* Bias Against Pro Per Litigants....
J.A.I.L. News Journal
Los Angeles - February 3, 2001
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Bias Against Pro Per Litigants....
By Stephen Elias
Copyright © 1997 Nolo Press
Posted April 4, 1997
From the moment they first contact the court system, most people who want to represent themselves, without a lawyer, encounter tremendous resistance. Within the closed universe of the courts, this bias is as pernicious as that based on race, ethnic origins or sex.
During my 17 years with Nolo Press, the nation's leading publisher of self-help law books, I have spoken with countless competent people, including many who excelled in demanding occupations--physicians, architects, teachers, dentists, inventors, physicists--who, when using Nolo books to handle their own cases, were treated like stupid children by clerks and judges. To a person, they thought they finally understood what it must often be like to be an African-American in our society. That their perception of bias was objectively accurate cannot be doubted in the face of that most deeply insulting bromide, so popular with lawyers: "He who represents himself has a fool for a client."
This bias exists in direct contradiction to the Supreme Court's ruling in Faretta v. California. that everyone has the constitutional right to proceed without counsel. The reasoning behind that decision means that the Constitution requires our justice system to be neutral towards the self-represented litigant. That in turn means that the courts must offer a level playing field for the represented and unrepresented alike, consistent with basic principles of fairness.
Are courts really biased against self-represented litigants? Clearly so. Here are just some of the realities non-lawyers are up against when they try to use their courts:
- Procedural requirements are often perversely difficult.
- Strange--and unnecessary--terms are tossed about. Court jargon--should we call it "lawbonics"?--serves as a means to exclude from the courts anyone who doesn't speak the language or doesn't pay a lawyer to translate.
- Judges and their courtroom personnel are often either condescending or downright rude.
- Court clerks withhold information from non-lawyers that they routinely give to lawyers. If a lawyer's office calls to ask about a particular scheduling procedure, for example, the clerk provides all sorts of answers without thinking twice. But let a self-represented person ask for the same (or even much less) information, and it suddenly becomes legal advice. Many clerks' offices feel compelled to post signs saying, "We don't provide legal advice!" Most often, that means that they are unwilling to help unrepresented people get into court or respond to a lawsuit. (Imagine if IRS clerks refused to answer questions about how to file a tax return.)
- Even if the clerk's office has a special "pro per" window, it's no guarantee of real help, or even civility. Recently I saw the clerk at such a window hand out information the way some farmers slop the pigs. When I asked whether she had volunteered for the job, she looked at me as if I were crazy.
- County law libraries--in many states, supported by filing fees paid by non-lawyers--are operated almost exclusively for the convenience of lawyers. Non-lawyers are often made to feel distinctly unwelcome and again are visited with the "we don't provide legal advice" admonition when making a normal request for reference information.
- People who show up without lawyers are singled out and labeled (in Latin, no less) as "pro per" or "pro se" litigants. As is frequently true with other group labels imposed on a group from outside it--"cult" and "handicapped" come to mind--these terms mask a deeper institutional bias.
Why are the courts so unfriendly to the self-represented? They weren't always that way; in the first 100 years of our history, the courts dealt equally with all comers. But in the late 19th and early 20th century, the courts came to serve the needs and interests of the legal profession, which took control of them and built a monopoly over who can appear before them as advocates.
There are probably a number of reasons why lawyers and the courts they control are biased against the self-represented. Among them are:
- Many people could pay a lawyer but choose not to. Their choice repudiates lawyers and their "special gifts" and takes money out of lawyers' pockets.
- Because non-lawyers are unfamiliar with court procedures that are set up by lawyers for lawyers, they tend to get in the way of smooth court administration (but no more, it should be noted, than do many lawyers).
- People who can't afford a lawyer are a rebuke to the organized bar's monopoly over legal services, because that monopoly is morally--if not legally--justified only if the legal profession is able to provide affordable justice for all. The lawyer bias against the self-represented is a clear case of blaming the victim--even though for years, the ABA has admitted that 100 million Americans can't afford lawyers.
A number of recent studies funded by the courts and the ABA have advanced the concept of the multi-door courthouse, where courts would offer potential litigants a menu of possible solutions, many of which would not require a lawyer. This concept assumes courts want to reach out to prospective users and help them resolve their disputes in a manner appropriate to the dispute and the resources of the parties.
Unfortunately, the ideal of the multi-door courthouse is at odds with how courts traditionally operate: to support and enhance the lawyer business by making it extremely difficult to get through court without a lawyer. As long as courts are institutionally biased against creating a level playing field for the self-represented, it will make no difference how many doors a court has.
Individual lawyers almost always find it difficult to actually see the bias against the self-represented that pervades our courts, just as a few years ago, judges who complimented woman lawyers on their looks were shocked when they were labeled as sexist. Few lawyers are able or willing to come to terms with the fact that a significant portion of their livelihood is based squarely on barriers to self-representation that the courts erect and enforce.
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