceeding pro se understood their cases and the AAA arbitration procedure. They also indicate that the AAA rules were accessible to lay people.

    Throughout the last decade, we’ve witnessed a surge of pro se litigation. Although there have been only a few empirical studies, data that’s been collected show that an increasing number of litigants are electing to represent themselves in a variety of legal matters. It therefore shouldn’t come as any surprise to us that self-represented litigants are seeking assistance from court staffs, bar organizations, and even judges to process their claims or defenses through often confusing procedural rules that make up the judicial process.

    Several years ago, already overburdened court staffs faced increasing questions from pro se parties who desired some explanation of how their case could proceed through our legal processes.

    Traditionally, these clerks and deputy clerks have assisted attorneys and their staffs by providing instructions on the rule to follow and the form to use. Yet, initially, they were reluctant to provide the same information and forms to pro se litigants. Not only did it take time away from their duties, they felt, but more importantly, prohibitions against the unauthorized practice of law deterred court staff from helping self-represented persons.

    Even if pro se litigants weren’t deterred by the lukewarm reception from a busy clerk, they were sure to encounter other barriers once they got into the courtroom. There, the litigant was confronted by a judge faced with a heavy caseload who expected all who appeared in his or her court to abide by the rules and to present their case without taxing the judge with questions about how to proceed to make a case.

    Let me stop there for a minute to pose a potential, ethical dilemma to you. I refer back to the jurist in the California case who stated that judges are charged with ascertaining the truth, not just being a referee. “A lawsuit is not a game,” he said, “where the party with the cleverest lawyer prevails regardless of the merits.”

    That remark brought back a memory for me of a jury case I once handled long ago as a criminal defense attorney in a small town in New Mexico. The assistant DA, who wasn’t particularly bright, as you’ll soon see, had just finished his re-direct of the state’s expert witness in a drug case. When the expert was permanently excused to return to his home in Santa Fe, 250 miles away, the assistant DA rested his case without first moving the admission of the drugs and drug paraphernalia. I, of course, moved for a directed verdict.

    The trial judge, who was fit to be tied for he couldn’t believe what had just happened, countered that he wasn’t about to let my client get off that easy. He immediately directed the bailiff to rush downstairs to see if the witness had left the premises. The witness was already in his car when the bailiff told him the judge wanted him back in the courtroom.

    Upon his return, over my loud but futile objection that the court had no authority to re-open the case, the judge permitted the prosecutor to move the admission of all of the physical evidence. He did this for an attorney; would he have given a pro se litigant the same opportunity?

    Keeping that case in mind, I want you to imagine yourself in a court or arbitration proceeding opposing a pro se litigant. In my hypothetical case, let’s assume that the lay person has made a major blunder, unbeknownst to the judge or arbitrator, by relying on the wrong document to help make his case. Being who you are, well prepared and versed on all of the available evidence, you realize his big mistake and that it will definitely weaken his case. With his case weakened, your case has suddenly become stronger.

    My question of you: Do you alert the judge, arbitrator, or the pro se litigant that he has erred, or do you remain silent to reap the benefits?

    You might be thinking as I pose the question that this scenario doesn’t present much of a dilemma to you. After all, you might reason, we’re talking about our adversarial system here, a process that’s been very much a part of our judicial system under the common law in this country and in England. In fact, ethical considerations demand of us that we represent our clients with zeal and loyalty. Aren’t we committed to do our outmost to win our client’s case? So you might conclude that these considerations preclude you from alerting the court, arbitrator, or pro se party of his error.

    I submit to you that there lies the dilemma. On the one hand, we definitely do owe a duty to our client. But on the other, what about our concept of equal justice under the law and our duty as an officer of the court that we should strive to seek the truth if we are to render justice?

