shlep: the Self-Help Law ExPress

 The morning after this year’s Oscar’s Ceremony, I opined that the Academy had “overlooked a real contender in the Short-form documentary category,” the antitrust primer Fair Fight in the Marketplace.  The video was produced by the American Antitrust Institute and funded with a cy pres award from the California Vitamin Cases Consumer Settlement Fund.  My assertion was partially based on a glowing review in Corporate Crime Reporter (Feb. 21, 2007).  Tonight, our assessment seems validated, as AAI was notified on Monday that Fair Fight in the Marketplace has won a Silver Telly Award for 2007.  As explained at the Telly Awards website:

  “For over a quarter century, the Telly statuette has been a symbol of creative excellence.”

The Telly Awards honor the very best local, regional, and cable television commercials and programs, as well as the finest video and film productions.  Since 1978, our mission has been to strengthen the visual arts community by inspiring, promoting, and supporting creativity.

The Silver Telly is the highest honor.

Fair Fight is narrated by NPR’s Marra Liasson.  Corporate Crime Reporter called the 30-minute video informative, entertaining and “gripping educational television.” There’s even a special edition with commentary for high schoolers.

   As explained in “Antitrust the Video” (f/k/a, Feb. 10, 2005), an award of $496,000 was granted to the American Antitrust Institute to educate California consumers and businesses about the benefits of the antitrust laws by producing an educational video on the history, purpose and benefits of the antitrust laws.  The award came from the Vitamin Cases Consumer Settlement Fund (Judicial Council Coordination Proceeding No. 4076 Master File No. 301803, San Francisco County; approved September 8, 2004).  The case was brought by the State of California and private plaintiffs under antitrust law, alleging that consumers were harmed by a price-fixing scheme of the vitamin manufacturers.

Two years ago, Walter Olson criticized the cy pres award that funded Fair Fight, in a posting at Point of Law titled Litigation slush funds: Calif. propagandizes for antitrust (Just last month, his co-editor Ted Frank criticized cy pres awards in general in the posting The Trouble with cy pres, saying the awards go to causes that “are often allies of the trial bar, thus encouraging more litigation down the line”.)  Below the fold, you can read an excerpt from my defense of the award to AAI at my weblog f/k/a.  Click here to read an explanation of the cy pres award concept from The Impact Fund.

  Fair Fight in the Marketplace can be viewed online at any time here.  It is scheduled to appear on a number of PBS stations in California starting April 1st.  Right now, PBS stations across the nation are considering whether to air the video.  Please contact your local PBS affiliate today and tell them you’d like to see Fair Fight in the Marketplace on the air in your community.  

    It’s Saturday night in Schenectady.  The Blood Moon Eclipse is over and I’m home alone [yes, a solo shlepper; but, no self-help jokes allowed].  What better to do than check out David Lat’s Law Librarian Hottie Contest at his tabloid weblog Above the Law?  Since we mentioned the Contest here on Valentine’s Day (see prior post), Lat has received many worthy nominations, male and female.  [update: Hottie winners announced]

 The good news as of March 3rd is that the Polls Remain Open (click to find out the current leaders).  To read about, and see photos of, the Law Librarian Hottie Contestants (and access the poll form) click the following links:

   Law Librarian Hotties: Your Female Nominees

  Law Librarian Hotties: Your Male Nominees

You can, of course, vote for either or both genders.  I’m sticking to the female nominees.

• Lat reminds us of a famous quote from President Bush: “As Sam [Alito] and I both know, you can’t go wrong marrying a librarian.”  And David adds that marrying Laura the Librarian Bush “was probably one of the Decider’s best decisions.”
• Frankly, although the current leaders are lovely and smart, they’re a little young for consideration by this Boomer.  I’m going to be giving close attention to contestants who’ve been around the stacks a few more times.

