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As pro se cases increase, courts and litigants face new challenges

Sunday, March 11, 2012 | 6:00 a.m. CDT; updated 4:14 p.m. CDT, Friday, March 16, 2012

COLUMBIA — The first time Zach Mutter, 23, represented himself in court, he sued Hewlett-Packard in Boone County on a computer recall problem that cost his father about $400 in 2009.

“It became a personal challenge,” Mutter said. “I wanted to defend my father’s honor.”

RESOURCES AND TIPS

RESOURCES

  • If you are a low-income resident of Columbia in need of legal assistance, you can contact Mid-Missouri Legal Services, 205 E. Forest Ave.; (573) 442-0116. Pro se clinics for uncontested divorce without children — where both parties agree to the terms of the divorce — are held from 1 to 3 p.m. every Friday at the Mid-Missouri Legal Services office. Those interested in attending the clinic must apply for services by calling (800) 568-4931.
  • For a list of pro bono services in Missouri, go to the American Bar Association's directory.
  • To take the self assessment exercise to see if it would be advisable for you to represent yourself, go to the Litigant Awareness Program Online.

TIPS

From Paul Lehmann, who has represented himself four times in court:

  • Use the law library at MU: "The people at the law library are shy to give legal advice... but overall they were helpful."
  • Have everything in writing: "If they expect a pro se to be on the same playing field, but don't give me access to the equipment, I won't be able to do battle with the opposing attorney."
  • The Howard County Public Law Library is also helpful: "They were very good, not about giving me legal advice but giving me access to information."

From Zach Mutter, who has represented himself three times in court:

  • Research online (including Google up until the fourth or fifth page), including government websites: “Government websites are horribly, horribly, horribly set up. It’s definitely harder than poking your friend on Facebook.”
  • Ask the court clerks if you're confused. Meet them in person rather than on the phone: “They are an under-appreciated resource,” Mutter said. “When you go in, they are surprisingly helpful.”
  • Be confident and present your case without too much emotion.

 


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After some persistence Hewlett-Packard figured out he was serious, Mutter said, and the company overnighted him a check for the full amount he'd requested.

In 2008, Paul Lehmann sued an assisted-living residence for what he called a libelous letter that cost him his job as a minister.

Preparing to act as his own attorney, Lehmann took a $5,000 two-week course on legal terms, rules and procedures.

Yet, even with this information, the playing field was so uneven that Lehmann, 62, said he couldn't have won the case without a lawyer. 

“The attorneys know all the rules,” he said. “They have a wink-and-nod-type of relationship (with the judge).” 

Lehmann and Mutter represent a growing trend in pro se cases — acting "on one's own behalf" in civil disputes. On a national level, pro se cases increased from 20,545 in 2007 to 24,319 in 2010, according to a report from the Administrative Office of the U.S. Courts. (Official records in Missouri and Boone County are unavailable because of inconsistencies in the way cases are filed.)

To accommodate those who wish to be their own attorneys, the legal profession and private consultants offer coaching in pro se litigation. Training typically covers filing instructions, gathering evidence and trial preparation. Online legal courses provide self-help instruction for those willing to learn by themselves.

Still, despite the proliferation of information, it can be challenging to present and win a case against an experienced lawyer.

(Could you be a pro se litigant? Scroll to the bottom of the story to test your knowledge with our quiz.)

Most people who file pro se cannot afford to hire an attorney, said assistant family court supervisor Toni Kardon. Unlike criminal cases, litigants are not guaranteed a lawyer in civil cases such as divorces and landlord-tenant disputes.

Contributing to the rise in pro se litigation are independent, do-it-yourself attitudes and a distrust of lawyers, according to a University of Richmond Law Review article by judge Beverly Snukals.

Historically, nearly all cases in small claims — $5,000 or less — have been pro se because the cases are more straightforward, said Christy Blakemore, circuit clerk for the 13th Judicial Circuit. Pro se cases that involve money and property, such as a landlord seeking to recover rent and perhaps evict tenants, are less common because of the added complexity.