    In the case of our pro se litigant who has made a the understandable mistake of submitting the wrong piece of evidence for the judge’s or arbitrator’s consideration, are the true facts being presented to the tribunal on which his or her decision will be based? So the fact that you may not consider your situation in remaining silent to benefit your client as a personal dilemma may in fact be a big part of the problem: the opposition of two fundamental concepts in our judicial process.

    I’m not fishing for an answer at this moment to the question I posed. I just want you to think about it, not just as you read this paper or even during the webcast but for a long time afterward. It is simply that kind of “What If” question, made to linger in your mind. Like the deputy clerks throughout the country who don’t hesitate to help the local attorneys with their cases or the trial judge in my case, are we willing to help attorneys but turn our backs on pro se litigants who are understandably relying on our system to ascertain the truth and provide justice for them?

    The concerns and obstacles I’ve noted in pro se litigation have lessened considerably in the last few years as the number of pro se litigants has grown. A different approach is now being taken.

    In 1998, in response to the growth of pro se litigation, the American Judicature Society and State Justice Institute funded a study by The Justice Management Institute. The study was compiled into a publication entitled Meeting the Challenge of Pro Se Litigation: A Report and Guidebook for Judges and Court Managers.

    Although the guidebook acknowledged and documented the increasing number of self-represented litigants, it neither encouraged nor discouraged this trend. Despite this disclaimer, as the title of the report suggests, the report offered information and program models from several jurisdictions that might be helpful to anyone seeking to serve the pro se litigant. The report therefore recognized that “[it] cannot be denied that the barriers encountered by self-represented litigants both outside and inside the courtroom deprive them of access to justice. Our democratic principles, the U. S. Constitution, and the rule of law require that our justice system meet the needs of all people equally, including self-represented litigants.”

    The publication also explored a myriad of policy issues that judges and court managers faced as a result of the growing number of pro se litigants. In doing so, it made policy recommendations “to encourage courts to establish pro se assistance programs, to consider changes in procedural rules and judicial ethics principles, and to take other measures that serve to promote fair and meaningful hearings for all litigants.”

    Confronted by the challenges and potential problems that might come about as a result of the increase of pro se filings, our courts and bar organizations for the most part have accepted the change by providing assistance to pro se litigants and pro se “wannabes”. They were faced with the dilemma that if they did absolutely nothing, our court process could be adversely affected, thus worsening our clogged courts.

    The self-help assistance I speak of generally comes from three sources: first, of course, from the various courts, which offer forms, guidelines, and assistance; second, from public interest groups or legal organizations, such as the American Bar Association, which sponsors reform and promotes resources for self-help; and third, from various commercial services, off- or on-line, that sell pre-made forms allowing self-represented parties to use the correct and proper forms in their cases. These providers must be careful not to do or offer anything that might be viewed as giving legal advice to avoid the “unauthorized practice of law.”

    In 2008, the ABA awarded a grant to the Chicago-Kent College of Law Center for Access to Justice & Technology to make justice more accessible to the public through the use of the Internet in teaching, legal practice and public access to the law.

    The ABA’s A2J Project (standing for “access to justice”) is a software tool that allows the courts, legal services programs, and educational institutions to create guided interviews resulting in document assembly, electronic filing, and data collection. Using the A2J software, the viewer goes through a guided interview and down a virtual pathway to the courthouse. As viewers answer certain questions about their legal issues, the software then translates the answers to create or assemble the documents needed to be filed in a particular case.

    In addition to the American Judicature Society and the State Justice Institute, which I noted earlier, another organization involved in pro se issues is the National Center for State Courts.

    As many of you know, many courts have fill-in-the-blank forms that pro se litigants may use. In addition, these litigants have available to them many of the resources that lawyers have. Most courts’ websites offer on line forms and procedure guidelines. Law libraries, some of them government subsidized, offer free library cards and so-called summary books. Already, both the U. S. Code and the federal rules of civil and criminal procedure are available to anyone on line. The Federal Judicial Center’s website provides publications and information on civil litigation, complex litigation, civil rights, prisoner litigation, and appellate procedure manuals.

