Self-Appendectomy

July 17, 2018 § 1 Comment

Comments on this blog are limited to lawyers, judges, and other legal professionals. Yet I still get comments frequently from lay-people.

A recent proposed and unapproved comment by a frustrated pro se litigant highlights the tension between reasonable access to justice and the judge’s role as impartial tribunal:

I had a Judge finally rule that all evidence from previous case could be submitted to this new case. Of course, Defendants lawyers objected. Defendants lawyer then said that not of it was evidence, some were marked for I.D. only. The Judge said he wouldn’t even look at the I.D. ones. Being Pro Se, after spending about 8,000.00 on attorneys fees and not using my evidence, almost every bank statement, cancelled check sheet from the bank. I was asked by Judge, “What is it? I said a bank statement. Other attorney objected, said it was hearsay, and I had to put it in as I.D. After a couple times I just handed it to the other attorney but the Judge stated I had to say what it was. Therefore, it was objected to as hearsay. Printouts from a bank. Please..Check written out the casinos, lawsuits Plaintiff was hit with and depleted our funds, are not admissible. I.D. only which the next Judge will not use. I always thought that was depleting marital assets. Writing a brief for Supreme Court and this is way out of my league.

Some thoughts:

  • In a contested case, the judge absolutely can not assist one side or the other over evidentiary hurdles, objections, or lack of basic litigation skills. A judge who does so has crossed, or is dangerously close to crossing, the line into advocacy.
  • I have often said that I have never seen anyone who acted pro se in a contested case leave the courtroom in better shape than when they entered.
  • ” … this is way out of my league.” Yes, it is. It takes lawyers around 3 years to absorb the basic knowledge base and elementary analytical skill to know how to get into the courtroom, and several years of experience on top of that to do a creditable job in litigation. Appellate cases require even more. There is a learning curve for every courtroom advocate. It’s painful to watch a pro se litigant try to master the same curve in a few hours that took a college-and-law-school-trained lawyer several years to master herself.
  • The lawyer in this case was zealously representing his client, which is precisely his ethical duty. It may have seemed unfair to the pro se litigant, but she was not being treated unfairly; she was simply overmatched, and, again, the judge could not help her without becoming her advocate.
  • No judge is going to let a lawyer overreach and take advantage of a pro se litigant, but that is solely in the interest of maintaining a neutral, fair playing field. A judge can not help one side to its benefit or to the other’s detriment.

Economics of the Do-It-Yourself Lawsuit

April 9, 2015 § 1 Comment

Nellie Pruitt died intestate in 1974. Her 24.12 acres of land was surveyed by Lambert, divided into five equal tracts, and deeded to Nellie’s five daughters, each of whom executed deeds that were recorded in the land records of Tishomingo County. In 2007, one of the daughters had the property surveyed by Guice, who discovered several errors in the deed descriptions. Freddie Dobbs, the heir of one of the original sisters, disagreed that there was any error in the descriptions, and obtained his own survey from Ledgewood that he claimed to support his position. Acting on his belief that the original description was correct, Dobbs bulldozed some trees, cleared land, and tore down a fence.

The other landowners (Crawford, et al.) filed suit against Dobbs in chancery court to reform the deeds, remove clouds, and quiet and confirm title. The complaint also sought damages, injunctive relief, expert witness fees, and attorney’s fees.

Dobbs represented himself.

Crawford filed a motion for partial summary judgment, and a hearing was held in which the judge apparently permitted testimony. Crawford put into evidence Guice’s survey with his affidavit, a deraignment of title, and the affidavit of the sole surviving Pruitt sister that the intent of the original partition was that each sister would receive an equal plot.

In response, Dobbs testified (apparently without objection) that Ledgewood had told him that the property lines were correct. He also testified (apparently without objection) that his mother had told him that she believed she owned more of her mother’s property, but did not want a family feud. He did not offer Ledgewood’s survey into evidence, and he offered no counteraffidavits, as required in R56(e).

The chancellor granted partial summary judgment reforming the deeds and quieting and confirming title according to the Guice survey.

