If you’re a self-represented litigant, you’re essentially banned from appearing before the U.S. Supreme Court. That’s right, the lawyers representing the opponents in your case might be welcome, but you aren’t.
The right to represent yourself in court is supposed to be protected by the U.S. Constitution. Yet, many self-represented litigants find it difficult to pursue meritorious cases to the fullest because of judicial barriers. The Supreme Court does not want to hear from us because they say they have too many cases. Here are 5 reasons why that is malarky and why courts should be expanded.
Reason #1: There are Many Competent Pro Se Litigants
In a rare decision, the U.S. Supreme Court in 2014 granted a hearing to self-represented litigant Bobby Chen. Chen left his Baltimore home briefly in 2008 and returned to find that the city had demolished his home and confiscated his personal belongings. With a monthly income of just $700, pro se litigation was the only way to hold the city accountable and to recover damages for his losses. He lost his case in the appellate court and appealed to the Supreme Court. Unfortunately, Chen disappeared after being granted a hearing. The Court could not locate him and eventually dismissed his case.
Bobby Chen is rare because he got a hearing at the Supreme Court. There are many other competent pro se litigants capable of representing themselves well in court.
Reason #2: Rule 28.8 Conflicts With Other Settled Law and Should be Abolished
In 2014, the U.S. Supreme Court established Rule 28.8 “Oral arguments may be presented only by members of the Bar of this Court.” This rule conflicts directly with Federal Statute 28 U.S.C. 1654, which states, “In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted and manage conduct causes therein.”
Denying the rights of pro se litigants to represent themselves in any U.S. court is unfair and in violation of the law. Because Rule 28.8 promotes both the perception and the reality of unequal justice in the U.S., it should be abolished. Self-represented litigants need court access, even if it means adding more justices.
Reason #3: Arguments Against Allowing Pro Se Litigants Are Weak
The arguments defending the right of courts to limit or bar pro se litigants are weak or plain wrong.
- An article published by the American Bar Association Center for Professional Responsibility states that “because courts must divert resources to pro se litigants, overall efficiency and the quality of justice suffer.” According to those who promote this argument, pro se litigants negatively affect the efficiency of the court system, which leads to backups in court cases and a reduced ability for all litigants to have their cases heard. If that’s the case, then its incumbent upon the courts to make self-representation work. Self-representation is the norm!
- Some legal experts believe that the presumed lack of legal expertise of pro se litigants makes it unlikely that they could prevail, which could render their legal efforts useless. Then, courts should find ways to make up for “lack of legal expertise”.
- The above bias may also be present in the courtroom. A 2017 article in the ABA Journal reflects this bias, with a retired judge stating that “most judges regard these people [pro se litigants] as kind of trash not worth the time of a federal judge.” I have no words.
In short, these sources use the very weak and inadequate there are so many people that we don’t know what to do excuse. Apparently for the state bars and judiciary, doing their jobs is not an option.
Reason #4: More Cases Means More Judges are Required
If there are more people needing to appear in court, there are more cases. Thus, there should be more judges to hear them. Duh.
If the courts are not capable of absorbing the additional strain allegedly caused by pro se litigants, then the court system should be expanded to make it more practical for everyone to be heard. This applies to the Supreme Court as well as to the lower courts. Lack of resources to handle caseloads should not be a barrier to equal justice. Currently, the Supreme Court hears a paltry one percent of cases sent for review. Surely there are more that can and need to be heard. This, combined with the no pro se litigants allowed rule, presents a serious barrier to access to justice. We need more judges and more justice.
Reason #5: Court Expansion Means More Justice for Pro Se Litigants
There are powerful people and organizations that believe well-educated self-represented litigants with the right resources and opportunity can get access to justice. It’s possible to create a system that works for all people regardless of their ability to pay for legal representation. One way to do this is to provide litigants with the tools and the knowledge they need to represent themselves effectively. Another is by expanding the availability of court services and the number of judges at all levels.
The Last Word
The case of Bobby Chen demonstrates the competence of some pro se litigants. It also demonstrates the need for those with minimal resources to represent themselves effectively. Self-representation is a right that should not be abridged by any court for lack of a judge or two. Expand the courts now.
Pssst! Hey, you there, struggling to win your case. Isn’t it time you gave Courtroom5 a spin? Our specialists publish articles like this to help you level the playing field, but it’s sometimes too late to save your case. Stop trying to catch up; instead, get the insight that you need to succeed. Get ahead of the game and start driving your case to the judgment you deserve. See how it works today!