For example:

The banks want you to work on the loan modification by yourself, so they can avoid dealing with a professional who knows the game. By all means, feel free to have a go at it if you wish. The truth is you are very likely to have a frustrating and unproductive experience. Look, banks lose money when they modify a loan—a lot of money. You just cannot expect them to make that process easy for you. What is going to happen is that the bank⁶ will “lose” your faxes, make you wait hours on the phone, require copious documentation, etc. And, ultimately, if you do not know the parameters and other criteria the bank is looking for, your request will either be denied or the bank will offer a modification that does not provide any real relief. In that case, you will have wasted a great deal of time and energy, you will still be vulnerable to losing the home and, worse still, you may have made it impossible for a professional to go behind you and clean up the mess.

Bring the paperwork with you.

Patrons often come to the library to seek help because they’ve been sued or charged with a crime.  When a statute is involved, we really need to know what statute in order to help you.  Even if no statute is involved, we need to know what the cause of action is.  If you have paperwork, bring it with you.  We won’t read every word but it will help if we see precisely what statute or issue is involved.

Spare us the intimate details.

Please don’t launch into a detailed story about what someone did to you and why they did it.  Just give us the gist of the matter and if we need more information, we’ll ask for it.  This is partly to save time but it is also because people tell us some pretty intimate things that we don’t need to know in order to help.  I really don’t want to know more about your personal life than I do about my best friend’s!

For example, just tell me that your ex-wife won’t let you see your kids and you want to know what to do about it.  I don’t need to know all the details about what a horrible mother your ex-wife is and how nasty her new boyfriend is, and how your ex-mother-in-law hates you.

Also, please try to stay calm while relating your problem.  We know these issues can be emotional, but remember that we didn’t have anything to do with the creation of your problem.  If you start getting angry or agitated, we will take a step further into professional detachment and probably be less effective in helping you.  If you really go over the top, we will have to call for security.

Understand that we can’t give legal advice, even if we’re lawyers.

I’m licensed in Maryland and Tennessee, but I work as an academic law librarian in California.  I didn’t study California law in my Pennsylvania law school, and I’ve never even taken the California bar, let alone passed it.  I haven’t practiced since 1988 and unless you’re dealing with a construction law problem, a real estate development issue, or a matter involving a cable TV franchise contract, your issue is probably something I’ve never handled before.

Most law librarians probably have a history like mine.  Some have law degrees; some don’t.  Some who have law degrees took and passed a bar exam and were admitted to practice; others did not.  Some have experience in practice; some don’t.  Our expertise is legal research, not any particular area of the law of the state where we work.

When you ask us a question that we’re not permitted to answer, we will tell you, “I’m sorry, but I can’t give you legal advice.”  Your response should not be, “I don’t want legal advice; I just want to know X.”  Trust us, we’ve already evaluated your question, and to tell you X would require us to give legal advice.

We can’t tell you what the statute of limitations is for your matter.  We can show you how to use the resources so you can try to determine for yourself.  We can’t tell you whether the Americans with Disabilities Act applies to your situation.  We can get you the Act and help you find secondary sources that might enable you to answer your question.  We can’t tell you what document or pleading you need, or tell you which form to use.  We can’t tell you how to fill-out a form.

Realize that the court clerk isn’t always right.

Patrons frequently tell us that the court clerk’s office told them they could get forms at the law library.  That’s both true and not true.

Patrons usually think of a form as something like their tax return.  All they have to do is fill in the blanks.  Some libraries will have forms like this because they’ve been created by the state court system or some other organization such as legal aid.  There might be forms like this for some matters but not for others.  We usually won’t have copies of the forms you can take with you.  We might have a book with these forms and you can make photocopies.  If an outside organization has created forms and helpful information, we might have a packet you can take.  (I’m thinking of the useful “simple divorce” packets that we had at the University of Nebraska law library, but they were prepared by a task force that included legal aid and the state court system, if I remember correctly.)

More likely, what we have is “form books.”  These are books for lawyers which contain samples of language used in different types of documents.  Lawyers use them to piece together a completed document.  They have to determine which pieces to use and how to use them.  They’re not intended to be used blindly without adjustment.  They can get you started and give you a framework that you can work with.  I can’t help you pick out the pieces you need and revise them to fit your circumstances.

Please don’t get angry with us because the court clerk told you we would have something that we don’t.

Remember that you might not be our priority.

