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Five Major Problems Facing Pro Se Litigants in Court
Troubling rulings, ignored complaints against judges, and negative attitudes toward pro se litigants are a few problems in Superior Courts that create blocks to justice for the general public. More avenues for public participation in court operations and citizen oversight committee's are needed to keep the courts functioning with integrity.
The author notes that this modified paper was originally submitted to Saybrook Graduate School in San Francisco, California.
The author notes that this modified paper was originally submitted to Saybrook Graduate School in San Francisco, California.
Five Major Problems Facing Pro Se Litigants in Court
I first began to work toward change in the court system because of my own family court case involving custody of my child. Over the years I found more parents who complained about difficulties in their ability to protect their children from domestic violence and child molestation on the part of the fathers, and since my case also involved domestic violence I realized that this was a widespread problem across the country. Since I have spent years as a pro se litigant and have spent years corresponding with others online about their various kinds of court cases, I am in a good position to understand problems the general public faces when representing themselves in court.
FIVE MAJOR PROBLEMS
I see five major problems facing pro se litigants who bring a case to Superior Court. They are: lack of knowledge about the court system, judicial attitudes and leading to troubling rulings, problems individuals have accessing the court, common law being replaced by commerce law and the court system as a corporation. These five areas create serious ramifications to the outcomes of court cases and to the general public. These items overlap with other issues as will be further discussed.
The first problem is the public’s lack of knowledge about where to begin. Court clients are either called into court by someone else, or they want to bring a case to court. If court clients search the internet they will find websites for the state and county, as well as other court information sites, such as findlaw.com, or megalaw.com and several other university sites. Sometimes the user must pay to do research on legal sites. Findlaw.com is a comprehensive site that is user-friendly and includes chat boards in all specialized areas of law. Being computer literate is the most helpful skill I have used to research cases to cite in my court pleadings. Making friends with law librarians also leads court clients to the manuals that explain exactly how to write each section of a pleading. Legal research takes time and practice, and so meeting others in online legal discussion groups is a good way to swap information and copies of other people’s legal documents to study and learn how to address legal issues.
Often the general public seems to feel that someone, somewhere should take their case on a contingency basis because their legal problem is so important to them. They seem to feel they have been wronged and believe that the court system will ensure that their rights are protected. This is sadly untrue, and to get “justice” from the courts takes their own work, money paying attorney fees, or activity to advocate for the protection of their rights. The system does not automatically protect people but is instead, a lumbering and at times, seemingly unresponsive entity. Litigants soon find that there is no one to come to their rescue.
It is often difficult to find attorneys who take cases on a contingency basis since some cases are a gamble and not a sure winner in court. I believe that people should make the effort to become educated about the law because the case is going to be most important to the court client, and court clients should oversee their cases for damage control to themselves. Attorneys may be lax, not return phone calls, and send court clients huge bills for little work. Encouraging people to learn on their own and to help them overcome their own fear that they are not capable of presenting their cases pro se are hurdles for many people. The court system is such a mystery and confusing arena for the lay person and puts people off.
CURRENT LEGAL SERVICES
As far as free legal consultations, there are a few options available. In family law, the family court facilitator’s office is usually busy, with many people waiting for up to an hour or more to ask the facilitator their questions. There are time constraints with many people needing to ask questions and gain guidance so that court clients may only have a few minutes to talk to the facilitator. It used to be that appointments could be made with the family court facilitator for up to an hour, but these longer sessions are no longer available. Also, office hours are limited to daytime hours during the business week. Occasionally a lawyer can be met with briefly at local libraries, but persons must arrive early to ensure they will be seen. These services demonstrate some progress has been made in ensuring that the general public can receive affordable assistance, but the court still advises litigants to get an attorney, which often is out of the financial reach of the general public.
Counties and states have websites that provide information about their courts as well as providing downloadable legal forms to use. These websites usually have a self-help section where frequently asked questions are answered, and instructions about where to file court documents and the fees involved is also provided.
