Sometimes when a thing starts to fall apart, it does so gradually. No one recognizes the damage for what it is until the thing is in tatters. Or, people recognize that the thing is falling apart and are not fully aware of how to fix it. After all, it worked for a long time. In the latter case, they prop it up with first one thing and then another to see what works. Alternatively, they simply ignore it and hope that somehow it fixes itself. The current US court system is not in tatters, at least not yet, but it doesn’t work for many who use it. The growth in the number of self-represented parties tests the system’s ability to “fix itself” given an increasing number of holes, stains, rust and dust in its infrastructure. In short, for self-represented parties, the court system is dysfunctional.
In his useful and always engaging Access to Justice blog, Richard Zorza discusses the problem of fragmentation, whereby different classes of people are treated differently by US courts. Two issues of particular interest are the experiences of self represented litigants and contests between corporations and self-represented litigants. About self represented litigants, Zorza says:
“As a result of the legal profession pricing itself out of the market, there is a discussion triggered by the obvious crisis of millions of people forced to go to court in a system that assumes that everyone has a lawyer, without one. We have made lot of progress in innovations designed to address this problem, but we are still a long way from 100% access for this group. In order for the system to work, such litigants not only need tools, information, assistance and in certain instances a lawyer, but they also need a court management system that identifies when they need help, and gets it to them at that point, otherwise the system clogs up. The key point is that the litigants are not in charge, but at the mercy of the court to make the system work.”
In a section titled, “The Corporation Versus the Self-Represented Group,” he explores the power of corporations versus pro se litigants in court.
In this group, the courts should exist to act as a countervailing force to the power control and information possessed by the corporation. The history of the foreclosure and credit debt crises shows how rarely they have played this role. Attempts to require plaintiffs to attest to the underlying information have helped reassert the right balance, but the process has only just begun, and much remains to be done. Here the system puts one class in near complete charge.
Are courts dysfunctional in the treatment of different kinds of litigants? Read the full article for an in-depth analysis.