Thoughts on a pro se docket....

[T]he right of self-representation has been protected by statute since the beginnings of our Nation. Section 35 of the Judiciary Act of 1789, 1 Stat. 73, 92, enacted by the First Congress and signed by President Washington one day before the Sixth Amendment was proposed, provided that “in all the courts of the United States, the parties may plead and manage their own causes personally or by the assistance of . . . counsel . . . .” The right is currently codified in 28 U.S.C. 1654. Faretta v. California, 422 U.S. 806, 812-813(1975).

At the beginning of their chapter on federal district judges, Epstein, Landes and Posner write that a “substantial fraction of cases filed in the district courts (many by persons who do not have legal representation) have no possible merit and so really are just noise in the data.”  Lee Epstein, William M. Landes and Richard A. Posner, The Behavior of Federal Judges  A Theoretical and Empirical Study of Rational Choice, at p. 207, Harvard University Press (January 2013) (emphasis added). While the same may be said of pro se litigants in State court, and while Posner et al may be correct to say that pro se cases often lack merit, judges and opposing attorneys cannot so easily ignore the volume of cases with pro se litigants. My recent experience with a pro se litigant lasted almost 7 years, cost the client thousands of dollars, and consumed hundreds of hours of in-Court judge and Court staff time. I suspect every litigants asks, "Was justice served?"

When dealing with the pro se litigant, it could be said that the task of the judge and court staff involves finding tiny needles of relevance in mountainous haystacks of pro se pleadings and actions while disposing of the leftover hay in timely manner. This takes time, work and a degree of biblical patience. Even though the vast majority of cases may lack merit, every case must be treated with care. On the other hand, pro se litigation can do real harm by forcing other parties to expend time and money to defend the silly to the absurd.  Thus, the judge and staff must work diligently to see to it that each party in case with a pro se litigant is neither lost in nor abused by the process. Finding the right balance requires skill and experience, but mostly the most limited court resource: staff and time.  

The presence of a pro se litigant also has a direct impact on the judge’s ability to manage her court. How much “education” can the judge provide the pro se litigants on the process or the law? How much “guidance” can the judge provide a litigant without losing her essential impartiality? How far into the trial process can the judge insert herself before reforming the essential character of her court from a common law court to a court of inquisition? It raises the question: What if the education and preliminary matters [that so slow down the pro se trial process] were handled by magistrates that would then “hand off” the pro se case to the trial judge when the case was trial ready. 

There are, of course, federal courts that use a pro se docket for cases, particularly in prison claims appeals. Lois Bloom, Federal Courts, Magistrate Judges, and the Pro Se Plaintiff, 16 Notre Dame J.L. Ethics & Pub. Pol'y 475 https://scholarship.law.nd.edu/ndjlepp/vol16/iss2/11. There is a growing concern in the state courts in the country who have inspired commissions to address and publish on the issue. Cf. A Bench Book for General Sessions Judges of the State of Tennessee, An Initiative of the Tennessee Supreme Court.https://www.tncourts.gov/sites/default/files/docs/final_pro_se_benchbook_-_may_2013.pdf.

But are State courts able or ready to provide such a system to ensure meaningful access to justice? New Hampshire has a long history of using volunteer attorney’s as referees or magistrates. The practice is specifically allowed by statute. RSA 519:9. Such a system may provide that individuals under the guidance of the county administrative judge be such a resource for a pro se docket. Use of a referee or magistrate would occur in any case in which there is a pro se party, even if one party were represented by counsel. The Circuit Family Court has use a model of “First Appearance” in matrimonial matters as a preliminary, threshold step to educate the parties on the process of the Circuit Court with success. And it goes, perhaps, without too much force to suggest that the coordination of education, discovery, and pre-trial preparation by a referee or magistrate has the opportunity to reach further into the case than the trial judge while preventing any apparent loss of impartiality and create an opportunity for settlement discussions.

From this, there are a handful of objectives that seem attainable: 1) Volunteer attorneys with suitable experience are assigned by the Court pursuant to RSA 519:9 et seq, Auditors, Referees, and Trials; 2) Use a First Appearance model to educate pro se litigants;  3) Volunteers would not be as limited as the judiciary in educating and providing more than “procedural help” to pro se litigants; 4) This removes the pro se party litigation from the regular trial docket and may improve efficiencies; 5) This helps train potential, future judicial officers.

There is, of course, the question of what cases are suitable for the pro se docket, not so much in terms of party standing but the subject matter of the dispute. Initially, it may be appropriate to identify new pro se cases in certain categories of cases, such as, 1) Commercial cases under $50,000; 2) Basic contract cases; 3) Simple torts such as motor vehicle/slip falls; 4) Consumer debt/collections; 5) Insurance coverage disputes. 

Finally, there is the obsession of lawyers: procedure. Mindful of the admonitions of Steve Jobs, "That’s been one of my mantras – focus and simplicity. Simple can be harder than complex; you have to work hard to get your thinking clean to make it simple.” Perhaps this, 1) Identify and appoint a pro se magistrate pursuant to RSA 519:9; 2) Identify newly filed cases with a pro se party; 3) Review the type of case for the pro se docket designation; 4) Designate and assign several cases to a pro se docket with a First Appearance hearing before a magistrate; 5) The First Appearance and subsequent hearings will educate parties about the process, gather an understanding of the case, evaluate ADR, and set discovery orders with a final pre-trial before the trial judge. The magistrate will be an active agent in the pre-trial process. 

As with many ideas that are new, there are a thousand reasons not to accept that which is new; and, often, only one reason to embrace that new idea – because it is the right thing to do. As Faretta v. California, 422 U.S. 806, 812-813(1975) instructs, the choice to represent one’s self is fundamental. But where that choice can not exist through poverty or absence of an attorney, the individual’s only access to justice is through education, guidance and a support that preserves fundamental fairness in the resolution of disputes through trials.