Bias Against Pro se Litigants: What It Is. How to Stop It.

By Stephen Elias - Copyright © 1997 Nolo Press

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.

The Problem

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:

1. 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.
2. 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).
3. 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.

Some Solutions

Lawyers and their bar associations who do get a glimmer of the access problem tend to think that it's strictly a money issue. They focus their efforts on pro bono services or what legal services programs still exist. This clearly confuses the forest for the trees. Poor and rich alike have a right to use the courts without an intermediary. Or to use a popular means of expressing a fundamental point: It's the monopoly, stupid. It probably is no coincidence that by directing their efforts towards the poor, lawyers are addressing the access problem only for people who can't afford to pay lawyers.

What to do? Here are 10 suggestions for reforming the way courts deal with self represented individuals. A few are already being implemented (usually hesitantly and on a small scale) here and there by isolated courts. And there has been one truly magnificent effort, by the Family Law Division of the Superior Court for Maricopa County, Arizona to throw open court procedures to non-lawyers. For the most part, the suggestions set out here require not money but changes in attitude, rules and procedures.

1. Recognize that bias exists. As with other forms of bias (against women or minority lawyers, for example), the first step to eliminating bias against non-lawyers is to recognize that it exists.

   The best way for a lawyer to understand bias against the self-represented litigant is to become one, an experience I recently went through in a civil proceeding. Even before the judge examined my papers or knew what I was seeking (and whether I was on track to achieve it), he expressed deep skepticism that I could competently handle the case myself. After I stood my ground, the judge warned me that I would be held responsible for meticulously complying with every court rule. Lawyers can also learn a lot by coaching a self-represented person through a judicial procedure. Very quickly, most lawyer-coaches come to appreciate how badly the self-represented are treated by court clerks and judges.

2. Accept the right of the self-represented to equal access. Because lawyers and courts are so intertwined, it seems almost reasonable to legal professionals that lawyers are needed for meaningful access. And yet, in a democracy (the rule of law, not men), lawyers should never be necessary to obtain justice.
3. Adopt the principle of helpfulness underlying the multi-door courthouse. Courts should actively help people find an appropriate resolution process. For example, a great many disputes could be sensibly and quickly settled without lawyers if courts encouraged mediation (which is happening in more and more courts).
4. Use existing community legal resources to staff the multi-door courthouse. Many retired lawyers and judges would probably volunteer to:
   • help parties assess and sharpen the issues once the pleadings are on file, and
   • counsel the parties on appropriate dispute resolution alternatives

   Law students and paralegals could also be trained to perform these tasks.

5. Make plain-English information about how to navigate in the court available to the public. All court procedures can be explained in plain English. Nolo Press, other self-help law publishers and the Maricopa County Superior Court have proven that this is so. Unfortunately the courts systematically refuse to inform self-represented litigants about available private-sector publications, apparently on the ground that they don't want to be seen endorsing them. Fair enough. But the courts should then follow the lead of the Maricopa County Superior Court and make plain-English guides available to all.
6. Unleash court clerks. Clerks should be free to provide the same information to the self-represented as they do to lawyers and their staffs. If clerks were retrained and instructed that their responsibilities included helping non-lawyers and dispensing procedural information, one large barrier to access would disappear.
7. Make courthouse law libraries user-friendly. Like court clerks, law librarians are often afraid to answer even simple questions from non-lawyers. Librarians, like the court clerks, should be encouraged to help non-lawyers, and should be reassured that doing so doesn't constitute practicing law without a license.

   Another step would be to fundamentally redesign the law libraries so that nonlawyers would feel more comfortable with:

   • user-friendly orientation aids to the library's resources
   • special shelves and collections of materials that self-represented litigants commonly need, and
   • assistance in using online resources.
8. Accept all complaints, petitions and responses filed, in whatever form, and create user-friendly forms. Among the most obvious of barriers to equal access are rules governing the form of the papers people need to start a lawsuit or defend themselves if they are sued. Complicated pleading rules definitely operate to deny equal access. In fact, a simple plain-English statement of claim (as is used in many small claims courts) or a fill-in-the-blanks, check the boxes type of complaint form used in California courts is all that's needed in most common kinds of cases. Later, the legal and factual issues can be sorted out by a mediator or judge. The Superior Court of Maricopa County has created a number of easy-to-use forms for its Family Court, and by all accounts, people are able to handle them with little help from court personnel.

   Fee waivers should be granted upon request for the purpose of filing a response and preventing a default. Later in the case, the defendant's ability to pay can be sorted out. (This is the typical procedure used by the criminal courts when a defendant requests a court-appointed lawyer.)

9. Use small claims court techniques in bench trials. Most states have revamped court rules and procedures to accommodate non-lawyers very well in one place: their small claims courts. Small claims cases are not simple; many are conceptually difficult. (Lawyers have been willing to accommodate the small claims court system because those cases present little or no potential for fees.)

   When cases go to trial before a judge, there is no reason to insist on formal procedures or evidence rules. The judge should facilitate each side's presentation as is done in small claims court, rather than sit back and make the parties present their cases under arcane rules that take years to master. This approach would not violate due process, because judges would base their decisions on competent and relevant evidence.

10. Encourage lawyer coaching. Many self-represented litigants are willing to pay lawyers to coach them through their cases--that is, give them information about the ins and outs of court and the substantive issues--without taking the case over. Yet, few lawyers are willing to enter into this type of relationship because of ethical concerns about participating in a case they don't control, and fear of being held liable for issues that are beyond the scope of the coaching relationship. The organized bar should address these concerns by:
    • defining the ethical duties of a lawyer coach, and
    • sponsoring legislation that would create a standard contract defining the rights and responsibilities of the lawyer coach and the self-represented litigant.

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