Many of our families include one or more adults who need extra care — because they’re suffering from dementia, their mobility is limited, they’re just a little frail and forgetful. Often these adults are elderly — but not always. In my family, it’s a middle-aged sister who has been disabled by strokes and some other problems. Fortunately, my brother, sister-in-law, and partner are all on the same page — and my sister is pleased with the arrangements we’ve made. But in some families there are difficult conflicts: dad wants to stay in his home (even though he can’t handle stairs anymore, let alone get to the grocery store), daughter wants him to live in her home in Missoula, son wants him in an assisted living center in Eugene. Enter mediation.

See Mediators Save Caregivers’ Relationships: Professionals Can Help Siblings Make The Tough Health Care Decisions For Aging Parents, CBS News, Feb. 20, 2007. A list of Mediation Resources for Caregivers is here.

Thanks: Idealawg.

   Yesterday’s oral argument in the Winkelman IDEA “pro–se-parent” case was apparently quite interesting.  Usually, a person is only allowed to appear at court pro se for himself or herself, and not for another person.  Winkelman asks whether the parent can appear without a lawyer to represent their child to appeal a special ed ruling by a school district (prior post). You can read the oral argument transcript here (via SCOTUSBlog). 

• Linda Greenhouse has given a good summary of the arguments and the responses of various justices in the New York Times: “Justices Hear Arguments on Autism-Case Dispute,” Feb. 28, 2007), as has Mark Sherman of the Associate Press: e.g., Law.com/AP, “Parents Don’t Need Lawyer for Child’s Special Education Needs, High Court Told,” Feb. 28, 2007. 

Greenhouse reported that “While several justices tipped their hands, it was difficult to read the court as a whole. Justice Stephen G. Breyer said Mr. Bergeron would have an ‘uphill battle’ to persuade him that despite the statute’s numerous references to parents, the phrase ‘party aggrieved’ should be interpreted as applying only to children and not to parents.” And

 “Justice David H. Souter told Mr. Bergeron [the school district’s lawyer] that the statutory right to a ‘free appropriate public education’ appeared to be ‘a right of the family group, the parents and the child together, rather than the right of the child alone’.”

Yesterday’s NYT posting of the AP report stated that several justices had expressed concerns about letting more people appear in federal cases self-represented.   Today’s Law.com/AP report states that “Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr. and Antonin Scalia seemed most skeptical of the parents’ claims. Alito voiced concern that parents who represent themselves or their children would have ‘difficulty maintaining emotional detachment’ from the lawsuit.”

It appears that Justice Antonin Scalia raised the most specific concerns over having more self-represented litigants.  According to the NYT:

  Justice Antonin Scalia told [Jean Claude] André, the Winkelmans’ lawyer, that lawyers “protect the court from frivolous suits.” When suits are brought without lawyers, “we make a lot more work for federal district judges,” he added.

Mr. André’s response that “a capable district judge can look at the case and decide whether the school should have complied with the statutory mandate” did not satisfy Justice Scalia.

“And do it right after reading pro se prisoner petitions, right?” the justice said, using the legal term for a case filed without a lawyer. “You’d have a nice evening’s work,” he added.

“We think that pro se parents are quite different from pro se prisoners,” Mr. André replied.

As you might imagine, this shlep Editor agrees with the Winkelmans.

In her 2007 State of the Judiciary Address yesterday (Feb. 26, 2007, 30-pp pdf), New York’s Chief Justice Judith Kaye seemed to touch upon access to justice issues in only a perfunctory manner.  Nevertheless, she had a few important things to say — including the fact that New York has an “estimated 1.8 million litigants who appear without lawyers.”  You can find her page and a half treatment excerpted below the fold.  Here is the introductory sentence:

 “As always, we will continue our efforts to reduce the gap in the availability of civil legal services for the poor—by identifying a permanent funding stream for these services, by increasing pro bono legal services and by continuing initiatives to help selfrepresented litigants.”

  An article in today’s California Progress Report summarizes yesterday’s State of the Judiciary Address by the state’s top judge, Ronald M. George, and is aptly headlined, California’s Chief Justice Had a Lot to Say (Feb. 27, 2007) [full text of the Address, dated Feb. 26, 2007]  CJ George specifically asks for 150 new judgeships (over the next three years), massive building/renovation projects, higher salaries for judges and staff, signifcantly more self-help funding and interpreters, and support for an independent judiciary.