A hearing was then held on the issues of injunctive relief, damages, court costs, expert witness fees, and attorney fees. Crawford et al. were represented by counsel. Dobbs, again, appeared pro se.

The Crawford plaintiffs put on detailed testimony and introduced documentary evidence to support their claims. In his defense, Dobbs again asserted that he had relied on Ledgewood. In ruling (predictably) for the plaintiffs, the chancellor observed that:

“Mr. Ledgewood did not testify and his survey was not offered nor admitted into evidence. There is no evidence whatsoever to support the explanation of the Defendant, Freddie Dobbs.”

The chancellor entered a judgment against Dobbs for nominal and actual damages totaling $17,746.20, for attorney’s fees in the sum of $13,000, and for expert witness fees in the amount of $3,250, for a grand total of $33,996.20. Each judgment was to bear interest at the rate of 8%.

Dobbs appealed, yet again representing himself.

On March 31, 2015, the COA handed down its decision in Dobbs v. Crawford, et al., in which Judge Irving observed for the unanimous court (Judge James not participating) that Dobbs ” … lists various grievances, but offers little argument and law.” Dobbs’ cornerstone contention was that, at the summary judgment hearing, he was “waiting for his chance to tell his side,” and that he did not know he was required to provide counteraffidavits with expert testimony. In other words, his lawyer (himself) was ignorant of the law. As you can guess, the COA did not buy that or any of his other contentions, and affirmed the trial court.

In case you’re not keeping count of Dobbs’ success as his own lawyer: Strike One, partial summary judgment hearing; Strike Two, damages hearing; and Strike Three, appeal. He’s Out.

So, let’s assess the wreckage:

  • I am going to assume that a moderately experienced attorney would have settled this case in its earliest stages (some other defendants did exactly that) for far less than was ultimately assessed against Dobbs.
  • No doubt an early settlement would have drastically reduced attorney’s fees. I note that there were two attorneys in the case, one of whom had fees of $10,000, and the other $3,000. My guess is that the former was the trial attorney, and the latter was the lawyer who did the title work and perhaps filed the initial pleadings in the unsuccessful hope that Dobbs would come to terms. If that’s so, then Dobbs cost himself $10,000 at least right there.
  • Had he retained counsel early enough, that attorney might have been able to dissuade Dobbs from doing the bulldozer work on the plaintiffs’ property that ultimately cost him $17,746.20.
  • If he had an attorney at the summary judgment proceeding, the Ledgewood survey (if it really existed) and some other supportive evidence would have been introduced that could have averted summary judgment and may have propelled the parties into settlement negotiations that would have saved Dobbs some serious money.
  • I am willing to bet that Dobbs’ attorney’s fees would have been in the neighborhood of a few hundred dollars had he hired a lawyer when he got the Ledgewood survey, and a few thousand afterward. At any event, his total fees and judgment with assistance of a lawyer would not have approached $33,000, in my opinion.

“Penny wise and pound foolish” is one way to put it.

ACCESS TO JUSTICE

February 13, 2013 § 5 Comments

Anyone who has spent any time in chancery court has witnessed the hapless flailings of people ineffectively trying to represent themselves in legal matters, some of which would be challenging enough for an experienced legal professional, much less someone completely unversed in the complexities of the substantive law, evidence, due process and procedure. It is never a pretty sight.

Last Friday I attended a symposium at Ole Miss on Poverty and Access to Justice. I should say, more accurately, that I attended the morning sessions. I came away with some misconceptions corrected, hope that something constructive can be done, and an idea of some steps I can take in my own district.

The symposium papers are published at Supra, which is the online publication of the Mississippi Law Journal. I encourage you to click on the link and read them to get an idea of the scope of the problem, as well as ideas that people are pursuing to address it.

And it is a problem with several facets:

  • There are the poor and illiterate who could not afford even a modicum of legal representation, and so are prey to loan sharks, unscrupulous merchants, and sharp dealers of every imaginable stripe. Legal Services, which is on the verge of extinction, has tried with underfunded and understaffed offices to provide representation to as many as possible, but there are not enough resources to keep up with the numbers.
  • There are the growing numbers of people who no longer have the financial means to hire an attorney, and take on the task themselves.
  • There are the few who simply believe that they will somehow be equal to the task, or that the judge will help them.
  • There are the online purveyors of self-help legal kits. I’ve posted here about them.