If you go to an academic law library (one that is part of a law school), please remember that our priority is our students and faculty.  We often teach, so we might have to leave for class and hand you off to another librarian if one is available.  We might have to leave your side while we help students.  We’ll give you as much time as we can, but our students, faculty, and preparing for classes are our priorities.

And lastly, some advice from the best law librarian I know, Sharon Blackburn at Texas Tech University School of Law:

Understand that it isn’t easy and it’s going to take some time.

Lawyers get college degrees and then spend three years in law school learning substantive and procedural law.  Don’t expect to master your problem in mere hours.

Sharon tells the story of a patron who wanted to research federal income tax laws regarding charitable giving.  And he wanted it all in 30 minutes!

Don’t wait until the day before your answer is due or the criminal trial is scheduled to come to the law library.  If you know what you’re doing, expect to spend hours, if not days, preparing.  If you don’t know what you’re doing, plan to spend weeks, if not months.

Although doctors and psychiatrists are in dispute about the validity of PAS, it is arising in custody cases more and more often.  Still, it can be difficult to prove PAS because the lack of official recognition makes it difficult or impossible to secure expert testimony on the subject. 

This is one of those areas where the law seems, to me, hopelessly out of touch with people’s day to day lives.   In order to get evidence of PAS admitted into court, it must be a scientific syndrome, described and analyzed in technical language and supported by empirical studies.  Yet ordinary people know that, whether or not it rises to the level of a syndrome, the concept of parental alienation exists.

Unfortunately for children of divorce, many parents are unable to control their anger at one another when their marriage fails.  Even more unfortunately, one parent may take out this anger by manipulating the child into blaming or disliking the other parent.  Does the court really need to see studies showing that this type of behavior is harmful to the parent-child relationship?   

At any rate, I thought this was a useful issue for shlep discussion because I suspect that pro se patrons who are dealing with child custody issues often worry about the influence the other parent is having on the child’s feelings.  It might be helpful to these people to learn more about PAS and its effects, even if they aren’t ultimately able to get everything into the courtroom.

If you need help with a particular type of problem, try googling for a research guide. For example, say you are going through a divorce – try googling “family law” and “research guide” or “family law” and “pathfinder.” I just tried the first search, and a number of helpful options came up.

If you need to find something more directly about your state (and most of the time, that is the case), you could try adding the name of the state to your search. Another, and probably more helpful, option, is to go to the home page for an academic law library in your state. Most such law libraries will have state specific, as well as more general, research guides, but they may not appear in Google. Because each law library works differently, you will probably have to poke around the web-site to see where the research guides are located, but usually, they are listed in the “Reference” or “Search” section of a given law library’s homepage.

As an example, check out the research guides on the UCLA Law Library web-page, which cover a variety of California and federal topics.

• For example: The St. Pete Times tells us that “The company has been the target of multiple lawsuits by lawyers, state bar associations and disgruntled customers who said its documents didn’t pass legal muster.”  The NYT article also states that We the People has been the “target of 29 lawsuits by lawyers, state bar associations and other critics.” However, NYT adds the relevant fact not found in the SPT article: “Twenty-six of the [29] lawsuits have been dismissed or have been won by We the People.” 

My main focus in this post, however, is on the section of the St. Pete Times piece concerning the Florida Bar:

“Those looking to save money can already find a variety of resources, said Bruce Lamb, chairman of the Bar’s committee on the unlicensed practice of law.

“Organizations such as Legal Aid can provide low-cost advice from an attorney, Lamb said. Those who want to represent themselves can get most of the documents offered by We the People at courthouses or through the Florida Bar for free, he said.

” ‘The value of these places, when you look at it, is pretty low,’ Lamb said.”

It’s no secret that I am at times suspicious of the motives of the organized bar — especially when it comes to new sources of competition from outside (or even inside) the profession, and to the growth of the self-help law movement.  See, e.g., our post “a guide or a guild: where does your bar group stand?” (Sept. 8, 2006).  So, I was not very impressed by the Florida Bar’s UPL chairman’s suggestion that those who need “to save money” can get help from Legal Aid.  As you know, only a small portion of the total population who cannot afford lawyers (see prior post) is poor enough to be eligible for Legal Aid; and, of course, only a relatively small percentage of the eligible actually get a lawyer from Legal Aid. 

