Saturday, January 2, 2010

Pro Se Litigants in the Courtroom

By John DiMotto
One of the toughest challenges for a judge in presiding over and managing cases involves pro se litigants -- the unrepresented people in pursuit of justice.
When most people think about a trial, one of the first things that comes to mind are "lawyers." People naturally assume that anyone who is pursuing a case has a lawyer. However, that is not the case. In fact, in Family Court in Milwaukee County, having a lawyer is becoming the exception not the rule. In over 50% of the divorce cases in Milwaukee County, at least one of the parties is unrepresented and it is not unusual to have both parties in a divorce case representing themselves. Needless to say, this is very problematic because the law governing property division, maintenance (alimony), child support and custody/visitation is complicated.
When people come to court without a lawyer, they usually do not understand courtroom procedures or the rules of evidence and get very frustrated when the judge enforces the rules.
This is true in all areas of the law. However, given the cost of representation, many people cannot afford the cost of an attorney. Except for criminal and juvenile cases, the indigent do not qualify for a "free" lawyer.
The need for a lawyer in any type of case is tremendous. If you analogize a court case to a football game here is what you find:
The litigants are the players.
The lawyers are the coaches and teach the players the rules and explain the rulings to the players.
The judge is the referee.
The laws (rules of procedure and evidence) are the rules of the game.
Violations of the law result in the loss of evidence or the case.
In Wisconsin, in the past two years, our legislature passed legislation providing for some public funds for civil cases. Judge Rick Sankovitz, one of my Milwaukee County Circuit Court colleagues, was instrumental in seeking the funding. This was seen as a silver lining in the dark clouds. However, given the economic downturn, that funding is in jeopardy and given the tough economic times, there will be a rise in pro se litigants.
In the final analysis, the increase in pro se litigants will require judges to take more time to explain their rulings and to make sure they do not "try" the case for either side. Whether pro se or represented the rules apply the same.


  1. Thanks for the plug for civil legal services, John. I agree whole-heartedly. (As you can see I am still catching up with my reading from over the break!)

  2. What do you do when you pay thousands of dollars for attorneys fees, and the Judge ignores and dosn't bother to read the briefs submitted by your attorney. There doesn't seem to be any way to prevent a Judge from ruining you financial. If you dare mention that the Judge is being unfair, he will just make your life worse. If a judge asks a prose litagant if they will agree to dismiss without prejudice a claim, is it OK for the judge to not explain that it is not really dismissing it for good?