the pro se nomenclature problem
Things need to lighten up here at shlep after all that Fair Use business last week. It seems like a good opportunity for my alter ego Prof. Yabut to continue his campaign against confusing terminology (such as blog, blawg and blang) and on behalf of clear, “plain” language that is easily understood by the public, and even by lawyers.
Frankly, there are too many terms used to denote persons who are in court as parties to a lawsuit without a lawyer — and, more important, none of them seems particularly satsifying. As Prof. Jona Goldschmidt notes in the first footnote of a recent monograph about assisting “self-represented litigants”:
“Courts in American states on the East Coast, the Midwest, and the South generally refer to SRLs as pro se litigants, from Latin meaning for oneself, or on one’s own behalf. Black’s Law Dictionary (7th ed.) 1236 (1999). Western state courts (e.g., Arizona, California) refer to them as pro pers, a shorthand version of the phrase pro persona, meaning for one’s own person., Id. at 1232, or in propria persona, meaning in one’s own person. Id. at 796. In Commonwealth countries, the phrase commonly used is “litigants in person.”
To that list (pro se, pro pers, in propria persona, self-represented, SRL, Litigant in Person, LIP), the Massachusetts trial court library adds “unrepresented.” Here are some problems that I have with these terms:
– pro se, pro pers, pro propria persona: Yabut Linguistic Rule of Thumb: “It it’s Latin, it’s probably not Plain English.” To stick the lay public with a Latin phrase to describe their litigant category or status seems counterproductive, if your goal is to demystify the justice system and achieve understanding and inclusiveness for all. Also, just who decides how to pronounce the term? [note: my best recollection is that in Latin the vowels a, e, i, o, u, are pronounced, respectively: ah, ay, ee, oh, oo.] Having competing Latinate phrases and geographic differences makes it even more confusing. Unless your Pope demands you use Latin, you should eschew it.
Does Prof. Yabut or your shlep editor have a recommendation for the pro se nomenclature problem? Not really. I/we do suggest, however, that the word “advocate” might play a role in solving the problem. Couldn’t the litigant appearing for herself or himself (who is, thus, advocating for himself) simply be referred to in court papers as “advocate,” or “petitioner/plaintiff/respondent/defendant-advocate”? For example: “John Doe, petitioner-advocate vs. Mary Doe, respondent-advocate.” That would adequately alert those who need to know, for whatever purpose, that there is no lawyer for a particular party.
— “self-represented“: Yes, we should switch to English phrases or names. But, the one chosen should not be an oxymoron. The problem with “self-represented” is that, if the English language is properly and logically used, you cannot represent yourself. Litigants are “represented” by lawyers, and lawyers represent parties, because the lawyer is the agent or spokesperson for the client, rather than the litigant addressing the court on his or her own behalf. Take a look at the relevant Quick Definitions definition of represent at OneLook [“To serve as the official and authorized delegate or agent for. b. To act as a spokesperson for”], as well as Law.com Dictionary‘s definition of represent [“1) to act as the agent for another. 2) to act as a client’s attorney”]. Therefore, it is no surprise that OneLook covers 931 dictionaries and yet “no dictionaries indexed in the selected category [“all dictionaries”] contain the word self-represented.”
— SRL: this term stands for “self-represented litigants” and suffers from the same linguistic failings as “self-represented.” Worse, though, it is an acronym and runs afoul of another primary Yabut Linguistic Rule of Thumb: “Acronyms are virtually always confusing and ugly and to be avoided.” Having spent a couple decades trying to get lawyers to stop using acronyms, it is disheartening seeing self-help practitioners and advocates turning to “SRL,” which must indeed seem alien (and alienating) to the human beings stuck with the designation. Also consider that Acronym Finder has 26 definitions for SRL and their Acronym Attic has 127 more, and not one of them is “self-represented litigant.” (Quite a few are amusing, however, if you need a diversion.)
— Litigant in Person: this term, used in the UK and Wales, seems preferable to the Latinate terms and the oxymoronic self-representation nomenclature. However, isn’t any human litigant acting “in Person”, especially when showing up at the courthouse? Granted, the acronym LIP has a nice symmetry when contrasted with having a Mouthpiece, but cuteness can’t of itself get around the acronym hurdle.
— “unrepresented“: More precise than self-represented, this term rudely characterizes the lawyerless litigant by what he or she is not, and conjures up notions of the undead and unColas, while suggesting that the good little litigant shows up with a lawyer. It leaves Prof. Yabut too drained to even bother prescribing a new rule of thumb for un-words.