INCENTIVES AND CONFLICT OF INTEREST
Many people across the country feel that the judiciary needs to be watched and audited for the prevention of using grant money as an incentive to rule in certain ways so that the county coffers are filled. For example, a county’s budget could be increased as the result of a large number of individuals being fined and jailed. Judge’s salaries are also comprised, in part, by fines and fees from the Trial Court Funding Act that brings up the issue of conflict of interest, since the California state Consitution says in Article 6, section 17, “A judicial officer may not receive fines or fees for personal use”.
News stories have publicized the fact that courts, district attorney’s and public defender’s offices are corporations, and further that court corporations are non-profits. Article VI Section 9 of the California State Constitution says that the State Bar of California is a public corporation. Every person admitted and licensed to practice law in this State is and shall be a member of the State Bar except while holding office as a judge of a court of record. This leads some to wonder how justice can be found in a corporate system when corporations concern themselves with making a profit to pay expenses. With the cost of living increasing, and the salaries, benefits and perks of various officers of the court needing to be paid, the cost of justice must somehow cover expenses to run such a corporation.
Superior Courts receive State and federal grant money. This money is allocated to California counties, and then the county board of supervisors decides how much money will be dispersed to the court. Court systems and the prison industry are recipients of this grant money, and so successful programs elicit more grant money every year. Part of the budget in Los Angeles was exposed as being used to pay judges health and benefits by way of “double dipping”, since judges already received health benefits from their jobs. The Los Angeles Times online edition reports the following abstract of their story about double dipping of judges.
Re "L.A. County Lets Judges Draw Duplicate Benefits and Perks," Aug. 20: That Los Angeles County officials allow judges to draw duplicate benefits and perks from state and local taxes is disgusting in itself because of the inequity imposed on taxpayers. Equally disgusting are the convoluted rationalizations the judges use to try to justify the double-dipping.
Along these same lines of “double dipping” comes the article from the online Business Line, and several other articles on this subject also can easily be found on the internet:
Los Angeles County judges receive "duplicate benefits and perks from both the state and local county, getting nearly $30,000 a year above their $118,000 base salaries". Some call it "double dipping."
Another problem with California family courts is that the public voted that judges would hear family court trials rather than juries. This puts litigants in front of the same judge who may have already shown bias in their cases. In court cases where jury trials are allowed, district attorneys oversee putting together juries. This puts individuals making up the jury under the direction and control of persons who are already a part of the legal system. This presents a question of how juries are chosen. Juries chosen by attorneys will be hand-picked according to how much attorneys think they can win the jury over to their point of view in cases. The juries are then already manipulated in this way rather than being a “jury of peers” who are chosen without bias and are therefore impartial.
Judges also do not educate jurors about jury nullification where juries can decide a person on trial is not guilty, whether the case presented follows the presented laws or not. In jury nullification the jury can decide whether the laws presented in the case are good or not, and the jury can disagree with a law when they decide their case. This is meant to give the jury independence from the judges and lawyers. Instead of this, the jury is often influenced by the judge so that the jury is not explained their power of jury nullification and so are not a “fully informed jury”.
"If a juror accepts as the law that which the judge states then that juror has accepted the exercise of absolute authority of a government employee and has surrendered a power and right that once was the citizen's safeguard of liberty" (1788).
Jury nullification is a powerful tool that is supposed to give juries true power in deciding cases, otherwise juries would have to decide cases on the basis of how attorneys slanted their cases and presented their evidence.
Conflict of interest arises when complaints about attorneys and judges must be sent to members of the legal community and very few complaints result in punishment. It appears that judges and lawyers are protected by those in their own profession. This protection works to alienate the general public so that no regulation occurs that would protect the public.
In 1933, the courts were changed from Constitutional courts to commerce courts, hence the gold-fringed flags found in all courts but juvenile courts which signify admiralty law. This has drastically changed the basis of court cases so that commerce is the business of the courts rather than protecting individual rights and liberties. This has caused major distress to pro se litigants who have no understanding of the business transactions that are taking place rather than the respect for the Constitution. Persons find that they are unable to understand nor cope with the way their cases turn out. They find that there is no one in the court system who will listen as complaints go routinely ignored. Some courts refuse to hear cases that are taken to higher courts and this also blocks the chances of equitable relief for the wronged parties.
