frivolous pro se litigants: who’s to blame?

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An interesting debate started on lawyer weblogs this week: Do pro se litigants bring meritless lawsuits because they are underlawyered or because our overlawyered judicial system has too many attorney-supported incentives for bringing marginal claims? 

Lawyer Mark Dumas raised the issue a week ago at his The Connecticut Practice Blog, when he pointed to a newspaper article that begins: 

“A city [Milford, CN] man claims in a lawsuit seeking more than $15,000 in damages that he suffered a heart attack after refusing to pay for a hairpiece that was not only the wrong size but also the wrong color.”

Dumas then wondered whether Overlawyered.com’s editor Walter Olson would blame this [assumed] frivolous lawsuit on lawyers, and stated “If anything, this case is underlawyered.  Almost any member of the bar would have declined Lewis’ case and encouraged him to resolve the small claims suit without the counter suit, which looks like a bald attempt to generate bad publicity for the hairpiece maker. Of course, that’s may be why he filed pro se.”  

exitSignN  Walter Olson noticed Mark’s assertion when it was picked up by Evan Schaeffer at his Legal Underground website, where he often jousts with the Overlawyered crew.  Walter left this Comment at Evan’s site and then repeated it today at Overlawyered.com (“Pro Se lawsuits: don’t blame lawyers, right?,” Sept. 22, 2006):

“I agree that it’s fair to point out that many dubious legal claims are advanced by unrepresented pro se litigants, and also fair to point out that most lawyers would have advised against pressing many of these claims, and thus would have played a socially beneficial role had they been called into the case by the claimant. 

“I don’t agree that the moral is that such cases have no logical link to public discontent with the legal profession. Our system is set up so as to encourage marginal pro se claims (like marginal claims generally) through liberal rules of civil procedure that make it easier to get into court, rules on causation and damages that make longshot theories seem worth a try, lack of loser-pays, and so forth. These ground rules were largely developed by, and are certainly jealously guarded by, the profession that administers and makes its living from them, and that profession is assuredly not the hatters, the cobblers, or the cigar makers.” 

Walter’s Overlawyered colleague, Ted Frank also added his own (more colorful) commentary.  I’m going to let others argue over the “are lawyers to blame?” issue and what major changes, if any, should be made to the entire system relative to the incentives to bring meritless cases.  There are, however, a few points worth making about the responsibility of pro se litigants for baseless, marginal, or just plain silly claims: 

 Pro Se litigants need to be held to the same standards as lawyers.  Thus, the U.S. district court for South Carolina was absolutely correct when it warned pro se litigants: “Although you have the right of access to this court, you do not have the right to proceed on a frivolous claim.”  Of course, a claim is not “frivolous” simply because it does not win on the merits.  A frivolous claim or defense has no basis in law or fact (or no good faith basis to ask for a change or extension in the law).   This obligation means that pro se litigants should be doing some legal homework before raising complicated claims — and, the existence of a wealth of self-help materials means that there are few excuses, if any, for not doing so.

  justSayNoThe public needs to be better educated about the rules against frivolous claims and the sanctions and penalties that can be imposed against parties making or continuing such claims. 

As in cases where lawyers are used, judges can and should play a big role in guarding against and penalizing frivolous claims.   As with federal cases, state judges have the power to act on their own (sua sponte) and need to do so. 

To the extent that pro se litigants may present special risks of making frivolous claims, pro se practitioners and advocates need to help judges and self-help centers create best-practices guides for courts to deal with the problem.

Mark Dumas is correct that we would surely prevent many meritless pro se claims, if the claimants first got a professional legal opinion about their case or counterclaim.  Note, though, that even Dumas hedges by saying that “Almost any member of the bar would have declined Lewis’ case and encouraged him to resolve the small claims suit without the counter suit.”  Once a person has been sued and is already in court, it’s not all that clear that most lawyers would discourage a client from making marginal counterclaims.  More important and unfortunate: many lawyers decline to take a case because there does not seem to be enough money in it for them (note, for instance, all the ads seeking only “serious injury” victims), not because of a lack of merit, and they often will not go out on a limb and actually state what is wrong with the proposed claim. 

Making the unbundling of legal services more extensive (and educating the public on the availability of discrete-task lawyer services) would make it far more likely that people thinking about going the pro se route would first make the investment of getting a legal opinion on the merits of their claim.

