Re: Final Paper for Judging in the America Legal System

Exam Number: 2547

To: Judge Young

Due Date: May 15, 2017

Re: Final Paper for Judging in the America Legal System

Equal Justice for the Pro Se Litigant: A Case Study in Boston, Massachusetts

Introduction

“Equal Justice Under Law” is the sentiment etched in the walls of the Supreme Court Building and on many courthouses throughout the county.[1] It is those very words that inspire many citizens to believe that the legal system will treat them the same as every other person. Those words encourage people to believe in the legal system and believe that court proceedings will end with a fair result.[2] This is an ideal that our American Legal System values[3] and that judges in the United States strive to achieve. However, judges disagree on the meaning of these words. Some judges define Equal Justice Under Law as meaning, that the American Legal System is predicated on equal access and impartial treatment for all parties.[4] Other judges take the notion further, stating that not only should there be equal access but also equal substantive judgments for parties with similar cases.[5] Furthermore, some judges believe that equal justice under the law cannot be fulfilled in all cases without assistance of counsel[6] for low-income civil litigants. [7]

The United States Constitution establishes a right to access the courts[8] but does not establish an absolute right to representation by counsel in the context of civil cases. [9] As a result, many people represent themselves in civil court proceedings.[10] The ability to represent oneself, to be a pro se litigant, is a codified legal right.[11] Although there is an abundance of lawyers, many people are pro se litigants. Pro se litigants represent themselves for several reasons, such as a person’s inability to pay for legal assistance, the increasing cost of litigation regardless of a person’s income level, a person’s lack of knowledge of how free legal-aid services work, legal-aid service’s lack of resources,[12] increasing legal information available online[13] and a person’s choice to proceed without counsel.[14] Additionally, it is possible that pro se litigants choose to represent themselves because they think judges will treat them with more leniency than represented parties.[15]

Whatever the reasons for self-representation, pro se litigants face several barriers to achieving equal justice under the law. Pro se litigants usually are not lawyers and do not have training in the legal field.[16] Therefore, most pro se litigants are unfamiliar with the court’s procedural processes and the substance of the law.[17] This unfamiliarity with the legal system means that it is likely that a pro se litigant will not be able to represent themselves as fully and coherently as a lawyer.[18] Prior to the court hearing, pro se litigants are more likely to be unaware of court deadlines resulting in a missed deadline, file incorrect papers, and file vague or unhelpful pleadings. During the court hearing, pro se litigants are less likely to be persuasive advocates because they are unfamiliar with the legal standard and facts they should be arguing and are more emotionally involved in case. Therefore, without judicial intervention, by the very nature of the pro se litigant’s lack of experience and training it would be more likely that a party represented by a lawyer would prevail against a party self-represented.[19]

Thesis

Pro Se litigants face barriers to equal justice in the legal system because of their lack of knowledge and expertise. This often results in a favorable verdict for the party represented by counsel and against the pro se litigant. These barriers for the pro se litigant are inherently in conflict with the core value of our legal system that all people should have access to and be able to attain equal justice.

In this paper, I argue that equal justice demands that all people have equal access to the court system and equal substantive judgements for like cases regardless of the parties’ representation status. However, if judges treat pro se litigants exactly as they would litigants represented by counsel, then equal justice is unlikely to result because of the barriers pro se litigants face to representing themselves effectively. For pro se litigants to have equal access to justice, judges should be procedurally more lenient, be more patient in letting a pro se litigant explain their fact-based story and take more precaution to ensure that pro se litigants understand their rights.

My analysis is based on research and observations. In Boston, Massachusetts I have observed three separate judges on multiple occasions preside over motions and hearings. In this paper, I relay my observations from the Boston Housing Court, The United States District Court for the District of Massachusetts, and Suffolk County Probate and Family Court. I focus on the civil hearings and motions at the trial level since most pro se litigants are involved in civil litigation. Pro Se criminal defendants are less common because of the criminal defendant’s constitutional right to counsel. I observed the same judge preside over cases in which there was a pro se litigant and cases where counsel represented both parties. I have observed judges procedurally treat pro se litigants differently than litigants represented by counsel, I have also observed judges treat pro se litigants as if they were a lawyer. I will outline the importance for lenient procedural treatment in each of these courts, describe my observations in these courts and analyze my findings. Additionally, I will make recommendations for how judges could be treating pro se litigant to help achieve equal access to justice regardless of representation. Lastly, I will evaluate the practical implications for the recommended approach.

Case Study

1. Boston Housing Court

The Boston Housing Court has systems in place to try to alleviate the barriers that pro se litigants face when representing themselves in court. However, these systems are not doing enough to ensure that judgements are the same for pro se litigants as factually similar cases in which counsel represents the party.

