There currently is a movement among a small segment of attorneys and judges in Missouri who serve on the Pro Se Commission, to provide particular assistance to pro se litigants in family law cases. I have a problem with the mechanics of what is being attempted.
My problem with this effort is two-fold. First, It must be said that I view aspects of it as tantamount to the American Medical Association handing patients a knife and suggesting that they go ahead and take their kidneys out. One has an absolute right to represent oneself in litigation; and, I suppose, one has an absolute right to perform surgery on oneself. However, providing an anatomical diagram does not give one all the information necessary to take out one’s kidney, nor does it arm the would-be-self-surgeon with the information to know whether the kidney should be taken out and what might happen if one takes it out.
The same thing is true of providing “forms” for the pro se litigant to file their own divorce. The mere provision of those forms does not give the self-represented litigant adequate knowledge to pursue the case, nor adequate knowledge to know what needs to be done and when. What it does do is open up the potential that the self-represented will feel they are protected because they are using court forms. I think it is folly to give people a false sense of security.
I have represented many people whose lives were complicated by things that happened on account of self-representaiton. Deeds were not properly drafted, executed or recorded. QDROs were no done or were done incorrectly. Parenting plans did not contain all of the necessary elements. Or, along the way during a lawsuit, rights were lost because the self-represented did not know they were “supposed” to take certain actions.
I am against providing these forms for the simple reason that I am against giving people weapons of self-devastation. If the forms are not available, then the self-represented will either do their own research to figure out what has to be done, which might increase but not guarantee the potential that it will be done right; or they will keep looking until they find an attorney whom they can afford to retain.
And, I am not in favor of increasingly high legal fees. I try to scale my fees down. I am not rich. But neither am I alone in being reasonable in my fees. Moreover, I think the Bar’s obligation is in promoting projects that increase the availability of free or no-cost services for those who cannot afford to hire lawyers. That would truly help.
The other movement is to require judges to undertake to help pro se litigants during court proceedings. That movement is tantamount to giving trial judges license to be prejudiced. Trial judges are not supposed to favor one class of litigants over another. If we give license to trial courts to favor one class of litigants over another, however well intended, we destroy our system of impartial tribunals. We open the door to allowing favoritism for any one group over another. That is not how our courts are supposed to be.
I realize that our courts often seem to favor one group of litigants over another. For example, I represent a lot of fathers, and it is without question true that the law used to, and in many cases still tacitly does, favor mothers over fathers. Why would we want to institutionalize favoritism?
I take my moral and ethical duties very seriously, which is one reason I answer posts on this board. Yes, representing others is how I make my modest living. So perhaps one could say it is in my own interests to discourage self-representation. But I have plenty of business. There are always people wanting to hire divorce lawyers. I do not need to discourage self-representation in order to thrive.
If you want to represent yourself, you have the right to do so. But I do not want to give you ammunition that could ultimately lead to your legal downfall because you represent yourself and don’t do what you should do or what you would have done had you had counsel. Moreover, there is no way it is fair to encourage judges to favor one class of people over the other. For these reasons, I oppose the movement in Missouri, and for no other. I want everyone to have good representation, and I try to charge very reasonable rates and to encourage my colleagues to do so. I volunteer my time. I take pro bono cases. I try to give general guidance in this and other forums. In short, I want people to be protected. If that is bad, then, so be it.
This is my opinion and mine alone. I speak for no other person or group.
Feel free to post comments — I am also a First Amendment advocate!!!