The Posner Center for Justice for Pro Se’s came and went. After the longtime judge’s resignation from the bench, Richard Posner threw his hat into the ring of commentators trying to address our civil litigation system’s pro se crisis. A denied cert petition and two years later, and Posner’s center has shut down, but the need for a meaningful response to the crisis remains.
A failure to respond adequately to the current justice gap facing indigent litigants could not come at a worse time. As income inequality has grown over the last several decades, public support for legal services has decreased by over 40%. The result is more and more people going to both state and federal courts to validate their rights without an attorney. In some state systems, as many of 80 to 90 percent of litigants appear unrepresented in matters as fundamental as custody determinations and evictions. Similarly federal courts have seen a large uptick in the number of pro se plaintiffs, the vast majority of which are asserting claims for constitutional violations or employment discrimination.
The traditional axis of the debate over how to resolve this factual background focuses on whether the state should provide attorneys in various civil litigation contexts and how much judges should bend traditional rules and requirements to aid pro se litigants. While important, both of these arguments define the problems that confront most pro se litigants in an overly narrow legalistic fashion that leaves little room for discussion of reforms more likely to address the concerns of pro se litigants.
The difficulty with an overly legalistic approach to the justice gap is that it misunderstands what drives litigants to court. Many pro se plaintiffs come to court trying to solve a problem unlikely to be resolved by litigation. For example, many of the pro se litigants I worked with this past summer at a clinic in the Southern District of New York came to the clinic wanting to assert employment discrimination. They had just recently been fired, were in desperate need of money, and emotionally distraught over the experience. Litigation, unfortunately, was unlikely to help with any of these problems because of both the high bar for proving discrimination and systematic barriers to winning a federal lawsuit as a poor unrepresented person. Courts, for all lawyers turn to them for, are really bad at solving socioeconomic inequality for average people.
For this class of litigants, procedural fixes to make litigation easier may actually make litigants materially worse off by prolonging the opportunity cost of time, money, and emotional energy associated with litigation that could have been spent addressing their issues using non-legal means. Of course, this argument borders on paternalism. If someone believes that litigation is in their best interest, maybe they should be given a fair shot. But at the same time, the lack of legal expertise that disadvantages pro se litigants also likely cause them to have a distorted sense of the merits of their claim. So, instead, access to justice efforts should think beyond procedural tweaks making procedures fairer and should instead focus on reforms that focus directly on helping litigants resolve the underlying socioeconomic problem that motivates them to come to court.
Indeed, procedural fixes and self-help materials have not improved litigant outcomes. For example, in one survey of reforms to federal courts, a commentator found that reforms such as increased availability of court information, electronic filing, and standardized forms with instructions had little impact on the decisions judges were making. This is likely because the authors of these self-help materials ignore the actual cognitive barriers pro se litigants face when navigating legal procedures. A wealth of behavioral and social sciences can help lawyers draft better materials, but because judicial reformers are lawyers seeing the problem from a legalistic point of view, they provide materials with overly technical language and hard to follow text that are woefully inadequate to assist non-lawyer litigants.
Even more drastically, narrowly defining the scope of the access to justice crisis typically crowds out alternatives such as those being considered in California, like allowing some legal services to be provided by nonlawyers. Increasing access to nonlawyers who can help distinguish basic legal questions from problems that require greater expertise could help with efficiency and actual outcomes. Doing so, however, would require reformers to recognize that there are some problems we just do not need lawyers for, and that making a problem more legalistic sometimes only adds delay and greater frustration.
Of course, some pro se litigants desperately need a lawyer and will suffer significant adverse material consequences if they are unable to find one. For example, the vast majority of tenants in housing court are unrepresented. A similar pattern exists in child custody proceedings. And even those who do not necessarily require a lawyer still deserve a respectful, dignified, and transparent experience with the courts.
In the federal context, one possible solution is the rise of clinics similar to the one at which I worked last summer. These clinics are a form of limited-scope assistance where staff provide help drafting documents, explain deadlines, and answer any other questions the pro se litigant has in order to help them proceed with their litigation. As an intern, I often found that the clinic also operated as a place for litigants to vent, express confusion, or feel a little bit more at home in an otherwise intimidating federal courthouse. In this regard, typically the best piece of advice I could give was explain the low likelihood of success on the merits, acknowledge the law commonly advantages wealthy parties, and help direct them to public services that might be able to help. These clinics, then, can provide both legal and nonlegal advice, and importantly, provide a rare source of emotional support in an otherwise alienating and esoteric proceeding.
Solutions to the pro se litigation crisis will not come through an overly lawyerly understanding of the problems confronting pro se litigants. By recognizing the justice gap is not just a problem of getting more people attorneys, we can be more creative about addressing the needs facing unrepresented people coming to court.