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Although this blog will be primarily devoted to real-estate topics and court decisions of interest, a disturbing trend that is tangentially related to our litigation practice is the rising number of unrepresented--or pro se--litigants that are appearing in court on both commercial and residential disputes. Legislators, academics and court administrators throughout the country have studied what has been dubbed the "pro se phenomenon," and have concluded that rapidly accelerating numbers of Americans are opting to "wing it."

Contrary to popular belief that pro se appearances are limited to the indigent, many of these litigants are voluntarily electing to "fight the fight" without the benefit of an attorney's guidance. Interestingly, studies reveal that substantial numbers of the self-represented can afford a lawyer, but view themselves as smart consumers who deliberately choose not to retain one. These individuals are confident that their cases are simple enough to handle on their own, often using on-line resources to research pertinent issues in order to conserve financial resources they would otherwise devote to an attorney for the performance of the same work. And, with legal services for the indigent curtailed due to the limited availability of funding, and with escalating legal costs associated with retaining private counsel, it is no wonder that self representation is on the rise.

Susan Hudock's trial against Aventis Pharmaceuticals demonstrates how far an untrained person can go representing herself in the legal system, as well as the potential pitfalls that accompany such an election. In a Phoenix federal courtroom, Ms. Hudock represented herself against Aventis claiming that the company violated her rights under the American Disabilities Act ("ADA") when they fired her for what the company claims was an unauthorized leave. She used her home computer to search for ADA-related precedent and to download legal-writing software. At no cost, she found various court opinions and the rules of evidence on FindLaw, an Internet website containing a variety of legal information, and the Cornell University Law School website. While the trial ultimately resulted in a jury verdict in Aventis's favor, Ms. Hudock has notified her adversary of her intention to appeal and continues to represent herself. It is reported that she has already begun searching the web for information regarding the appeals process.

The nationwide rise in the number ofpro se litigants has become increasingly difficult to ignore. For instance, state courts of limited jurisdiction--the courts that handle traffic violations, landlord-tenant disputes, and domestic-relations issues--report that the number of cases in which at least one side is pro se far outweighs those in which counsel represents both parties. In New York City's Housing Court for example, only 21% of the tenants appearing before the court are represented by a lawyer, whereas 78% of landlords have representation. In the mid-1990s, at least one party was self-represented in more than two-thirds of domestic relations cases in Phoenix, Arizona, and Washington, D.C. And half of the cases filed in Florida's family courts were entirely pro se, with over 80% having at least one pro se litigant. Similarly, in 1971, only 1% percent of litigants in divorce cases in California were pro se. By 1985, the rate had risen to 45%, and is now approaching 75%.

In response to these statistics, courts have experimented with becoming more "consumer-friendly" by changing their procedures and forms to accommodate untrained novices. Some courts have been more accommodating than others. For instance, in Arizona, citizens have public access to computer kiosks providing an interactive multimedia system which produces legal documents that can be used in court proceedings. Specifically, litigants can complete and print all the forms necessary to file for a divorce, calculate child-support payments, and obtain listings of landlord-tenant rights and responsibilities. In California, users can access these types of kiosks in shopping malls as well as the courthouses themselves. Other courts (like those in New York) have held pro se pleadings, motion practice, and trials to a less stringent standard in order to compensate for the lack of counsel. However, in an interesting twist, a recent survey released by the Honorable Fern A. Fisher, Administrative Judge of the Civil Court of the City of New York, reveals that 40% of New York's judges advised that they would treat self-represented litigants differently if they knew that an attorney drafted their documents.

Legal professionals have also been compelled to adjust to the rising number of pro se litigants. In some states, including Washington, Maine, and Arizona, attorneys have been allowed to respond by "unbundling" their services (also known as limited-scope representation). By this process, attorneys are permitted to offer piecemeal assistance--like draft pleadings, coach on strategy, research the law, write legal briefs, or organize discovery--and can aide the pro se litigant who is either unable or unwilling to pay for a complete range of services. This approach is viewed as cost-effective and is thought to leave more of the decision-making authority in the consumer's hands. New York, while traditionally quick to address "access to justice" issues, has only recently begun to examine the unbundling of legal services.

Despite the best efforts of judges and court administrators, access to the legal system still remains rather cumbersome. Although the great majority of cases filed by self-represented parties may be uncomplicated, many struggle to navigate through a labyrinth of unfamiliar and procedurally complex legal requirements. In recognition of this difficulty, policy makers throughout the nation have called for an even greater accommodation of these litigants. Some argue that procedural and evidentiary rules should not apply, or that judges and clerks owe a duty to actively assist pro se litigants and provide legal advice and information to them. Others advocate for a right of counsel in certain instances, such as when appearing before New York City's Housing Court, because it is unfair to expect an unrepresented litigant to fathom the unfathomable--New York's complex housing regulatory system--particularly when the retention of a person's apartment or home is at stake. And although these proposals are being examined, and funding sources are being identified, the time has come to acknowledge the full range of reasons underlying the self-representation movement, and for our legislators and court officials to address all facets of this seemingly unstoppable trend.