Defending Yourself: Legal Cons, and Pros

During the busy afternoon "list call," the judge dispensed what he hoped was justice in one matter after another. In this civil-case session, the problems the parties presented dealt with disputes over such issues as discovery (the obligatory exchange of pertinent information); attachments (liens on a defendant's personal property, real estate, or bank account as security for any judgment the plaintiff might obtain); and restraining orders (to prevent one party from irrevocably tilting the table while the lawsuit progressed).

After 90 minutes of nonstop action, the judge did not protest when the clerk of court rose from the desk in front of the bench, turned, and said, "Your Honor, could you please take a short recess? The next case is a pro se prisoner summary judgment, and they'll need a little time to bring him from the lock-up."

Nodding assent, the judge strode off to his "lobby," or behind-the-courtroom office, feeling, not relieved at the respite, but concerned over what was now on his judicial plate.

Pro se means "for him- or herself." That is, a plaintiff appearing pro se has decided to dispense with a lawyer's assistance. Generally, people regard this procedure skeptically. We even have a saying: "Whoever is his own lawyer has a fool for a client." Nonetheless, deep in our national psyche runs a mistrust of lawyers. Remember Carl Sandburg's sardonic observation that the hearse horse snickers drawing a lawyer's coffin.

That antilawyer feeling has resulted in the guarantee - both statutory and by constitutional interpretation - that anyone can have a fool for a client.

Every judge respects the right, and tries diligently to protect it, even while feeling serious misgivings. The study of law, like the exercise of most professions, is not avocational. When conducting a trial, particularly when the opponent knows exactly what to do (and, more important, what not to do), the lay person suffers a serious disadvantage.

This handicap has nothing to do with the relative intelligence of the pro se litigant and the opposing lawyer. It arises from the simple fact that someone who earns a living as a cabinetmaker is more likely to produce a fine desk than even a gifted home craftsman.

Over this structural difficulty wafts another concern, although judges are much less likely to concede it. Generally, but not invariably, a case that has legal merit will attract a lawyer. This is not to say that all pro se litigation is frivolous.

One need only remember the pro se petition that Clarence Gideon filed, asking the United States Supreme Court to review his case.

That petition led ultimately to establishing permanently the fundamental principle that every criminal defendant who wants it is entitled to professional assistance.

Mulling over the handwritten papers in the upcoming case, the judge remembered Gideon, although he also recalled that only after the Supreme Court appointed a lawyer to press Gideon's claim did the matter take the course that led to the landmark holding.

Cases where the pro se plaintiff is a prisoner raise particular difficulties. Some people think prisoner claims to be generically trivial, the product of the idleness that incarceration imposes. Others believe prisoners bring suits against corrections authorities as, at best, an effort to assert some control over their lives; at worst, as a tactic of revenge.

The judge did not share these views. Although as a victim of a kidnapping and armed robbery while a law student he had no particular sympathy for duly convicted felons, he recognized that overcrowded, understaffed prisons generated genuine issues, ranging from inexcusable loss of inmate property to improper procedure in disciplinary hearings.

Whatever might be the unlikelihood that any particular case raised significant questions, it was, the judge believed, important to let the inmate state his case in person. Years ago, his court sent a judge to a makeshift courtroom inside the state penitentiary, thus enabling prompt, inexpensive, and fair dispositions.

Some people, however, thought this made suing too attractive, so the program ended.

Too bad. Now the court had to allot scarce courtroom time for what would probably turn out to be a minor matter. Still, remember Gideon.

*Hiller B. Zobel sits on the Massachusetts Superior Court.

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