Even bar groups deserve the benefit of the doubt, however.  So, I thought I’d follow up on Mr. Lamb’s apparent endorsement of pro se litigants using the legal documents that are available at “courthouses or through the Florida Bar for free.”   I was especially optimistic, because (as we noted in “getting self-help help“), the Florida State Courts have a nice little Self-Help Program, that focuses on Family Court matters (e.g., divorce, custody, child support, paternity) — with many forms created with the pro se litigant in mind, and  a network of local self-help centers that provide a variety of onsite services. 

  Just as a Florida resident who read the SPT article and wants to save money might do, I went to the Florida Bar website, to find out how to obtain and intelligently use the available forms to represent myself.  Here’s what I found [warning: it isn't pretty]:

• there is nothing on the homepage about court forms or self-help
• there is nothing on the Public Information page about court forms or self-help
• there is nothing on the Consumer Information page about court forms or self-help
• the Court Links page says nothing about self-help or court forms, but we are told to ”See our Directory/Links page for links to all of the court web sites available in Florida.”  Nevertheless,
• although the Directory & Links list is very long, it makes no mention at all of forms or self-help centers 
• you can however find the Consumer Information pamphlet Protecting Yourself Against The Unlicensed Practice Of Law, in which you are told that ”The Florida Bar is the gold-standard for protecting the public.”

Note: I was pleased to see, however, that you can find the online Consumer Information pamplet Limited Representation – A Guide for the Client (and a guide for attorneys, too) on the Consumer Information page.

  All this reminded me of an excerpt from the Money/CNN article that is mentioned above:

“State bars, Ira Distenfield [CEO of We the People USA] says, will eventually lose the battle. ‘They’re trade associations,’ he says. ‘Their job is to protect the interest of their dues-paying members. When a new industry is born, that’s going to take some business away from their protected turf.’  (emphasis added)

“Eventually” can be a long time.  As usual, I urge readers to demand that their state governments do more to help the public take back their justice system; and I urge lawyers to get active in creating self-help centers and materials.  Meanwhile, Floridians can:

• click here for the Florida Courts Self-Help Website, which states: “Among other information, you will be able to access information for local self-help centers, free and low-cost legal aid, and family law forms for use in dissolution, paternity, child support, name change, and grandparent visitation cases. The forms are up-to-date, in engrossed (ready to use) format, with all amendments incorporated. All forms are provided free of charge by the Florida Supreme Court.” 
• go here for the Florida Family Court forms page, which says “The family forms below are designed for use by everyone, but are especially helpful to individuals who wish to represent themselves (pro se) in court matters related to family law.  If you have a question about the content of the forms, or you can’t find the one you are looking for, please contact the Self-Help Center nearest you.”
• go here to find and find out about local self-help centers and
• go here for information on Legal Aid in Florida 

  As we wrote in January in a posting about the unauthorized practice of law in the context of will-making software: For more background on the long battle between UPL and self-help materials, and on efforts to define the practice of law in a consumer-friendly way, see:

• “Nolo v. Texas — Self-Help Law and First Amendment Rights Protected” (Oct. 1, 1999). This press release contains a brief summary of the battle between Nolo.com and the Texas bar — when Texas lawyers tried unsuccesfully a decade ago to ban Nolo’s publications from being sold or distributed in the state, claiming they amounted to the unauthorized practice of law. [See Comment 2, below, for more details about Nolo v. Texas, as well as the battle over the ground-breaking bestseller How to Avoid Probate!, by Norman Dacey.]
• HALT’s UPL Project (where the legal reform group explains why the “unauthorized practice of law” should be limited to saying you are a lawyer when you are not.)
• The approach of the Federal Trade Commission and Department of Justice to defining the practic of law — Remarks to the ABA (2002)
• The postings and materials that are linked to f/k/a’s Unauthorized Practice page.

  p.s.  On paper, Florida has the best ethics rules in the nation to protect clients entering into contingency fee contracts in personal injury cases.  Through Rule 4-1.5(f) of the Rules Regulating the Florida Bar, clients have a Statement of Client’s Rights for Contingency Fees stating, among other things, that there is no set percentage fee and that the client has the right to negotiate the fee level.  They also enjoy a 3-day “cooling off” period to reconsider after signing an agreement, and step-down maximum fee levels as the amount awarded increases.  (see compilation at f/k/a)  Now, click on over to the Florida Bar’s Attorney’s Fees pamphlet for consumers.  Despite the length of the contingency fee discussion, I dare you to point out where the right to negotiate fee levels is mentioned, much less explained.  

