Pro Se Tsunami Bearing Down On Courts
Reports are trickling in from around the country that the number of pro se
cases is on the rise. Perhaps that is what it will take to make the courts and bar regulators understand what it is like to actually practice, rather than merely preach, the law.
Commentators blame the economy for the increase in self-representation. There's just less money and more trouble. Folks are turning to court unarmed with counsel far more often.
But I think there are other more subtle factors at work here as well. The law is late to adopt the informed consent model of ethics now long familiar to doctors. We as lawyers are required not simply to spot the issues in our clients lives and provide the best possible outcome. Many states have expanded the roles of lawyers to emphasize the task of counselor. We are required as never before to obtain informed consent not just about our grand strategic objectives, but about tactics as well. These new ethics rules make it more time consuming to represent a client. That means fees increase and the number of folks who can be served decreases.
Folks seeking a lawyer are suffering. It is often fear and anger that drives a person to a lawyer's door. Many people cope with these emotions well, but some do not. To paraphrase Aristotle, it takes widsom to know how to be angry at the right person, to the right degree and in the right manner. Many clients are pressed into dark, dark places by their woe. They can become unreasonable, if not impervious to reason. Forcing lawyers into the arms of anger will yield more lawyers' withdrawing from cases when their clients' objectives become repugnant or when the attorney-client relationship breaks down because the lawyers won't get and remain angry in just the right way to suit a client. Informed consent, simply put, will yield more pro se litigants.
One Connecticut judge recently had an epiphany as he surveyed the new pro se laden landscape: "It requires us to come with plain language forms, educational tools; requires judges to be a little more patient with self-represented litigants. It really hits the system in every direction you can think of." No sugar, Sherlock. Lawyers in the trenches have known this for the past few years.
It is far too easy to get a case into court. Payment of small filing fee does the trick. If you are broke enough, the fee can be waived. Then paper and fur flies. Lawyers most often are called in to make money managing this chaos. We are reluctant to place barriers of any sort at the courthouse door for fear that we violate a person's right of access to the courts. I wonder whether this pro se tsunami barreling down on the courts will change attitudes.
I have been on the verge of tears many times responding to question after question by folks who think they know what the law is because they've found a case on the Internet. Why can't they have what they want when they want in just the way they want it? Doesn't the Supreme Court say they should?
It takes years to acquire perspective in the law. In law school we were graded not so much on our ability to get the answers right but more on our ability to spot the issues that mattered. The law is a many forked tree; doctrine could easily have moved to the right or to the left in a given area of the law. The fact that it moved in one direction is most often not a matter of logic, but of the felt necessity of the time. You just can't explain that to a pro se
bent by rage or fear, or to some clients.
Court officials swamped by pro se
litigants? Good. Let's see what they can do with dark night's need.