PREJUDICIAL ATTITUDES OF THE COURT
There seems to be a strong backlash against pro se litigation so that there are few resources available for individuals who cannot or will not pay attorneys. Adequate help from lawyers for low-income individuals are reminiscent of health care provided for low-income persons such that persons must wait in long lines for the family court facilitator in family court cases. Once in the courtroom the pro se litigant is usually told by the judge to obtain legal assistance that may very well be out of the reach of the person’s budget. Pro se litigants are told that they are expected to know all that attorneys know, and this can take years of self-education and emotional distress only to be ruled against in court. One may feel that they are being punished for not paying for attorney services.
Perceived negative attitudes from court officials toward pro se litigants often work to put litigants a prejudicial bind and unable to gain equitable relief. The following quote speaks to such attitudes that can be found in courts that work to hurt pro se litigant’s in their cases.
According to the AJS/JMI Pro Se Project Survey, 1996:
Some judges’ comments reflect a distinct anti-pro se litigant sentiment. They are described as "an increasing problem," they are "very time consuming," and they "get the ear of the media who then report inaccurate information that makes the judiciary look bad." These judges emphatically state that they are "opposed to socialized legal services," that "no one likes pro se litigants," and that, because there is the possibility of their "clogging our judicial system," there is a "need to limit their access if that does happen." Some anti-pro se judges suggest that pro se litigation not be encouraged, that "rules are not useful for pro se litigants," and that there is a need for a rule "outlawing pro se representation”.
The class-action case of Nicholson v. Williams, Udoh V. Scoppetta, and Tillett v. Scopetta (2001) concerns itself with the cruelty of the system toward battered mothers. A sample of a real case filed in Solano County Superior Court below refers to the case about how the New York family court is callous toward the safety needs of battered mothers and their children. Gender concerns come into play in keeping with the widespread research of how women and children suffer more financially than men do after divorce, compounding the devastation of going through the court system.
In Nicholson v. Williams, Udoh V. Scoppetta, and Tillett v. Scopetta (2001), U.S. District Court Eastern District of New York., “Children should be protected by offering battered mothers appropriate services and protection. ..Batterers should be held accountable…. Seperation of battered mothers and children should be the alternative of last resort. … Cruely of seperation by agencies… toward mothers abused by their consorts through forced unnecessary separation of the mothers from their children… and “Pitiless double abuse of the mothers is not malicious, but is due to benign indifference, bureaucratic inefficiency, and outmoded institutional biases”. “…But the evidence demonstrates that the system as a whole falls short and results in a form of betrayal of those to whom effective counsel was promised. And it is the system as a whole for which the state is responsible.” The points made here are of great importance to the safety of the public including children.
California NOW’s findings from their three year study of family courts (http://www.canow.org) cites loss of due process, conflict of interest, and favoring of abusive fathers.
INTERVENTIONS
Interventions would be to educate the public as to what resources are available, such as internet websites, law libraries, guidelines for legal research, groups to contact and meetings to attend or contact.
There are few self-help and support groups. Most groups focus on discussion at this time as the general public awakens to court problems and expends the energy to find meeting locations. So far, there do not seem to be many groups where people physically meet to share ideas and information.
One group that runs on donations purports to be a self-help group that attempts to follow an unwritten agenda. This group has great potential and fills a public need. A major problem with this group is that new individuals to the group do not understand how the group is run and often repeatedly interrupt the group with emotional tirades about how awful the court system is. This could be remedied by having a beginner’s group before the main meeting where newcomers are given individual attention to take off their emotional edge before the main meeting starts. Also the newcomers could be informed that the first hour of the main meeting provides a type of training by one or two speakers, similar to a workshop, and during the second hour individuals can ask questions and make comments about what was learned during the first hour. Also during the second hour the group plans what it will do the following meeting and plans any outside activities and makes general announcements. By the end of the first hour however, the meeting usually begins to unravel with many people speaking at the same time and some individuals seeming to dominate the group. Better facilitation skills using redirection and reminders would help keep the group on task. When the group is able to cover the costs of photocopies, a copy of the agenda could be given to each group member to help focus the purpose of the meeting.