Here are excerpts from CJ Ronald George’s 2007 annual address that are especially relevant to pro se litigants and the issue of full access to justice:

•   “Last session, we proposed to you and the Governor a plan to create 150 new judgeships to alleviate the most acute needs in the state.
     
  “The reason is basic. Our shared focus on providing meaningful access to justice — and on employing various means to enable the court system to better meet the needs of our diverse population — all are aimed at the same goal: ensuring that individual litigants can have their matters fairly adjudicated. We can devise all sorts of innovative procedures to improve the way courts handle the disputes that litigants bring to the courts, but these measures will be meaningless if there is no judge to decide the cases.”
•    “But meaningful access for all Californians requires much more. . . . The number of self-represented litigants continues to increase, and their needs will, in my opinion, pose the single most challenging issue for the courts in the coming decade. In some counties litigants appear without an attorney in 85 to 90% of family law and landlord/tenant matters. The costs to the judicial system and to the public are high — impairing the ability of self-represented litigants to effectively vindicate their rights, undermining the ability of courts to efficiently process heavy caseloads, and eroding the public’s confidence in our judicial system.”Self-help services provided at courthouses and other locations and on the judicial branch’s website, augmented by legal aid and pro bono contributions by lawyers, are making a difference. But these activities are far from sufficient to meet the urgent needs of unrepresented litigants.”

Beneath the fold, you will find excerpts on “Civil Gideon rights,” the need for interpreters, and the success of the JusticeCorps, along with information about JusticeCorps.

     Oral argument will be held tomorrow (Tuesday, Feb. 27) at the U.S. Supreme Court in the case of Winkelman v. Parma City School District [official docket sheet; update (Feb. 27): SCOTUS Blog Argument Preview].  The question presented to the Court is whether non-lawyer parents of a disabled child may bring a case pro se (without a lawyer) under the Individuals with Disabilities in Education Act [IDEA], 20 U.S.C. § 1400 et seq.  We’ve discussed this important case in two prior postings:  Can a parent be the “self” in “pro se” (Sept. 21, 2006) and Will Winkelman Harm Children? (Nov. 7, 2006).  Six federal circuit courts of appeal have ruled on this issue, but they have a three-way split on how to treat pro se parents under IDEA.

 Today, at his Supreme Court Times weblog, Ross Kunkel predicted a split decision: “The Winkelmans will lose on the primary issue of whether they can, without a lawyer, represent their son in federal court. The Winkelmans will win on the minor issue of whether they can represent themselves as to their own rights.” (via SCOTUS Blog)  You can find a summary of the case, with links to pleadings, prior decisions, and other materials, at this earlier Supreme Court Times LawMemo. 

• As SCOTUS Blog reported last September, the U.S. Solicitor General asked the Court to take this case, and supported the Winkelmans. The SG will participate in tomorrow’s oral argument. At SCT, you’ll find links to amicus briefs by Ohio Coalition for the Education of Children With Disabilities et al.; National School Boards Association et al.; Council of Parent Attorneys and Advocates, Inc., et al.; Autism Society of America, et al.; Senator Edward M. Kennedy, et al.; Equal Justice Foundation, et al. and Council of the Great City Schools. 

  None to soon, the (previously unknown to me) National Council on Disability offered its Two Cents on the issues presented in Winkelman.  NCD is an independent federal agency that makes recommendations to the President and Congress “to enhance the quality of life for all Americans with disabilities and their families.”  It issued a press release today (Feb. 26, 2007), in which it “urges that the resolution of the Winkleman case give full effect to the educational guarantees of IDEA by supporting the rights of parents to pursue the interests of their children regardless of whether they have a lawyer to assist them.” 

      If you’re looking for some quick shlepper pointers, we’ve got a few today.

Which party was acting like a jackass?     

