What’s the Real Crisis in Pro Se Litigation? Lack of Access to Counsel.
Any person who chooses to represent himself has a fool for a lawyer and a damn fool for a client. That’s what they say, and in some cases, this assessment is spot on (which reminds me…I wonder how many google hits Roy Pearson gets these days…). But taken without qualification, this axiom can lead to a troubling and short-sighted condemnation of individuals who cannot afford an attorney and may be in serious need of legal services.
Self representation in court, or pro se litigation, has had its fair share of the spotlight on the web recently: in an article in Forbes, an article in the American, and a (more balanced peice) blog on WSJ. To greater and lesser extents, these peices mischaracterize pro se litigation as a “problem” that is emblematic of big bad evil crazy plaintiffs preying on poor little businesses who’ve done absolutely nothing wrong but mind their own. These vindictive vamps, according to these articles, are sucking innocent corporations dry with ludicrous and lucrative lawsuits.
Rather than addressing the access crisis pro se litigation reflects, this coverage portrayed pro se litigants as crazy—as in both colloquially loo-loo and clinically in need of mental health services--and opportunistic. Each peice opens with a laughable lawsuit anectode: one about the guy who has filed lawsuits against Michael Vick, Jimmy Hoffa, Skittles, George W. Bush, Plato, and Jessica Alba, to name a few; another about a woman who sued Bank of America a ridiculous number of times, quite probably out of spite; and another about someone who sued Eli Lilly multiple times per year over the course of a decade. They then go into a purportedly more sober and objective discussion of pro se litigation. Again, the WSJ blog provides a pretty fair assessment, including an interview with a lawyer who provides assistance to pro se claimants. But, as I'll discuss, the other articles just let the pop tort fluff fly.
But first, since apparently it is standard practice to open any discussion of a serious legal issue with an "outrageous lawsuit" story, here's my go:
I once did some research for a pro bono attorney handling an eviction action for his client, the tenant, who had mental health issues. He was also low-income. The tenant was facing eviction in part due to his mental health condition. He had not been able to access a lawyer until after he’d already been evicted--up to then, he'd been forced to represent himself in court. He and his new pro bono lawyer had to subsequently fight tooth and nail to get this man back into his home. If he had accepted his lot after representing himself in court, he would have struggled to obtain new housing while dealing with homelessness.
Now, this is a truly ludicrous story.
Unlike Roy Pearson, most pro se litigants do not have the legal training and expertise necessary to advocate on their own behalf with regard to certain legal claims. While an individual's right to represent himself in court is important to protect, there are some matters where it is just a better idea to get a lawyer. But if you can't afford one, then you have to go it alone. How is this acceptable? The focus of any discussion on pro se litigation should be on ensuring that pro se litigants are well-equipped to represent themselves, and want to do it (i.e., are not just doing it because they can't access a lawyer).
The WSJ blog interviewed Richard Zorza, coordinator of the Self Represented Litigation Network. Zorza said:
"There are certain situations where I'd never recoomend the pro se route, like when you're up against a particularly tough opponent--like the government--or when the conflict is particularly intense. In other situations, it depends on the particular court and judge. In the right circumstances, it can work really well.
In other circumstances, it can be a real burden. Critics' willingness to equate pro se litigants with mental illness is even further marginalizing for both pro se litigants, who already have to deal with their injury and their financial disadvantage to their adversary, and to those who do deal with mental illness.
Okay, so, let’s take this opportunity to discuss the real crisis reflected in the prevalence of pro se litigation: a lack of access to counsel for low- and middle-income Americans facing serious legal problems. 80% of low income and between 40 and 60% of middle income people in this country who need a lawyer can’t afford one, according to the Brennan Center. So, with little choice left, they represent themselves in court, and the results can be devastating.
That’s why a growing number of public interest lawyers and other social justice advocates continue to make the case for Civil Gideon, or a right to counsel in important civil law cases, such as when your housing, child custody, and healthcare are at stake. In an Amicus brief to the Washington State Supreme Court on behalf of a pro se plaintiff who lost custody of her children, a group of retired judges wrote the following:
A core principle of our judicial system is that it should provide equal justice for all. The Washington Constitution gives meaning to this pledge through the guarantee of meaningful access to the courts for all citizens. Yet it is self-evident to judges, practicing attorneys, and thoughtful persons, that in most instances indigent persons without counsel are not receiving the same quality of justice as those with counsel and are effectively deprived of meaningful access to the courts.
Studies show that indigent persons without counsel receive less favorable outcomes dramatically more often than those with counsel. The disparity in outcomes is so great that the conclusion is inescapable—indigent pro se litigants are regularly losing cases that they should be winning if they had counsel.
Efforts to provide pro bono representation for indigent litigants in civil cases have not come close to meeting the need. Accordingly, if the constitutional guarantee of access to the courts is to have meaning, courts must appoint counsel at least where basic human needs are at stake and there is no other pro bono representation available.
Thankfully, there are resources for folks who do wish to engage in self-help representation (here and here, to start). The right to represent oneself in court is important, but many people would rather have a lawyer represent them than enter into the legal system on their own. Pro se litigation often reflects the reality that unmet legal needs force many people into court over issues of significant importance to their health/welfare, without a professional advocate.
How does the legal community address the gap in access to legal services? Rather than portraying pro se litigants as a group that tends to file crazy lawsuits, we should look at what's really crazy--the fact that so many people, and disproportionately poor and middle-income people, with valid legal claims aren't able to get help taking that claim to court. This is the real crisis in pro se litigation.