In this post: the wave of pro se litigants, the status of court openings nationwide, and an interesting attorney survey.
Is Pro Se the New Norm?
Since the mid-90s, the number of pro se litigants in civil cases has been growing steadily. Recent statistics are hard to find, but a 2015 study by the National Center for State Courts showed that only one in four civil defendants had a lawyer. According to a 2019 Bloomberg article, the number of self-represented individuals continues to rise; they even called it the “New Normal.”
This is not a new trend, as individuals have become increasingly dissatisfiedwith attorney representation. According to 16-year-old study by the American Bar Association, “45% of pro se believe that lawyers are more concerned with their own self promotion than their client’s best interest.”
This shift has also been evident in criminal cases. A 2006 analysis published in the North Carolina Law Review said, “In state court, pro se defendants charged with felonies fared at least as well as, and arguably significantly better than, their represented counterparts.”
There are obviously cases that would require – or benefit greatly from – legal representation. It’s also realistic to say that there are times when a person might be better off proceeding pro se. Especially when you consider the fact that 95% of civil cases are settled without even going to court.
Due Diligence
An individual who puts the time and energy into understanding the applicable law and learning the proper procedures can successfully manage their own case. Resourceful pro se litigants can even find attorneys who are willing to provide specific a la carte services like drafting pre-trial motions or preparing discovery documents. When it comes to holding depositions, a court reporting firm can coordinate the teleconferencing logistics for all of the involved parties. Most courts provide forms and court procedures online and law libraries are open to the public.
According to pro se consultant Kenn Goldblatt, “There are now over five million individuals representing themselves in state and federal courts across the United States.” In divorce cases, employment discrimination filings, foreclosures, and landlord-tenant disputes, the majority involve self-represented litigants. In United States appeals courts, 49% of new cases in 2019 were filed by pro se litigants.
As traditional courtroom proceedings continue to transition, with the expanded use of technology and increasing numbers of pro se litigants, we can be sure that the business of litigation will never be the same.
Court is In Session – What to Expect
Here in New York, courts are in the final phases of re-opening. The New York Unified Court System has implemented a number of restrictions for courthouse entry. Their website states the following:
Effective July 6, all visitors to UCS courthouses and other facilities will be required to submit to temperature screening and questioning before being granted entrance. This includes parties, attorneys, witnesses, spectators, law enforcement officers, prisoners, vendors, and all other non-court system personnel. All court visitors are required to wear a mask. Visitors with a temperature of 100.0º F. or higher will not be permitted to enter the courthouse. In accordance with the Governor’s Executive Order, individuals who have traveled to states listed on the Quarantine List are required to self-quarantine for a period of 14 days and shall not be permitted to enter a courthouse or other court facility during that period.
State Courts – Civil, Criminal, and Appellate
Around the country, states courts are open with limited public access. In certain types of cases, electronic filing and teleconferencing are encouraged or required. You can find a comprehensive map with information on your state at Law360. According to the website, it is updated weekly.
Federal Courts
Federal courts are operating at varying degrees of service and limited courthouse access. Some have resumed jury trials; others have postponed jury trials but allow grand juries to convene. Several are not allowing in-person filings at all, while others accept both in-person and electronic filings. In most states, civil and criminal hearings can be held via phone and videoconferencing.
Bloomberg Law has an interactive map of U.S. federal court statuses.
Attorneys Speak
In June, the Federal Bar Association published an interesting survey of its members to determine how they’re dealing with court operations and practice concerns. Not surprisingly, nearly 50% of respondents considered wellness/increased stress as their main concern. Many also expressed concern about the inconsistencies in procedures between courts and judges.
Regarding courthouse entry restrictions, 75% were in favor of face masks, 65% were in favor of screening questions, and 45% favored temperature checks.
When it comes to courtroom proceedings, however, 53% expressed concern about the ability to judge the credibility of a witness who is wearing a face mask.
Where are We Headed?
Technology seems to be leading the way. The U.S. Supreme Court, as well as most state Supreme Courts, are now hearing oral arguments via videoconference. This is unprecedented.
The use of Skype, Zoom, and other videoconferencing platforms has allowed the courts to continue moving cases forward during shutdowns. Testifying before Congress in June, Michigan Supreme Court Chief Justice Bridget M. McCormack said, “It turns out Zoom is less intimidating for parties who appear without lawyers — at least this is what we have learned so far. There’s something about the equalizing nature of all of the Zoom boxes being the same size that makes people feel more heard and more respected.”
So, it looks like you may be able to have your day in court without leaving your living room.