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.