The dilemma created by these cross-currents is that on the one hand we have people whose poverty and lack of education create nearly insuperable barriers to accessing the legal system, and, on the other hand, we have too few legal resources available to low- and no-pay clients.

In the court room, the judge is responsible to be fair to both sides. The opposing lawyer has a duty to zealously represent his or her client. It’s not called an adversarial system for nothing.

In my district, I am going to organize a group of lawyers who are interested in doing something to work on solutions. We are going to work with the Mississippi Access to Justice Commission and try to alleviate the problem in our corner of the universe. Our efforts will likely not eradicate the adverse impact of poverty vis a vis the legal system, but that’s no reason not to try.

FLYING SOLO

April 26, 2012 § Leave a comment

A couple of weeks ago there was a news item about a woman who had to pilot a small plane to an emergency landing when her husband, who had been at the controls, had a sudden heart attack and collapsed. The story had a happy ending due to the assistance of a good-samaritan private pilot who took to the air, flew beside the first craft, and instructed the woman into a safe, but bumpy, landing.

Pro se litigants are like those untrained pilots who take the controls of their own aircraft. Only there is not a helpful, experienced pilot to guide them to a happy conclusion.  Most of them crash and burn, some fatally, others with considerable cuts and bruises, and all the worse for wear. Here are my 3 most recent experiences:

  • Man appears self-represented for temporary hearing, refuses the opportunity to negotiate with opposing counsel, and turns down any continuance. He sits mute through direct examination (heavy on leading questions), raising no objections. He has no questions on cross examination. After plaintiff rests, he says he has no testimony or evidence to present, after being told he may take the stand, or call other witnesses, or present any documentary evidence. Needless to say, the results were not in his favor.
  • Woman appears pro se in defense of DHS contempt action for non-payment of child support. She has filed no pleadings, but claims in her testimony that the child has been living with her, and that her income is reduced anyway, so that the child support ordered 9 years ago should be modified downward. I explain that she must file pleadings to put DHS on notice of her claims, and I recess the hearing to allow her to do that. I could have simply rendered a judgment against her, but … well … nevermind.
  • Man files pro se complaint for custody. At hearing he calls a single witness who testifies that he has never seen the plaintiff and the minor child together. It’s not clear to me how this helps promote his claim for custody. He then says he has no other testimony, even after I explain that he may take the witness stand and testify in his own behalf. Then he has a change of heart and says he has some papers he wants me to look at. One by one he offers several County Court judgments for child support for other children, which opposing counsel graciously allows in. Then the plaintiff rests. After the 41(b) motion is granted the defendant testifies and, based on her testimony I order visitation and award her the tax exemption for the child.

None of these top the pro se “partition” case I had several years ago. Both plaintiffs and defendant were self-represented. The plaintiffs’ pleadings asked for partition. At hearing, though, the proof was that defendant had lived in the home in which the heirs had an interest and had dismantled the fireplace. The plaintiffs wanted it restored or to recover their damages. I dismissed the complaint and sent them to County Court to pursue a lawsuit.

A Meridian air guardsman in the 70’s crashed his F-4 and suffered a broken back. As he was being wheeled on a stretcher into the hospital, a local tv news reporter stuck a microphone in his face and asked what had caused the accident. Through his pain the pilot replied,”I ran out of air speed, altitude and experience all at the same time.” That about sums it up.

THE INTERNET AND THE UNAUTHORIZED PRACTICE OF LAW, CHAPTER TWO

August 2, 2011 § Leave a comment

Only yesterday morning, I posted here about the internet and the unauthorized practice of law, taking the position that internet legal-forms dealers are practicing law without a license and raising the question “I wonder what the state bar and the district attorneys are doing to rein this in?”

Well, ask and ye shall receive.

Yesterday afternoon I received an email from the state bar announcing that it filed a petition with the Supreme Court last Friday to amend the appellate rules and the rules of professional conduct to define more clearly the practice of law and to spell out sanctions available to the courts for those who are found to be engaged in unauthorized practice.