    Anyone can set up what’s called a Pacer account with the federal courts, sometimes free of charge. It’s used to download any unsealed document filed in any United States court in the last few years for 8 cents a page or $2.40 maximum per document. This means that anyone can download documents from other parties’ cases.

    Links to other legal documents can also be found at the Wall Street Journal Law Blog and the ABA Law Blog. The Cornell Legal Institute provides congressional notes. The Library of Congress offers free publication on many subjects such as the insanity defense. Most federal appellate courts have their opinions on-line with word search capabilities.

    The National Center for State Courts offers an on-line pamphlet entitled Self-Representation Resource Guide, which offers a pro se litigant links to other websites, publications dealing specifically with self-represented litigants, clearinghouses, court-based self help, and other programs helpful to the pro se litigant. And the list goes on and on.

    All of these self-help resource examples involve court systems but the “accessibility to justice” premise for allowing pro se litigation in our courts applies equally as well to mediation and to the arbitration process in particular.

    Even the American Arbitration Association (AAA), founded sometime in the 1920’s, in its by-laws, clearly spells out its public service mission:

    “The objectives of the Association, for the benefit and education of the general public and interested parties, to study, research, promote, establish, and administer procedures for the resolution of disputes of all kinds through the use of arbitration, mediation, conciliation, negotiation, and other voluntary procedures. . . .”

    As a testament to those objectives, the AAA, on its website, provides all filing forms necessary for a particular dispute, whether it is commercial arbitration, consumer arbitration, employment, labor, mediation, or state-based dispute resolution. If you check the Association’s website, you’ll see that the available forms include the Demand for Arbitration, the Answering Statement, and many other required documents. These options are open to the general public, not just attorneys. And, as you know, a person even has the option of filing any form on line.

    The AAA’s website even has an On-Line Library, with publications such as a six-page guide entitled Representing Yourself in Employment Arbitration: an Employee’s Guide. As the name of the guide suggests, this is not a guide for attorneys; it is a guide for laypeople who may be representing themselves in an arbitration proceeding. The on-line publication explains the steps to be taken in an arbitration case and answers several questions.

    I’ll note one of the questions and the answer given to make my point: that pro se litigation in arbitration cases is here to stay, and even the AAA understands that fact.

    The question:

    “Do I need an attorney to participate in arbitration?

     The answer:

    “No. The AAA, however, strongly encourages you to seek the advice of legal counsel, for several reasons. First, arbitration is a final and binding process. Second, workplace disputes, particularly those involving statutory claims such as race, age, or national origin discrimination, can be difficult to present without the assistance of an attorney. At a minimum, you should consider consulting with an attorney.”

    I’ve given you a few statistics, quoted from some reports, and informed you how the courts and legal organizations are addressing the surge of self-represented litigants. To be sure, the entry into providing “self-help” assistance to pro se litigants by our courts and other legal groups has been met with criticism that providing such self-help tools will only encourage more and more pro se filings and worsen the perceived problems. In my opinion, the “jury” is still out on that question, and only time will tell whether we are addressing the pro se increase in a way that is beneficial to our system of justice.

    Have there been any empirical studies conducted to determine whether the methods chosen to address the increasing numbers of pro se parties are working? I found none in my research. What I do know is that as of 2003, although at that time the judiciary and others were investing considerable time and money on self-help programs, there had been no study conducted to find out if those efforts were meeting their objectives.

    In that year, John M. Greacen authored a paper for the California Administrative Office of the Courts, entitled Self Represented Litigants and Court and Legal Services Responses to Their Needs; What We Know. During a part of my almost 14-year tenure as a judge on the New Mexico Court of Appeals, John Greacen was Director of the Administrative Office of the Courts in New Mexico, so I had the pleasure of knowing him personally.