1. Barriers in Boston Housing Court for the Pro Se Litigant

The Massachusetts state court system designates courts into divisions, one of which is the Housing Court. The Boston Housing Court has jurisdiction “of all housing problems. . . which affect the health, safety and welfare” of occupants and owners, that affect Boston residents.[20] Accordingly in Boston Housing Court, judicial time is scarce because the court has a high volume of cases.[21] While housing court has jurisdiction over a broad area of issues, many Boston Housing Cases involve Summary Process (eviction) cases. In Boston Housing Court, summary process cases are scheduled for the first hearing on Thursdays. [22] On Summary Process Thursday, when you enter the Housing Courtroom, there is a mass of people who are facing eviction. Looking around at their faces, many people appear tired, scared and confused as to where to go and what they should do. For the court and its officers, you can sense an urgency because there is a high volume of cases to get through and a finite amount of time.

An overwhelming number of the summary process cases involve a represented landlord who is trying to evict a pro se tenant.[23] In 2014, only about seven-percent of tenants received some type of legal assistance.[24] This is logically consistent with the nature of the proceeding as it is likely that the landlord is claiming an eviction for non-payment of rent.[25] If a tenant is behind or unable to pay for their housing, it is unlikely that they have the means to pay for a lawyer.

Additionally. Massachusetts Summary Process law is complex and foreign to the pro se litigant[26], and the courtroom officers are not able to give legal help to pro se litigants.[27] Tenants facing eviction in Massachusetts can claim a plethora of counterclaims and defenses to ward off eviction.[28] However, to assert these counterclaims and defenses the claim must be for a non-payment of rent, not a fault-eviction.[29] This nuanced and confusing area of the law is often unknown to pro se litigants and confusing to understand. There are also strict rules and a quick timeline for commencing, filing, and scheduling court hearings.[30] For instance, if a landlord does not first serve a tenant with a notice-to-quit before filing an action then the case should result in a dismissal.[31] This is unknown to a pro se litigant and is something that every attorney practicing in the field should know. Additionally, clerks, mediators, and administrative staff are prohibited from giving legal advice.[32] This makes the process even more challenging when a pro se litigant does not understand the court papers they received, or does not know what motions to make and how to file motions. These barriers challenge a pro se litigant’s ability to adequately represent themselves in a court proceeding.

1. Observations of Judges in the Boston Housing Court

The judges in the Boston Housing Court have implemented a system to promote judicial efficiency while trying to protect the interest of all parties in court, including the pro se litigant.[33] For instance, during the morning role call, courtroom clerks instruct all parties that mediation is available before seeing a judge. The mediator available is non-binding and neutral.[34] The mediator hears both parties’ story,[35] separates the parties to determine their goals and then often discovers a middle ground. The staff at the courthouse and the judges tend to encourage the mediation process.[36] I have witnessed a Boston Housing Court Judge first ask if a pro se litigant had been to mediation, when the party replied that they had not, the judge suggested that the landlord’s attorney might try mediation first. While mediation is generally a less stressful environment which allows the pro se litigant to fully explain their factual story, the parties often enter binding agreements after mediation. However, this process has issues especially because mediators do not always explain the pro se litigant’s rights regarding these agreements. Pro se tenants can feel pressure to enter an agreement even if they cannot fulfill the terms. Often, if a tenant violates the agreement, the landlord can immediately file a motion to issue execution of the judgment against the tenant. Therefore, the pro se tenant is entering into a binding agreement and giving up their right to a hearing before a judge, likely without being told the significance of that agreement.

Additionally, the judges in the Boston Housing Court actively seek volunteer lawyers to represent clients in housing.[37] The Honorable Jeffrey M. Winik, the First Judge in Boston Housing Court regularly joins lawyers in conducting pro bono trainings and supporting volunteer lawyer groups.[38] At the 2016 training held at the Boston Bar Association, Judge Winik encouraged lawyers to get involved and volunteer their time to represent tenants and landlords. Furthermore, the judges allow the Volunteer Lawyer’s Project to run a table right outside the courtroom, staffed with lawyers who give free legal advice and information.[39] However, this table has a finite amount of resources and as such cannot help all pro se litigants. Also, no one in the courthouse tells pro se litigants about the resource. To access the resource, a pro se litigant must be willing to walk up to a table full of people in suits and ask for help. If the tenant feels embarrassed about not being able to pay rent, intimidated by the courthouse, or feels as if he has no control over what is happening, he is unlikely to seek assistance from strangers.[40]

