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
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
- 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
- Many people could pay a lawyer but choose not to. Their choice
repudiates lawyers and their "special gifts" and takes money out of
- 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
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
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
- 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
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.
- 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.
- 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).
- Use existing community legal resources to staff the multi-door
courthouse. Many retired lawyers and judges would probably
- help parties assess and sharpen the issues once the pleadings
are on file, and
- counsel the parties on appropriate dispute resolution
Law students and paralegals could also be trained to perform
- 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.
- 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
- 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.
- 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
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
- 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.
- 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.