Try It On My Own

Contrary to what non-lawyers might assume, some of the trickiest – and often most unpleasant – cases to handle are those in which the other party to the dispute represents themselves, without benefit of legal counsel. The term for this is a pro se litigant, meaning represented by him/herself.

These cases take up way too much time and energy, and can be incredibly frustrating for the lawyer. I always say that a creepy litigant without a lawyer is worse than one without. In addition, if he or she is actually represented by a lawyer with brains and integrity, that lawyer can help the other side out, in that the proceedings will move along more smoothly and efficiently. Without a lawyer – and without a judge who has backbone – the proceedings will probably drag along for far too long.

In my professional experience, it has only ever been men who decide they will go the non-lawyer route. If I would venture a guess on this, I would assume that women, particularly in family disputes, feel far too vulnerable to go without an advocate.

I think that it’s interesting to note that I have never had the reason for a party not having legal representation be financial. Parenthetically, I would note that Israel actually has a fairly extensive and competent system of Legal Aid, and those who fit the financial criteria are eligible for representation in all matters of Family Law (with the exception of those trying to milk the system while refusing to give a get.) In addition, the Israel Bar Association sponsors a pro-bono program for people with limited means who make too much money to be eligible for Legal Aid, but don’t have enough money to pay for a lawyer.

All of which is to say that even couples with little money have access to resources which can help them through the divorce process. So, though I am certain there are people out there who represent themselves because they don’t want to take advantage of the legal resources available, I find that the overriding motivation is generally some other, psychological or emotional reason.

I can’t say that I fully understand the dynamic for not using a lawyer. I’ve had cases where I sense the husband doesn’t want to bring in yet another outsider to his intimate family circle which has already been disrupted and invaded by outsiders. In others, there was a kind of arrogance “I don’t need any help dealing with this, I can do this myself.” In others, I felt that it was a way of getting back at the wife, an underlying message that in not hiring a lawyer he is expressing a desire not to cooperate with the process, or to dictate that the process runs according to his rules, not hers. Sort of like a male version of this:

Which brings me to my next point.

Pro se  litigants generally do not have an understanding of basic legal issues, the significance of the way things are phrased in pleadings and therefore are unable to distinguish between that which is central to the pleadings, that which is peripheral, or even simply, legal rhetoric. This means that they easily take umbrage at common legal formulations, and spend a great deal of time arguing about irrelevant issues. Recently a client’s husband felt humiliated when, in a custody and visitation suit, I asked the court to appoint a social worker to make recommendations about a visitation schedule. He saw this as both a threat and an insult, and interpreted it to mean that I was going to sic social services on him as a bad father. In fact, all I had done was use a standard formulation used in most visitation suits, and whether or not I ask for it, the judge will in all likelihood appoint a social worker to the case.

At the other end of the spectrum, pro se litigants often petition for remedies courts can’t give them, or rely on defenses not recognized by the law. Often, despite being told this by the court, they are so certain about the righteousness of their claims, that they keep going back to these claims over and over, wasting time and making it impossible to reach agreements. For example, they may raise financial issues which go back years, such as a debt that one or the other parties paid, a loan given by parents to by that first apartment over 20 years ago, and refuse to budge until someone relents.

Judges generally don’t want to be tough, they want to make sure the other side understands what’s going on and that they are not taken advantage of. Thus, they may be stringent around issues of service of court papers, and be more lenient on procedural and substantive issues for the unrepresented litigant, thereby actually creating an uneven playing field.

It seems that with the increase in divorce and the worldwide financial crisis, this problem of self-representation is becoming a bigger problem. As a recent article in The Guardian points out, this trend makes it more difficult to get litigants into effective mediation:

The Law Society Gazette warns of courts experiencing “a huge increase in litigants fighting their cases themselves” and quoted several judges expressing concern that such cases take twice as long as people who have to be helped to navigate the unfamiliar legal process.

One said: “We are getting more and more people coming to court in private law cases without the benefit of sensible, structured legal advice, wanting to spill blood on the court carpet … The government wants people to stay out of court, but it is very difficult to get people to mediate when they are still very angry and haven’t had the benefit of decent legal advice. These cases take an inordinate amount of time, which is having a knock-on effect.”

A colleague of mine here once suggested that couples not be allowed to make divorce or financial agreements without both sides being represented, which, I believe, is the case in some US jurisdictions (I’m happy to have any lawyers from the States reading this set the record straight if I’m wrong).

Despite all I have said thus far, I think it’s not a good idea, among other reasons because some people are so pig-headed that if they don’t want to get divorced, they’ll simply refuse to finish things up in an agreement, since they don’t want to be forced to get a lawyer. There are certainly any number of cases I have finished by being able to win the trust of the other side enough that they will meet with me and my client, and we can manage to formulate a fair and reasonable agreement.

Unquestionably, there are in lawyers who take advantage of unrepresented clients. For example, I once represented a woman who, in the framework of her divorce agreement – which she signed without legal counsel – waived her role as legal guardian of her children, without understanding what this meant. In another case, my client had agreed in the framework of the divorce agreement – once again, signed without legal counsel – that the mother could move with the children abroad. The agreement failed to established guidelines for the transition, a mechanism for maintaining contact for the children, or any sanctions for the mother cutting off contact between him and the children. When she simply got on a plane with the kids and didn’t tell him that she was going, there were not many options for the court to help him, and certainly he had no recourse to the Hague Convention.

I see that in the States the issue of pro-se representation is treated seriously, and the American Judicature Society has a number of links on its site to very good publications regarding policy on this matter.

Unfortunately, I think that in Israel neither the Bar Association nor the courts have systematically and effectively addressed the issue of pro se representation. There are ad hoc decisions as problematic cases arise; thus, there is a rule for example that the attorney for real estate building companies can’t represent the purchaser in sales agreements. However, in the case where my client relinquished her role as guardian of the children, after I explained the consequences and ramifications of what she had done, filed a complaint with the ethics committee of the Bar Association, who decided that the lawyer involved had violated no ethical rules.

I look forward to seeing serious developments in this area, which will provide practical guidelines for judges, lawyers and the litigants themselves.

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