Facilitating workshops that provide an overview of the court process that encourages court clients to take a more active role in their court cases would be an alternative to paying the high costs of attorney fees. Providing handouts that show examples of pleadings (with all identifying names blacked-out) would give people an idea of what a pleading looks like and the types of pleadings that they might file. Education about how to cite cases and codes in the proper way would be useful. The workshops could also be a way that court clients share their experiences in court to gain the emotional support and ability to network with others. Pro se litigants could ask questions and the group would have an opportunity to help brainstorm answers, or provide helpful information. Some pro se litigants, after exchanging information in legal self-help groups, have been able to successfully present their court cases, and some judges perceived to be biased or corrupt, have been fired due to the pressure of such individuals and groups.
The internet has become an invaluable resource in networking among pro se litigants. Many online support and informational groups are available with varying degrees of emotional support, information and resources. These online groups work also as a kind of crisis line where people can pour out their feelings online and receive understanding and friendships with other group members. Many persons exchange phone numbers and some groups have instigated activities together such as hosting rallies, leafleting in the community, letter writing campaigns and other grass roots activism.
Institutional Change & Social Need (ICSN)is a newly formed non-profit agency in Solano County that works to address the needs of pro se litigants by providing a telephone and website support service. This organization is in the process of finding grants as its funding base and will grow into a national resource. The agency will also encompass how the courts deal with mental illness, domestic violence, juvenile cases, addictions as well as expose the failings of the courts in order to stop any corrupt practices, including cronyism, that works to instill bias in the courts. The agency also is allowed to do some lobbying and has registered with the state for this.
ICSN will produce a news publication that will publish personal stories and experiences documenting the frustrations of the layperson in bringing a case to court. The publication will also provide information and resources that will educate the public about the court system and how to find and use the legal information needed for their cases. The online public who complains about the courts also complain that the mainstream press does not print enough stories about bad court activities and so a publication is needed to print what the mainstream media won’t print.
Along these lines is the creation of internet-radio shows that allow people to telephone in and air their thoughts. This input is heard through the speakers on computers tuned to the online channel.
Another strategy is to hold public hearings where the public shares negative experiences about the court system. Public hearings could be held in front of legislators or local agencies, such as the board of supervisors. This may only comprise a handful of persons making their presentations to government officials, since gathering large groups of people to attend rallies has been largely unsuccessful. Some people express their fears of retaliation if they show their faces at a public rally, and some people are too tired or too busy to get involved.
One of the major groups that ICSN will work with is J.A.I.L.4Judges that hopes to pass the Judicial Accountability Initiative Law that holds corrupt judges accountable in front of juries that are not controlled by district attorneys, but are comprised of fully informed members of the general public to avoid “rigging” the case. Judges would no longer be protected by immunity and would face the same consequences for criminal contempt as any individual would.
Another group that ICSN works with is CivicUSA that concerns itself with exposing corrupt government, and First Amendment Coalition that pushes for open government. Forming alliances with similarly concerned groups creates energy and an exchange of ideas about how to create a more accountable government that is “for the people and by the people”. Attending a conference, for example, where speakers and groups share information about their perspectives of the court system, is an effective way to network with other concerned individuals and collect informative brochures and flyers. Drawing the public’s interest into such activities is the basis for such grass roots involvement since accountability in government will not occur from government but must be addressed by public pressure and demand for it.
Luckily, accountable government is a topic of many groups springing up around the country that easily find each other through the internet. The internet speeds up the sharing of ideas, planning, organizing, recruiting and raising money for grass roots activities. Online sharing educates internet users about trends and news stories from around the country. Self-publishing sites are available for individuals to disseminate information about the courts in order to inform the public.
