And Justice for All-Including the Unrepresented Poor: Revisiting the Roles of the Judges, Mediators and Clerks
Year: 1999
Type: article
Abstract: sources to the provision of skilled advocates for the unrepresented poor.The third choice is to maintain the status quo.This choice places band-aids on a crumbling system while giving lip service to the idea of fairness and justice for all.The dockets will continue to churn.Justice will continue to be measured by how swiftly the courts dispose of their cases, rather than by what happens in the cases and whether the rights of the unrepresented poor have been trampled in the process.Achieving justice will remain a goal reserved for those with lawyers. 2 3 I. THE PLAYERS-RULES AND REALITY A. Court Personnel: ClerksUnrepresented litigants typically will encounter a variety of court personnel during the course of their cases, beginning with clerks in the clerk's office.24 The primary restriction on the ability of the clerks to provide information is that clerks may not give legal advice.25 In some 23.Throughout this Article, I consciously choose the term "unrepresented litigants" in most cases instead of "self-represented," "pro se," or "pro per."The prefix "un-" means "not," the "opposite of."Webster's Third International Dictionary of the English Language 2481 (1986).The literal definition therefore is "not represented," indicating a "lack of" representation.Because the focus of this Article is the unrepresented poor, the concept of "not represented" best captures the plight of indigent litigants who appear without lawyers and who, essentially, are not heard by the court.See, e.g., Barbara Bezdek, Silence in the Court: Participation and Subordination of Poor Tenants' Voices in Legal Process, 20 Hofstra L. Rev. 533, 562-63 (1992) (stating that only 3.7% of tenants in observed cases were represented, mostly by non-attorneys); Erica L. Fox, Alone In the Hallway: Challenges to Effective Self-Representation in Negotiation, 1 Harv.Negotiation L. Rev. 85 (1996) (discussing the disadvantages of hallway settlements between the parties themselves).The concept of "self-representation" connotes the choice to forego counsel and probably some perceived ability to carry out the representation of oneself.See, e.g., Faretta v. California, 422 U.S. 806, 816-18 (1975) (discussing criminal cases in which courts allowed defendants to waive the right to counsel).This does not describe the predicament of most of the unrepresented poor and should not form our operating assumptions in attempting to fashion solutions.See generally infra Part II.A.5 (discussing the notion that most unrepresented litigants are not voluntarily unrepresented).For similar reasons, and because I prefer English to Latin, I prefer the term "unrepresented litigants" to "pro se" ("for himself") and "pro per" (the abbreviation for "in propria persona," California's version of "pro se," meaning "in one's own proper person").24.As the proceeding progresses, unrepresented litigants may seek additional help from the clerks and may also encounter other court personnel, such as court officers and clerks, in the courtrooms.Although the focus of this section is on the clerks, the restrictions apply to the range of nonjudicial court personnel.See, e.g., John M. Greacen, "No Legal Advice from Court Personnel" What Does that Mean?, Judges' J., Winter 1995, at 10, 10 (discussing the types of advice court staff may and may not give).25. See, e.g., In re Amendments to the Fla.Small Claims Rules, 601 So. 2d 1201, 1216 (Fla.1992) ("The clerk is not authorized to practice law and therefore cannot give you legal advice on how to prove your case.");State v. Walters, 411 S.E.2d 688, 691 (W.Va.1991) (stating that no magistrate clerk may act as an attorney for any party): Standing Comm. on the Delivery of Legal Servs., American Bar Ass'n, Responding to the Needs of the Self-Represented Divorce Litigant 24-25 (1994) [herein
Author: Russell Engler
Institution: New England Law
Language: English
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: green
OpenAlex ID: W1555116123