TorteDeForm

Kia Franklin

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.

Kia Franklin: Author Bio | Other Posts
Posted at 11:18 AM, Aug 28, 2007 in Civil Gideon | Civil Justice | In the News | Tort "Reform" & Class
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Comments

You refer to the apartment that the "low income" tenant "with mental health issues" was renting as "his home," as though he owned it or had some extraordinary property right in it.

In fact, landlords have every right to expect tenants to pay rent on time. When the dysfunctionally unemployable and highly functional millionaires can't, won't or don't pay their rent on time, they get evicted. Simple as that.

And while there are certainly some righteous pro se cases we can cite, you avoid the principal point of the media stories: pro se litigation is on the rise and much of it is absolute nonsense which does nothing more than slow our economy and force legitimate plaintiffs to wait longer for their turn on the court docket. We might add that such litigation also erodes the general public's respect for the rule of law.

Posted by: Darren | August 28, 2007 2:01 PM

Pro se defendants succeed more often than public defenders in criminal cases.

The problem is not the pro se litigant. The problem is the rent seeking, pro-litigation biased, cult criminal on the bench. If a delusional pro se plaintiff gets past first pleading, the responsibility is entirely that of the judge. This biased cult criminal should be made to pay double all costs to the defendant out of personal assets. If the cult criminal is re-elected, then that is scienter on the part of the electorate. Effective exemplary damages should be paid by the employer of the judge. A county should be taken down, to make an example out of it. To deter.

Posted by: Supremacy Claus | August 28, 2007 4:22 PM

If I'd said his "property" I'd understand why you would take issue with my choice of words. He considered the place his home--as does my 6 year old nephew consider his parents' property his "home," or as do I consider Seattle "home." Just because someone doesn't own the property doesn't mean they cannot think of it as their home.

At any rate, while he did not have a property right in his apartment, he does have a right against wrongful eviction. Simple as that. Without getting into too much detail, the landlord did not follow the rules for giving notice and opportunity to avoid eviction. The landlord was in the wrong. But I like how you assume the eviction must have been lawful--surely no wrongful evictions occur. (Interesting...)

If we're concerned with preserving the public's faith in the rule of law, we have much bigger fish to fry, like corporate execs who think they're above the law, and are often correct, to start. Or like the fact that so many deserving pro se individuals who have legitimate claims or defenses lose because they can't afford a lawyer, often to their grave (and avoidable) detriment.

The problem is that pro se's are robbed of certain in-court rights, or they unwittingly give them up, because they are without a lawyer. Allowing this to happen on a large scale without addressing the need for access to counsel in important civil matters, poses a far greater threat to the public's faith in the rule of law than the occasional crazy lawsuit that will get thrown out anyway.

Posted by: Kia | August 28, 2007 5:15 PM

If you want to write a blog entry about the "the bigger fish to fry," i.e., the "corporate execs who think they're above the law," then that is what you should more clearly endeavor to do. (Of course, by your standards, those darn corporate execs seem to be at the root of all evil all the time.) But don't hide behind some poor unfortunate headcase who, next week, might begin to consider the Empire State Building or Eiffel Tower "his home."

It boils down to this: If you think there aren't enough lawsuits being filed in the U.S., then by all means let's make it easier for pro se plaintiffs to jump on the litigious band-wagon and take their shot. If you think there are too many lawsuits being filed already, then pro se claims, along with all the others, should be reined in by judges willing to interpret the law reasonably and practically.

Posted by: Darren | August 29, 2007 12:40 PM

I don't know, I thought I was pretty clear that this blog entry is about:

a) the real crisis in pro se litigation, which is that most pro se's go to court as such because they have no access to a lawyer; and

b) the fact that business-interests benefit from the distracting and misleading obsession with the few pro se cases that are out of whack, because it just creates a stigma and puts the majority of pro se's (with legitimate claims and sincere intentions) on the defensive about their decision to sue or to defend themselves in court.

talking about pro se litigants--both plaintiffs and defendants--as though many of them just file ridiculous lawsuits for the heck of it, is 1) misleading and 2)delegitimating. if you are poor (or mid-class) and can't afford a lawyer, you not only have to go and navigate the legal system by yourself but you also shoulder the stigma of being stereotyped as mentally ill, along with carrying the unearned bad rep for being a litigious jerk.

and what's going on in the periphery? yes, the powers that be that want this distraction to continue, so that judges who find themselves face to face with a pro se DON'T interpret their claims and arguments reasonably and practically, but rather allow the pro se to suffer from his/her opposing counsel's unequal advantage--letting the lawyer trick the pro se into waiving important rights, agreeing to unreasonable settlements, etc.--all under the guise of "neutrality." corporate-types are among these powers that be, but of course there are others (so no, they are not the root of all evil), and of course not all corporate-types are part of the problem.

Posted by: Kia | August 29, 2007 3:48 PM

Kia: I like the way the lawyer makes the public's chattel, the law, inaccessible by lawyer gibberish, Medieval, garbage. Then, cries there is a shortage of lawyers to guide the pro se litigants through the lawyer made morass.

Do you think your rent seeking is a bit obvious and embarrassingly self-dealing?

