{"id":136,"date":"2006-09-22T13:57:00","date_gmt":"2006-09-22T17:57:00","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/shlep\/2006\/09\/22\/frivolous-pro-se-litigants-whos-to-blam"},"modified":"2006-11-16T21:19:47","modified_gmt":"2006-11-17T01:19:47","slug":"frivolous-pro-se-litigants-whos-to-blame","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/shlep\/2006\/09\/22\/frivolous-pro-se-litigants-whos-to-blame\/","title":{"rendered":"frivolous pro se litigants: who’s to blame?"},"content":{"rendered":"

An interesting debate started on lawyer weblogs this week:\u00a0Do pro se<\/em> litigants bring meritless lawsuits because they are under<\/em>lawyered or because our over<\/em>lawyered\u00a0judicial system\u00a0has too many attorney-supported incentives for bringing marginal claims?\u00a0<\/p>\n

Lawyer Mark Dumas raised<\/a> the issue a week ago at his The Connecticut Practice Blog, <\/em>when he pointed to a newspaper article<\/a> that begins:\u00a0<\/p>\n

“A city [Milford, CN] man claims in a lawsuit seeking more than $15,000 in damages that he suffered a heart attack after refusing to pay for a hairpiece that was not only the wrong size but also the wrong color.”<\/p><\/blockquote>\n

Dumas then wondered whether Overlawyered<\/a><\/em>.com’s editor Walter Olson would blame this [assumed] frivolous lawsuit on lawyers, and stated “If anything, this case is underlawyered.\u00a0 Almost any member of the bar would have declined Lewis\u2019 case and encouraged him to resolve the small claims suit without the counter suit, which looks like a bald attempt to generate bad publicity for the hairpiece maker. Of course, that\u2019s may be why he filed pro se<\/em>.”\u00a0\u00a0<\/p>\n

\"exitSignN\"\u00a0 Walter Olson noticed\u00a0Mark’s assertion when it was picked up by Evan Schaeffer at his Legal Underground<\/a><\/em> website, where he often jousts with the Overlawyered<\/em> crew.\u00a0 Walter left this Comment<\/a> at Evan’s site and then repeated it today at Overlawyered<\/em>.com<\/a>\u00a0(“Pro Se lawsuits: don’t blame lawyers, right?,” Sept. 22, 2006):<\/p>\n

“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.\u00a0<\/p>\n

“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.”\u00a0<\/p><\/blockquote>\n

Walter’s Overlawyered<\/em> colleague, Ted Frank also added his own (more colorful) commentary<\/a>.\u00a0 I’m going to let others argue over the “are lawyers to blame?” issue and what major changes, if any, should be made to the entire system relative to the incentives to bring meritless cases.\u00a0 There are, however,\u00a0a few points worth making about the responsibility of pro se<\/em> litigants for\u00a0baseless, marginal,\u00a0or just plain silly claims:\u00a0<\/p>\n

—<\/strong>\u00a0Pro Se<\/em> litigants need to be held to the same standards as lawyers.\u00a0 Thus, the U.S. district court for South Carolina was absolutely correct when it warned<\/a> pro se<\/em> litigants:\u00a0“Although you have the right of access to this court, you do <\/em>not have the right to proceed on a frivolous claim<\/em>.”\u00a0 Of course, a claim is not “frivolous<\/a>” simply because it does not win on the merits.\u00a0\u00a0A frivolous\u00a0claim or defense has no basis in law or fact (or no good faith basis to ask for a change or extension in the law).\u00a0\u00a0 This obligation means that pro se<\/em> litigants should be doing some legal homework before raising complicated claims — and, the existence of a wealth of self-help materials means that there are few excuses, if any, for not doing so.<\/p>\n

—<\/strong>\u00a0 \"justSayNo\"The public needs to be better educated about the rules against frivolous claims and the sanctions and penalties that can be\u00a0imposed against parties making or continuing<\/a> such claims.\u00a0<\/p>\n

—<\/strong> As in cases where lawyers are used, judges can and should play a big role in guarding against and penalizing frivolous claims.\u00a0\u00a0 As with federal<\/a> cases, state judges have the power to act on their own (sua sponte<\/em>) and need to do so.\u00a0<\/p>\n

—<\/strong> To the extent that pro se<\/em> litigants may present special risks of making frivolous claims, pro se<\/em> practitioners and advocates need to help judges and\u00a0self-help centers create best-practices guides for courts to deal with the problem.<\/p>\n

—<\/strong> Mark Dumas is correct that we would surely prevent many\u00a0meritless pro se<\/em> claims, if the claimants first got a professional legal opinion about their case or counterclaim.\u00a0 Note, though, that even Dumas hedges by saying that “Almost any member of the bar<\/em> would have declined Lewis\u2019 case and encouraged him to resolve the small claims suit without the counter suit.”\u00a0 Once a person has been sued and is already in court, it’s not all that clear that most lawyers would discourage a client from making marginal counterclaims.\u00a0 More important and unfortunate:\u00a0many lawyers decline to take a case because there does not seem to be enough money in it for them (note, for instance, all the ads seeking only “serious injury” victims), not because of a lack of merit, and they often will not go out on a limb and actually state what is wrong with the proposed claim.\u00a0<\/p>\n

—<\/strong> Making the unbundling of legal services more extensive\u00a0(and educating the public on\u00a0the availability of discrete-task lawyer services) would make it far more likely that people thinking about going the pro se<\/em> route would first make\u00a0the investment\u00a0of getting\u00a0a legal opinion on the merits of their claim.<\/p>\n","protected":false},"excerpt":{"rendered":"

An interesting debate started on lawyer weblogs this week:\u00a0Do pro se litigants bring meritless lawsuits because they are underlawyered or because our overlawyered\u00a0judicial system\u00a0has too many attorney-supported incentives for bringing marginal claims?\u00a0<\/p>\n","protected":false},"author":437,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[900],"tags":[],"class_list":["post-136","post","type-post","status-publish","format-standard","hentry","category-viewpoint"],"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/posts\/136","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/users\/437"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/comments?post=136"}],"version-history":[{"count":0,"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/posts\/136\/revisions"}],"wp:attachment":[{"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/media?parent=136"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/categories?post=136"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/tags?post=136"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}