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Bar News - October 18, 2002 Justice for All - Including the Unrepresented Poor - Require New Roles for Judges, Clerks, Mediators By: Russell Engler Another Viewpoint The following article was reprinted with permission from the Nolopress.com Web site. UNREPRESENTED LITIGANTS ARE flooding the courts. For many types of legal problems, including divorces, evictions, guardianships and bankruptcies, it is now more common for at least one litigant to be unrepresented than it is for both sides to be represented by counsel. This phenomenon is hardly surprising, given widespread reports that over 80 percent of the legal needs of the poor and working poor currently are unmet in the United States. Judges, clerks and lawyers bemoan the difficulties that the unrepresented litigants cause for the other participants in the legal system. An impressive variety of assistance programs, developed by bar associations, legal services offices, and the courts themselves, have sprung up in many settings in response to the pro se crisis. Individual judges and clerks worry publicly and privately about what they can and cannot do, or what they should and should not do, in handling cases involving unrepresented litigants. Some lawyers and judges even express concern that unrepresented litigants are using their status to gain an unfair advantage over represented parties, who are trying to play by the rules. Missing from the discussion is a fundamental re-examination by the judiciary of the roles of judges, mediators and clerks in cases involving unrepresented litigants. The roles of these players were developed in the context of the adversary system. An underlying assumption of the adversary system is that both sides will be represented by an attorney. The unrepresented litigant, having chosen to appear without a lawyer, is viewed as an aberration. Despite the vast numbers of unrepresented litigants, and of courts in which the unrepresented litigant is the norm, the roles of the players remain largely those developed for the idealized world where all litigants are represented by lawyers. In my recent article in the Fordham Law Review (67 Fordham L. Rev. 1987 (1999)), I discuss the roles of judges, mediators and clerks in their dealings with unrepresented litigants. In far more detail than I have room for here, I argue that their proper roles should not only permit, but should require, these actors to provide extensive assistance to unrepresented litigants, particularly the unrepresented poor. The flood of unrepresented litigants leaves the judiciary with three types of responses. The first is to revise the roles of the various judges, mediators, court clerks and other players in the court system, as outlined in my article, to better protect the unrepresented poor from the forfeiture of important rights. This first approach allows the judiciary itself to reclaim its traditional promise of providing fairness and justice for all. Second, to the extent the judiciary is unwilling or unable to revise the roles of the court personnel, or to the extent the revisions alone fail to protect unrepresented poor litigants, the judiciary must identify others who can do so. To accomplish this, the judiciary should nurture and oversee the increased use of skilled lay advocates. Judges increasingly must exercise their discretion in civil cases to appoint counsel, particularly in cases pitting an unrepresented indigent litigant against a represented party. Rather than seeking resources from their legislatures for more judges, mediators or court clerks who also will be unwilling or unable to provide the necessary assistance, the judiciary must urge the targeting of available resources to the provision of skilled law yers or nonlawyer advocates for the unrepresented. 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 unrepresented litigants have been trampled in the process. The goal of providing justice will remain one reserved for those with lawyers. Russell Engler is a professor of law and the director of clinical programs at New England School of Law in Boston. This material is adapted and excerpted from a much larger article titled, "And Justice for All, Including the Unrepresented Poor: Revisiting the Roles of Judges, Mediators and Clerks," ©1999 by Fordham Law Review, which appeared at 67 Fordham L. Rev. 1987 (1999). In another law review article, "Out of Sight and Out of Line: The Need for Regulation of Lawyers' Negotiations with Unrepresented Poor Persons," 85 California Law Review 79 (1997), Professor Engler examines ethical issues in which lawyers negotiate with unrepresented parties, and proposes a series of reforms. A limited number of free reprints of both articles are available from the author at rengler@nesl.edu.
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