If the House Republican Study Committee spent a few minutes studying shlep  (e.g., see “copy permission and copyfraud” and “fair use and copyright“), it wouldn’t have falsely accused House Speaker Nancy Pelosi of “pirating” 16 clips of House floor debate that had appeared on C-Span, when she included them on her weblog The Gavel.   See today’s New York Times, “Which Videos Are Protected? Lawmakers Get a Lesson,” Feb. 26, 2007.  Although NYT says that members of Congress are “learning the complexities of copyright law, much the way the casual YouTube user has learned,” the relevant point here is really not all that complex: “works” made by the federal government (such as shots taken by House cameras on the floor) are in the public domain.  On the other hand, C-Span asserts its copyright over materials shot by its own cameras at other congressional functions.  If the Study Committee needs a bit of fast cribbing, it might try either the podcast or transcript of Nolo.com’s piece “Blogs, Websites and Podcasts: When Do You Need Permission?”  

   Generational Generalities:  If Bruce MacEwen at AdamSmithEsq is correct in his posting on the law library of the future, the congressional staffers discussed above are likely to use very different research tools, depending on their ages.  Bruce says that “librarians need to understand that they are dealing with four generations of lawyers in terms of attitudes towards media, technology, and research.”  He then “roughly” characterizes each generation.  Give it a read and tell us how accurate you think he is.  (via Bob Coffield, at his Health Care Law Blog, in Blawg Review 97; many thanks to Bob for pointing to our recent piece on Leaving Children Home Alone)  

  Before Using a Public Record Retriever. . .  PRB’s Public Records Blog offers a useful Essential Checklist When Using Public Record Retrievers.  The list will help you clarify just what you’re looking for and help make sure your expectations and those of the hired retriever are in sync before the research begins. TVCAlert points out “Of course, the one big question not on this list that you will want to ask the retriever is ‘what is the cost?’  This answer cannot be determined until the ten items [on the list] are clear to both parties.” (see our prior post researching public records)  

   One that Oscar Forgot:  Last night’s Academy Awards ceremony apparently overlooked a real contender in the Short-form documentary category.  Russel Mokhibor wrote a glowing review of Fair Fight in the Marketplace in the Feb. 21, 2007 edition of Corporate Crime Reporter.  Mokhibor is impressed (and surprised) that a 30-minute primer on antitrust could be so interesting and informative. The review notes that “The movie, narrated by National Public Radio’s Mara Liasson, traces the history of the antitrust laws – and keeps it interesting for young people with cartoon depictions of price fixing and television clips of kids competing.”  The English-language film will have Spanish and Mandarin subtitles (the review has an interesting explanation for the Mandarin). There’s even a special edition with commentary for high schoolers. The reviewer also gushes that:

“[T]he film actually becomes gripping educational television – am I losing my bearings here? – when it profiles the Mylan Labs, ADM and Microsoft cases.” 

Perhaps the film, which is the brainchild of Bert Foer, president of the American Antitrust Institute, will be eligible for an Oscar next year, as it will have its broadcast premiere on PBS in April.   You can see it online at any time here.

   Two days ago, we wrote about the outbreak of legislative battles over payday loans, saying it was a great case study in consumer protection regulation.  We noted that the industry had just started a campaign to fend off pending legislation with proposed self-regulation and a major advertising campaign for “responsible borrowing.”  Two recent Washington Post news stories were quoted in our posting.  Today, WaPo‘s “personal finance columnist” Michelle Singletary weighed in on the controversy, in “Payday Loans: Costly Cash” (Washington Post, February 25, 2007). 

Although she admits that payday lenders “are providing a service the people want,” Singletary leaves no doubt how she feels about payday lending.  After saying the industry’s new ad campaign purports to be aimed at creating responsible borrowers, she states that “more often than not, any use of payday loans is unwise,” and opines:

  “Using a credit card to buy things you can’t pay off the next month is bad enough, but to borrow against your next paycheck is the very definition of irresponsibility. It’s an incredibly unwise financial move.”

Singletary explains why “Consumer advocacy groups are highly critical of these loans,” and she then tries to figure out why “several minority groups have partnered with the CFSA to promote financial literacy . . . especially when so many payday storefronts are located in economically depressed minority neighborhoods?”  Her answer:

“Well, it turns out there’s money in it for the minority groups.