According to Freivogel:

 ”The court also ordered that the lawyer either make a formal appearance for the plaintiff or stop communicating with her about the case. This opinion contains a comprehensive review of ghostwriting around the country. In a nutshell, the problem with ghostwriting is that courts give pro se litigants more slack. That puts the other side at a disadvantage when the pro se litigants’ pleadings are ghostwritten by lawyers.”

If you have access to the court’s opinion in Delso, please share the relevant parts with us.

As we reported on January 2, 2007, Rule 3.37 of the California Rules of Court permits “Undisclosed representation,” including ghostwriting and coaching.  Rule 3.37 says: “(a) Nondisclosure. In a civil proceeding, an attorney who contracts with a client to draft or assist in drafting legal documents, but not to make an appearance in the case, is not required to disclose within the text of the documents that he or she was involved in preparing the documents.” (emphasis added)

You can find further discussion of ghostwriting, in Arizona Bar Ethics Opinion 05-06 (July 2005).  The Arizona Bar concluded that “The attorney providing limited scope representation is not required to disclose to the court or other tribunal that the attorney is providing assistance to a client proceeding in propria persona [pro se].”  The ethics opinion noted that other jurisdictions have disagreed, and collects citations to many rulings in other states (via Mike Frisch at Law Profession Blog)

My perspective (as stated today in a Comment at LegalBlogWatch):  In general, if a judge gives a pro se litigant “more slack,” it should only be where and when he or she needs it in order to have the case fairly presented and heard — e.g., understanding procedural rules, presenting written arguments, asking questions at trial.  The pro se party shouldn’t need extra assistance from the court relating to a pleading (regarding, e.g., cogency of arguments, form of citations, depth of research, etc.) that has in fact been written by a lawyer.  Thus, there should be no judicial helping-hand and therefore no disadvantage to the opposing party with regard to a ghostwritten pleading.  Indeed, the judge should be happy to have a ghostwritten pleading before the court, because there will be less need to help the particular unrepresented litigant. [our prior post discusses and links to sources on the proper role of judges dealing with unrepresented litigants]

   The Chief Justice warned: “Access to justice is quite simply critical. Unfortunately, many Canadian men and women find themselves unable, mainly for financial reasons, to access the Canadian justice system. Some of them become their own lawyers, or try to.. . Hard hit are average middle-class Canadians.”

According to the National Post:

“A Canadian of average means may have to consider remortgaging their home, gambling their retirement savings or forsaking their child’s college fund to pursue justice, Beverley McLachlin told a crowd of about 150 in Toronto Thursday.”

. . . . “Those with some income and a few assets may be ineligible for legal aid and therefore without choices, said McLachlin. “Their options are grim: use up the family assets in litigation; become their own lawyers or give up. The result may be injustice.”

. . . “Injustice is, at times, compounded when people choosing to represent themselves are without the proper legal knowledge to do so. . . .”

The Chief Justice also pointed out that “Putting the facts and the law before a judge may be an insurmountable hurdle. The trial judge may try to assist, but this raises the possibility that the judge may be seen as helping or partial to that person. The proceedings adjourn or stretch out, adding to the public cost of running the court.”

There is little doubt in my mind that neither the Canadian nor the American legislatures (or public) will remedy this problem by providing publicy-funded lawyers for any person who would be financially-distressed by hiring an attorney.  (Of course, doing so would also be poor public policy, in my opinion.)  The only practical and principled solution is to increase and improve programs that allow as many persons as possible to present their cases effectively without lawyers, while making courts — staff, judges, procedures, etc. –far more friendly to the self-represented. 

Note: in a prior post, we had this paragraph about Chief Justice McLachlin:

To no one’s surprise, Chief Justice Beverley McLachlin of the Canadian Supreme Court was voicing her concerns recently over the numbers of self-represented litigants throughout the court system. (see, Canada.com, “Chief Justice warns of ‘epidemic’ of self-representation in courts,” Aug. 13, 2006;  cbcNews, “Self-representation creating chaos in courts:chief justice,” Aug. 12, 2006)  Perhaps the reporters covering Justice McLachlin missed other salient points, but it is disconcerting that the only solutions for the “epidemic” that are mentioned in the above articles are her suggestions that lawyers might lower their fees and that judicial vacancies be filled more quickly.

