Self‐Represented Litigants, The Courts, and the Legal Profession: Myths and Realities

• DOI: http://doi.org/10.1111/fcre.12118
• Published date: 01 October 2014
• Date: 01 October 2014
• Author: John M. Greacen

SELF-REPRESENTED LITIGANTS, THE COURTS, AND THE LEGAL

PROFESSION: MYTHS AND REALITIES

John M. Greacen

Many general jurisdiction trial judges believe that family law litigants choose not to use lawyers and that this choice leads

inevitably to their inability to obtain just results in their cases and constitutes an expensive, frustrating, and largelyinsoluble

problem for the judicial branch. There is a parallel view within the familylaw bar which can be summarized: The provision of

forms and information on the Internet has deceived self-represented litigants into believing that they can and should handle their

own family law cases.They not only sacrifice their legal rights, but also squander judges’ time, which in turn jeopardizes the

rights and raises the costs of those clients who retain lawyers.The self-help phenomenon also threatens the financial livelihood

of lawyers.Available data and experience contradict both beliefs. This article points out that (1) most self-represented litigants

do not choose to represent themselves, instead they have no alternative; (2) judges who follow recognized best practices for

dealing with self-represented litigants encounter no unusual ethical issues; (3) self-represented litigants, when givenappropriate

accommodation, are able to obtain fair outcomes reflecting the facts and law applicable to their cases; (4) cases involving

self-represented litigants consume far less court and judicial resources than cases in which both sides are represented; and

(5) self-represented litigants constitute a potentially lucrative market for the delivery of limited-scope representation by the

private bar.

Key Points for the Family Court Community:

• most self-represented litigants do not choose to represent themselves, instead they have no alternative;

• judges who follow recognized best practices for dealing with self-represented litigants encounter no unusual ethical

issues;

• self-represented litigants, when given appropriate accommodation, are able to obtain fair outcomes reflecting the facts

and law applicable to their case;

• cases involving self-represented litigants consume far less court and judicial resources than cases in which both sides

are represented;

• self-represented litigants constitute a potentially lucrative marketfor the delivery of limited-scope representation by the

private bar.

Keywords: Burden on Courts;Judicial Myths;and Self-Represented Litigants.

The White Paper of the Institute for the Advancement of theAmerican Legal System’s (IAALS)

Honoring Families Initiative on the court and separating and divorcing families1notes the growing

number of litigants in family law cases handling their cases without lawyers.In their discussion of this

phenomenon, they make the following statements:

[S]elf-represented litigants place strain on the court system, as courts have to adjust their processes to

accommodate persons unschooled in the law and in legal procedures.The role of the judge in a family case

involving self-represented litigants is also more complex. Judges must master all aspects of family law

because they cannot rely on the attorneys to raise all relevantlegal issues. Judges are often conflicted about

how much help to provide a self-represented litigant so that he/she avoidsmistakes and still complies with

legal procedures, fearing they will be compromising their neutrality and impartiality in providing assis-

tance. In July 2010, the ABA conducted a nationwide survey of approximately 1,200 state trial judges on

the issue of pro se litigation. The judges responded that litigants are generally doing a poor job of

representing themselves and are burdening the courts. Many state court judges around the country view the

rise in self-represented litigants as one of the foremost challenges facing the system.2

Correspondence: john@greacen.net

FAMILY COURT REVIEW, Vol. 52 No. 4, October 2014 662–669

© 2014 Association of Familyand Conciliation Cour ts