“The CFSA [Community Financial Services Association] is giving about $2 million to fund financial literacy programs for two groups, said its spokesman, Steven Schlein.

“The trade association is partnering with the National Conference of Black Mayors to host summits ‘to teach young people the importance of building a solid financial future.’ I certainly hope it’s a future that never involves a payday loan.”

The CFSA is also “teaming up with the National Black Caucus of States Institute” to — in the Association’s words — “educate African-American legislators and community leaders on critical issues regarding consumer credit, and provide community volunteers with resources they need to educate consumers in their communities on how to become credit savvy.”

    Singletary concludes: “What better way to try to fend off regulation than to partner with minority groups supposedly looking out for the very people their opponents say the industry is taking advantage of?”  I wonder if community leaders are trying to establish more affordable borrowing options for their constituencies?  I wonder if they sincerely believe that payday lenders would stay in their neighborhoods if they were forced by law to charge a reasonable interest rate?  [update: Ed Mierzwinski at U.S.PIRG Blog has some words to say about the tactics of trade associations and PR firms, including “Whether you are a payday lender, a telephone or cable company or even a tobacco company, you can usually find some consumer or community or, in this case, minority legislative group that needs the money and provides you with cover.”]

• After reading Singletary’s column, Brian Wolfman of the CL&P Blog wonders “whether the industry’s shareholders are ticked off that their money is being spent to help consumers act responsibly rather than to turn profits.”  If Singletary is correct that the ad campaign is likely to succeed in fending off unwanted legislation, the shareholders will surely have no complaints.  That is especially true when payday loan supporters have declared that interest rate caps — such as the 36% cap for military personnel — will put the industry out of business.
•    I couldn’t resist the temptation to click on an ad that popped up in one of my Google searches on this topic.  It was for Christian Faith Financial, which touts payday loans but is not a payday lender.  It is instead a “financial matching service.”  Although CFF does not claim to have any religious affiliation beyond its name (and a cross in its logo), the masthead has the following quote from Romans 12:21: “Be not overcome by evil, but overcome evil with good.”  To my surprise, I couldn’t find the quote from Matthew 21:12 about moneychangers.  
• One industry spokesman quoted in the Singletary column argues that “If it only cost $10 to bounce a check, I’m not sure we would have nearly as big a payday loan industry.”  He has a point.   Which politicians are willing to stand up to their campaign contributors in the banking sector to demand that $25 and $30 bounced check fees be brought down?

    Payday lending is a hot issue in legislatures and editorial rooms across the nation (see Google News; our lengthy prior post discusses the issues and links to many resources; update: WaPo on Payday Loans and PR strategies, Feb. 25, 2007).  It would be hard to find a better case study in the process of “consumer protection” regulation than the maneuvering and arguments of all the stakeholders in the payday lending debate.  The problem is how to balance the goal of traditional consumer advocates to prevent predatory lending and the victimizing of vulnerable consumers with the desire to give consumers marketplace options and businesses the freedom to serve and profit from consumer demand.

• The National Conference of State Legislatures has a chart of state laws relating to payday lending, and a list of pending legislation.
• As the Sioux Fall, S.D., Argus Leader explains, critics say: “Payday lenders offer short-term loans to consumers, typically to be repaid with their next paycheck. Strapped borrowers often struggle to repay, founder in a cycle of debt and repeatedly roll the loans over, racking up fees of 300 percent or more on an annual basis.”  On the other hand, the payday advance industry and its supporters reply that “the industry fills a needed gap. Many people who have bad credit and pressing money needs don’t qualify for traditional bank loans. Short-term lenders serve that group.” 