Through public education about the consequences of a closed judiciary and how any form of closed government breeds criminal activity, more people have become involved in working to pass the “Sunshine Law” which advocates open government that will be on the voter ballot in 2004. The California First Amendment Coalition in Sacramento, California, promotes “the public’s right to know” and provides material about how to access government records. The Vacaville, California newspaper, The Reporter, published their audit of local compliance with the California Public Records Act (CPRA) and reported their results on July 21, 2002: “Of 46 agencies tested, only 19 passed. Another 21 failed, and six received a "partial pass" grade”.
A citizen’s oversight committee would oversee cases and members of court watch groups would be paid to monitor judges in their courtroom. Court watchers have been proven to be effective in that judges take notice of people sitting in the audience with note pads taking notes. Stories have been shared about how judges become testy and appear to be thrown off by such persons who also provide a show of support to the individual whose court case they came to watch.
CONCLUSION
The general public’s concern about how the courts operate has grown into a force to be reckoned with. This concern has been facilitated by the internet. Groups are beginning to realize that working together creates strength, support and exchange of ideas about how best to change the court system that is perceived by many to be riddled with cronyism, bias and criminal activity. An erosion of civil liberties and the U.S. Constitution is perceived to have changed the country so that court cases are treated as business transactions for the benefit of the government. A chasm about what constitutes justice has appeared to have been formed between the general public and the legal community. Because so many in the general public feel that courts are oppressive and not concerned with justice, interventions to open up the courts to public scrutiny and public participation and oversight are being called for. Strategies such as empowering the public with information, exposing court corruption, and calling for audits and legislative changes in the law are some of the ways groups are dealing with this issue. Fighting perceived corruption in the judicial branch of government is still in its infancy and will continue to grow with the use of the internet. New areas will be explored in how to build coalitions involving watchdog groups to oversee that government operates for the benefit of society rather than for the benefit of itself.
# # #
References
AJS/JMI Pro Se Project Survey, 1996. Retrieved October 9, 2002, from http://www.pro-
selaw.org/pro-selaw/cases.asp.
California First Amendment Rights Coalition (2002). Retrieved November 6, 2002 from
http://cfac.org/ and http://www.cfac.org/sca7.html.
California National Organization for Women (NOW). Retrieved November 3, 2002, from
http://www.canow.org/fam.html.
Editorial, TheReporter.com, July 21, 2002: Survey: Change Needed. Retrieved
October 29, 2002, from
http://www.thereporter.com/Specials/Record/record17.html.
Fully Informed Jury Association. (2 Elliots Debates, 94, Bancroft, History of the
Constitution, 267) History of Jury Nullification. Retrieved November 2, 2002,
From
http://quasar.as.utexas.edu/BillInfo/FIJA.History.html.
The Los Angeles Times (2000, August 22). Double-Dipping by County Judges. Retrieved
November 3, 2002, from http://pqasb.pqarchiver.com/latimes/index.html?ts=1036396410.
Nicholson v. Williams, Udoh V. Scoppetta, and Tillett v. Scopetta (2001). Memorandum,
Findings of Fact and Law, Order: Draft. Retrieved November 3, 2002, from
http://news.corporate.findlaw.com/hdocs/docs/nyc/nchlsnwllms030102drft.pdf.
Sundaram, R. (2002, October 1). Business Line Internet Edition. Retrieved November 7,
2002, from http://www.thehindubusinessline.com/businessline
/2002/10/01/stories/2002100100240800.htm.
I first began to work toward change in the court system because of my own family court case involving custody of my child. Over the years I found more parents who complained about difficulties in their ability to protect their children from domestic violence and child molestation on the part of the fathers, and since my case also involved domestic violence I realized that this was a widespread problem across the country. Since I have spent years as a pro se litigant and have spent years corresponding with others online about their various kinds of court cases, I am in a good position to understand problems the general public faces when representing themselves in court.
