Posted: 17 Jul 2010
Date Written: July 16, 2010
Cases involving both unrepresented and represented parties present immense challenges to the legal system. The problems facing judges with self-representation generally are compounded where these “mixed” cases are involved. Where all parties are unrepresented, judges have the option of resorting to more relaxed procedures without appearing to favor one party over the other, since both sides are equally impacted by the procedures. Where only one party is unrepresented, judges face what seems to be an insoluble dilemma. If judges handle the cases in the same manner they would if both sides have counsel, the unrepresented litigant is at a distinct disadvantage. This is particularly true where the lawyer for the opposing party deliberately tries to take advantage of the unrepresented litigant’s unfamiliarity with the substantive law and procedures. Where judges attempt to avoid a miscarriage of justice and enable the unrepresented litigant to have her case heard, the efforts may be perceived by the represented party and his lawyer as actions favoring one side to the litigation.
Judges handling family law cases confront this dilemma on a daily basis. Most family law cases involve at least one party without counsel, and often two. The presence of counsel not only creates challenges for the judges in terms of how to handle their role, but it dramatically impacts the outcome of cases. Studies consistently show that representation is an important variable affecting case outcomes, including in the area of family law. Where a represented party faces an unrepresented party, the likelihood of a result of sole custody increases, in comparison to cases where both parties are represented or neither party is represented. Represented parties seeking alimony or child support are more likely to obtain financial awards, while litigants seeking restraining orders are more likely to obtain them with representation. Many family law cases settle, raising challenges for judges faced with the product of unmonitored, hallway negotiations potentially rife with ethical violations committed by overreaching lawyers in their interactions with unrepresented, adverse parties.
The increasing focus on the dilemmas facing not only judges, but court-connected mediators, clerks and other court personnel in cases involving unrepresented litigants occurs against the backdrop of unmet legal needs. Legal needs studies consistently show that 70 to 90 percent of the legal needs of the poor go unaddressed. Many unmet legal needs involve housing, family and consumer issues. Legal services offices only represent a fraction of eligible clients seeking assistance. The recent economic downturn has exacerbated the problem, by increasing the numbers of those in need of legal assistance, while decimating the budgets of legal services providers, forcing the programs to downsize. With unrepresented litigants flooding the courts, the past fifteen years have seen an increase in initiatives to respond to the flood of unrepresented litigants, the increased use of state Access to Justice Commissions, and a revitalized movement seeking to establish an expanded civil right to counsel.
This article explores the most troublesome scenario for family court judges, the scenario in which cases pit unrepresented parties against represented ones. Part I discusses the governing law, involving the Canons of Judicial Conduct, cases discussing the judicial rode, and cases involving discipline and reappointment. Part II turns to the growing body of materials designed to provide guidance for the judges, including articles, protocols, guidelines and benchguides. Part III broadens the frame, to underscore the point that judges do not act in a vacuum. While solutions to the dilemmas facing judges involve increased focus on the techniques that judges can use effectively to manage their cases, the solutions also involve initiatives to insure that the litigants appearing before the judges are better able to handle their cases and an expansion of the availability of counsel. The article therefore closes by articulating a comprehensive approach to providing meaningful access to justice.
Keywords: unrepresented, self-represented, pro se, judicial ethics, self-help, family law
Suggested Citation: Suggested Citation
Engler, Russell, The Toughest Nut: Handling Cases Pitting Unrepresented Litigants Against Represented Ones (July 16, 2010). Available at SSRN: https://ssrn.com/abstract=1641273