According to the Sioux Fall, S.D., Argus Leader, “more than 50 bills aimed at clamping down on payday lenders have been introduced in statehouses across the country.”  Bills passed in Virginia last week (Washington Post, “House Passes Payday Lending Reform Bill Without a Rate Cap,” Feb. 17, 2007; via CLPBlog) and South Dakota this week (Argus Leader, “Lawmakers limit payday loans: Borrowers could get only $500 from one lender,” Feb. 22, 2007), that would limit the dollar amount of loans to each borrower.  Many consumer advocates say that is not enough and want a rate cap on payday loans, similar to the 36% annual rate cap that exists now in federal law for military personnel (and which Gov. Arnold Schwarzenegger endorsed this week for California’s armed services members). 

   Although it is rather late in the legislative season, the payday advance industry has released its own self-regulation proposal this week, in an effort to prevent the passage of laws that will hurt their business.  See Argus Leader, “Payday lenders try to avoid regulation: Industry volunteers to better police itself,” Feb. 23, 2007; Washington Post, “Payday-Loan Group Tries To Fend Off Restrictions,” Feb. 22, 2007.  As the Washington Post reported yesterday:

“Under the program announced yesterday, members of the Community Financial Services Association of America, which represents such payday lenders as Advance America and Check ‘n Go, agreed to give strapped borrowers at least one opportunity a year to extend the term of their loans by a few weeks at no extra charge, if borrowers notify them before the loans are due. The industry has backed similar plans in several states, including Virginia. . . .

“The trade group said 46 members of Congress signed a letter to Rep. Barney Frank (D-Mass.), chairman of the House Financial Services Committee, supporting its self-regulatory effort.

  “The group yesterday began airing an ad on BET, Food Network and other television networks, telling people to ‘please borrow only what you feel comfortable paying back when its due’.”

The Argus Leader added that “payday lenders this week volunteered to quit promoting loans for vacations and other “frivolous” spending.”  WaPo cites Del. Onzlee Ware (D-Roanoke), a supporter of the capless Virginia bill, as saying that payday loans “give poor residents a choice instead of having to rely on charities and churches when they need cash.”  In South Dakota, the Argus Leader tells us: “Sen. Tom Dempster, the Sioux Falls Republican who heads the Senate Commerce Committee, said the [capless] South Dakota legislation is an earnest attempt to curb predatory lending without cutting off a sometimes necessary avenue to credit.”

This is a fascinating debate and legislative process.  The industry has fervent critics and supporters in every legislature (makes some cynics want to learn more about campaign contributions to particular legislators).  Political junkies, bleeding heart consumer advocates, government-hating libertarians, coldhearted free-marketeers, and all the rest of us will find a lot to chew over and argue about by following the links in this post.

• Go to the website of the Community Financial Services Association of America to see the payday advance industry’s best arguments and “best practices” proposals. In their Consumer Guide they conclude that “Consequently, payday advances are inappropriate when used as a long-term credit solution for ongoing budget management.”
• Go to the website of The Center for Responsible Lending to see the arguments against payday loans and suggestions for regulation and for alternative credit sources.  Our prior post has other links.
•   At the weblog Credit Slips, you’ll find an interesting piece titled “Talking to a Payday Lender,” (Feb. 15, 2007; via CLPBlog, Feb. 15, 2007) in which consumer law professor Bob Lawless discusses his students’ experiences serving as mock legislators facing the problem of payday lending.  As part of the project they did field work posing as prospective loan clients.  The Comments are quite interesting, too.

Well folks, it has been a bumpy ride but we’re still on track. House Bill 60, which would establish a statewide self-help/pro se program, was heard by the House Judiciary Committee on the 7th of February (more back-story on the bill in this previous post). The hearing went fairly well, with over 20 individuals from organizations ranging from the AARP to the Montana Trial Lawyer’s Association to God’s Love Homeless Shelter testifying as proponents for the bill. No opponents were present and after short deliberation the Committee passed the bill during executive action on a vote of 10-7 (3 Republicans and all 7 Democrats voted in favor).

