|President's Page||The West Virginia Lawyer||March 2000
by Darrell W. (Dan) Ringer
"Pro se Litigants"
[H]e who acts as his own attorney has a fool for a client.
State v. Britton, 157 W.Va. 711, 203 S.E.2d 462 (1974)
Iím an intellectual gadfly. I like to watch and think about a great variety of things. If law were a bunch of bananas, Iíd be flying all around it, moving from one banana to the next, with little discernable effect upon the bananas. Ok, that would be a fruit fly, but I like the imagery.
Recently, while "flying" around, I attended the National Conference on Pro Se Litigation in Scottsdale, Arizona, with (then) Chief Justice Starcher, Judge Booker Stevens, and State Bar member Bruce Perrone, Esq. It was an interesting experience. It was also quite worthwhile. But it was mostly really interesting.
There are more currents and tides in the law than any one person can follow. Academicians generally select a specialty and a few related areas of interest to follow, reflect on, and write about. But practicing attorneys, and especially sole practitioners, just try to keep up. Usually we react to, rather than anticipate changes in the law. Most of us simply donít get an opportunity to create much of an effect on the law - you not only have to be in the right place at the right time, you must also have something important to contribute. Usually we simply get caught in the current or tide of changes in the law and legal environment, and try not to get swept out to sea. If youíve ever been caught in a strong tide or current, you know the feeling.
The tide of pro se litigation is increasing to storm tide levels. Pro se litigants, the unrepresented, the self-represented, the are several labels for them. They are people who represent themselves in court, without an attorney. Actually, I prefer "The Unrepresented." That label may sound like a late night "B" movie title, but it warns, fairly accurately I think, of the horror of the thing. Interesting to watch, but you wouldnít want to live it.
Of course there have always been people who claim they cannot afford an attorney, and many of them are correct. Thatís why we have pro bono representation, legal aid services, and court appointed lawyers. But more and more people who have the financial resources to engage an attorney are coming to believe that they donít need a lawyer; and more and more people in the legal profession are agreeing with them, at least in principal.
The trend is to encourage the distribution of information that will allow "The Unrepresented" to better serve in their own behalf. The distribution of form documents is a big part of this idea. After all, donít lawyers use form books in representing their clients? Why canít well educated people, or at least literate people, use these same forms and fill in the blanks?
Non-lawyers are already providing services in administrative courts. Even corporations are represented by their employees in some instances, and non-lawyers provide and charge for representation in Social Security cases. How hard could it be to write (or copy) your own simple will? You know what you want. You know who should get your estate. Just write it down. You know what happened. Why canít you just go tell the judge and jury about it? Canít anyone, simply say, "not guilty," in a criminal case and get a fair trial? Why should you have to give your money to a lawyer? All you need is the correct form. Right?
Many people feel that the legal system is a closed guild, protected by a secret language and outdated, arbitrary and deliberately confusing rules and procedures. We are in it for ourselves, the public be damned.
Why not simply eliminate the rules of evidence and procedure, they ask. Those things just make it harder to get to the truth. The judge and jury can tell whoís telling the truth. Jurors often report being confused about what they hear and how they hear it. They have questions they want answered, but donít get a chance to ask. Some would suggest that letting lay people talk to lay people is a better route to justice.
Why not drop the requirement of specific education and training? Anyone who wants to represent someone else for a fee can do it. Let the free market decide who gives competent advice and representation. The good ones will prosper and the rest will simply disappear. It would work just like it does with building contractors and used car sales people. We wonít have to worry about the incompetent or the dishonest. They would quickly be driven from business.
There is a perception that this countryís educational system is failing, or at least not functioning at its fullest potential. Even so, ours is an incredibly well educated society. Along with that education comes the perception that the educated can learn to do anything by simply reading a book. Isnít that what lawyers do? They "read law," then practice. Anyone can do that!
It doesnít work that way. There are differences in the outcomes of legal proceedings, depending upon the quality of the presentation to the court or jury. We attorneys not only go to school for years to learn the basics, we spend decades striving for experiences and additional knowledge that will help us communicate on our clientís behalf. Sometimes that communication is with our client to help them understand why what they want isnít appropriate, possible, or what is ultimately best for them. We lie awake at night worrying about a clientís case, afraid we wonít achieve the best or even a proper result. We hate to have to tell a client that their cause is hopeless, then have to listen to how wrong we or our system of justice is. But we do achieve good, and usually proper results. Our advice, even if not appreciated, does have positive results for our clients - even if that advice is to give up. We take our clientís problems on our own shoulders, we bear them, and we do our best to resolve them.
A pro se litigant is denied all of this. And frequently the cost of this denial is extremely high. In court a litigant only gets one chance. If the case is not presented properly there will be no second chance or fair resolution.
There are many worthy projects being conducted around the country to increase the availability of legal information to the public so that they may better represent themselves. But it would be good to remember that the solution to the problems experienced (and caused) by unrepresented litigants is to get them proper legal counsel. It is not to create the expectation that they can go it alone.
I suspect that we are starting to believe that we, as attorneys, are somehow unworthy. If there is some way people can get along without us, we should help them do so. I strongly disagree with such an idea. People need lawyers and always will. Law and justice is not simply a process of filling out forms. Itís not simply knowing what to write or say, but why and when to write or say it.
The decision to engage a attorney is a major decision. But it is also a matter of priorities. In a time in which everyone seems to be after bigger vehicles, bigger houses, fancier vacations, and just generally more stuff, we should not be working to help people to be their own lawyers, but to recognize that they should contact a lawyer before their problem reaches the level of needing to be resolved in court. Legal problems are like diseases. The longer they are ignored the more expensive they are to resolve.
Self-help books and computer programs are fine as learning tools. But they should be used to help people better understand how to assist their attorney, rather than do without one.
So when someone asks how can we help pro se litigants, the answer is get them to an attorney.