shlep: the Self-Help Law ExPress

   On the surface, the New York Times devotes a lot of column space today to an important issue involving the pro se litigant.  The reporter states: “As the number of pro se litigants has grown in recent years, judges across the country have struggled with the question of how far to ease the rules to help the self-represented while remaining fair to the party with counsel.”   Unfortunately, rather than addressing the topic in a manner that might enlighten the public or promote needed judicial reform, “The Marriage Lasted 10 Years. The Lawsuits? 13 Years, and Counting” (Feb. 19, 2007) is simply another juicy tale of an over-the-top pro se outlier.

The article focuses on Michael Melnitzky, 69, who “was once a recognized art expert” and conservator but now declares “I am a litigator.”  As the article stresses “when his wife filed for divorce in 1994, Mr. Melnitzky became something else: a litigator. A prolific one. And although he has no law degree and only himself as a client, he has never been busier.”  Here are excerpts from the article about Melnitzky’s situation:

•   Through a series of self-fashioned lawsuits and appeals, issues that might have been settled with his divorce have gone on for 13 years, 3 years longer than his marriage.
• He has sued virtually everyone involved: one of his former lawyers, his wife’s lawyer, three banks, five judges and a psychiatrist appointed by the court to evaluate his mental health. In unrelated cases, he has sued a neighbor, a thrift shop, the city and his former employer. And he has almost always lost.
• When not in court, he applies the same meticulous attention that he once put into restoring great Impressionist works to researching the law. Legal texts fill his cluttered brownstone on the Upper East Side, whose top floors he rents out.
•   In the last 10 years, he has lost 17 of 18 lawsuits — the remaining one is still active — and 30 of 32 appeals. The two appellate victories ultimately ended in defeats after the cases were returned to lower courts.
• But Mr. Melnitzky is unusual because of the volume and complexity of his litigation, and because he arguably could afford a lawyer but has seldom chosen to use one, even in the face of repeated failure.  

Justice Walter B. Tolub of Manhattan Supreme Court wrote in a 1999 ruling that the advantages of Mr. Melnitzky’s decision to represent himself “soon became clear”:

  “Mr. Melnitzky was free to plead ignorance of the law when it suited him, at the same time picking and choosing those points of law which he ‘discovered’ were in his favor,”  

The Times tells us that “Legal experts say Mr. Melnitzky is hardly alone among people who become fixated with the legal system, filing lawsuits again and again without the aid of a lawyer to try to reverse an earlier loss.”  This rather small group of “fixated” or “obsessed” pro se litigants clearly raises far trickier problems in docket management and courtroom control and fairness than the everyday self-represented litigant, who appears in courthouses across the nation in tens of thousands of lawsuits each year.  The typical pro se litigant has neither the time nor the capacity to manipulate the court with selective presentation of the law based on extensive research and deep knowledge of the issues.   

The Times article gives considerable space to one incident involving Melnitzky and Judge Tolub. Melnitzky apparently spent four or five days at a trial, which concerned whether a set of valuable watches were marital property, presenting evidence that he was a Holocaust victim. The judge then cut off his attempt to show when he came into possession of the watches.   The article paraphrases a brief that appellate lawyer Norman A. Olch filed for Melnitzky with the NY Court of Appeals, saying that:

“[W]hile criminal courts had long recognized the need to give pro se defendants more latitude in pleading their arguments, Mr. Melnitzky’s case illustrated a troubling gap in the civil courts’ understanding of how to deal with pro se litigants. Common law does suggest that judges should give such litigants in civil cases some latitude, but it also requires that they be held to the same standards as those with lawyers.

“ ‘The plain record shows that the trial judge denied a pro se litigant the most basic due process right of all: the opportunity to present evidence in support of his claim,’ Mr. Olch wrote.”

Olch is correct about the general principles involved, but we surely have not been given enough information to come to any useful conclusion on Melnitzky’s treatment.  And, the public is really no closer to understanding how the fairness issue might be resolved on a general basis.

If you’d like to learn more about the vital issue broached by the NYT today, see our prior post discussing the The Judicial Guidelines for Civil Hearings Involving Self-Represented Litigants in Massachusetts; ; our discussion of Prof. Jona Goldschmidt’s paper “Judicial Assistance to Self-Represented Parties: Lessons from the Canadian Experience; and our posting  describing the Queensland (Australia) Equal Treatment Handbook