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August 01, 2020 Feature

People Who Self-Represent A Judicial Review

Dean Christoffel

Sitting in my office listening to the cars rushing by as the changing light outside reminds me that it is time to head home. Although I should pack up and call it a day, I can’t seem to shake the last hearing. It was about parenting time. Both parents wanted more, but neither of them hired lawyers, so it was left to me to make a Solomon-like decision with a lack of good evidence or statute-based testimony. Solomon—I swear I had the strangest dream about the wisdom of Solomon. My ringing phone disturbed this train of thought, and somewhat distractedly, I answered.

“I’m glad I was able to catch you.” It was a young lawyer, Kristy, I was working with on a training panel. “I was hoping to discuss some speaking points for an upcoming training regarding pro se litigants.”

“You mean self-represented parties,” I interrupted. “Funny you should ask; I was just thinking about a dream I had the other night about King Solomon and the two mothers. You, no doubt, know this story. Two women are disputing who is the mother of a baby each claims to be hers. After listening to them, Solomon proposes cutting the baby into two and giving each mother a half. One of the women says, “OK, that way neither of us will get the child.” The other says, “Hold it, she can have the child—let the child live.” Solomon says to the second woman, “Because you are willing to give up the child so the child may live, you are the mother.”

“Yes, Judge, I have heard it many times. Usually when the person saying it is being ironic. ‘I can’t decide so, in my Solomon-like wisdom, I’ll just cut the baby in half’—regardless of the consequences to the parties. It usually means a totally unsatisfactory decision to both parties and to the court, as well.”

“Exactly,” I responded. “In my dream, the story is revealed as the first self-represented child custody case. Each of the women presented her case as fully as she could, and yet neither sufficiently to make a difference to Solomon, who had to decide between the two. He resorted to tricking the women to obtain the evidence he felt necessary to decide the matter or else be forced to follow through on his bluff and kill the child.”

“If you put it that way, Judge, it sounds more like a lucky result than a wise decision. How else could Solomon have resolved it?”

“Perhaps, if either or both of the women had someone to speak on their behalf, to marshal some facts to convince Solomon, or to provide a good reason for him to believe one woman over the other.”

“Like a lawyer?”

“Precisely. I see Solomon-like situations play out day after day in my court. As a judge, I ask why don’t they have someone to speak up for them? What caused them to go on their own to handle such a very important matter? Why do people not hire lawyers in every case today and instead decide to represent themselves?”

“Well,” Kristy answered, “the biggest reason is that lawyers are expensive. Not many people can afford to pay the retainer and continuing legal fees. It is just not possible. Sometimes, they can qualify for legal aid or some other free legal service, but often there is a conflict because the other party may have already obtained those services. There is also a growing group of people who don’t qualify financially but still don’t have enough money to pay lawyers because of other financial obligations like student loans, medical expenses, or credit card debt. And others don’t hire lawyers because they just think lawyers will increase the conflict, rather than help.”

“What are the alternatives besides full-time lawyers on one hand and self-representation on the other?” I asked.

“There is a middle road—unbundled services—legal services structured like a menu offered at a flat rate so the client is able to access legal assistance required without facing thousands of dollars of upfront fees and uncertainty about the total cost. Unbundled services remove the all-or-nothing approach identified with hiring a lawyer and replaces it with a more affordable alternative by providing services a person absolutely needs but can still afford. Although this is not a new approach, it is still not available in every state. Many self-represented parties do not even know it is an option.

“Other options to traditional lawyer representation,” she continued, “depend on one’s state and even county. Every state has resources available on a website, but keep in mind this is just a starting point. The law library staff and court staff are also a great resource. They cannot give legal advice but can offer guidance about which forms to use and procedural requirements. They are also a great resource for information about free legal clinics and legal aid programs.”

“Another avenue that shouldn’t be dismissed,” I added, “is the availability of local laws or rules to seek funds for legal assistance. For instance, temporary orders can be requested ordering the other party to contribute towards attorney fees or allowing the sale of an asset in order to hire an attorney. To be clear, parties should not sell assets without court permission, but it is a way for a self-represented party to hire representation to help complete her case.”