You can read the proposed rules here.

Apropos of what I said in my post yesterday is a provision making it clear that drafting legal documents and pleadings is in itself practicing law. There are many other provisions in what amounts to a sweeping and all-encompassing statement of what constitutes the practice of law.

I urge you to read these proposed changes and I encourage you to comment on them if comments are called for. If the Supreme Court accepts these, they will likely be sent to the Rules Committee, of which I am a member. If it comes to that, I will welcome any input.

As I said in my prior post, this is not about the legal profession or convenience for judges. It is about protecting the public. I commend the bar for addressing this problem.

THE INTERNET AND THE UNAUTHORIZED PRACTICE OF LAW

August 1, 2011 § 3 Comments

It’s no secret that I am at least dubious about the efficacy and advisibility of lay persons representing themselves in court. My distaste for the practice rests primarily on the fact that most often it results in self-inflicted harm. Secondarily, I am concerned that lay litigants are unencumbered by any ethical or professional obligation of candor to the court and fair dealing with the other party.

Many lay-lawyers download forms from online vendors. The purveyors of these forms claim that they enable lay people to handle their own routine legal matters for less money than it would cost them to pay a lawyer.

My problem with that approach is two-fold:

First, how does a layperson decide that a legal matter is routine without some advice? How does a layperson know what the hidden pitfalls are if she has no one but a form to ask? Sure, she can check box A on the computer-downloaded form, but would box B be far more advantageous?

Second, is not the providing of legal forms in itself providing legal representation? The Mississippi Supreme Court answered the question in the case of Mississippi Commission on Judicial Performance v. Jenkins, 725 So.2d 162, 167 (Miss. 1998), in which the court stated:

” This Court defined the practice of law to include ‘… the drafting or selection of documents, the giving of advice in regard to them, and the using of an informed or trained discretion in the drafting of documents to meet the needs of the person being served. So any exercise of intelligent choice in advising another of his legal rights and duties brings the activity within the practice of the legal profession. Oregon State Bar v. Security Escrows, Inc., 233 Or. 80, 377 P.2d 334 (1962).’ Darby v. Mississippi State Bd. of Bar Admissions, 185 So.2d 684, 687 (Miss.1966).”

There is a class action lawsuit pending in Missouri raising the issue of unauthorized and inadequate practice of law by Legal Zoom, an online seller of legal advice via forms. The thrust of that lawsuit is that the company’s activities are inherently harmful to consumers because they violate the state’s public policy against unauthorized practice of law, which protects consumers. The trial judge has already overruled the company’s motion for summary judgment, and the company is mounting an ad campaign in the state to scare people into believing that their right of self-representation is under threat, and that lawyers are out to get their money.

We have seen our share of Legal Zoom-type documents and other internet lawyers in this district, but that’s not by any means all.  We have shadowy individuals in the area who sell “secretarial services” in the form of complaints for irreconcilable differences divorces, PSA’s and judgments. Those clerk-typists are beyond a reasonable doubt unqualified to give legal advice. So what possibly qualifies them to prescribe the forms appropriate for a person’s legal problems, and to determine the appropriate content?

Caveat emptor, you might say. I answer: bull. Neither the legal profession nor the courts should countenance unqualified persons preying on unsuspecting laypeople. I wonder what the state bar and the district attorneys are doing to rein this in? After all, there is a state law making it a crime to practice law without a license.

As I have said before, I am all for self-representation. But I hate to see self-destruction. And I hate even more to see someone on the path to self destruction believing that they are protected by a piece of paper they bought off the internet or from a “secretarial service” with no legal advice to back it up.

This is not all about protecting lawyers or making it easier on the judges. This is all about making sure that the legal process produces as fair a result as possible, and that all who are involved in it deal with each other and the court with integrity and are fully informed of their rights and the ramifications of their actions.

MORE ANECDOTAL EVIDENCE ON PRO SE PROBLEMS

September 15, 2010 § Leave a comment

In the past week, I have three pro se divorces presented to me that illustrate some of the problems that people can create for themselves when they undertake to represent themselves.

