Today is January 19th , 2019
Every American A Lawyer
by Ralph Warner, Publisher
Copyright © Nolo Press
Almost 400 years ago, the great American democratic experiment began. Almost from the first day--and despite the contrary views of a succession of English monarchs--it assumed that an educated citizenry had no need of lawyers to write its laws or solve its disputes. Lawyers were actually banned outright or faced tight restrictions in many colonies for much of the 18th century. Especially in Puritan New England, Quaker communities in Pennsylvania and Dutch settlements in New York, colonists firmly believed that disputes were best solved within the community, often by church-sponsored mediation.
The "Body of Liberties" adopted by the Massachusetts Bay Colony in 1641 expressed the typical attitudes of the time:
"Every man that findeth himself unfit to plead his own cause in any court shall have libertie to employ any man ..., provided he give him no fee or reward for his pain."
In the late 17th and early 18th centuries, after English kings reasserted direct political authority over the colonies, England's common law system--complete with courts, juries and lawyers--crossed the ocean.
Even so, most citizens did not rely on lawyers for legal information. Historian Eldon Revere James found that between 1687 and 1788, not a single legal treatise intended for lawyers was published in America. During that period, all the legal treatises were for laymen.
One of the most popular self-help law books of the time, Every Man His Own Lawyer, published in London, was already in its ninth edition in 1784. Another, Every Man His Own Attorney, by Thomas Wooler (1845), which apparently was widely and effectively used for many years, contains a lament that could have been penned yesterday:
"Much has been recently done, to simplify ... practice in the courts; something has been gained in point of expedition; but little, if anything, in the reduction of the expense ...
Useless proceedings are still required, apparently for no other purpose than to extract money from pockets of the unfortunate suitors. Forms, the pretenses for which have been long exploded, are pertinaciously adhered to ... and while this is the case, legal proceedings will remain characterised by an uncertainty of result, a loss of time, and a ruinous expense, which should induce every one to learn as effectually as possible to guard against a seduction into its labyrinths, or, if entangled in them, to make the most easy and expeditious escape."
The strong tradition that each American should be able to master the laws probably peaked in the years between Andrew Jackson's inauguration in 1825 and Abraham Lincoln's death in 1865. Most states enforced few if any restrictions on non-lawyers appearing in court on behalf of others--as Lincoln himself did before he talked a judge into granting him attorney status.
Given America's long tradition of discouraging lawyers, it's surprising that in the 20th century the legal profession so successfully sold Americans on its favorite public relations slogan, "A man who represents himself has a fool for a client."
And it's even more surprising that without great opposition, the American Bar Association convinced states to pass "unauthorized practice of law" statutes in the 1920s and 1930s, which effectively gave lawyers a monopoly over the sale of legal information.
It is less surprising--at least to everyone who isn't an attorney--that in the last two decades many Americans, Canadians--battered women, small businesspeople, tenants, landlords, inventors and disenfranchised fathers, to mention just a few--have begun to assert their historical and constitutional right to participate in the legal decisions that affect their lives.
Unfortunately, the Bar--despite the fact that its leaders concede that at least 100 million Americans can't afford lawyers--continues to resist this powerful democratic trend. The fact that lawyers won't voluntarily relinquish their legal monopoly goes far to explain why the profession is ridiculed by so many Americans and Canadians.
Following is an article taken from the Internet in regards to the Bias Pro se experience in the Courts across America including Canada:
• Eliminate Bias Against People Who Represent Themselves
• Bias Against Pro Per Litigants: What It Is.How to Stop It.
By Stephen Elias
Most Americans (and Canadians) who attempt to represent themselves encounter tremendous resistance from the court system. This bias is so strong and pernicious that it can be fairly compared to the prejudice routinely experienced by non-white Americans throughout our society.
During my 17 years with Nolo, I have spoken with loads of competent people, including many who excelled in demanding occupations -- physicians, architects, teachers, dentists, inventors, physicists -- who felt they were treated like not very bright children by clerks and judges.
And more than once I have heard the Caucasians in this group, when handling their own cases, say they thought they finally understood what it must often be like to be an African-American in our society.
