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.

Comments: (1)

  • I filed pro se partially because I had a claim aga...
    I filed pro se partially because I had a claim against a law firm and the lawyer I had been using, William Hibbard in Steamboat Springs, told me he was afraid of retribution. My claim had to do with my being criminally prosecuted in retaliation for my complaining about my neighbor the city council president violating the zoning by building extra buildings on Princeton Ave in Steamboat Springs that 9 years later are not on the property tax rolls. The prosecutor Elizabeth Wittemyer was married to a real estate developer who the city council helped to get a permit for a new ski area at Stagecoach that they tried to sell for $20 million or about 7 times what they paid for the vacant land. There was no warrant, no arrest, and no statement of probable cause. Hibbard reviewed my complaint and found no problems with it. I pled not guilty. Wittemyer dismissed the charges but gave a press conference to say that there was a victim, i.e. I was guilty, but a trial was too expensive. The S.C. already ruled that there is no immunity for a prosecutor's statements to a press conference after a case is dismissed. see of Buckley v. Fitzsimmons, 509 U. S. 259, 277 (1993)
    Wittemyer bought insurance from Lloyds even though Lloyds is not authorized to sell insurance to her in Steamboat Springs CO. There were plenty of other places she could have bought insurance from. Her lawyer David Brougham billed Lloyds for a discussion of case assignment issues. After that, my case was transferred to judge Naughty Nottingham. I think Brougham arranged to pay for Nottingham's prostitutes. Just one weekly prostitute appointment would have cost more than 10% of his after tax income and both 9 News and the 10th Circuit referred to more than one prostitute. Brougham billed for more than 20 ex parte conferences. He did not file a rule 11 motion and did not get a rule 11 c. 6 order. He did not file for summary judgment. There was no jury trial. I filed for summary judgment but the magistrate ordered Brougham not to respond and he ordered Nottingham not to read the motion. Nottingham adopted the disputed magistrate's report but gave no statute nor court case in explanation and he made no factual findings. His order violated rules 52a, 54a, 56d and 58a. Brougham claimed to have an injunction against pro se litigation, although DOJ had no record of it and there were no injunction proceedings. Brougham asked Nottingham to put me in jail for filing a rule 60b(3) action in another court, even though that is legal. Nottingham was happy to oblige. Reports from the U.S. Marshals show that Brougham told them about my civil lawsuit, although it was not accurately described, and he suggested the Marshals hunt me down in the law library. The Marshals imprisoned me for 5 months but DOJ says they were not involved.
    What did I do wrong?
    Kay Sieverding
    Posted on May 11, 2009 at 1:20 pm by Anonymous

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