By Daniel Cox

 

The Pro Se Puzzle

 

The big bang came in 1991, the Year of the Study. Three researchers with funding from the American Bar Association released the results of the first empirical study of self-representation in a civil-court setting after tracking a year’s worth of domestic relations cases in Phoenix. The survey unearthed a startling statistic: in 88 percent of divorce cases in Maricopa County Superior Court, at least one litigant was self-represented. 


Who could have guessed that more than a decade later the Arizona study would be resurrected with such regularity on the news pages, the smoking gun of every journalist intent on painting a picture of do-it-yourself jurisprudence in the Judge Judy age? Maricopa came up most recently in a Newsday article (BEING YOUR OWN LAWYER TAKES TOLL, July 2002) that listed the usual suspects responsible for a self-help “explosion”: attorneys who charge too much, legal information not previously available to the public, and increasingly confident litigants inspired by a certain sassy senior-citizen TV judge.


Such media accounts are not new. In fact, the seminal “self-help explosion” stories can be traced back to Judge Wapner’s time. In 1993, a Wall Street Journal reporter – armed with a survey showing that 53 percent of family-court litigants in Des Moines, Iowa, argued their own cases – declared “the numbers are exploding” and memorably wrote, “As these hordes of nonlawyers stumble along, they clog systems that aren’t designed to accommodate amateurs.”

Pro Se Perspectives:

It's the Judge Judy era, so it's hardly surprising that hyperbolic headlines and stories in the press have declared an explosion of self-represented (pro se) litigants flooding into civil court. Is it true? Are attorneys obsolete? Not a chance. Explosions are for volcanoes. The truth is, civil litigants have been going it alone for ages.

The Pieces:

 

The problem with that analysis, then and now, is a complete lack of evidence to support it. John Greacen, a former top administrator of the New Mexico Supreme Court who now runs a research firm that studies access-to-justice issues, is working on a compilation of all available national pro se data. His preliminary findings acknowledge that, yes, there has been an increase in the number of self-represented litigants in family court, though the increase may have peaked years ago and stabilized since. A 1999 American Judicature Society survey found that 95 percent of judges polled reported a growing number of  self-represented litigants in their courtrooms over the previous five years, though only 20 percent called the increase “dramatic.”


Gracen’s analysis comports with the observations of William Hornsby Jr., staff counsel with the ABA’s Division of Legal Services. Hornsby believes the self-help trend in family court is real – just not new. “There has been an influx over the last 20 years in domestic relations,” he says, “but in some jurisdictions, where 80 or 90 percent of the parties are already self-represented, there’s no more explosion to be had. The dust has settled.” 


Putting aside whether self-representation is a new problem – or even a problem at all – it is clearly a puzzle. On the pages to follow, you will not find definitive answers, only a clearer understanding of the pieces that comprise the pro se puzzle. 


For judges, self-represented litigants require a deft balancing act: upholding their judicial oaths requiring impartiality while ensuring that litigants of limited means have a chance to receive justice. For clients, the ability to communicate effectively with a judge and follow court rules and customs can ultimately determine such important issues as who gets custody of the kids. 


“No judge that I know will stand aside when injustice is being done,” says Massachusetts Chief Justice Margaret Marshall who fought South African apartheid before becoming one of America’s most insightful voices on pro se, which, she notes, “is not always tipping the scales in favor of the person who has counsel.” 


A self-help Winnebago hits the road four days a week in Ventura County, Calif., to empower potential clients where they live. Up the expressway toward Santa Monica, a lawyer who owns a coffeehouse (page 33) charges $25 for “unbundled” legal assistance and all the java his clients can drink. In Ohio, an online client resource center offers help and hope to abuse victims – and plans are under way to expand the self-help site with federal funds, says U.S. Rep. Deborah Pryce (R-OH). “Technology is very much the future of self-help,” proclaims Richard Zorza, a Washington D.C.-based consultant.


And what of the present and the past? In the absence of national statistics on self-representation, perhaps all we can say that has changed for certain is our national awareness of the issue and the legal community’s increasingly innovative approaches to address it.