2 Comments

  1. shlep: the Self-Help Law ExPress » Blog Archive » coordinated pro se tax-haters clogging up courts

    October 13, 2006 @ 10:23 am

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    […] david giacalone – October 13, 2006 @ 10:21 am · Viewpoint, News Items An article in today’s Legal Times discusses a spate of coordinated, mostly-pro-se “tax revolt” cases — 108 of them — that have been filed in federal district courts across the country since last Fall.    Law.com, “Tax Revolt: Plaintiffs File Coordinated Cases Against IRS,” Oct. 13, 2006)  Reporter Emma Schwartz writes that “The effort hasn’t seen much success; so far, 40 have been dismissed because of the plaintiffs’ failure to exhaust their administrative remedies. But the cases managed to pique curiosity in judges’ chambers.”  It appears that Schwartz has unearthed the mystery man behind the suits, “Chicago-based anti-tax activist George Pragovich”. Although most of the litigants have refused to say who is behind their judicial tax revolt, the wife of plaintiff Paul Broward is quoted saying that Pragovich is “one of the major coordinators of what we’re doing. I just fill out the forms and send them in.”  I’m sure that some observers are going to point to these cases as another good reason to require lawyes for all litigants in federal court — using the legal fee as a deterrent to baseless or harassing suits, with lawyers as toll-taking gatekeepers.  I believe that dealing with such pro se suits is an appropriate ”cost” of ensuring the fundamental right of Americans to represent themselves in court.  As stated in our prior post on frivolous pro se litigants, the proprer approach is for courts to use their powers to quickly dispatch cases that do not belong before them — either because they are frivolous or premature.   Our Government knows how to accommodate First Amendment-type rights into the operation of its agencies.   We can’t let those who abuse such rights become an excuse to limit appropriate behavior by the vast majority of Americans.  […]

  2. shlep: the Self-Help Law ExPress » Blog Archive » defamation self-help (for myself, too)

    October 26, 2006 @ 10:01 pm

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    […]   What does a person do when falsely accused of defamation?  I’m not sure, since yesterday’s charge by “victim-of-the-law” June Maxam of the North Country Gazette was the first time it has happened to me, despite 30 years as a lawyer and over three as an opinionated and sometimes grumpy weblogger.   I don’t think I’m going to set up a Defense Fund like Ms. Maxam’s.  However, as a shlepper, there is one thing I can do that might help myself and our readers: collect links to a few good online resources on defamation.  So, here we go. — You can find very helpful FAQs on Defamation (especially in the internet context) at both the Electronic Freedom Foundation and The Chilling Effects Clearinghouse.  As EFF says in its Bloggers’ FAQ on Online Defamation Law, “Generally, defamation is a false and unprivileged statement of fact that is harmful to someone’s reputation, and published “with fault,” meaning as a result of negligence or malice. State laws often define defamation in specific ways. Libel is a written defamation; slander is a spoken defamation.”    The FAQ also points out that truth is an absolute defense, and “For a blog, a court would likely start with the general tenor, setting, and format of the blog, as well as the context of the links through which the user accessed the particular entry. Next the court would look at the specific context and content of the blog entry, analyzing the extent of figurative or hyperbolic language used and the reasonable expectations of the blog’s audience.” — The AOL Legal Department has put together a page on Online defamation Decisions and litigation.  — Prof. Euguene Volokh posted a piece just today that explains: “In a defamation case, at least when the speech is on a matter of public concern, “the plaintiff [must] bear the burden of showing falsity, as well as [the defendant’s] fault, before recovering damages.” This is true whether the plaintiff is a public figure or a private figure. See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776 (1986). The common-law rule was that the defendant must prove truth, but Hepps changed that for First Amendment reasons.” Ironically, my accuser, legal pundit June Maxam stated last month in a North Country Gazette editorial that “In a libel and defamation suit, truth is the best defense.”   With that principle in mind, Mike at TechDirt.com asked today ”Can You Sue For Defamation If Someone Points Out Publicly That You Are Wrong?” (Oct. 26, 2006) Unfortunately, unless blocked from courts due to a pattern of vexatious lawsuits, just about anybody can sue for just about anything.  Although sanctions can be levied for frivolous lawsuits (as we recently discussed here), responding to baseless charges is never enjoyable, can be very time-consuming and stressful, and very expensive.  Nonetheless, spending a little time understanding the law and its protection for truthful speech, can help a shlepper with a clear conscience sleep even better.   p.s.  Although she is the one who has repeatedly hurled threats at me, I’ve also been accused of harassment by Ms. Maxam.  Just looking at its definition in the Law.com dictionary, however, was enough research for me tonight.  I’m going to be sleeping like a baby. […]

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