    His paper acknowledged that there had been no empirical studies to determine whether these programs were working. Greacen stated that while “. . . there is every reason to believe from anecdotal reports and common experience that self-help programs are benevolent and worthwhile, the judicial branch should base such a large programmatic effort on careful and thorough research.” When Greacen published his paper, no such research had been undertaken. Although he explored what evidence there was available at the time from studies and reports done on the self-represented phenomenon and on the California’s courts’ self-help programs developed in response to it, he didn’t draw any definitive conclusions about self-help programs and their effectiveness.

    Nevertheless, Greacen noted that the research and evaluation done to date partly suggested:

    . . . [T]hat some hearings and trials take longer when self-represented litigants are involved. Many take less. However, . . . cases with self-represented litigants are far less likely to require hearings or trial than cases with lawyers and . . . they proceed through the court much faster.

    . . . [T]hat most self-help programs serve only a fraction of self-represented litigants in their jurisdiction. Yet no study has addressed empirically how easy it is for potential litigants to learn of a self-help program and gain access to it.

. . .

    Self represented litigants universally appreciate court and legal service programs that provide them with forms, information, or advice, rate the staff as helpful, knowledgeable, and courteous, and are highly satisfied with the services rendered.

. . .

    There is some evidence—particularly in landlord/tenant matters and domestic violence cases—that self-help services give litigants a more realistic understanding of their legal situation and cause them to have more realistic expectations concerning the likely outcome of their case in court.

    Court staffs universally appreciate such programs and believe that they save time and effort—both at the front counter and in the courtroom—and that they reduce the number of hearings that need to be reset because the paperwork is not adequate. Most judges agree. Judges in two jurisdictions disagree.

    Greacen ended his paper with the following conclusion:

    “There is strong reason to believe that much of the accepted wisdom concerning self-represented litigants is flawed. Their arrival in the domestic relations courts has probably reduced the number of hearings, shortened those that occur, and reduced the time required to dispose of cases. For the most part, it appears that persons choosing to represent themselves are making rational and accurate assessments that their cases are not complex enough to warrant retaining counsel. However, there are numerous instances in which litigants misdiagnose their cases; it is these cases that tax the judges and the courts generally. And it is from these exceptional cases that the stereotypical picture of the disruptive self-represented litigant arises.

    “There is much to learn about these litigants, their cases, and about the effectiveness of court- and legal services-based programs designed to assist them. This paper has identified many unanswered questions. It has also shown the need for the development of standard, accepted measures and definitions for data elements commonly collected. Of particular need are common categories for describing the demographics of litigants and for measuring user satisfaction with program services and court outcomes. A modest investment in developing common measures and techniques now would reap major benefits from comparable research and evaluation findings for court programs for self-represented litigants throughout the country over the next decade.”

    As you might expect, the proliferation of self-help guidelines and forms provided directly by courts throughout the nation and on the Internet has given rise to criticisms that the problems presented in some cases involving pro se litigants will not only worsen but increase.

    I found one example of such criticism in a pro se survey conducted in a domestic relations seminar held in Missouri a few years ago. The second to the last question asked in the survey read as follows: “Should the legal profession be concerned . . . about the potential harm that comes from filing a dissolution case pro se?” 75% of the responses (a total of 213) answered “Yes”. The remaining 25% (a total of 70) answered “No”.

    The last question read: “If you answered “YES” to [the previous question], do you wish to suggest a way for litigants to not harm themselves that is consistent with a litigant’s constitutional right to file their own case, even if doing so would harm them for their rights?”

    I’ll share only a sample of the comments made by the attorneys in response to that question.

    Response 1: “As with other cases, I believe they can get guidance from the statutes. It is not the court’s job to provide petitions.”

    Response 2: “If litigants wish to file pro se, that is their right. If they wish to do so without exposing themselves to potential harm resulting from self-representation, then they should educate themselves on the law and the rules governing their case. By providing half-measure aid on the way of “forms”, we actually expose them to more potential harm by (a) deluding them into thinking they are protected by using court-forms; and (b) derailing their self-research into relevant law, issues, etc.”

