• Kenn Goldblatt

The people's preference to go pro se

More and more people are representing themselves in courts across the United States each year. In some states, over half of the litigants in lawsuits are now representing themselves.

Unfortunately, too many of them are coming to court believing what their sixth grade teacher told them about the court system: “If you just go to court and tell the truth, everything will work out just fine.” There is a lot more to know, and a lot more to do, than just show up and talk.

For decades, there has been a steady increase of pro se litigants stepping up to represent themselves. The Conference of State Court Administrators characterized this trend as “unprecedented, and showing no signs of abating.”

Over a decade ago, The National Center on State Courts surveyed domestic relations cases in 16 large urban trial courts. Overall, the researchers found that at least one party was unrepresented in 71% of the cases. In 18% of the cases both parties appeared pro se (from 1% in Dayton, Ohio to 47% in Oakland, California) compared to 28% of cases where both parties had attorneys (from 12% in Washington, D.C, to 47% in Des Moines, Iowa).

A California study from 1991 to 1995 of family courts found that one party appeared pro se in 2/3 of all domestic relations cases and in 40% of all child custody cases. Between 1980 and 1985, family law cases with at least one (1) pro se litigant in Maricopa County, Arizona doubled from 24% to 47%. By 1990, 88% of the cases involved at least one (1) pro se litigant and no lawyers were involved in more than half of the divorces.

A 1993 American Bar Association study of family law cases showed pro se litigants usually had incomes of $50,000 or less. Twenty percent who said they could afford a lawyer but chose not to were generally younger, had higher education (including some college), were childless, did not own real estate, were not making personal property claims, and had been married less than 10 years.

A 1994 Chicago study found that 30% of all new general civil actions for less than $10,000 damages were filed pro se as were 28% of landlord-tenant actions.

In 1996, a University of Maryland Law School report on pro se trends found that 57% claimed they could not afford a lawyer, 18% did not wish to spend the money to hire a lawyer, and 21% believed their case was simple and an attorney was unnecessary.

A 1998 American Bar Association Study of Legal Needs probed various public beliefs that may influence litigants’ opinions of the process: 78% believed it took too long for the courts to do the job, and 77% believed it cost too much to go to court.

Another American Bar Association study of low-income households’ refusals to seek legal help were that they believed that it would not help and ‘it cost too much. Moderate-income households refused to employ lawyers because they believed that there was “not really a problem,” that they could handle the issues themselves, or that a lawyer could not help.

The same year, a Boston Bar Association study of tort and general civil litigation in forty-five (45) urban trial courts found that 66% of the cases in probate and family courts involved at least one (1) pro se party, and an average of 3% of all tort cases included at least one pro se party.

A 2001 California study found that pro se litigants filed over 50% of the custody and visitation cases. Urban courts reported approximately 80% of new divorce cases were filed pro se. Other California research indicated that pro se representation is not solely based upon financial considerations, and that a significant portion of family law pro ses in the state were neither poor nor poorly educated.

One American Bar Association study found that 88% of respondents disagreed that a lawyer is required to go to court.

There is no disagreement that anti-lawyer sentiment and the growth of do-it-yourself materials have been key factors in the growing trend of pro se litigation. There is also a growing realization that some areas of litigation are simple enough for self-representation.

While most individuals believe it is easy enough to get a lawyer if they need one, there is a growing suspicion that lawyers do not make the process easier or more cost-effective. One American Bar Association study found that 50% of respondents disagreed that lawyers “try to help make a divorce simpler and less painful” (while 21% were neutral). Eighty two percent of respondents with incomes above $75,000 and 63% with income under $35,000 disagreed that lawyers can make a divorce simpler and less painful. Forty five percent of respondents believed that lawyers are more concerned with their own self-promotion than their clients’ best interests while 22% were neutral. 51% of respondents believed that society would be better off with fewer lawyers.

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