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Democracy Corner

Eliminate Bias Against People Who Represent Themselves

by Attorney Stephen Elias

Most Americans who attempt to represent themselves encounter tremendous resistance from the court system. This bias is so strong and pernicious that it can be fairly compared to the prejudice routinely experienced by non-white Americans throughout our society.

During my 17 years with Nolo, I have spoken with loads of competent people, including many who excelled in demanding occupations--physicians, architects, teachers, dentists, inventors, physicists--who felt they were treated like not very bright children by clerks and judges. And more than once I have heard the Caucasians in this group, when handling their own cases, say they thought they finally understood what it must often be like to be an African-American in our society. Lawyers and judges, of course, typically claim that legal self-helpers are sadly mistaken when they report miserable, condescending treatment. Their point of view would be worthy of consideration if they didn't almost universally start their argument with that most insulting of all legal bromides: "He who represents himself has a fool for a client."

Bias against people who choose to speak for themselves in America's public courtrooms exists in direct contradiction to the Supreme Court's ruling in Faretta v. California, where the court stated that everyone has the constitutional right to proceed without counsel. The reasoning behind that decision is grounded on the principle that the Constitution requires our justice system to be neutral towards the self-represented litigant. Or put another way, the courts should offer a level playing field for the represented and unrepresented alike.

Courthouses Are Lawyer Houses

To see how courts are stacked against people who choose not to hire lawyers, let's take a look at just some of the day-to-day realities faced by Americans who choose to self-represent.

  • Lawbonics rules--Legal jargon, which is almost universally spoken in American courthouses, unnecessarily serves to befuddle everyone who hasn't been to law school.
  • Directions Are Non-Existent--In most public institutions, from city hall and city college to the state capitol and the state university, visitors are routinely greeted by displays explaining how to get around. That these are missing in most courthouses speaks volumes about how unwelcome the public is.
  • Nonlawyers are labeled--People who show up in a courthouse without a lawyer are labeled (in Latin, of course) as "pro per" or "pro se" litigants. As is frequently true with tags assigned to a group by hostile outsiders--"cult," "handicapped" and "welfare recipient" come to mind--these descriptions serve to highlight a deep institutional bias.
  • Procedural requirements are Byzantine--Complicated rules of procedure and evidence-some of it traceable to the Middle Ages-present huge unnecessary barriers to the uninitiated. To see how things could quickly be improved, take a look at modern arbitration and mediation procedures, both of which are far more user-friendly.
  • Judges are hostile--Judges and courtroom personnel are so often rude and condescending to nonlawyers that one suspects they have no idea of the depth of their prejudice. To take just one example, in most courts, cases involving nonlawyers are automatically considered at the end of the day after all the busy lawyers have long since bustled off.
  • Court clerks hide the ball--Before anyone can succeed in court, a small mountain of paperwork must be completed and filed at the clerk's office. That's why it's so prejudicial when clerks routinely withhold information that is available to lawyers from people who self-represent. For example, should John Smith, Esq.'s office call to ask for clarification of a pre-trial procedure, the clerk will almost surely provide the needed information. But if a self-represented person asks for the same type of information, the same clerk is likely to reply along these lines, "Sorry, I can't give you legal advice. Why don't you call a lawyer?" Many clerks' offices are so fierce in their defense of lawyerdom they try to avoid even speaking to the self-represented by posting signs warning "We don't provide legal advice!" If you don't think this is insulting, imagine the furor if IRS clerks completely refused to answer questions about how to file a tax return unless they were asked by a CPA.
  • County law libraries exclude the uninitiated--In many states, law libraries supported by public funds or the court fees paid by nonlawyers are operated almost exclusively for the convenience of lawyers. Not only is information crucial to the task of self-representation organized according to a system that is nowhere explained to the uninitiated, but in many areas nonlawyers are made to feel distinctly unwelcome (for example, only lawyers can check out books, use private rooms and enjoy access to phone, fax and computer).

Prejudice Against Self-Helpers Is Profitable

Many lawyers defend the status quo in America's courts along these lines.

"In a complicated litigious society, laws and legal procedures are necessarily complex, with the result that seemingly convoluted court procedures simply reflect this complexity, not a bias against nonlawyers."

There may be a little truth in this view. But as long as lawyers insist on "voir diring" instead of "questioning" prospective jurors, "garnishing" property instead of "taking it under the terms of a court order," or providing "pro bono" instead of "free" legal services, one can be forgiven for concluding that at bottom lawyers have little interest in working to simplify a system whose very opaqueness so obviously puts money in their pockets.

It should also come as no small surprise that-like other powerful but insular groups grown comfortable in their privileges--individual lawyers always find it difficult to see the depth of our judicial system's bias against the self-represented. Remember this is the same self-contained world, where just a few years ago male judges who enjoyed publicly commenting on the looks of female lawyers were shocked to be labeled as "sexist."

Recognize Bias to Eliminate It

As with other forms of prejudice (against women executives, for example), the first real step to eliminating bias against non-lawyers is to recognize that it exists. The best way for a lawyer to understand the unfair barriers placed in the path of the self-represented litigant is to become one. This is an experience I went through in a civil proceeding several years ago when I appeared on my own behalf without revealing I have a law degree. Even before the judge examined my papers or knew what I was attempting to accomplish (and whether I was on track to do it), he told me he was sure I could not competently handle the case myself without a lawyer. When I politely stood my ground, the judge went on to warn me that I would be held strictly responsible for meticulously complying with every court rule (rules which, incidentally, I watched most other lawyers present that day cheerfully break).

How to Improve Access to America's Courts

Some court administrators, judges and even lawyers through their trade groups (called bar associations) have in recent years begun to get a glimmer that American courts face a huge citizen access problem. Unfortunately, they tend to think it's a problem money will fix. As a result, they often focus their efforts on proposals to provide people who can't afford lawyers with free (again, they insist on calling it pro bono) legal help. This response is almost hilariously wrong. Not only does it overlook the fact that poor and rich alike have a constitutional right to use America's courts without an intermediary, but it also wrongly assumes that Americans need more lawyers, when in fact they need more access to an unbiased legal system. Of course, it's no coincidence that lawyers tend to see self-representation as a poor peoples' problem--after all, in their view everyone else who has a legal access problem should solve it by hiring one of them.