     Response 3: “Under our system of government, all Americans have the inalienable right to be stupid. If they want to do their own legal work, or dental work, surgery, etc., they have the right to do so. This is the usual answer I give when someone asks, ‘Do I need a lawyer to _______?’ I say, ‘No, and you don’t need a doctor to deliver a baby.’ Be aware that I am one of those libertarians who think it is not my job to protect people from themselves. You may be obligated to warn them of the dangers but not interfere with their rights.”

    Response 4: “There is no easy solution, since many of these litigants cannot afford to hire an attorney. Certainly, well prepared forms with clear instructions as to the need to consult an attorney with respect to certain aspects and instructions as to the ramifications of others would be helpful to those who cannot afford an attorney. Having an attorney available at a reduced rate would be even better but the problem of funding . . . is an issue that would be difficult to address.”

    Response 5: “In my thirty years of experience, a lot of these are because people don’t want to spend money. They do not understand the serious nature of what is going on. They think it is simple and have been misled in recent times by all of the legal forms providers. Yes, they have a right to represent themselves, just as I have the right to pull my own teeth or do surgery on myself. Not a smart thing to do. We should not be providing help to these people.”

    Response 6: “Litigants can do whatever they want. But I do not believe the Bar should assist those who choose to be unrepresented by providing forms and “legal advice” from court personnel.”

    Having noted these criticisms, some especially strong, let me offer a balance by quoting from the Preface of the publication I referred to earlier, the one funded by the American Judicature Society and the State Justice Institute. I should add that I agree with these observations, so in that respect, I suppose I’m not just the messenger as I suggested earlier.

    “Absent a right to civil legal services, the justice system must ensure all litigants equal access to justice regardless of their represented or unrepresented status. It should not be necessary to establish indigency to secure the basic knowledge necessary to raise a reasoned claim or a defense. This assurance is necessary in order to preserve the public’s trust and confidence in our courts. Without public confidence, courts lose legitimacy, risk becoming irrelevant, and fail to serve a basic purpose to be an open, accessible justice system. Much is at stake in the formulation of legal policy affecting those members of the general public—rich, middle class, and poor alike—who find themselves, or choose to be, in litigation without counsel.

    “The manner in which people in the justice system are treated is critical to the effectiveness of the court as a viable, public institution. That means not only devoting sufficient resources, but using the most creative mechanisms possible to ensure full and meaningful access to, and participation in, the administration of justice. In this era of improved quality, faster service, heightened consumerism, and broader choices, the functions and purposes of government are challenged more intensely to be streamlined, user friendly, and customer sensitive. To meet the challenge, we need to recognize changes in our client or customer base more keenly, assess our services and responsibilities more openly, and change our systems more creatively. . . .”

    In closing, I’d like to pose a few questions I hope you consider.

    My first question: Forget for the moment that the rise in pro se litigation may be hurting you, the practitioner, in two ways. First, you’re the ones that have to deal with the pro se litigant. Second, some might view a pro se case as one less case for an attorney to handle. So try putting that aside in answering this question. Do you believe the increase in pro se litigants in judicial proceedings, including mediation conferences and arbitration hearings, is a good thing or a bad thing?

    My next question: Given the fact that pro se litigation appears to be on the rise, do you think that providing self-help support, pro se filing guides, and forms by the courts directly or on the Internet is the right way to address the increase, or is it a bad idea altogether?

    Whichever way you might answer these two questions, what if anything do you individually or collectively plan to do about it?

    Please think about these questions and how you might answer them as you continue your respective law practices. It might be a good idea to come up with some of your own answers or solutions, for if you haven’t already dealt with pro se parties in your practice, I’d say there’s a good chance that you’ll be dealing with them in the not-too-distant future.

Copyrighted June 2009