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On Frustrations with Self-Represented Litigants

Oct 12, 2021

I saw a thread on a popular lawyer forum today that was an understandably humorous attempt to make light of the strange and often frustrating arguments made by people who are self-represented in various legal cases (often known as pro-per or pro-se litigants, depending on your jurisdiction).

With a narrow lens on the day-to-day world of lawyers dealing with self-represented opponents, I totally get that there is both humor and exasperation to be found in these encounters. But zooming out, the bigger picture strikes me as nothing but sad. Here's my response:

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Knowing full well this is a wet blanket...

I get that pro-per / pro-se folks can seem wacky from the standpoint of someone with a full law school education and more than a couple years of practice, but keep in mind that, for the most part, these folks are not guilty of individual failures so much as they are the victims of systemic ones.

Most US jurisdictions report that around 80% of people in family law cases are self-represented. For housing law defendants (largely tenants) it can be closer to 90%. 40-50% of Americans can't come up with $400 cash to cover an emergency. Many of those who are self-represented actually did hire a lawyer for some part of their case, but the professional representation lasts only as long as the money does. Most of them aren't "poor enough" to qualify for legal aid (125% of the poverty level), and even those who do find that legal aid only has the capacity to take on about 20% of the cases that reach out to them for help.

This is largely because the legal industry has changed over the last 40 years to work against the availability of affordable legal services for individuals. In 1980 roughly 70% of private US lawyers practiced some form of "people law" (representing individuals in various cases) and only 30% practiced business or corporate law. Today those numbers have flipped. Relative to the population, there are fewer lawyers available to meet the needs of everyday people than there have been in a generation (maybe longer).

This got worse in the last recession (2008+). Law schools already had been adjusting their curriculums and job placement practices in the 1990s and early 2000s to cater (even more) to what they viewed as prestigious biglaw jobs. And why not, since that's where the industry was trending. But the great recession saw a large pullback in biglaw hiring, so the law schools' response was to shrink class sizes. Many graduating law school classes of 2015 remained 20-25% smaller than in 2007 (this was more of an issue with mid- and lower-tier law schools than with top ones). And the class sizes remain low to this day. Coupled with the beginning of the baby boomer retirement wave, we now have the perfect recipe for a massive under-supply of lawyers serving everyday Americans.

On top of all that, the legal system is more complex than it's ever been. Our way of defining the law, combining statutory language with judicial interpretation, makes no logical sense to average people. High school civics teachers can talk all they want about "I'm just a bill on Capitol Hill," but they never get to verse 9 that goes "and part of me has been deemed unconstitutional but is still on the books while other parts of me are allowed to stand and this one word has been redefined using an obscure appellate decision from 1964."

Finally, don't discount how stressful it is for these folks to be stuck in the civil justice system without much guidance or advice. For the most part they only have modest resources to begin with, and now they're facing risk and complexity and loss from an opaque system over which they are powerless. Some judges try to help as much as they can (although some most definitely do not), but the judges too have time-to-resolution targets and other incentives to just wrap the damn thing up.

So yes, pro-pers / pro-ses can have some funny notions from our perspective. And yes, they can take up our time and energy (and even our clients' money, if you let 'em) with their off-base theories and seemingly simplistic questions. And yes, we have duties to our clients that we might interpret as requiring us—at the very least enabling us—to not give these folks the time of day.

But let's hold in our minds the contradictory notions that we lawyers can simultaneously be doing excellent work for our clients and still be failing society as a whole. Whenever possible, and as much as possible, we should show these folks some empathy and grace.

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