Questions raised by the Committee dealt mostly with concerns about the increase in frivolous litigation, but the proponents rebutted with provisions in the bill that call for education of alternative dispute resolutions. A Vice Chair of the Committee, Democractic Representative Dave Gallik, proposed an amendment to add an appropriations clause to fund an alternative dispute resolution component of the program. The bill then moved as amended to the House Floor, where it was seemingly due for the formality vote to re-refer the Bill to the House Approriations Committee. However, in the highly partisan environment following the death of the Governor’s Budget Bill (1 page Newspaper article), the Bill temporarily died on a 50-50 vote (majority is required to re-hear a bill). A little wheeling and dealing later, the Bill was finally referred to the Appropriations Committee, albeit with a significantly reduced Fiscal Note.

House Appropriations will hear the Bill this coming Monday (February 26th). A few District Court and Courts of Limited Jurisdiction Judges are slated to testify as proponents for the bill, to reassure the committee that the increase in litigants is not a signifcant concern to the stakeholders. What obstacles have state-appropriated funds for pro se litigants faced in your area? How have the sponsors dealt with them? Hopefully we will see a positive end here in Montana, I will have more updates as soon as they are available.

    According to an article in a recent edition of Minnesota Lawyer, “If the judiciary gets its way this budget cycle, each of the state’s 87 courthouses will be equipped with a workstation where unrepresented litigants can go online or make a call to get aid.”  Given the success of the Hennepin County Self-Help Center (with its walk-in, online and call-in services, serving 33,000 pro se litigants last year),  the Minnesota courts are asking the Legislature for “$660,000 to fund a pro se virtual self-help program.”   The use of “virtual” resources is a “practical” response, because many courthouses do not have the staff to support an on-site walk-in center.

“Under the proposed virtual pro se program, each of the state’s 87 courthouses will be equipped with a workstation where unrepresented litigants can go online to obtain information about court procedures and particular areas of the law, as well as print relevant forms and instructions. They will also be given telephone access to staff members in Hennepin County who will be able to answer their questions.”  

 Hennepin County District Court Chief Judge Lucy Wieland is quoted saying: “I think that when self-represented people have had access to self-help services, they have done a better job of preparing forms and necessary motions. . . . It benefits everybody in the system.”   The organizers of the project have stressed that “it benefits lawyers to face unrepresented parties who have at least some understanding of court procedures and requirements.”   (Minnesota Lawyer, “Help for pro se litigants statewide may be on way,” Feb. 14, 2007)  Do you think some Minnesota lawyers oppose giving more help to self-represented litigants?

   On the surface, the New York Times devotes a lot of column space today to an important issue involving the pro se litigant.  The reporter states: “As the number of pro se litigants has grown in recent years, judges across the country have struggled with the question of how far to ease the rules to help the self-represented while remaining fair to the party with counsel.”   Unfortunately, rather than addressing the topic in a manner that might enlighten the public or promote needed judicial reform, “The Marriage Lasted 10 Years. The Lawsuits? 13 Years, and Counting” (Feb. 19, 2007) is simply another juicy tale of an over-the-top pro se outlier.

The article focuses on Michael Melnitzky, 69, who “was once a recognized art expert” and conservator but now declares “I am a litigator.”  As the article stresses “when his wife filed for divorce in 1994, Mr. Melnitzky became something else: a litigator. A prolific one. And although he has no law degree and only himself as a client, he has never been busier.”  Here are excerpts from the article about Melnitzky’s situation:

•   Through a series of self-fashioned lawsuits and appeals, issues that might have been settled with his divorce have gone on for 13 years, 3 years longer than his marriage.
• He has sued virtually everyone involved: one of his former lawyers, his wife’s lawyer, three banks, five judges and a psychiatrist appointed by the court to evaluate his mental health. In unrelated cases, he has sued a neighbor, a thrift shop, the city and his former employer. And he has almost always lost.
• When not in court, he applies the same meticulous attention that he once put into restoring great Impressionist works to researching the law. Legal texts fill his cluttered brownstone on the Upper East Side, whose top floors he rents out.
•   In the last 10 years, he has lost 17 of 18 lawsuits — the remaining one is still active — and 30 of 32 appeals. The two appellate victories ultimately ended in defeats after the cases were returned to lower courts.
• But Mr. Melnitzky is unusual because of the volume and complexity of his litigation, and because he arguably could afford a lawyer but has seldom chosen to use one, even in the face of repeated failure.  