Posted by: Supremacy Claus | August 31, 2007 10:04 PM

“Whoever, being an officer, or employee of the United States or any department or agency thereof, or representing himself to be or assuming to act as such, under color or pretense of office or employment commits or attempts an act of extortion, shall be fined under this title or imprisoned not more than three years, or both.” U. S.C. TITLE 18 PART I CHAPTER 41—§ 872. Extortion by officers or employees of the United States

“(1) A person commits criminal extortion if: (a) The person, without legal authority and with the intent to induce another person against that other person's will to perform an act or to refrain from performing a lawful act, makes a substantial threat to confine or restrain, cause economic hardship or bodily injury to, or damage the property or reputation of, the threatened person or another person; and (b) The person threatens to cause the results described in paragraph (a) of this subsection (1) by: (I) Performing or causing an unlawful act to be performed… (3) For the purposes of this section, "substantial threat" means a threat that is reasonably likely to induce a belief that the threat will be carried out and is one that threatens that significant confinement, restraint, injury, or damage will occur.” Colorado Revised Statutes 18-3-207. Criminal extortion.

“parties should not feel coerced into surrendering the right to have their controversy resolved by the courts” http:// www.uscourts.gov/guide/vol2/ch1.html

“The right to petition is guaranteed; the right to commit libel with impunity is not” MCDONALD v. SMITH, 105 S. Ct. 2787, 472 U.S. 479 (U.S. 06/19/1985) U.S. Supreme Court

Judge Nottingham: “If you fail to withdraw those lawsuits, the next time you’re in this court you better be prepared with your toothbrush, because you will be going to jail.” (9/5/05 transcript .p.33.)”

Judge Nottingham: “Will you dismiss these lawsuits?…if you promise me to dismiss them within the next 11 days, I will let you out of jail today” (1/4/06 transcript p. 17)

Judge Nottingham: “So you’ll stay out of jail if all these cases are dismissed in time for me to vacate the hearing. Otherwise the next time you show up, you pack your toothbrush, because you are going to jail.” (2/16/06 transcript p.14)

Judge Nottingham: “They may choose to abandon any contempt proceedings in this court if you will agree not to file any further pleadings in this case…negotiate with them.” (6/1/07 p. 21).

Posted by: kay sieverding | September 8, 2007 10:17 PM

Help me impeach U. S. District Court Judges Philip Pro, and Kent Dawson and 9th Circuit Court Judges Robert Boochever, Edward Leavy, and Otto R. Skopil Jr. under Article III, Section 1. 9th Circuit Court Chief Judge Mary Schroeder is fully aware of these judicial misconducts, violations, and discriminatory practices,

Removing a Judge from office is not a new, radical idea. Thirteen times in our nation’s history, federal Judges have been impeached and removed from office. The impeachment charges have ranged from bringing the court into disrepute, to abuse of power, to unlawful rulings. Article Three says that a federal Judge will serve during good behavior. According to the Constitution, We, the People, have the authority to impeach and remove any Judge who has broken his oath of office

One side note, these Judges are also considered White Collar Criminals since I was scammed out of money as a result of being a victim of bait and switch, fraud, and discrimination, at the hands of the Federal Courts.

When it comes to how Pro Se (self represented) litigants, the Federal Courts run a bait and switch, scam, fraud, discriminatory, and a multitude of other types of violation type of operation. I have endured this for about 4 years.

From the day that I filed his lawsuit, I unsuspectingly was going to be one of the many Pro Se victims of discrimination by the U. S. District Court - District of Southern Nevada and the 9th Circuit Court of Appeals (Case No. 04-16825 and 06-16259). Through research, I found that this is a common violation and victimization against Pro Se litigants at the hands of corrupt, unethical, Federal Judges. I have an abundant amount of factual evidence and documents regarding the failure to grant my Summary Judgments, deny my various motions and appeals, which are just a part of the 700 pages of proof, documents, and evidence. Because of the Judges’ Discrimination against Invidious Class Pro Se Litigant, I suffer from Legal Abuse Syndrome, additional depression, emotional distress, etc.

Dr. Charles W. Heckman clearly states in his Court Task Force Report. Full report can be found at http://victimsoflaw.net/9thcircuit1.htm. There are other Task Force Reports, as well.

“Prejudices often have a greater impact on the outcome of administrative hearings and lawsuits than parties with an obligation to be impartial like to admit. Whether the prejudice is deliberate and malicious or entirely unintended, decisions colored by personal biases can be just as devastating to the victims of the resulting injustice.”

“The most common complaints by litigants of misconduct by the courts include the following: 1. Perjury is tolerated by the judge, 2. Records submitted to the court disappear from the files, 3. Judges’ opinions fail to address the issues of the lawsuit, 4. Certain litigants must always win, 5. Different standards are applied to different litigants, 6. Recent handlings of civil lawsuits by the courts have instigated a white collar crime wave, 7. Court orders go unheeded, 8. Judges give orders contrary to law and accepted standards of behavior, 9. Judges refuse to take actions required by law, 10. Courts have become inconsistent and arbitrary, 11. Federalism theory interferes with practical justice.

In my 2 cases: Judges’ opinions fail to address the issues of the lawsuit, Judges give orders contrary to law and accepted standards of behavior, Judges refuse to take actions required by law, and allowed perjury and ex-parte communications. Said Judges also violated Federal Rules of Civil Procedure (FRCP) 8(d), 12(a)(1)(A), 55(a), 56(a), Local Rules 56-1 and 77-1(b)(2), 15 U.S.C. § 618, § 623, § 1681n, § 1681s, and § 1681s-2. Both courts have clearly shown violations of the 14th Amendments Equal Protection Clause, Canon Codes of Judicial Conduct 3(B)(5), 3(B)(6), 3(B)(8), as well as Civil Rights and the Preamble to the Constitution.

The 9th Circuit Court of Appeals also has an unpublished policy, with regard to cases involving Pro Se litigants, and that is to delay a decision by 3 years. This court feels that a Pro Se would get tired of waiting and drop the case(s). I do not plan on dropping the case, until he has been granted justice and equality.

By helping, you will have saved others from being victimized.

Posted by: Harold Krieg | September 12, 2007 11:05 PM