I was in Court today, waiting for my turn and listening to all of the cases that were scheduled ahead of us to go forward. The first one was one in which the plaintiff was pro se (without an attorney), or in California, pro per.
Every time I see it, it is remarkably upsetting. Opposing counsel seem to relish pouncing on individuals who are confused by the legal process or are not familiar enough with the dialogue to understand what is happening. They almost always flail and flounder, which only results in further impatience and annoyance from the Court.
I heard this quote once when describing pro se parties (as told by a Judge to a criminal defendant): “You don’t know how to ask a question…You don’t know how to offer things into evidence. You keep making stupid speeches. You keep saying you are good at this. You are not… I do not say this to insult you…You do not know the law.”
The sad reality of the legal justice system in the U.S. is that it is extremely complex, confusing, and difficult to naviate – making it very difficult for people to represent themselves in court. In California especially, there are a tremendous number of rules that govern not only law and procedure, but rules down to the size of fonts, spacing on the page, and kind of paper to be used in filing.
With the Internet making legal forms and “nolo” representation more available to consumers, individuals may end up feeling more confident about representing themselves in Court. Unfortunately, the reality is that things go south almost all of the time and can become expensive — and ugly — very quickly. Courts do not give unrepresented individuals any special treatment, help, or attention. Unrepresented parties are expected to know the law and comply with them, all Rules of Court, and procedural guidelines. In states like California, this can be extremely difficult for trained lawyers to do, even after several years of practice – making it nearly impossible for an ordinary citizen to pick up the applicable legal rules and work with them with fluency.
The biggest reason individuals do not hire lawyers is that they cannot afford it – which is another sad reality of our civil justice system. Attorneys can be so expensive and retainers so high that most ordinary individuals cannot afford paying them. The most onerous one that I ever saw was one requiring a $50,000 evergreen retainer — these astronomical numbers are beyond the capabilities of most ordinary Americans. Because of these hurdles, unrepresented parties have trouble getting representation, or reliable representation at that.
Unfortunately, there is no real solution to this problem. Legal aid and pro bono clinics are overwhelmed with requests for aid, and many do not handle contentious or serious matters, such as divorced, bankruptcies, or criminal cases. Altoghether, it perpetuates the division between middle-class Americans and powerful corporations, who not only afford lawyers, but often teams of lawyers who have the capabilities of burying unrepresented parties in paper, discovery requests, and requests for sanctions.
As with most things, for those with resources, the playing field is even. For those without, it is an uphill battle, marked with perils and pitfalls at every juncture.