Case 1.  A fairly standard no-fault divorce with no children, no joint debts, no joint property.  Husband gets the homestead that he owned before the marriage, and will pay wife for her marital equity.  The wrinkle is in a paragraph that provides that the parties will divide the husband’s “retirement annuity,” and allocating the tax liability between them.  When I asked the husband how he expected to accomplish it without a QDRO, he replied, to my surprise, that the plan administrator had already disbursed the money to the parties, and that his accountant had told him he could avoid the 10% penalty by addressing it in the property settlement agreement.  The agreement did include the phrase “Qualified domestic order,” but did not include any of the ingredients required to constitute a true QDRO within the meaning of the law.  I have no idea how the IRS will treat the parties’ home-made paperwork, but if they end up having to pay the 10% penalty, I would bet both of the following will be true:  (1)  Both parties will be unhappy; and (2) It would have cost a lot less to hire an attorney to ensure that it was either done right or the liability shifted to the attorney.

Case 2.  Property settlement agreement with no provision for custody at all, although a child is identified.  When I asked why there was no custody provision, the response was that the child is 18 and in college, and there does not need to be a custody arrangement, a statement with which I disagreed.  When I asked about the lack of any support provision, the response was that there was no need for support because the child is in college, another statement with which I disagreed, especially based on my own personal experience.  I did not bother to read the rest of the agreement, but if the property division was as incomplete as the child custody and support provisions were, I doubt it would have been “adequate and sufficient.”

Case 3.  A well-dressed young couple approached the bench.  Dad is holding a 2-year-old child, whom he is feeding with a baby bottle.  I find three shortcomings in the agreement.  First, although they agree to joint legal custody, there is no tie-breaker; you can’t have a committee of two, so who will have final decision-making authority?  Second, the agreement states that “both parties shall claim the children as tax exemptions.”  How will that work?  Do they mean that both claim both children in the same year, or that the exemptions will be divided between them somehow?  Sounds like another trip back to court to me.  And third, there is no provision for child support for the two children, ages 2 and 4.  When I ask mom about it, she says “I am not asking for any support.”  Well, I can’t approve it no matter what you want because I have to watch out for the children.   The husband proposed that the 3 of us should sit down and I could point out ways to fix their paperwork, but I demurred on the basis that I am prohibited from giving them legal advice, and even if I could, I could not advise both of them in the same case because of their competing interests.               

Neither of the cases with children had UCCJEA affidavits.

I previously posted on the problems of pro se litigation here.

IS THIS THE SOLUTION TO PRO SE LITIGATION?

August 25, 2010 § 7 Comments

A post about proposed changes to the pro bono rules for lawyers is here.  There is a thoughtful comment to that post that highlights some dimensions of the situation.

It’s no secret that pro se litigants are appearing more and more frequently in Chancery Court.  Whenever I ask a self-represented litigant why he or she did not hire an attorney, cost is always the response. 

In our district, it’s not uncommon for a simple, irreconcilable differences (ID) divorce to cost upward of $1,500 to $2,500, plus court costs, although I have heard of some lawyers charging as little as $250 plus costs for an ID divorce with no children. 

Self-representation, however, is not limited to routine, uncomplicated matters like ID divorces involving no children, no property, no joint debts and no other problems.  I see pro se litigants in all kinds of matters.  I presided over a termination of parental rights case not too long ago where the father represented himself and lost.  I have seen pro se litigants in an adverse possession case, contempts, paternity, and even in a partition suit where, believe it or not, both sides were pro se.  I can say unequivocally that I have never seen a party who proceeded pro se in a contested case leave the courtroom in better shape legally or equitably than he or she was when they walked in. 

Although most all say that they choose to proceed pro se due to the rising cost of legal fees, I find in the course of things that others simply underestimate the complexity of the issues involved and think that legal matters are little more than filling out a few sheets of paper and filing with the court.  Still others are lured by the siren-song of the internet sites that push cheap fill-in-the-blank do-it-yourself legal proceedings.  The common denominator among all of these is that they are looking for a cheap, one-size-fits-all, easy solution to what may be a complicated situation.

