How Far Should a Judge Go in Helping a Pro Se Litigant?
In an article posted on the Illinois Bar Association website, Judge Wright identifies the problem of more independent litigants in court.
The number of pro se litigants is increasing, Wright says, and their needs outstrip the resources available to help them. Legal aid organizations, courthouse help desks, bar associations, telephone hotlines, websites, and other groups assist pro se litigants with general legal information and filling out court forms.
Those entities may also personally counsel the unrepresented litigants. Their ability to represent them in court, however, is limited by a number of factors, including time, personnel, and case acceptance requirements. Valuable though services short of courtroom representation can be, where litigants remain unrepresented, “the buck stops with us [judges],” Wright writes.
“At the most basic level, many [pro se parties] do not understand the difference between a perceived harm and a legally recognized cause of action. The next question is whether they can prove their assertion, or alternatively proffer a proper defense,” Wright writes.
Even many attorneys have a hard time satisfying courtroom obligations, Wright says. Where litigants are pro se, those difficulties are compounded. “Their fear as well as lack of knowledge and expertise will make them hesitant and belligerent. We [judges] will attempt to placate them by urging them to seek legal assistance. If they cannot obtain assistance, we will fall back on the black letter law….They will present motions they do not understand and make arguments fed to them by third parties.”
How, he wonders, can judges require pro se litigants to be prepared for and attend all status, proveup, and motion dates as well as to meet filing deadlines? “At what point do we cross the line from providing assistance to ensure a fair trial to actually representing a pro se litigant?”
However, after identifying the problems of more independent litigants in court, the judge fails to provide any solutions.
For his part, Wright says “They will be held to the same standards as an attorney.” But the result will be that they will go through a proceeding lacking a fundamental understanding of what they are doing and what they need to do in order to present their cases. And, sadly, when they lose, “The majority will leave upset, discouraged, and believing that everyone is in ‘cahoots’ against them.”
We here at Lawtender may not have all the answers, but we have a suggestion on how independent litigants can be less of a “burden” on the courts.
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