Bar News - October 19, 2007
Bench Needs to ‘Revisit’ Its Role in Aiding Pro Se Litigants
Editor’s Note: The following is a quotation from an abstract of the article And Justice for All, Including the Unrepresented Poor: Revisiting the Roles of the Judges, Mediators and Clerks, in Vol. 67 of the Fordham Law Review. 1987 (1999).
“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 reexamination by the judiciary of the roles of judges, mediators and clerks in cases involving unrepresented litigants. The roles of the 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.”