Eliminate Bias Against People Who Represent Themselves in Court

Eliminate Bias Against People Who Represent Themselves in Court

During my many years of working with Nolo, I have spoken with loads of competent people, including many who excelled in demanding occupations — physicians, architects, teachers, dentists, inventors, physicists — who felt they were treated like not very bright children by clerks and judges. Lawyers and judges, of course, typically claim that legal self-helpers are sadly mistaken when they report condescending treatment. Their point of view would be worthy of consideration if they didn’t almost universally start their argument with that most insulting of all legal bromides: “He who represents himself has a fool for a client.”

Bias against people who choose to represent themselves in America’s public courtrooms exists in direct contradiction to the Supreme Court’s ruling in Faretta v. California, where the Court stated that everyone has the constitutional right to proceed without counsel. The reasoning behind that decision is grounded on the principle that the Constitution requires our justice system to be neutral towards the self-represented litigant. Or put another way, the courts should offer a level playing field for the represented and unrepresented alike.

Courthouses Are Unfriendly to Consumers

To see how courts are stacked against people who choose to represent themselves, let’s take a look at just some of the day-to-day realities faced by Americans who chose to go it alone.

• Lawbonics rules—Legal jargon, which is almost universally spoken in American courthouses, unnecessarily serves to befuddle everyone who hasn’t been to law school.

• Directions are non-existent—In most public institutions, from city hall and city college to the state capitol and the state university, visitors are routinely greeted by displays explaining how to get around. That these are missing in most courthouses speaks volumes about how welcome the public is.

• Nonlawyers are labeled—In many states, people who show up in a courthouse without a lawyer are often labeled (in Latin, of course) as “pro per” or “pro se” litigants. As is frequently true with tags assigned by insiders to a group of outsiders—these descriptions serve to highlight a deep institutional bias. Kudos to those states where the term “self-represented” has been adopted.

Procedural requirements are byzantine—Once in the courtroom, complicated rules of procedure and evidence—some of it traceable to the Middle Ages—present huge unnecessary barriers to the uninitiated. To see how things could quickly be improved, take a look at modern arbitration and mediation procedures, both of which dispense with Gilbert & Sullivan-like folderol and as a result are far more user-friendly.

Judges can be hostile—Judges and courtroom personnel are not infrequently rude and condescending to nonlawyers. This occurs often enough, that one suspects they have no idea of the depth or negative consequences of their prejudice. To take just one example, in most courts, cases involving nonlawyers are automatically considered at the end of the day after all the busy lawyers have long since bustled off.

Court clerks often hide the ball—Before anyone can even get into court, a small mountain of paperwork must be completed and filed with the  court clerk. That’s why it’s so prejudicial when clerks routinely withhold information that is available to lawyers from people who self-represent. For example, should John Smith, Esq.’s office call to ask for clarification of a pre-trial procedure, the clerk will almost surely provide the needed information. But if a self-represented person asks for the same type of information, the same clerk is likely to reply along these lines, “Sorry, I can’t give you legal advice. Why don’t you call a lawyer?” Many clerks’ offices are so fierce in their defense of the old ways of doing things that they post signs warning “We don’t provide legal advice!” If you don’t see why this is insulting, imagine the furor if IRS clerks completely refused to answer questions about how to file a tax return unless they were asked by a CPA or tax attorney.

• County law libraries exclude the uninitiated—In many states, law libraries supported by public funds or the court fees paid by nonlawyers are operated largely for the convenience of lawyers. Not only is information crucial to the task of self-representation organized according to a convoluted system that is nowhere explained to the uninitiated, but in many areas nonlawyers are made to feel distinctly unwelcome (for example, only lawyers can check out books, use private rooms and enjoy access to computers).

Do Self-Helpers Screw Up the Legal System?

Many lawyers defend the status quo in America’s courts along these lines.

“In a complicated litigious society, laws and legal procedures are necessarily complex, with the result that seemingly opaque court procedures simply reflect this complexity, not a bias against nonlawyers.”

There is some truth in this view. But as long as lawyers insist on “voir diring” instead of “questioning” prospective jurors, “garnishing” property instead of “taking it under a court order,” or providing “pro bono” instead of “free” legal services, one can be forgiven for concluding that at bottom lawyers have little interest in working to sensibly simplify a needlessly baroque system.

Recognize Bias to Eliminate It

As with other forms of prejudice, the first real step to eliminating bias against nonlawyers is to recognize that it exists. The best way for a lawyer to understand the unfair barriers placed in the path of the self-represented litigant is to become one. This is an experience I went through in a civil proceeding several years ago when I appeared on my own behalf without revealing I have a law degree. Even before the judge examined my papers or knew what I was attempting to accomplish (and whether I was on track to do it) he told me he was sure I could no competently handle the case myself without a lawyer. When I politely stood my ground, the judge went on to warn me that I would be held strictly responsible for meticulously complying with every court rule (rules, which incidentally, I watched most lawyers present that day cheerfully ignore).

How to Improve Access to America’s Courts

An increasing number of court administrators, judges and some lawyers have in recent years begun to come to terms with the fact that American courts face a huge citizen access problem. Unfortunately, they tend to think it’s a problem that charity will fix. As a result, they often focus their efforts on proposals to provide people who can’t afford lawyers with free (again, they often insist on calling it pro bono) legal help. While helping individuals gain access to our legal system is never a bad thing, this response fundamentally misses the point. Not only does it overlook the fact that poor and rich alike have a constitutional right to use America’s courts without an intermediary, but it also wrongly assumes that Americans with legal concerns always need more lawyers, when in fact they need more access to a re-engineered consumer-friendly legal system.

Through the adoption of courthouse-based self-help law centers, especially in family court, some state’s courts have begun moving in this direction. And where they exist, state sponsored websites complete with fill-in-the-blanks forms and instructions are also a big step forward. But unfortunately these are but baby steps to truly making our legal system accessible to all.

This post was authored by Stephen Elias.

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