Lawyers and judges, of course, typically claim that legal self-helpers are sadly mistaken when they report miserable, condescending treatment. Their point of view would be worthy of consideration if they didn't almost universally start their argument with that most insulting of all legal bromides: "He who represents himself has a fool for a client."
Bias against people who choose to speak for themselves in America's and Canada's public courtrooms exists in direct contradiction to the Supreme Court's ruling in Faretta v. California, where the court stated that everyone has the constitutional right to proceed without counsel. The reasoning behind that decision is grounded on the principle that the Constitution requires our justice system to be neutral towards the self-represented litigant. Or put another way, the courts should offer a level playing field for the represented and unrepresented alike.
Courthouses are Lawyer Houses to see how courts are stacked against people who choose not to hire lawyers. Let's take a look at just some of the day-to-day realities faced by Americans and Canadians who choose to self-represent. Lawbonics rules -- Legal jargon, which is almost universally spoken in American and Canadian courthouses, unnecessarily serves to befuddle everyone who hasn't been to law school.
Directions Are Non-Existent -- In most public institutions, from city hall and city college to the state capitol and the state university, visitors are routinely greeted by displays explaining how to get around. That these are missing in most courthouses speaks volumes about how unwelcome the public is.
Non-lawyers are labeled -- People who show up in a courthouse without a lawyer are labeled (in Latin, of course) as "pro per" or "pro se" litigants. As is frequently true with tags assigned to a group by hostile outsiders --& quot;cult," "handicapped" and "welfare recipient" come to mind -- these descriptions serve to highlight a deep institutional bias.
Procedural requirements are Byzantine -- Complicated rules of procedure and evidence-some of it traceable to the Middle Ages-present huge unnecessary barriers to the uninitiated. To see how things could quickly be improved, take a look at modern arbitration and mediation procedures, both of which are far more user-friendly.
Judges are hostile -- Judges and courtroom personnel are so often rude and condescending to nonlawyers that one suspects they have no idea of the depth of their prejudice. To take just one example, in most courts, cases involving nonlawyers are automatically considered at the end of the day after all the busy lawyers have long since bustled off.
Court clerks hide the ball -- Before anyone can succeed in court, a small mountain of paperwork must be completed and filed at the clerk's office. That's why it's so prejudicial when clerks routinely withhold information that is available to lawyers from people who self-represent.
For example, should John Smith, Esq.'s office call to ask for clarification of a pre-trial procedure, the clerk will almost surely provide the needed information.
But if a self-represented person asks for the same type of information, the same clerk is likely to reply along these lines, "Sorry, I can't give you legal advice. Why don't you call a lawyer?"
Many clerks' offices are so fierce in their defense of lawyerdom they try to avoid even speaking to the self-represented by posting signs warning "We don't provide legal advice!"
If you don't think this is insulting, imagine the furor if IRS ( and CCRA's) clerks completely refused to answer questions about how to file a tax return unless they were asked by a CPA.
County law libraries exclude the uninitiated -- In many states, law libraries supported by public funds or the court fees paid by nonlawyers are operated almost exclusively for the convenience of lawyers.
Not only is information crucial to the task of self-representation organized according to a system that is nowhere explained to the uninitiated, but in many areas nonlawyers are made to feel distinctly unwelcome (for example, only lawyers can check out books, use private rooms and enjoy access to phone, fax and computer).
Prejudice Against Self-Helpers Is Profitable Many lawyers defend the status quo in America's courts and (Canadian Courts) along these lines.
"In a complicated litigious society, laws and legal procedures are necessarily complex, with the result that seemingly convoluted court procedures simply reflect this complexity, not a bias against nonlawyers."
There may be a little truth in this view. But as long as lawyers insist on "voir diring" instead of "questioning" prospective jurors, "garnishing" property instead of "taking it under the terms of a court order," or providing "pro bono" instead of "free" legal services, one can be forgiven for concluding that at bottom lawyers have little interest in working to simplify a system whose very opaqueness so obviously puts money in their pockets.
It should also come as no small surprise that -- like other powerful but insular groups grown comfortable in their privileges -- individual lawyers always find it difficult to see the depth of our judicial system's bias against the self-represented.
Remember this is the same self-contained world, where just a few years ago male judges who enjoyed publicly commenting on the looks of female lawyers were shocked to be labeled as "sexist."
