By: Deborah Dickson Davis, a member of Team Posner

Three simple principles exist in the new movement addressing the rise in pro se litigants. First, the failure to recognize the dynamics behind the rise in pro se litigants undercuts the very fabric of our legal system and the legal profession. Second, the failure to acknowledge the public’s myopia with respect to the legal system and the legal profession is to be obsolete. Third, the failure to acknowledge one’s need to be heard, with or without a guiding hand, is to perpetuate a miscarriage of justice.

From a simple, business perspective, one must know one’s audience: the legal consumer.

The misperception that the pro se litigant cannot afford to retain an attorney is not the primary factor for the growing sector of unrepresented pro se litigants. Well-educated, savvy individuals and small business owners are facing the gauntlet of the legal system alone—by their choice. Of many factors, several reasons readily explain this growing trend: (1) the pro se litigant is not satisfied with the attorneys with whom that person has consulted; (2) the pro se litigant cannot afford an attorney; (3) the pro se litigant is dissatisfied with the process in general; or, (4) the do-it-yourself (“DIY”) consumer trends in the marketplace has shifted into the legal profession. The various motivations for the DIY legal consumer, as a whole, attribute to the rise of pro se litigants.  

Whatever the reasons, and whoever is to blame, for the current state of the public’s myopia of the legal system and the legal profession is irrelevant to a certain point. The myopia exists. The damage to the legal profession and the legal system is already done. Any attorney with boots on the ground dealing with real people every day will confirm that these observations are no surprise. Jaded individuals within the legal profession is now commonplace after living with handcuffs in the form of high cost of entry into the legal profession, the lower return on investment from higher education, rules constricting the ability to assist prospective clients with a limited scope of engagement, and the financial reality of accepting or declining cases from a cost-effective perspective. And, those once-idealistic-altruistic attorneys compete alongside with those firms and attorneys engaging in very unethical practices from a consumer advocacy standpoint. 

From a simple, public relations perspective, now is the time for damage control, and the legal profession must respond in kind. The rise in pro se litigants is only climbing. Taxpayer money deserves to be well-allocated within the legal system to handle this rising trend for the DIY legal consumer. The legal profession must evolve and adapt to the new legal consumer—not cling to a viscous cycle of mistakes simply because of the amount of time and resources invested into making a mountain out of a molehill.    

More than likely, comparing the cost to the legal system from the rise in the pro se litigants with the costs of funding ancillary programs for either pro bono services or consultation services by legal professionals in civil litigation may actually expose the exponential, hidden costs of wasting taxpayer money in the present state of affairs with the actual administration of the legal system in the current adversarial model. Standing alone, the mandatory requirement of mediation to ease the burden of judicial administration in certain cases is a major indicator of the hidden costs facing the judiciary system as a whole. Much scholarship exists on the Access to Justice movement for further information, a movement that is part and parcel to a bigger issue at hand.      

At present, Richard Posner has taken a strong stance to address the rise in pro se litigants, and seeks to create a team of like-minded individuals to turn his vision into a reality: Team Posner. Whether one agrees with Professor Posner’s views, Professor Posner being one of the most brilliant, legal minds of our era is, arguably, undisputed. Team Posner is in the brainstorming phase to roll out a national program to address this issue. Likeminded individuals who want to put force and momentum behind this movement are welcome to inquire further.  

Many people do not like change. Many visionaries are often criticized and regarded as brilliant or insane throughout the course of mankind’s elastic relationship with innovation. Ingenuity does not come from conformity. Because of Professor Posner’s stature, the media will undoubtedly respond in kind with much predictable, criticism from all directions. And, he can handle it—as only someone of his stature can.

One prong of the public myopia is that the legal profession is viewed as a self-protectionist profession. Those within the legal profession, whether professors, judges, or attorneys, who view this proposed change as a threat to the legal profession fail to see the forest from the trees. In reality, pro se litigants are not hiring attorneys. That is the whole point. The real issue facing the legal profession is, when the market of pro se litigants vastly outnumbers the market of paying clients, whether the legal profession will respond in kind to accommodate this DIY legal consumer or become obsolete. Either the legal profession can figure it out, or the will of the people can by cutting the Gordian knot and changing the nature of the legal system.

