Every so often someone suggests that poorly conceived pro se (self-represented without a lawyer) lawsuits can’t count as a symptom of an overlawyered society, since lawyers aren’t involved in them, right? I left a comment at Evan Schaeffer’s site the other day about this question and reproduce it here:
I agree that it’s fair to point out that many dubious legal claims are advanced by unrepresented pro se litigants, and also fair to point out that most lawyers would have advised against pressing many of these claims, and thus would have played a socially beneficial role had they been called into the case by the claimant.
I don’t agree that the moral is that such cases have no logical link to public discontent with the legal profession. Our system is set up so as to encourage marginal pro se claims (like marginal claims generally) through liberal rules of civil procedure that make it easier to get into court, rules on causation and damages that make longshot theories seem worth a try, lack of loser-pays, and so forth. These ground rules were largely developed by, and are certainly jealously guarded by, the profession that administers and makes its living from them, and that profession is assuredly not the hatters, the cobblers, or the cigar makers.
8 Comments
This is very rough material, but the analyses of lawyers throughout this blog are frightening, and very accurate. Cheers.
I think you’re reaching, Walter. It’s tough to prove this, due to that pesky attorney-client privilege, but my guess is that the vast majority of pro se litigants who have advanced crazy legal theories in court, did so after being told by at least one lawyer, possibly several, that they had no case. Failure to abide by such logic is evidence that those particular individuals are, if anything, under-lawyered.
Xlrq’s conclusion is a non sequitur. If there were legal consequences for bringing such suits, many such suits wouldn’t even be brought pro se. Moreover, it’s the compensation culture of the plaintiffs’ bar that encourages such pro se suits in the first place. Is the toupee suit really any crazier than the sleeping-driver suit, the McDonald’s coffee suit, the Pelman obesity suit?
As a matter of a premise, do contingent-fee attorneys take the time to give to clients they reject free explanations why their case is no good? I know from my experience arguing with monomaniacal loons with outlandish legal theories that that can be stepping into a tar pit.
I’ve also personally seen too many small-to-medium-size business clients get in over their head when they want to sue a competitor, but aren’t told by their hourly attorneys that their proposed course of action would be financially ruinous and have little to no chance of success. There are some big firms out there that do their clients no favors and act either unethically or incompetently overoptimistically.
A nice, balanced perspective, Walter. I’ve continued this discussion from the pro se litigant perspective over at shlep: the Self-Help Law ExPress
I have considered “pro se” litigation to pursue perjury/contempt and fraud charges pertaining to “settled” litigation (not of the malpractice variety).
I’ve got news for the honorable barristers here. Every lawyer (but one) I interacted with (in the case cited on my website and blog) . . . LIED . . . either to the Court (filing false answers on behalf of their clients) or to me (during discovery & settlement negotiations). I found NO justice in the justice system. When I complained to the State Bar, I got nowhere.
I currently have a perjury case . . . one that I cannot get a DA to prosecute . . . not because I’m not right or the law is not on my side . . . but because “prosecutorial discretion” lets him get away with doing nothing. The jerk won’t even meet with me to discuss the charges and has refused to refer the case to the SBI for an independent, unbiased investigation (the thing several lawyers told me should have happened when I made the allegations).
On the other hand, those same lawyers told me that “perjury happens every day and everyone knows it”.
People have told me to “just get a lawyer”, but lawyers are expensive . . . and without a DA or other regulatory body taking some kind of action that supports my claim . . . it’s an expensive crap shoot. The merits of the case do not matter. And the cost of pursuing the case is prohibitive . . . as you say, “financially ruinous”.
The end result is that the law does NOT get enforced, and the victim of a series of white-collar crimes does not see any kind of “justice”.
So I fully understand why people pursue “pro se” cases. And I don’t think all of them are nutcases pursuing “outlandish legal theories”.
By the way, I’d be obliged if your blog would not delete this comment. I stand behind it.
Speaking of non sequiturs – what makes you think guys like Jack Ass would know, much less care, what the consequences are for bringing such suits? The attorneys would know, of course, so it’s a safe bet that stricter penalties for bringing frivolous suits would mean fewer such suits overall, but I don’t think you’d see fewer frivolous pro se cases. More, in fact, since not every would-be plaintiff will give up after the umpteenth lawyer tells him to give it a rest.
No, but that wasn’t my point. My point is that a disproportionate number of pro se cases are crazy and incoherent. I never claimed pro se litigants have a monopoly on such cases.
And my point is that some pro se suits are filed because litigants ARE indeed “underlawyered”. Most plaintiffs really don’t want to sell their house to pay the lawyer who won’t take/pursue their LEGITIMATE case because one lawyer cannot afford to take on the twenty financed by the deep pocket.
The law in this country is not really about right or wrong, legal or illegal. It’s ALL about who has the money and power.
Corporate America is indeed “over-lawyered”. John and Jane Q. Public are “under-lawyered”. Therefore you have people pursuing the pro se option.
I’ll offer another observation — in my experience, the most deleterious pro se cases I am aware of are comprised of LAWYER-PLAINTIFFS. They proffer “novel” theories of law and are designed with great artifice to get over the summary judgment hump (by manufacturing a “genuine” issue of material fact) and cause the defendant to go to trial.
That said, I certainly understand Dr. Johnson’s frustration (she sounds a lot like Supremacy Claus though).