Monday, April 2, 2007

Do Pro Se Litigants Have An Advantage?

I fully understand the need for pro se litigation. Its been etched indelibly into the legal fabric of our nation from the outset and, as a practical matter, gives those who may be unable to afford counsel (or who just feel the need to play "lawyer") the ability to pursue their claims through the judicial system. I also understand that the judiciary tends to cut a good deal of slack to pro se litigants given their general unfamiliarity with the legal process. In all, the concept is, as Martha Stewart might say, "a good thing."

What I DON'T understand is why pro se matters are not subject to additional scrutiny in order to prevent frivolous claims and the resulting waste of judicial resources in having to dispose of them. Granted, claims contained in pleadings, motions, etc., are generally subject to either Federal Rule 11 requirements or their State equivalents to help ensure that they are well-founded and that a good faith, reasonable inquiry into the matter has been made. However, I wonder what percentage of attorneys are sanctioned for filing frivolous claims versus those pro se litigants who do so. My bet is that very few of the folks who represent themselves get hit with sanctions of any kind.

Here's a case in point. In Altman v. New York City Department of Education (No. 06 CV 6319, S.D.N.Y. - 3/23/07), a pro se Plaintiff (a teacher) brought a discrimination action against her former employer (the Board of Education) and four individual former co-workers alleging that she was fired based on her national origin and age in violation of Title VII of the Civil Rights Act ("Title VII") and the Age Discrimination in Employment Act (the "ADEA"). The individual named Defendants moved for partial judgment on the pleadings seeking dismissal of all claims against them individually on the grounds that they did not have personal liability under Title VII and the ADEA. The Court agreed and dismissed those claims inasmuch as neither statute authorizes discrimination suits against employees in their individual capacities.

Now, had an attorney brought such a plainly frivolous claim, I am fairly well convinced that some form of sanction would have been imposed; even a cursory inquiry into the applicable law as applied to the facts in Altman would have revealed that the individual Defendants there were not personally liable under the subject statutes. Is such a result fair where the likelihood of sanctions being imposed against a pro se litigant (whether by Motion or otherwise) for asserting a similarly frivolous claim or defense is slim to none? If so, are the courts (intentionally or unwittingly) giving an advantage to those representing themselves? And then, should legal papers filed by pro se litigants be vetted by courts for obvious errors of law (such as that in Altman) to obviate waste and expense?

Pretty interesting stuff, n'est-ce pas? To argue that those representing themselves may actually have some type of advantage over those with counsel seems anathema to basic notions of fair play as well as the whole David versus Goliath scenario. But maybe, just maybe, there's really something to it. What do YOU think?


Anonymous said...

In my opinion any advantage a pro se litigant may have will not only vary from court to court and type of case, but also how the court officers feel personally about pro se's in general.

Court clerks or managers can adversely affect how a pro se litigant is dealt with and how much help they actually provide. I believe that they all think that a pro se litigant has a fool for a client.

We do not know the system or how judges are supposed to protect our rights. Ask a question and you'll get a typical double-barreled response and quite often a judge who agrees with the pro se's point of law will rule in favor of the opposition. Go figure!

It is also blatantly obvious that Pro Se rights are not entirely understood by courts and lawyers alike and definitely not liked. The playing field should be level, which it isn't in CT at least. if you're not part of the legal country club you're never really taken seriously, merely tolerated.

Anonymous said...

People should not have the hire an attorney to represent them in matters that affect their liberty, their ability to associate, and their ability to earn. The Federal and State Government should make the system on that is easy for individuals to use. It should not be as now a system where individuals hide information to earn a living and to gain social and political status. The same with a tax return, it should be easy to comply with and understand. The guy stated that it was frivilous for individuals to attempt to attack what they believe was disrimination and to show it to the court. When you have some germs in positions in companies they spread and use their disease to kill off a good system. The individuals should have been given another chance to properly plead their case and directed to appropriate resources and legal aids that may have been state paid attorneys UNTIL MODIFICATION. THE ISSUE IS WAS THE PEOPLE DISCRIMINATED AGAINST IN VIOLATION OF STATUTE, BY WHO, AND DID THEY DO SO IN PERFORMING THEIR DUTIES, WHO SUPPORTED SUCH AND HAS THE ENTITY MADE AMENDS OR CAN DEAL WITH SUCH IF TRUE.

kay sieverding said...

In my case, District of Colorado 02-cv-1950, the court ordered me to pay the lawyers $102,000 without any finding that I did anything wrong at all. They didn't have any Rule 11 c. 6 orders. There were no evidentiary hearings and there was no opinion. I was ordered to pay a law firm that didn't even exist when I was adjudicating and pay a law firm 11K that didn't file a notice of appearance or any documents. I think the lawyers took advantage of pro se prejudice to bribe the judge by paying for his prostitutes. My case was assigned to former judge Naughty Nottingham.

I filed under Rule 60b(3) in a nonrendering forum following the advice of American Jurisprudence. "The other procedure is by a new or independent action to obtain relief from a judgment, which action may or may not be begun in the court which rendered the judgment.” Bankers Mortgage Co. v. United States, 423 F. 2d 73, 78 (5th Cir. 1970)

In order to deter my and my husband's filings in the new federal court, District of DC 05-cv-01283 and 05-01672, Nottingham apparently got the USMS guards who were escorting him to houses of prostitution and strip clubs to create Prisoner Tracking System records about me without my being even accused of a crime. The USDOJ computer systems are so loose people can just walk in from a hall and create records to imprison people. See USDOJ USMS OIG Audit report of Prisoner Tracking System on USDOJ website. They don't keep track of who enters records and they don't verify the charge, the sentence, bail hearings, speedy trial notices etc. They are supposed to get certified copies of the sentence etc. but they don't. I don't have a criminal record at all but Nottingham ordered me imprisoned for 5 months on his charge that I engaged in non fraudulent truthful pro se litigation without his permission after he told me not to.
One reason that the magistrate stated for issuing a No Pro Se order is that I had complained that my former neighbor Kevin Bennett president of Steamboat Springs City council was a drug dealer. In fact, Kevin Bennett pled guilty to conspiracy to sell hash but he kept that secret when the police reported to him.
I complained that he had built three buildings adjoining my property that violated the zoning. 10 years later these buildings still aren't on the property tax rolls.

The reason I was pro se is not that I hate lawyers but that some of my necessary defendants were lawyers and I couldn't find a lawyer to sue a lawyer. The ABA recognized that problem in its McGee Report.

Anonymous said...

What about a poor person who has always been a good tenant, and the landlord decides to evict for revenge over something personal?

She does not have any choice but to represent herself. If she does not show up, there will be a default judgment for eviction.

If she loses at trial, she likewise does not have much choice except appellate review.

Who is clogging the courts, and wasting resources here? The tenant --- or the landlord who filed this frivolous eviction? How is she supposed to defend herself against this landlord?