These are the people who wind up in court pro se.  In many cases, those pro se parties are getting simple ID divorces using kits they purchased on-line.  Some are getting pleadings prepared by “secretarial services,” in violation of state law prohibiting practice of law without a license.  The simple cases with no children do not usually give rise to later litigation.  Pro se litigants with children, however, are a recurring problem.

Problems with child support provisions, joint and sole custody provisions, division of property, and allocation of debts are all common problems in these do-it-yourself cases.  I have one pair of parties in Clarke County that I have sent back to the drawing board four times, and, although they are my most extreme case, they are by no means the only case that I have had to treat that way.  I have just about decided that, if there are children, I will require the parties either to have an attorney or I will appoint a guardian ad litem at their expense. 

The self-represented parties seldom understand why they can’t simply have their papers signed, and they are invariably frustrated when I tell them that I can not advise them how to draft an acceptable child support provision, or why that waiver filed a week before the complaint won’t cut it, or why they need a property settlement agreement when they don’t have any property. 

How do we make legal services more affordable, thus reducing the pool of pro se litigants?  Some claim that “limited scope representation,” also known as “unbundling” is the answer to lower legal fees.  In essence, it is a representation arrangement in which the respnsibility of the lawyer is limited and the fee is resultingly lower.  The attorney may, for instance, agree only to advise one of the parties about the language of the property settlement and child support agreement, or simply to prepare pleadings.  The clients buy only as much legal service as they feel they need. 

The Supreme Court’s Commission on Access to Justice proposed an amendment to Rule 1.2 of the Rules of Professional Conduct to allow for limited-scope representation.  They met on Monday, August 23, and since the comment period has expired, I assume they will pass the rule on to the Supreme Court for adoption.  I am all for it.   

Although the proposed rule approves and encourages the practice, it does not address how a representation agreement would read so as to cover all of the ethical concerns that might arise.  There is information available online, however, that may provide a starting point for lawyers.  The LAWYERS USA website offers some information.  The ABA has some info.  The Civil Justice Network also has some info.  A paper presenting the pros and cons of the practice is here.

Whether limited scope representation is the answer to the growing numbers of pro se litigants, I have no way of knowing.  I do believe that it has the potential to help dramatically because it will decrease the amount of time judges will need to devote to scrutinizing pro se litigants’ pleadings and paperwork. 

One caveat:  I will not approve a limited-scope representation arrangement in any probate matter.  Rule 6.1 of the Uniform Chancery Court Rules requires that every fiduciary retain an attorney, and you will be expected to continue in your role as counsel once you are in until you find substitute counsel.  I will not allow the operation of the new rule (if it is enacted) to create an end-run around Rule 6.1.

An approach to the pro se phenomenon that I can not endorse is continued encouragement of laypeople to tackle more of their own legal matters.  I saw a bar-produced video of smiling legal professionals encouraging people to handle their own “routine” legal matters, and making it sound as easy as folding a paper airplane.  I don’t understand this approach.  The American Medical Association does not promote do-it-yourself tonsillectomies, but then medical ethics includes the fundamental proscription, “Do no harm.”  To me, the solution is not to encourage people to do their own legal surgery.  The answer is to make it more likely that they will have a competent surgeon. 

I am not a fan of pro se litigation.  Even seemingly simple, routine matters may have serious implications for the parties, and I assure you that they have absolutely no clue about those ramifications. Self-represented litigants seldom have a grasp of the ramifications and complexities of equitable distribution, the various forms of child custody, or joint debt, to name but a few of the many legal snares that await the unwary.  Also, the parties are under no duty to be honest and forthright with the court, leaving open the very real possibility of fraud or worse.  Without legal advice and the check that an ethical attorney provides, the parties’ paperwork can create more problems than it solves, and even in the absence of lawyers it is clearly not the duty of the judge to advise them about the possible mess they may be creating.  Yet, every day, inexorably, we see more and more self-represented litigants. 

I am a firm believer in access to justice, but in our commendable haste to discover a way to do that, let us not lose sight of what it is we are trying to achieve:  access to justice.  Not access to disaster.  Limited scope representation may be a good first step toward alleviating this problem.

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