Opinion: Unrepresented (pro se) parties in court should not have special treatment

A man  filed for divorce a year after he separated from his wife.  He was represented by an attorney at various times during the divorce, but at the final hearing, held two years after he filed, he was unrepresented.  The parties had been notified of the final hearing many weeks earlier.    The wife, who had an attorney, had prepared for the hearing, and had witnesses ready to testify.  The husband claimed he  did not know what he was supposed to do.  The court commented that because he was not represented by an attorney,  the hearing would be “one-sided”.  After the wife’s attorney requested that the hearing go forward, the court allowed testimony, but at the end of the hearing, ordered that the husband be allowed another 1/2 day to present additional evidence, with the hearing to be set several weeks later so that the husband could obtain an attorney.

A woman filed a relief from abuse petition and was granted a temporary order for relief from abuse.  When the defendant  was served, he filed a motion to modify the relief from abuse order, failing to provide a copy to the the woman or her attorney. As a result, he was given a hearing with two days notice to the plaintiff.   The plaintiff and her attorney had to set aside other matters to prepare for the hearing.  However, they were not prepared for the defendant’s motion because they were not provided a copy.  When the court found out defendant  had not provided a copy to the opposing party, the court commented that unrepresented parties sometimes do not understand the rules, and went ahead with the hearing.

A unrepresented man filed a  motion with the court concerning a financial transaction involving persons not parties to the court proceeding.   The court issued an ex parte order ordering  the opposing party, who was represented by an attorney, to perform a task within a few hours; otherwise the transaction could be postponed, jeopardizing the transaction itself.  The opposing party’s attorney had to drop everything to attempt to comply with the court’s  order.

These three incidents happened recently before three different judges. In each of the cases  the unrepresented parties were given consideration because they did not have an attorney.  As a result, the represented party was penalized–either with onerous deadlines or with expensive and emotionally draining delays.

The courts tell unrepresented parties that they have the same duties as attorneys to understand the law and the procedures of the court.   The reality is that often unrepresented parties are given more consideration than those parties who are represented by attorneys.

Clients notice.  They rightly complain that it is fundamentally unfair to the party who has hired an attorney, and that they should not have to pay their attorney for the failure of the other side to properly follow court orders or understand the law.

I agree.  When an unrepresented party is given special consideration,  it dimishes  the prestige of the court, in my opinion.  Why?  because whan a court treats one party differently than another, the message to litigants is that the rules can be bent, depending on the status of litigant.   This message is often a shock to litigants who are unfamiliar with court processes. It also has the unintended effect of reducing the number of represented parties.  To be sure, many parties are unrepresented in court because they cannot afford an attorney. But not all parties who can afford attorneys hire them to represent them in court.  One reason may be that they believe they will be given a break if they do not have an attorney.  The courts should disabuse any litigant of that belief at the beginning, by making sure unrepreseented litigants are required to follow law and procedure, just as those who are represented by an attorney must.




3 thoughts on “Opinion: Unrepresented (pro se) parties in court should not have special treatment

  1. Glenn Howland

    I’ve had differing experiences, although I do agree that having an unrepresented party can turn an otherwise orderly process into a bit of a cowboy trial. I do not practice in Family Court, but in Superior Court motion practice and in District Court arraignments I’ve seen judges fairly consistently work with a pro se litigant to ensure the record reflects the litigant has had every reasonable opportunity to obtain legal counsel. Once the record does reflect that, I’ve seen judges hold a pro se litigant to the same legal standard as represented parties – and I have seen them do this on a consistent basis.

    But it is clearly a major undertaking for a judge to create such a record, and I’ve seen certain judges nearly lose their cool on the bench with the irritation of it. But to their credit, I have left the courtroom feeling that both my client and the unrepresented litigant were given a fair shot.

    I think the most careful treatment of pro se litigants I’ve seen has been in District Court arraignments, where either the judge will enter a not guilty plea on behalf of the defendant until the representation issue is sorted out, or if there is a plea bargain offered, the judge may spend a considerable time going over the defendant’s rights, and explaining how he or she is waiving those rights and has an absolute right not to do so. But usually the defendant is a repeat customer, knows the ropes and just wants to get out of there.

    Still, I have respect and empathy for judges who find themselves in an odd circumstance and have to shift attention immediately to ensuring a record demonstrates due process is being given. It is a major distraction to be sure, but we should all be thankful that such is the case.

  2. Glenn Howland

    I’ll also share one war story – I had a Supreme Court appeal in which (to be unnamed) opposing legal counsel completely spaced out on the date and time of oral argument. He didn’t show, and finally the bailiff reached him at his law office in a different area of the State; he was mortified and contrite, but was not able to be there in time to make the schedule. So the Court asked me if I would waive oral argument. I replied that although I was flexible, my client did not have that expectation. We proceeded, and at the end of my brief argument the Court asked me if, given the odd circumstances, would I mind advising the Court what I expected my opponent would likely have argued? Well, it’s not good form the say “Are you crazy?” to five members of the Supreme Court. So I stammered a bit and then allowed as to the likelihood that my opponent would probably have focused on a strict construction of the statutory provision at issue, and true to my nature I couldn’t just shut up with that; I had to expound on why that was an issue we had debated. The Court thanked me for my observations and later released the opinion. My opponent prevailed – and on the theory I had mentioned.

    Now and then when I see a close schedule and wonder how I am going to make it, that case occurs to me and I confess to being tempted to “forget” about one of them – but momentarily. I doubt such outcomes lend themselves to engineering in advance.

    • admin

      Glenn: I am sorry I did not respond sooner; it has been a busy summer. That is a great war story; what did your client think? We he or she there at the court? I assume you were the appellant? I remember a story about a fellow law school student who, after he was licensed to practice, had an appeal in the Supreme Court, and was so absorbed in thinking about the case started south on 1-89 instead of north to Montpelier. I can imagine the panic when he discovered his error, but I understand he made it in time to the oral argument.


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