Law is Easy. Ask Anybody

For years, DIY was the hottest thing in home improvement.  Anybody could rewire a house, after watching a couple of shows on TV.  It looked so easy, and it was always done in a half hour.  So it’s only natural that people would eventually figure out that they could be their own lawyers too.  Hey, between Perry Mason, L.A. Law and Boston Legal, viewers had all the legal education they need, right?  

And if that wasn’t enough, a couple of hours of daytime TV judges was equal to an LL.M. at least.  Nothing to it.  Plus, lawyers cost money, and people don’t have money.

The New York Times published an article about how nonlawyers have taken up arms in their own cause.

Financially pressed people like Ms. Barros are representing themselves more and more in court, according to judges, lawyers and courthouse officials across the country, raising questions of how just the outcomes are and clogging courthouses already facing their own budget woes as clerks spend more time helping people unfamiliar with forms, filings and fees.

Judges complain that people miss deadlines, fail to bring the right documents or evidence and are simply unprepared for legal proceedings. Such mistakes make it more likely they will fare poorly — no matter the merit of their cases.

As it turns out, it’s not as easy as people seem to think.  In fact, it’s not easy at all, even for those trained and licensed.  And to add insult to injury, court is nothing like the TV dramas you’ve watched your whole life, and I think Judge Alex and Joe Brown are wrong more often than they’re right.

It’s not, as most laypeople would assume, that the law is some vast conspiracy of complex rules designed to keep the ordinary person out and line the pockets of lawyer.  Much of it makes perfect sense and is compelled by the human ability to both screw up and rationalize their screw ups so that people believe they’re right no matter how wrong they are. 

Having spent more than 20 years as a pro bono arbitrator in Manhattan civil court, and having tried thousands of cases there with good people acting on their own behalf, I have a pretty good idea what it’s like when two otherwise nice people find themselves in disagreement.  I also have a really good idea of how they come to court with a good cause and screw it all up, whether for lack of proof, the inability to distinguish a viable argument from their emotional or visceral positions or just their inability to present a cogent statement of facts.  It can be painfully difficult for people to even explain their position. 

But there’s an underlying issue here that is separate from the fact that people tend to make lousy lawyers for themselves.  In tough economic times, disputes still occur and people can’t afford representation.  What are they to do?

The questions remains whether the court, meaning everyone from the clerks to the judge, should accommodate these pro se litigants.  Most clerks have a difficult time when litigants inexplicably fail to meet filing deadlines, and truth be told, most litigants have no good excuse.  Whether they just didn’t know (and they should if they are going to represent themselves), or the dog ate their evidence, or they just didn’t get it in on time, critical details to lawyers just don’t mean the same thing to nonlawyers. 

Then there is the fear factor, as a person stands before a judge’s bench and becomes paralyzed with fear.  Most people can’t speak publicly to begin with, and the pressure of being expected to stand and deliver is too much for them to take.  Some write it all down in advance, and request/demand that the judge read it.  When that doesn’t work, they haven’t a clue what to do.  Others find it impossible to distinguish facts from feelings, and begin a pitch about how they feel about the issue at hand.  Judges tire of this quickly.  Still others present facts and argument so utterly lacking in logic and coherence that they come off as cross between the village idiot and the world’s greatest liar, when they are neither.

Many of the problems are bred by what people are taught at the television’s knee, where impassioned pleas of righteousness tend to win the day.  They are so utterly convinced of the propriety of their own position that it doesn’t occur to them that someone else might be less persuaded.  One of the oft-spoken lines is, “To tell you the truth…”  Were you lying before?  They don’t get it.

When I arbitrate, I do my best to both put people at ease, and tell them that it’s no different than talking to some regular person who doesn’t know anything about their problem.  I try to guide them when they skip over a critical detail through subtle questioning, and ask for the necessary evidence that will save us both about 10 minutes of emotional but needless explanation.  I do the same for both sides, and find with amazing frequency that positions that appeared ridiculous at first actually are correct once the facts are clarified.  Then I often tell litigants who have fully presented their cases but can’t seem to figure out when the time has come to stop talking, “you’ve made your point, so be careful about seizing defeat from the jaws of victory.”  They usually smile and stop speaking.

But many judges aren’t capable of dealing with regular people.  Most judges in the New York City civil courts never represented human beings, but worked as law secretaries for other judges, or prosecutors, or corporate counsel, their entire careers.  When they take the bench, they see people as annoyances, drains on their time, interferences with their orderly process.  They can be rude, unbearably pompous, and incomprehensible, spouting legalisms as if to show how smart they are.  Ironically, most aren’t particularly good on the law either.

Not only does this not help the situation, but it tends to exacerbate a tense and difficult experience for people.  And there’s just no need for it, but for the fact that understanding and dealing with normal people is a gift too many judges do not possess.  It’s not the pro se litigants who are wrong; they come to court exactly as they are.  It’s the judges’ lack of training and experience with normal people that mucks up the system.

Don’t begrudge pro se litigants the opportunity to make their case on the merits despite the roadblocks the law places in front of them.  Lawyers are expensive, and the unwillingness to let your children go hungry in order to pay for a lawyer is hardly irrational.  Still, people need to litigate when they have a dispute, and that’s why we have courts, lawyers notwithstanding.  Help nonlawyers to present their position in the best possible light, without unnecessary entanglement in procedure, and even the losing side will leave believing that they have had their day in court, a fair chance and were shown respect.

I can’t tell you how many times over the years a losing litigant, who came into my room absolute in his belief that he was right, will thank me after the arbitration is concluded for listening, for helping, for explaining and mostly for showing him the respect he deserved.  Yes, there are always the nutcases, but most people just need help understanding and want to be treated with a little dignity. 

4 comments on “Law is Easy. Ask Anybody

  1. Prof Yabut

    Yes, much more must be done to help pro se litigants navigate our court system — as a matter of principle and as a practical necessity. Especially in Family Court (where 70% of litigants have no lawyer), a little assistance will go a long way to assure that people have their day in court and feel fairly treated. Sadly, New York State does far less than others to offer such assistance, and many judges still treat unrepresented parties like unwanted stepchildren. That’s because the organized bar and most of its members are afraid that a truly useful selfhelp website and courthouse selfhelp centers will be used by persons who do have the ability to pay for a lawyer.

    There are virtually no selfhelp centers at courthouses in New York State — just a couple of “pilot projects”. And, take a look at the pathetic Court Help site.

    [Ed. note: Sorry, Prof, but you know the rules about links in comments,  Even Harvard professors have to follow the rules.]

  2. SHG

    Notwithstanding your inclusion of a link in a comment breaking the rules, I’ve read the article and decided to make it available should anyone want to read it.  I’ve read the piece, and found it pedantic, tedious and relatively unhelpful,   Ironically, I found that the article proposes exactly the opposite of what it suggests, proposing the use of meaningless legal terminology to explain other meaningless legal terminology to nonlawyers.  But, for what it’s worth, the link is here for anyone who cares to read it.

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