Justice Walter B. Tolub of Manhattan Supreme Court wrote in a 1999 ruling that the advantages of Mr. Melnitzky’s decision to represent himself “soon became clear”:

  “Mr. Melnitzky was free to plead ignorance of the law when it suited him, at the same time picking and choosing those points of law which he ‘discovered’ were in his favor,”  

The Times tells us that “Legal experts say Mr. Melnitzky is hardly alone among people who become fixated with the legal system, filing lawsuits again and again without the aid of a lawyer to try to reverse an earlier loss.”  This rather small group of “fixated” or “obsessed” pro se litigants clearly raises far trickier problems in docket management and courtroom control and fairness than the everyday self-represented litigant, who appears in courthouses across the nation in tens of thousands of lawsuits each year.  The typical pro se litigant has neither the time nor the capacity to manipulate the court with selective presentation of the law based on extensive research and deep knowledge of the issues.   

  There will almost certainly be much discussion this week of Robert I Sutton, Ph.D’s new book “The No Asshole Rule: Building a Civilized Workplace and Surviving One That Isn’t” (Warner Business Books, release date Feb. 22, 2007).  At law-related weblogs, the talk will be spurred by Sutton’s identically-titled article in the latest American Lawyer, which was also posted this weekend at Law.com (Feb. 20, 2007).  Sutton is a professor of management science at Stanford University.  He argues that “assholes” are bad for business, regardless of their individual effectiveness.

In a favorable book review at Life at the Bar, Julie Fleming Brown explains:

 “According to Bob, an asshole is one who oppresses, humiliates, de-energizes, or belittles his target (generally someone less powerful then himself), causing the target to feel worse about herself following an interaction with the asshole.  (And, as his examples prove, this behavior is not by any means limited to male perpetrators or female victims.)  These jerks use tactics such as personal insults, sarcasm and teasing as vehicles for insults, shaming, and treating people as if they’re invisible to demean others.  Sutton distinguishes temporary assholes . . . from certified assholes, who routinely show themselves to be nasty people.  The latter, he argues, must go [from the workplace].

• The book offers a 24-question self-test to see if you are “a certifiable asshole.” You can take Sutton’s Asshole Rating Self-Exam (ARSE) at Guy Kawasaki’s ElectricPulp website.  I expect webloggers will be tagging eachother to find out the results. Let me say in advance that I do not plan to take the test (much less reveal my results). 

Although the book deals with all sorts of jobs, it can be no surprise that many people think about lawyers when they hear reference to Sutton’s title character.  In his weblog post “American Lawyer on THE NO A**HOLE RULE” (Feb. 11, 2007), Sutton notes that doctors appear to be more abusive in the workplace than lawyers, but nevertheless explains that “there are some special challenges for law firms that want to enforce the rule.” He concludes, “Indeed, you might say that one key to law firm management is learning how to turn your assholes on and off!”  [Over at f/k/a, you can find my fuller treatment of Lawyers and the No Asshole Rule.]

In another posting, “Lawyers and The No Asshole Rule (Feb. 15, 2007), Sutton says that lawyers are naturally interested in The No Asshole Rule.  He quotes from a 2004 piece by Aric Press, editor of American Lawyer, suggesting that law firms do “jerk audits.”  One reason for the difficulty in applying The Rule within law firms is that “people hire lawyers to be tough and nasty –to do their dirty work.  But people who are best suited for such work aren’t always capable of turning off their venom when they deal with staff members and fellow attorneys.”

 Sutton is right that many people hire lawyers “to help intimidate rivals . . . through demeaning interpersonal moves meant to unnerve and intimidate opponents — dirty looks, put-downs, teasing, glaring, and intense eye contact.”  As he suggests, there may even be times when those skills may help a lawyer “in the courtroom, a deposition, or a negotiation when used at just the right moment.”  However, I want to stress that such tactics will virtually always harm the cause of any pro se litigant.