In twenty words or fewer: simple solutions to stupid problems

OMAHA, Neb. — When Danielle Nitzel found her three-year-old marriage drawing its last breath in 2004, she couldn’t afford the minimum of $1,000 she was told she would need to hire a divorce lawyer.

So she did what more and more Americans are doing: She represented herself in court.

I looked online and just tried to figure out how to write out the paperwork, said Nitzel, a nursing student who at the time had little money and a pile of education loans. I think it cost us $100 to file it ourselves.

The number of people serving as their own lawyers is on the rise across the country, and the cases are no longer limited to uncontested divorces and small claims. Even people embroiled in child custody cases, potentially devastating lawsuits and bankruptcies are representing themselves, legal experts say.

It’s not just that poor people can’t afford lawyers. This is really a middle-class phenomenon, said Sue Talia, a judge from Danville, Calif., and author of Unbundling Your Divorce: How to Find a Lawyer to Help You Help Yourself.

The trend has resulted in court systems clogged with filings from people unfamiliar with legal procedure. Moreover, some of these pro se litigants, as they are known, are making mistakes with expensive and long-lasting consequences — perhaps confirming the old saying that he who represents himself has a fool for a client.

Paul Merritt, a district judge in Lancaster County, Neb., said he knows of cases in which parents lost custody disputes because they were too unfamiliar with such legal standards as burden of proof.

There is a lot on the line when you have a custody case, Merritt said. There are a lot of things that judges take into consideration in determining what’s in the best interest of the child, and if you’re a pro se litigant, the chances that you will know what those things are, and that you will present evidence of all those issues, are really small.

While the fees lawyers charge vary widely, the average hourly rate ranges from around $180 to $285 in the Midwest, and from $260 to more than $400 on the West Coast, according to legal consultant Altman Weil Inc.

Tim Eckley of the American Judicature Society in Des Moines, Iowa, said no national figures are kept on how many people represent themselves, but I don’t think anybody who’s involved in the courts would deny that this is a growing trend in the last 10 to 15 years.

In California, about 80 percent represent themselves in civil family law cases — such as divorce, custody and domestic violence cases — according to the Self-Represented Litigation Network. In San Diego alone, the number of divorce filings involving at least one person not represented by a lawyer rose from 46 percent in 1992 to 77 percent in 2000.

In Nebraska in 2003, 13,295 people represented themselves in civil cases in state district courts. By 2007, the number had risen to 32,016, or 45 percent.

The result?

Courts are absolutely inundated with people who do not understand the procedures, Talia said. It is a disaster for high-volume courts, because an inordinate amount of their clerks’ time is spent trying to make sure that the procedures are correctly followed.

Talia has traveled to nearly every state to speak to lawyers, judges and court workers about measures to handle the growing number of people representing themselves.

— Margery A. Gibbs, Associated Press (2008-11-24): More Americans serving as their own lawyers

Why not just make the procedures simpler?

Do courts really need to stand on ceremony at the expense of justice?

See also:

15 replies to In twenty words or fewer: simple solutions to stupid problems Use a feed to Follow replies to this article · TrackBack URI

  1. Zargon

    Do courts really need to stand on ceremony at the expense of justice?

    The problem with that statement being that it implies justice is a goal of the court system, and you know as well as I that isn’t true.

  2. Gabriel

    Gee Zargon, I was going to go into a rant about how we need to get rid of lawyers and restore justice and equality to representation in courtrooms, but you took the winds out of my sails. Rock on!

  3. Anonymous

    I think there are any number of issues here, but what saddens me is simply what this means for the United States and for the world.

    The lights are failing.

  4. Rad Geek

    Zargon,

    Well. I think that the court system we know today is an amalgamation of two different things: a polycentric popular institution of moots, courts, and arbitration which did have justice as one of its goals, and the State judicial system, which captured that system, rigidified it, complexified it, monopolized it, ritualized it, and which serves quite different aims — mainly the goal of preserving State-defined Law-and-Order, propping up power relations, and ritualizing the violence of the State. So courts’ goals tend to be a confused mix of these different goals.

    I certainly don’t have any realistic expectation that government courts are going to make any substantial progress toward ditching the useless formality, complexity and ritual. Who would do it? The whole system has been constructed by government-privileged lawyers — either in their capacity as judges or in their capacity as legislators — for the benefit of other government-privileged lawyers, and the only people who could change it, under the present system, would be more government-privileged lawyers, who have every professional and ideological incentive to protect the statist quo or make things even worse. The only realistic strategy is to work towards undermining or destroying the system itself, and to once again build up a competitive system of polycentric, grassroots, voluntarily-supported legal institutions.

    Anonymous,

    Maybe. But I think the trend of an increase in pro se lawyering is, in and of itself, a good thing. The problems that have created the situation that professional lawyers are complaining about (people’s ignorance of arcane court procedures, etc.) are all very old and long-standing problems, which, in the English speaking world, date to somewhere around 1066. There are some other issues at hand which are even older than that (e.g. family law has been a big pile of bullshit from its inception, and has remained such; not surprising, since it is and always has been founded entirely on fundamentally corrupt, thoroughly patriarchal and paternalistic premises).

  5. Anonymous

    Rad Geek-

    I might agree with you- I certainly do about family law, and thank you for taking the time to say that, truly.

    Yet who has passionate hope in the twenty-first century?