The news coverage of her speech on March 8th is also devoid of any call by the Chief Justice to incease self-help resources for litigants, judges and court staff.  I could not find the text of the speech online to see if the Chief Justice expanded on the topic.

• “Civil Gideon” is the right – and the name of the movement to obtain the constitutional or legislative right — of low-income individuals to the appointment of a lawyer when basic human needs (such as those involving shelter, sustenance, safety, health or child custody) are at stake in a court proceeding. The name comes from the analogy to the right to counsel in criminal cases, which was announced by the U.S. Supreme Court in Gideon v. Wainwright. [see our prior post on a pilot project in California] 
•  On August 8, 2006, the House of Delegates of the American Bar Association unanimously passed the following Civil Gideon Resolution: “RESOLVED, That the American Bar Association urges federal, state, and territorial governments to provide legal counsel as a matter of right at public expense to low income persons in those categories of adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody as determined by each jurisdiction.” (emphasis added) See “A Civil Law Gideon,” ABA Journal, Aug 8, 2006 (via Trial Ad Notes)

   Warning: I’m about to upset some of my usual allies:  I agree with the fundamental — and I hope uncontroversial — assertion made by those in the Civil Gideon movement that our government must ensure fair and effective access to justice for all, including the poor, and especially in matters related to basic needs and rights.  But, “Family law not for amateurs“ underscores my growing discomfort with the notion that access to justice can best be achieved in our society by giving publicly-funded lawyers to low-income Americans in most of the circumstances in which they are likely to find themselves in court.  

Like the proponents of the ABA’s Civil Gideon Resolution (e.g., here and here) Martinek argues that no lawyerless litigant can get a fair hearing when the other side has a lawyer — and that having a lawyer will ensure such fairness.  Although he mentions that there are “some practical downsides” with Civil Gideon (such as its ”staggering” cost, difficulties telling who is eligible, and disincentives to settle when you have a free lawyer), Martinek concludes that “something” must be done and:

 ”The issues that are litigated in family courts – especially those involving the right to see and help raise one’s children – are too important to be dealt with by emotionally overwhelmed mothers and fathers with no training in the law.”

I believe we need to ask whether it makes more sense to increase the importance of lawyers in family and housing courts or to work much harder to structure the judicial system so that most individuals can achieve fair and effective justice without lawyers.  (see our About page)  Based on my experience as a self-help law proponent, a legal ethics watchdog, and an observer of the legal profession’s attitude toward access to justice, and after spending a decade in a law practice focused on Family Court, here are some of the problems that I have with the lawyers-for-all-style Civil Gideon:

1. It looks far too much like an Attorney Employment Assurance Plan for underemployed members of the Main Street bar.  In addition, Civil Gideon is backed by some groups that resisted court-based self-help centers, for fear they would undermine legal aid budgets, as well as by private lawyer groups who resisted both self-help centers and alternative dispute programs at courts, for fear that they might lose clients or have cases shortened by settlements.
2.    It assumes that lawyers can do a better job than reasonably-informed laypersons in presenting cases that involve their families (or sustenance and housing conditions). This infantilizes litigants and denigrates the intelligence of the vast majority of pro se litigants, who know far better than any lawyer the facts of their situation and are capable of telling their stories to receptive judges.  It also contradicts studies of family court lawyers; see below)
3. It assumes that two opposing lawyers will more quickly and fairly settle a case than will unrepresented parties. (As Law Guardian for hundred of children in family court, I saw far too many cases where lawyers dragged out cases, inflamed conflict, misunderstood the basic needs of the parties.)
4. It assumes that Assigned Counsel will competently and diligently represent their low income client (see discussion below).
5.   It overlooks the fact that hiring an attorney virtually impoverishes, or is simply beyond the financial ability of, a very large portion of Americans who are not considered poor, but are far from rich — and, unlike self-help programs, Civil Gideon makes no accommodation for these people. [update: March 10, 2007: see our post "the dis-accessed middle class of North America," which discusses the situation in Canada, as seen through the eyes of their Chief Justice.]
6. It overlooks the fact that every single day thousands of low-income Americans are able to receive a fair hearing of their disputes in Family (and other people-oriented) Courts — and that self-help centers and pro se programs for judges and court staff are spreading and becoming more and more effective.