Challenges for pro se litigants

Mid-Missouri Legal Services, which provides legal assistance to low-income residents, began to notice the increase in pro se cases in 2010. In response, the organization started a clinic for uncontested divorce cases and began looking for pro se litigants who needed assistance.

Michael Carney, a housing attorney for Mid-Missouri Legal Services, often scours dockets at the Boone County Courthouse for pro se cases, especially tenant-landlord disputes, and offers to help.

"Some have legitimate complaints against their landlords, but they think they can stop paying rent (to fix the problem)," Carney said. "I watched tenant after tenant get plowed down."

Many of those he approached warmly accepted his advice. 

"I've gotten so many back slaps, hand shakes and hugs," he said.

In Missouri, those wishing to represent themselves are required to go through the Litigant Awareness Program Online before appearing in court. The self-guided program helps determine if it's advisable to go to court without a lawyer and explains key procedures. 

After this first step, some Mid-Missouri Legal Services clients have difficulties filling out the necessary paperwork. This is especially problematic for those who don't have online access and must rely on public computers with time limits, such as those at the Daniel Boone Regional Library, Carney said.

At pro se clinics, a lawyer volunteers to help clients finish the paperwork. With guidance, the process takes just an hour or so, Carney said. Without help, the process can often take more than three hours.

Challenges for the court 

The Internet has provided greater access to information about filing cases. But if a litigant cannot find a specific state or county regulation amid the deluge of information, the process can be lengthened by one-third of the time, said Kardon.

"In pro se cases, the clerks will get more phone calls and questions at the desk," Blakemore said. "Judges have to look closer at the forms to make sure they have everything."

Even then, the clerks can provide only limited information and must stop short of giving legal advice. Court clerks are allowed to tell litigants what forms they need and when to turn them in, but they cannot go into detail about what information should be included.

“It’s a fine (line), and we struggle with that,” Kardon said. "We can’t commit staff to holding people’s hand. We would get way behind.” 

In court, judges walk a similar line about advising litigants on what should or should not be said and done. In complex cases like contested divorces with children involved, going in without a lawyer can prolong an already grueling process.

"Judges cringe at (those kind of) pro se cases," said Susan Lutton, executive director of Mid-Missouri Legal Services.

Even practices like writing long-hand instead of typing can drag out the process, Lutton said, as well as failing to use proper legal terms.

Pro se litigants will often add unnecessary information that makes their case harder for the judge to understand. If a party misses an important detail, the judge cannot ask leading questions to extract that information.

Lutton and her staff will often help construct a written testimony for a pro se litigant to recite to the judge to bridge any communication gaps and supply correct legal terminology.

Mutter, who prevailed in his case against Hewlett-Packard , attributes his success to extensive research and experience on a debate team from middle school through college.

"It's important to present yourself as knowledgeable," he said. "I'm the worst customer to upset because I have time and energy to do the research."

Even though Lehmann attempted to educate himself about court procedure and language, he said navigating the system turned out to be confusing and frustrating.

"Some court clerks were terrified that they will give me legal advice," Lehmann said. "I don't mind following the rules; I just need to know what they are."

Once, after submitting a written response to an opposing lawyer, Lehmann said he felt his argument was not respected because of his non-attorney status.

"When a lawyer shows up," he said, "the court naturally defers to the expertise of the lawyer."

 


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Comments

Ann Elise Taylor March 12, 2012 | 4:14 p.m.

Thanks to everyone who has taken the quiz! So far, 92 people have challenged themselves to see whether or not they have what it takes to be a pro se litigant. You can see what their answers have been by clicking the submit button at the bottom of the quiz.

What did you think was the most difficult question? Is there any aspect of being a pro se litigant that you're still curious about?

- Ann Elise Taylor, Community Outreach Team member

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