  6. nath

    “The only realistic strategy is to work towards undermining or destroying the system itself, and to once again build up a competitive system of polycentric, grassroots, voluntarily-supported legal institutions.”

    Isn’t that generally the agorist goal? I’m just wondering what will be needed for people to take the next step of bypassing the court system entirely. There are already alternatives, including arbitration, and out-of-court settlements seem to occur often enough to indicate that people often try to avoid the silly costs of lawyers etc.

    Incidentally, I find myself oscillating between thinking the agorist view is a prediction of future social evolution and a less optimistic view that it won’t be very easy for humans to break out of the pattern we are familiar with.

  7. Nick Manley

    I don’t have hope per se. If hope means a faith esque belief in the progress of the world. That said, I still have passion for life. What else can one do? I am 21 years old. With good attention to health, I have a ways to go. Right now, I am simply getting my degree, so I can find a professional job that I enjoy. The world could end in a billion ways — maybe tomorrow. I don’t have hope in a Christian sense. It’s precisely not having such hope that lets me avoid crushing disappointment when reading the news headlines. I continue to follow America’s wars out of a fascination with international relations, history, and so on. A lot of my interest in politics is more for intellectual stimulation now. It’s only occasionally activist oriented — and never under circumstances severely dangerous to myself. I certainly do not have the discipline for an American prison experience.

  8. RFW

    There is a huge growing trend toward self-represented litigants and courts around the nation are looking for ways to make the system easier as well as ensure that affordable (and sometimes free) assistance is more readily available. In South Carolina and in other states, there are many access to justice initiatives that are working toward this precise goal. Yes, I am an attorney and I know we seem to have a bad name in the general public, but if you look around you’ll find that not ALL of us are money-hungry sharks. In fact, I went to law school to help people. I’d already had a lucrative career and went back to school. If you have serious ideas you’d like to share, please feel free to let me know. In the meantime, feel free to check my blog for information - http://scaccesstojustice.wordpres..com. Thanks. RFW

  9. Zargon

    Rad Geek -

    I agree that the courts (just like anything else in the government) will never reform themselves. As for the original intentions of the court system, I’m not so sure anymore about the angelic intentions we’re all told over and over our founding fathers had. But that point is simply academic anyways - it doesn’t matter what the intentions of those dead guys were, what matters is what exists now and how to deal with it.

    Nath -

    I believe an agorist court system would be quite an advanced development, which probably wouldn’t happen until the state was finished anyways, because it seems to me that an impartial court system must be open for inspection by anybody, while the whole point of agorism is to conceal economic activity (and producing justice is just as much an economic activity as producing apples).

    The current (state approved) alternatives to the court system are, in some ways, worse than the court system itself. With binding arbitration, for example, the arbitrator knows damn well who the customer is (the corporation that hired him) and rules accordingly (the saying “the customer is always right” applies here as well as anywhere).

  10. Rad Geek

    Zargon,

    The point I was raising about the origins of the court system didn’t actually have to do with the intentions of our founding fathers, if you mean folks like George Washington, Thomas Jefferson, or Patrick Henry. It has mainly to do with the development of polycentric customary law in England prior to the Norman invasion and the entrenchment of a strong centralized State under the Norman occupation, and, to a lesser and diminishing extent, the still somewhat polycentric court system that existed up until about the time of the Tudors. The latter was a decentralized order that emerged, over time and without much forethought, from grassroots popular conventions for resolving disputes nonviolently; the aims that it tended to pursue and the results that it tended to effect it can’t easily be traced to any identifiable set of founders, or to their personal intentions for it, because it developed over a long period of time among a lot of different people and a lot of its most important features came about through spontaneous order more than by design.

    The resulting system certainly wasn’t angelic, but of course neither were its major competitors (the canon law and the imported state-centric Norman and Roman law), and in any case the specific problem I’m pointing to (the extreme complexity of the law, the need for a specialized caste of lawyers to understand or to work with it, and the insistence on ritualized procedure at the expense of justice) all specifically have something to do with the history of the capture of courts by the royal State.

    Anyway, I agree that what exists now is the most important concern. But understanding where that came from may be important to understanding why it is the way it is, and understanding why it is the way it is may be important to understanding what to do about it. Certainly the problem with the weak sauce reformist efforts that are coming from politically-connected lawyers — mainly fill-in-the-blank forms for things that should hardly be the State’s business in the first place, and maybe lawyer-staffed help desks — reflect a fundamental failure to understand how deep the problem goes.

  11. scineram

    Why not just ban self representation?

  12. Zargon

    Rad Geek -

    Ah, interesting. It certainly wasn’t a perfect system, but it was a very interesting read.

  13. Joel

    Why not just ban self representation?

    because that’s how they rope the public in.

  14. Discussed at radgeek.com

    Rad Geek People’s Daily 2008-12-22 – Simple solutions to stupid problems, part 2: By The Power Vested In Me edition:

    […] GT 2008-12-09: In twenty words or fewer: simple solutions to stupid problems […]

— 2009 —

  1. Rad Geek

    By the way, a recent trip through my accumulated list of things I’ve been meaning to read reminded me of some useful background or follow-up reading, for those who are interested in the historical issues I discuss here — about the history of popular courts and the way in which they were captured, over time, by the state-centric royal court system, and the ways in which this resulted in a massive complication and professionalization of the law. In particular, there’s a lot of good material covered by John at Blagnet.net in his post “Early English law screwed the masses to benefit the aristocracy” (2008-11-13).

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