“Judge, do you think self-represented parties at the beginning of a case fully understand what the courts expect of them?”

“Often, no. Although hiring a lawyer is costly, part of any cost-benefit analysis needs to include the investment of time that will be required for the self-represented party to commit to carry the case to final orders. This will include the time needed to research the law, perform pre-trial procedures, and prepare for trial, all with little help from the court.

“Additionally, for self-represented parties, the case is personal, and they are at a disadvantage with no one to guide them on the reasonableness of what they’re requesting. Flexibility is an important part of the court process, as is striking a balance between effective testimony and merely stating the facts of your case. The court is always weighing believability, so while there is a time and place for emotion, a judge will not be able to understand the facts of the case if a party is too angry, hurt, or distraught to effectively communicate them.

“You know, Kristy, judges have repeatedly said in surveys that people who represent themselves are generally doing a poor job of it, and they feel these parties are burdening the courts. Judges regularly report as the biggest problem areas the failure to present necessary evidence, procedural errors, ineffective witness examination, failure to object, and ineffective argument. In truth, these same complaints probably apply to many lawyers as well, if these judges were to be asked.

“What strikes me most is that these issues can be overcome with proper preparation and effort, if a person is willing. Even when the effort is made, the reality often is the obstacle facing self-represented parties remains the bias the court and court staff have against them.

The training you called me about tonight,” I continued, “was likely another training on how to ‘deal with’ this ever-growing trend. Often, they are labeled before a word has been said in court simply due to not hiring a lawyer. If you choose to represent yourself, you are categorized as ‘unrepresented’ or ‘pro per.’

“But pro per is not something a person is—it is merely a status conferred by the court system—a status that is then used to define the person with existing expectations, attributes, and feelings toward the unrepresented.

“This brings to mind another part of the Solomon story. The women appearing before Solomon are always referred to as ‘harlots’ or ‘prostitutes.’ Never ‘mothers.’ They are defined only by their status and in a most demeaning way. Unfortunately, this is the same way courts and staff use ‘pro per’ or ‘pro se’ to describe self-represented people, reducing their individuality to just their status.

“This reduction to status causes people within the court system to behave differently than with represented people. This is true even if the merits of the case are as good as or better than a represented party’s case. The mere knowledge of the status of pro per changes the psychological dynamic of decision-making and the behavior of the court, staff, and lawyers—to the detriment of the self-represented.”

“You know, Judge, I’ve worked with a number of self-represented people providing unbundled services, and my experience has been that the process is empowering. When people have the information they need and spend the required time to prepare, they are not only happy with the result, but they also understand the result. But where does this leave parties who represent themselves?”

“That, Kristy, brings us back again to the Solomon story. What if we’ve always had the point of this story wrong? What if the true mother realized Solomon would not give her testimony the weight it deserved, but she was courageous in her ability to be flexible and not insist on her position to the detriment of her real goal, which was not winning the case, but having her child returned? Wouldn’t that make her the ‘wise’ one? And what better way to flip the bias against the unrepresented, the harlot, than for her to advocate for what’s right? And how empowering? After all, once she recognized what the consequences of stubbornly sticking to her position would be, what did she have to lose? Often, when you’re representing yourself, you can define your case better than someone not living it. This she did. Solomon can take the ‘wisdom’ credit, but this mother knew what it would take to get her child back.

“And do you remember, Kristy, how the story ends? It ends: ‘And all Israel heard of the judgment which the King had judged; and they feared the King because he was given the power of judgment.’

“It is wise to fear the power of judgment, so, perhaps, she was wise to be her own counsel.”

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Dean Christoffel is a Pima County Superior Court Commissioner/Judge Pro Tem. He practiced law for 37 years and was a State Bar Certified Specialist in Family Law. He is a co-founder of Simpla Phi Lex, the recipient of the Arizona Supreme Court’s Access to Justice Award for its work for self-represented people in family law matters. He is on the Board of the new non-profit Step Up to Justice, which provides legal services to indigent people in Pima County.