Does Prof. Yabut or your shlep editor have a recommendation for the pro se nomenclature problem? Not really. I/we do suggest, however, that the word “advocate” might play a role in solving the problem. Couldn’t the litigant appearing for herself or himself (who is, thus, advocating for himself) simply be referred to in court papers as “advocate,” or “petitioner/plaintiff/respondent/defendant-advocate”? For example: “John Doe, petitioner-advocate vs. Mary Doe, respondent-advocate.” That would adequately alert those who need to know, for whatever purpose, that there is no lawyer for a particular party. If we want to start with a hyphenated word when speaking of this class of litigants, such parties are “self-advocates.” (I’m tempted to say autoadvocates, but some people might think the term refers to car buffs.) Of course, lawyers are also “advocates,” but I have no problem at all with the implication that the self-advocate is on the same level when appearing before the court as a party’s appointed lawyer-advocate.
When referring informally to such litigants, who are appearing or advocating for themselves, “selfers’ works for me. “Self-Help” still works fine as a noun meaning preparing or advocating for yourself, and as an adjective for centers and resources aimed at such persons.
It’s your turn. Please click on the Comment link at the top of this posting and let us know your reaction to these musings and nitpicking. Specifically, we’d like to know how to best refer to litigants who appear in court without a lawyer (as their own advocate): 1) in court papers and discourse, 2) among self-help practitioners or academics, and 3) informally in discussions around the water cooler or weblog.
MaryWhisner
November 7, 2006 @ 9:52 pm
A problem I have with a lot of the terms is that they overemphasize the litigation aspect of law. “Self-represented litigant” implies litigation, as do “self-represented” and “pro se,” for that matter. But lawyers do more than “represent” — they also counsel and advise.
If a person who lacks formal legal training seeks information to make decisions about what sort of business entity to use or how to draft a will, maybe we should say the person is self-advised or self-counseled. One self-help publisher is called Self-Counsel Press, and that makes some sense. Most broadly, the person is “self-helped” — and hence the Self-Help Legal ExPress.
I don’t share your dislike of all foreign terms and acronyms. Sometimes they just work. Sometimes I say “Gesundheit!” when my friends sneeze, and I know just what is expected when I’m asked to RSVP to an invitation (even though that’s an acronym for a French phrase, of all things). English-speaking musicians learn that “D.C.” means “go back to the top” and “D.S.” means “go back to that funny looking squiggle” and many don’t know or remember that the terms are from the Italian “da capo” and “del seigno.”
I think that “pro se” might just be useful enough to allow its use to indicate that someone is filing his or her own papers in litigation.
david giacalone
November 7, 2006 @ 11:43 pm
I really appreciate your taking the time to respond at length, Mary. I agree that we often overlook the out-of-court [transactional, advisory] legal needs of consumers. This post was, of course, focused on people who are in court as a party. Outside of the court context, “self-helpers” or “do-it-your-selfers,” or “self-counseled” all work for me.
Foreign terms are fine when they are already well-understand and long-standing — or among specialists. But, when the general public is involved, real English seems like a worthy goal. That’s especially true when a term like “pro se” can so easily be confused with the far-better known (but often also misunderstood) “per se.” Thanks for having a discussion, it makes our weblog a more interesting place to be.
shlep: the Self-Help Law ExPress » Blog Archive » pro se recycling goes Over and Above
December 19, 2006 @ 8:19 pm
[…] Finally, it is worth pointing out that many of the Comments at Fark.com seem to prove our point in the posting the pro se nomenclature problem. The average person simply does not know what the term “pro se” means. Even though Above the Law and Overlawyered.com stressed that the lawsuit was brough by Ward pro se, many Farksters rail at his supposed lawyer for briging such a meritless lawsuit. […]
shlep: the Self-Help Law ExPress » Blog Archive » Delso ghostwriter update
March 23, 2007 @ 5:51 pm
[…] On an unrelated but haunting topic, a couple days ago, I noticed an excellent example of the problems with pro se nomenclature that I fretted over last November. After coining a rule of thumb in the body of the post: “If it’s Latin, it’s probably not Plain English,” I added a Comment explaining: “Foreign terms are fine when they are already well-understand and long-standing — or when used among specialists. But, when the general public is involved, real English seems like a worthy goal. That’s especially true when a term like “pro se” can so easily be confused with the far-better known (but often also misunderstood) “per se.” […]
Enemyofthestate
September 30, 2009 @ 7:11 pm
As a sui juris; practicing pro se and paralegal (without giving legal advice, of course) able to understand the mental and emotional processes that the average “natural person” goes through when a party to any action, un-trusting of “attorneys” for whatever reason – since it is not “us” that designate what we are, but the court or by statute;
LEAVE IT ALONE.
Those who have gotten to the point of not having confidence in the “advice” we get from so-called “professionals” whose loyalty is to the BAR an/or the court, as Officers of the Court, and feel we can do a better job of it than those who get paid a lot more than they’re worth, we deserve the label we have and we wear it proudly.
(Incidentally, an even number of pro se v. “represented defendants” have either been convicted or acquitted in our system that looks down on us, so; me thinks that we have earned our place in the discussion).
license, license… we don’t need no stink’n license….
Besides, who’s going to better protect our interests and rights, us or a disinterested third party with questionable competence?
You need to get to more important topics than this.
Ciao (Not Plain English)