The misperception of too many attorneys in the profession is misplaced. Perhaps, and more accurately stated, the pool of attorneys compared to the pool of paying clients is disproportionate compared with the barriers of entry into the legal profession. And, the demand for legal services is not diminishing. The supply of legal services is the problem. The legal profession is not capturing the full market share of legal consumers. Many attorneys are declining those cases because either the prospective client cannot afford the attorney or the dispute itself does not warrant the cost of hiring an attorney. An entire market of unrepresented legal consumers is on the rise.

Just liked an unbanked class of consumers exist within the financial sector, an unrepresented sector of consumers exists within the legal sector. The ingenuity of Professor Posner’s vision is to create a way for the legal profession to cater to this unrepresented legal consumer and help decrease the overall burden on the administration of justice. Professor Posner’s vision is a win-win for all involved. When viewing the forest for the trees upon a mountaintop, the rise of pro se litigants is a major epidemic facing the legal system presenting significant, hidden costs for taxpayers. Further research efforts need to be devoted to that price tag.

To be clear, Professor Posner’s vision is not a threat to the legal profession. The proposed solution is not in competition with maintaining attorneys as a profession and attorneys’ ability to make a living. No competition exists when the legal profession is not adequately servicing the unrepresented legal consumer, or choosing not to do so for whatever reasons. While being an attorney is about being a public servant, the high cost of entry into the profession creates an untenable situation to provide pro bono services or accept cases that are not cost-effective to both the attorney (or firm) or the client’s best interests. The guiding hand needs help to do so. Likeminded individuals and organizations are encouraged to inquire further about sponsorships and funding for this program.

Finding creative opportunities to service unrepresented legal consumers opens the door for the boots on the ground to give legal aid where aid is needed most without being handcuffed to do so. Whether funding this movement in the capacity of providing pro bono counsel to pro se litigants, serving as co-counsel to the pro se litigants, or lobbying for pro se litigants, forming public-private partnerships will be most beneficial to join forces and create new opportunities within the legal profession for the legal profession to adjust accordingly.

In a legal system where one must pay to play, what happens when people stop paying? If the legal profession does not evolve, and become part of the solution, someone else will capitalize on increasing the market share of legal services provided to this untapped, ripe market of DIY legal consumers. Just google pro se online to see a wealth of resources for pro se litigants. The market always finds a way to adapt around the rules and regulations held in place favoring self-protectionism. Consumerism is fluid, and will exert pressure over time like running water icing over the crags of a mountain.

Unfairly characterizing Professor Posner’s vision from a self-protectionist viewpoint merely exacerbates the public’s myopia with the legal profession protecting its own interests—and not the interests of the people, the legal consumer. Rather, more should be done by way of statistical analysis to drill down on the issues mentioned before. Real people have real problems and need real help. From the jaded to the obscure, those within the legal profession speaking on this issue often fall upon deaf ears. Professor Posner merely speaks for all of us lost in obscurity because he has a louder megaphone standing on the mountaintop.

At issue, the rise of pro se litigants deals with an undercurrent that stands on a precipice of exploding the foundations of our legal system and the legal profession. In reality, the law is so overly hyper technical and convoluted that the guiding hand—the attorney—needs a guiding hand. For the determined pro se litigant willing to take on the legal system alone without formal, legal training, what brave souls.  

When someone of Professor Posner’s stature cries foul about pro se litigants, the litmus test indicates change is coming as the avalanche nears. This issue is more than just having access to justice. Access to justice does equate to receiving justice; miscarriages of justice may still occur. One’s need for a right to be heard is not just a substantive right under our Federal Constitution. The need is also an emotional one grounded in principles of fairness and respect when resolving disputes. Like a mountain climber facing a choice to cut the rope to save others’ lives, the legal profession needs to cut its losses for our rights and freedoms to survive in the long run.

The rise of pro se litigants is merely a symptom. The public’s myopia with the legal system and the legal profession is a call to action. For those of us who love the law, cherish the rights and freedoms of this great nation, we must honor the profession that we endeavor to serve. A need for attorneys will always exist. However, the manner in which we serve must evolve to enforce or defend our rights for all involved. The guiding hand cannot reach out when handcuffed by Gordian knots.  

At issue is due process, both substantive and procedural due process when enforcing or defending one’s rights and remedies. At the heart of the matter is human dignity.