Recognize Bias to Eliminate It:
As with other forms of prejudice, the first real step to eliminating bias against non-lawyers is to recognize that it exists.
The best way for a lawyer to understand the unfair barriers placed in the path of the self-represented litigant is to become one.
This is an experience I went through in a civil proceeding several years ago when I appeared on my own behalf without revealing I have a law degree. Even before the judge examined my papers or knew what I was attempting to accomplish (and whether I was on track to do it), he told me he was sure I could not competently handle the case myself without a lawyer. When I politely stood my ground, the judge went on to warn me that I would be held strictly responsible for meticulously complying with every court rule (rules which, incidentally, I watched most other lawyers present that day cheerfully break).
How to Improve Access to America's Courts and to Canadian Courts?
Some court administrators, judges and even lawyers through their trade groups (called bar associations) have in recent years begun to get a glimmer that American (Canadian) courts face a huge citizen access problem. Unfortunately, they tend to think it's a problem money will fix. As a result,
they often focus their efforts on proposals to provide people who can't afford lawyers with free (again, they insist on calling it pro bono) legal help.
This response is almost hilariously wrong. Not only does it overlook the fact that poor and rich alike have a constitutional right to use the courts without an intermediary, but it also wrongly assumes that Americans and Canadians need more lawyers, when in fact they need more access to an unbiased legal system.
Of course, it's no coincidence that lawyers tend to see self-representation as a poor peoples' problem -- after all, in their view everyone else who has a legal access problem should solve it by hiring one of them. Let's put it this way, being a litigant in person is "not for the babes and not for the bears". It is not for babes who are confused and need everything done for them. It is not for the bears or whingers who do nothing and see themselves impotent.
It is for people who prefer to do things themselves, like to keep control and stay in the drivers seat, don't trust anyone with their private matters and want to win.
As a litigant in person you stay in the driver's seat. You construct your pleadings, your statements of claim, your affidavits, your submissions, amass and arrange your evidence, run your case and seek to learn everything you need to know that is relevant to your case. Remember, directions, advise and/or opinions that anyone including lawyers gives you, you must always double check in the law books, as the Court will not in any way give a self-litigant any chance, should there be any mistakes.
The truth is that a self-litigant, who has not ever experienced prejudice in his or her entire lifetime, prior from going before the Court, will either be in a state of denial at first thinking that the judge appreciates his or her intelligent arguments, or else he or she will soon hopefully realize that the Judge, who was himself a lawyer, will treat him or her, as a total moran. And for those who encounter prejudice often times from various people, either because of their gender, their race, their accent, their place of birth, their religion and so on, will know after a few appearances before the Court, whether they are being prejudiced against.
Consequently, it should not be of no surprise that the Court does not always judge your case on its own merits but on your status.
Self-litigants take on a bigger burden, when they decide to ask the Court for redress. Not only must they try to correct a wrong, but they must be awake to the prejudice that the Courts have against citizens who represent themselves. For those reasons, amongst many others, it is the job of a pro se to remind the Court that as people first they deserve respect and as citizens of the court they should demand nothing less but respect.
For those who have taken an oath to God and an oath to truth, it would not hurt to remind the court that while lawyers may have taken an oath to the bar, self-litigants have also taken an oath, meaning that their credibility should also count for something. Of course this by no means mean that you will receive any respect, but at least, asserting yourself to a Judge, who ultimately decides the faith of your case, will make you face your fears and make you stronger for it. All you can do is to be true to yourself and know that your lawful right to represent yourself in a Court of law, ought not be dictated by some lawyers and/or some judges.
Finally, when we can honestly admit and say to ourselves that we as citizens, also at times may not always give the opportunity to others to prove themselves on their own merits, than perhaps the Courts, who are basically a reflection of its citizens, will begin to judge cases on its own merits and apply the law properly, as it should be applied. Let's face it, it is no coincidence that the Courts have lost respect, as we ourselves have lost our way. Just look around, and observe the way “we” have allowed our government to chip away at our individual rights. Thus, for those courageous souls who believe, all we can do is do the work and fight for the principles of Justice.
LEGAL ABUSE SYNDROME