What process is due? I am a simple small-town practitioner-one of the "troops." I have had years of training and experience. However, when it comes to advising my clients in a case involving a pro se party, I cannot answer this question.

I do not like the term "pro se." For years now, I have been hearing about the so-called "pro se problem." However, times are changing and therefore, instead of "pro se," I feel that they should be referred to as "unrepresented" litigants. The so-called pro se problem is really the problem of the represented litigant versus the unrepresented litigant.

On Friday, February 18, 2005, I attended the afternoon CLE session regarding new developments in statewide court practice at the Midyear Membership Meeting. A portion of the program dealt with the upcoming changes in the superior, district, and probate courts vis-a-vis the expansion of the Family Division. During the last half hour of this program, a couple of attorneys in the audience began to ask questions and articulate their problems in dealing with "unrepresented" litigants. Unfortunately for all, we ran out of time and few solutions were discussed.

It is no secret that the vast majority of family cases now filed involve one person represented and one not. The hard work of the Judicial Branch Family Division Implementation Committee, the Task Force on Family Law and the Supreme Court Task Force on Self-Representation have sought to improve the judiciary, for this same reason.

I welcome this change. I have no intention of arguing that the incoming system is ill-advised. In fact, some of the changes do not go far enough. While I may not agree with every change, overall, I think the changes that are coming are for the better. However, these changes all avoid the question set forth above. In a case where one side is represented and the other is unrepresented, what process is due?

Due process is the cornerstone of our judicial system. On a constitutional and fundamental basis, the judicial branch is based upon due process. Due process means rules, regulations, notice and a certain sense of order and/or structure. It provides some level of expectation and predictability on a variety of issues. When I am dealing with another attorney, I have a due process expectation as to how a case will progress, how much time it will take, and overall, what it may cost my client to be represented. Represented litigants can take comfort in the procedural rules and my ability to follow them in conjunction with most attorneys representing the opposite side.

However, if I am not dealing with another attorney and I am dealing with an unrepresented person, the rights of the person I represent and the process to which he is entitled is much more murky. I do not know which rules will be followed and which rules won't. I do not know the repercussions of any given rule violation.

Unrepresented litigants get away with things represented litigants would never get away with. As a result, represented persons lose any comfort and predictability they might find in the rules and procedures.

The problem is particularly troublesome for family law practitioners. For example, if in a civil case, I propound interrogatories to an unrepresented litigant, I can move for default and ultimately obtain a final judgment, if the unrepresented civil litigant fails to answer the interrogatories. This is vastly different from what takes place in a family law case. Conditional default becoming a final default, will not dispose of a custody issue. Motions to compel and/or for contempt only add to the expense. Represented litigants are left at a disadvantage in this regard. In addition, forms are not timely filed. Even when they are, they are inaccurate. Unrepresented litigants frequently fail to complete a financial affidavit accurately. They also fail to identify issues in pretrial statements, pleadings and later, without notice, raise issues at hearings. All of this adds to the burden represented litigants have to bear.

Attorneys, clerks and trial judges all recognize that the final outcome of a case may go badly for an unrepresented person and that final justice may be received by the represented litigant. However, the represented litigant still has the unnecessary financial and emotional burden to bear to reach this goal. Certainly, there are horror stories of unrepresented litigants who file frivolous motions, written in gibberish, and who do other extreme things with the sole intent of disrupting the system. However, it is not the extreme cases which cause me to be concerned about the rights of represented litigants. Extremists usually get what they deserve. Most clients understand my bill and their expense when I am dealing with an extremist. More insidious is the common, ordinary, unrepresented litigant, who fails to answer interrogatories, accurately complete financial affidavits, fails to appear at hearings (only to subsequently file a motion to set aside), and in other ways negligently disrupts the system by failing to comply with the rules and procedures. The end result of such negligence only adds expense, both emotional and financial, to represented people.

What is troublesome to this simple member of the "troops," is that nothing described at the Midyear Membership Meeting addressed these issues confronting represented litigants. Attorneys, clerks, and trial judges are all left to guess, on a case-by-case basis, what process is due. A judge in one courtroom deals with rule violations in one way, while a judge in another courtroom, across the hall, deals differently with the same issue. Moreover, without any form of guidance, the family court in one location might deal with rule violations by unrepresented litigants in one way, and a court dealing with the same violation in another jurisdiction, might deal with it differently. Due process becomes ad hoc justice. Guidance is necessary so that lawyers, clerks, and trial courts, all can have some sense as to due process in a case involving an unrepresented litigant. Sanctions and/or penalties need to apply, or not apply, equally to represented and unrepresented litigants. The simple truth is, they do not. The General Court and/or Supreme Court need to provide guidance. Until such guidance is issued, be it by statute, court rule, or administrative order, no one will have any comfort in knowing what process is due. The financial and emotional cost for enigmatic due process will continue to be borne by the represented litigant and justice will suffer.

Daniel C. Proctor practices law in Concord.

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