Lastly, judges in Boston Housing Court tend to be more procedurally lenient to pro se litigants. Judges allow the pro se litigant to explain the factual story and try to discover how that story fits into a legal defense and counter claim. Judges in the Boston Housing Court tend to hear the case on the merits regardless of the pleadings. Judges generally listen to the pro se litigant tell their story for longer than they would allow a lawyer to argue their case. Judges generally ask questions, and when the judge hears something that sounds like a legal claim, asks leading questions to further understand. Then judges articulate that specific legal claim, and allow the opposing party to respond to that legal argument. It seems as if judges want to ensure that there are not claims and defenses that the pro se litigant should be but are not alleging, such as bad conditions in the apartment.[41] Judges often just ask the pro se tenant, to tell the judge about the dwelling and if children live there. If the judge does not perceive a counterclaim, defense, or dispute as to the facts, then the judge must find for the landlord.[42] However, often after the judge hears the pro se tenant’s factual story, it becomes clear that there is a dispute as to the facts, or that the tenant can assert a counterclaim and defense. If the judge discovers a dispute then the case cannot be decided that day, so a trial date must be scheduled. A future court date allows the tenant time to remain in their apartment, to seek legal advice, and often incentivizes the landlord to create an agreement that day that is mutually beneficial to both parties. This likely results in an agreement by the parties. Alternatively, if the same case involved represented parties it would likely end with the same result as the given example; but the process would include less judicial questioning and fact searching. Both attorneys would argue the law before the judge, the judge would schedule a trial date and likely the parties would come to an agreement. The same factual issues in two different cases result in the same outcome.

However, if the judge does not intervene to question the pro se litigant and does not allow him to explain his story fully, the process would include the landlord’s attorney arguing on the law and the pro se tenant not properly responding to the legal claims or not feeling empowered to fully tell his story. The judge would simply listen and issue a ruling based on the presentation of the parties. This would likely result in the tenant’s eviction because the tenant lacked training in how to make a persuasive legal argument. The same factual case can result two different ways based not on the merits of the case but on the presentation by the parties, and how much procedural leniency the judge allows. Equal justice should mean equal rulings for like cases, therefore sometimes the only way to achieve that is to treat pro se litigants with more leniency than experienced legal counsel.

1. Empirical Data of Judgements in the Boston Housing Court

While the Boston Housing Court System has procedures in place to address the barriers pro se litigants face in achieving equal access to the judicial system, the statistics show that an eviction is still more likely for a pro se litigant. Project Home, Homestart and Dudley Street Neighborhood Initiative conducted a study that analyzed the Boston Housing Court eviction caseload.[43] Eviction cases are about two competing interests: the landlord’s right to his property and compensation for the use of such, and the tenant’s need for shelter.[44] Judges are often determining whether to issue execution, which means that the tenant is legally evicted from the landlord’s property. In 2014, Judges in Boston Housing court issued judgements of execution in about 31.0% of the cases.[45] Of the cases in which the tenant was fully represented by counsel, the rate of execution was 17.5%.[46] Contrastingly, of the cases in which the tenant received limited assistance representation, the rate of execution was 22.8%.[47] When the tenant was completely self-represented, the rate of execution was 32.2%.[48] These statistics indicate that even with the current supports for the pro se litigants, represented litigants are still more effective in preventing the tenant from being removed from his home.

1. Recommendations

The Suffolk County Housing Court should continue to provide resources and support for the volunteer lawyers that are willing to represent would be pro se litigants. This increases court efficiency and should help pro se litigants by providing them limited assistance and legal advice. It could also result in a would be pro se litigant receiving free legal representation. Additionally, the court should continue to provide resources towards compiling data specifically on pro se litigants. This allows judges and court officials to analyze the data and determine if the court has any implicit bias for or against pro se litigants.

Boston Housing Court judges seem to truly understand the enormity of their decision to both tenants and lawyers. Judges also seem to be willing to take the time so that they can question pro se litigants, understand the complex factual issue and try to determine if there is any legal defense or counterclaim that could be articulated. However, if the parties enter an agreement after mediation, the pro se litigant misses this opportunity to hear their rights explained. This decision to enter an agreement, if not fully informed of the severity of the binding agreement, could be detrimental to the pro se litigant. Therefore, mediators should be allowed to explain what entering into a binding agreement means, and judges and court officers should not coerce pro se litigants into mediation. Mediation can be very meaningful and effective for those litigants that understand the effect of entering an agreement. However, since the Boston Housing Court judges are so understanding and accommodating, there are situations in which it would create a more just result if the litigant went before the judge.