 Before you buy into the proposition that publicly-funded counsel — which will, in most communities, mean Assigned Counsel, who are lawyers in private practice who ask to receive Civil Gideon clients from the courts — please take a look at two postings that I wrote at f/k/a and its predecessor ethicalEsq.  In the post Too many assigned counsel just don’t give a damn (Feb. 3, 2004), for example, I pointed to numerous assigned counsel scandals, and quoted a 2002 New York study, which found:

“Notwithstanding the valiant efforts of many lawyers, too many of New York City’s poor are receiving thoroughly inadequate legal representation in such important court proceedings as those relating to child custody and visitation, child abuse and neglect, termination of parental rights, domestic violence, and criminal prosecution, often with serious adverse consequences.”

“The outmoded, underfunded, overburdened, and organizationally chaotic system in operation today dishonors New York’s long-standing commitment to an individual’s right to meaningful and effective representation, often with devastating effects on the thousands of children and indigent adults who pass through that system each year.”

In addition, I noted a 1997 ABA study discovered that:

•  “In child abuse and neglect cases, the legal representation of parents, children, and child protection agencies is often seriously deficient,” with many lawyers apparently not understanding that ”diligent representation” included obligations such as “to meet with clients well in advance of each substantive hearing, to investigate disputed facts, and to be present in court.”  Take a look here for more studies with similar sad conclusions.

In the post, I acknowledge that lack of money is an important source of the problem, and that there are both excellent and uninspired-but-competent lawyers who act as assigned counsel.  Nonetheless, I declared: this much seems clear to me after years observing and participating in the assigned counsel system:

• many assigned counsel make no meaningful effort to provide meaningful, diligent representation
• a very large percentage take assigned cases solely because they have no other sources for clients
• they have no other sources because they do not have the respect of their colleagues, judges, or former clients
•   they are unlikely to work harder if pay levels are increased, and may even do less per case
• local bar associations often oppose creating better-organized, and more effective institutional entities to provide legal services to the poor, because private practice attorneys fear losing the work, despite all their cries of being scandalously underpayed
• disciplinary committees totally avoid these issues of competence and diligence
• the mainstream bar holds its nose and pretends the ne’er do wells don’t exist

     In conclusion, I asked: What percentage of assigned counsel fit my very negative picture?   Of course, I can’t say for sure, but it’s certainly at least 20%, and probably a significantly larger figure.  Too damn many of them.

Similarly, in No Bull Lawyers Need CLE (Continuing Legal Education), Jan. 4, 2004, I quoted the findings by an ABA working group concerning the deficient representation received by parties in many family court matters.  In response to the study, in February, 1997, American Bar Association President N. Lee Cooper issued his Challenge to State and Local Bar Organizations on “Improving Legal Representation in Cases Involving Children, Youth and Families.”  Cooper called upon state and local bar leaders to sign a pledge that:

 “We will work to establish clear standards for attorneys in the representation of children, parents, and child protection agencies in child abuse and neglect cases (and related termination of parental rights and adoption cases), including clarifying basic ethical obligations of diligent representation by attorneys in these cases, such as obligations to meet with clients well in advance of each substantive hearing, to investigate disputed facts, and to be present in court.” 

The cost of conflict is composed of the following:

1. Direct Cost: Fees of lawyers and other professionals
2. Productivity Cost: Value of lost time. The opportunity cost of what those involved would otherwise be producing.
3. Continuity Cost: Loss of ongoing relationships including the “community” they embody
4. Emotional Cost: The pain of focusing on and being held hostage by your emotions

It’s worth thinking about all these costs when you contemplate litigation. Even if you proceed pro se to avoid paying for a lawyer, you can’t avoid the other costs (and sometimes they’ll shoot up because of your decision to go pro se). Is your dispute with your neighbor who trimmed your tree really worth the hours you’ll spend working on and worrying about the litigation and the bitterness that the litigation will foster? Maybe so. But think about it.

]]> http://blogs.law.harvard.edu/shlep/2007/03/04/the-costs-of-conflict/feed/ 0 http://creativecommons.org/licenses/by-sa/3.0/ http://blogs.law.harvard.edu/shlep/2007/02/19/nyt-focuses-on-a-pro-se-outlier-sheds-little-light/ http://blogs.law.harvard.edu/shlep/2007/02/19/nyt-focuses-on-a-pro-se-outlier-sheds-little-light/#comments Mon, 19 Feb 2007 15:35:31 +0000 david giacalone http://blogs.law.harvard.edu/shlep/2007/02/19/nyt-focuses-on-a-pro-se-outlier-sheds-l    On the surface, the New York Times devotes a lot of column space today to an important issue involving the pro se litigant.  The reporter states: “As the number of pro se litigants has grown in recent years, judges across the country have struggled with the question of how far to ease the rules to help the self-represented while remaining fair to the party with counsel.”   Unfortunately, rather than addressing the topic in a manner that might enlighten the public or promote needed judicial reform, “The Marriage Lasted 10 Years. The Lawsuits? 13 Years, and Counting” (Feb. 19, 2007) is simply another juicy tale of an over-the-top pro se outlier.

The article focuses on Michael Melnitzky, 69, who “was once a recognized art expert” and conservator but now declares “I am a litigator.”  As the article stresses “when his wife filed for divorce in 1994, Mr. Melnitzky became something else: a litigator. A prolific one. And although he has no law degree and only himself as a client, he has never been busier.”  Here are excerpts from the article about Melnitzky’s situation:

•   Through a series of self-fashioned lawsuits and appeals, issues that might have been settled with his divorce have gone on for 13 years, 3 years longer than his marriage.
• He has sued virtually everyone involved: one of his former lawyers, his wife’s lawyer, three banks, five judges and a psychiatrist appointed by the court to evaluate his mental health. In unrelated cases, he has sued a neighbor, a thrift shop, the city and his former employer. And he has almost always lost.
• When not in court, he applies the same meticulous attention that he once put into restoring great Impressionist works to researching the law. Legal texts fill his cluttered brownstone on the Upper East Side, whose top floors he rents out.
•   In the last 10 years, he has lost 17 of 18 lawsuits — the remaining one is still active — and 30 of 32 appeals. The two appellate victories ultimately ended in defeats after the cases were returned to lower courts.
• But Mr. Melnitzky is unusual because of the volume and complexity of his litigation, and because he arguably could afford a lawyer but has seldom chosen to use one, even in the face of repeated failure.  

Justice Walter B. Tolub of Manhattan Supreme Court wrote in a 1999 ruling that the advantages of Mr. Melnitzky’s decision to represent himself “soon became clear”:

  “Mr. Melnitzky was free to plead ignorance of the law when it suited him, at the same time picking and choosing those points of law which he ‘discovered’ were in his favor,”  

The Times tells us that “Legal experts say Mr. Melnitzky is hardly alone among people who become fixated with the legal system, filing lawsuits again and again without the aid of a lawyer to try to reverse an earlier loss.”  This rather small group of “fixated” or “obsessed” pro se litigants clearly raises far trickier problems in docket management and courtroom control and fairness than the everyday self-represented litigant, who appears in courthouses across the nation in tens of thousands of lawsuits each year.  The typical pro se litigant has neither the time nor the capacity to manipulate the court with selective presentation of the law based on extensive research and deep knowledge of the issues.   

The Times article gives considerable space to one incident involving Melnitzky and Judge Tolub. Melnitzky apparently spent four or five days at a trial, which concerned whether a set of valuable watches were marital property, presenting evidence that he was a Holocaust victim. The judge then cut off his attempt to show when he came into possession of the watches.   The article paraphrases a brief that appellate lawyer Norman A. Olch filed for Melnitzky with the NY Court of Appeals, saying that:

“[W]hile criminal courts had long recognized the need to give pro se defendants more latitude in pleading their arguments, Mr. Melnitzky’s case illustrated a troubling gap in the civil courts’ understanding of how to deal with pro se litigants. Common law does suggest that judges should give such litigants in civil cases some latitude, but it also requires that they be held to the same standards as those with lawyers.

“ ‘The plain record shows that the trial judge denied a pro se litigant the most basic due process right of all: the opportunity to present evidence in support of his claim,’ Mr. Olch wrote.”

Olch is correct about the general principles involved, but we surely have not been given enough information to come to any useful conclusion on Melnitzky’s treatment.  And, the public is really no closer to understanding how the fairness issue might be resolved on a general basis.

If you’d like to learn more about the vital issue broached by the NYT today, see our prior post discussing the The Judicial Guidelines for Civil Hearings Involving Self-Represented Litigants in Massachusetts; ; our discussion of Prof. Jona Goldschmidt’s paper “Judicial Assistance to Self-Represented Parties: Lessons from the Canadian Experience; and our posting  describing the Queensland (Australia) Equal Treatment Handbook   

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