FIVE MAJOR PROBLEMS
I see five major problems facing pro se litigants who bring a case to Superior Court. They are: lack of knowledge about the court system, judicial attitudes and leading to troubling rulings, problems individuals have accessing the court, common law being replaced by commerce law and the court system as a corporation. These five areas create serious ramifications to the outcomes of court cases and to the general public. These items overlap with other issues as will be further discussed.
The first problem is the public’s lack of knowledge about where to begin. Court clients are either called into court by someone else, or they want to bring a case to court. If court clients search the internet they will find websites for the state and county, as well as other court information sites, such as findlaw.com, or megalaw.com and several other university sites. Sometimes the user must pay to do research on legal sites. Findlaw.com is a comprehensive site that is user-friendly and includes chat boards in all specialized areas of law. Being computer literate is the most helpful skill I have used to research cases to cite in my court pleadings. Making friends with law librarians also leads court clients to the manuals that explain exactly how to write each section of a pleading. Legal research takes time and practice, and so meeting others in online legal discussion groups is a good way to swap information and copies of other people’s legal documents to study and learn how to address legal issues.
Often the general public seems to feel that someone, somewhere should take their case on a contingency basis because their legal problem is so important to them. They seem to feel they have been wronged and believe that the court system will ensure that their rights are protected. This is sadly untrue, and to get “justice” from the courts takes their own work, money paying attorney fees, or activity to advocate for the protection of their rights. The system does not automatically protect people but is instead, a lumbering and at times, seemingly unresponsive entity. Litigants soon find that there is no one to come to their rescue.
It is often difficult to find attorneys who take cases on a contingency basis since some cases are a gamble and not a sure winner in court. I believe that people should make the effort to become educated about the law because the case is going to be most important to the court client, and court clients should oversee their cases for damage control to themselves. Attorneys may be lax, not return phone calls, and send court clients huge bills for little work. Encouraging people to learn on their own and to help them overcome their own fear that they are not capable of presenting their cases pro se are hurdles for many people. The court system is such a mystery and confusing arena for the lay person and puts people off.
CURRENT LEGAL SERVICES
As far as free legal consultations, there are a few options available. In family law, the family court facilitator’s office is usually busy, with many people waiting for up to an hour or more to ask the facilitator their questions. There are time constraints with many people needing to ask questions and gain guidance so that court clients may only have a few minutes to talk to the facilitator. It used to be that appointments could be made with the family court facilitator for up to an hour, but these longer sessions are no longer available. Also, office hours are limited to daytime hours during the business week. Occasionally a lawyer can be met with briefly at local libraries, but persons must arrive early to ensure they will be seen. These services demonstrate some progress has been made in ensuring that the general public can receive affordable assistance, but the court still advises litigants to get an attorney, which often is out of the financial reach of the general public.
Counties and states have websites that provide information about their courts as well as providing downloadable legal forms to use. These websites usually have a self-help section where frequently asked questions are answered, and instructions about where to file court documents and the fees involved is also provided.
INCENTIVES AND CONFLICT OF INTEREST
Many people across the country feel that the judiciary needs to be watched and audited for the prevention of using grant money as an incentive to rule in certain ways so that the county coffers are filled. For example, a county’s budget could be increased as the result of a large number of individuals being fined and jailed. Judge’s salaries are also comprised, in part, by fines and fees from the Trial Court Funding Act that brings up the issue of conflict of interest, since the California state Consitution says in Article 6, section 17, “A judicial officer may not receive fines or fees for personal use”.
News stories have publicized the fact that courts, district attorney’s and public defender’s offices are corporations, and further that court corporations are non-profits. Article VI Section 9 of the California State Constitution says that the State Bar of California is a public corporation. Every person admitted and licensed to practice law in this State is and shall be a member of the State Bar except while holding office as a judge of a court of record. This leads some to wonder how justice can be found in a corporate system when corporations concern themselves with making a profit to pay expenses. With the cost of living increasing, and the salaries, benefits and perks of various officers of the court needing to be paid, the cost of justice must somehow cover expenses to run such a corporation.
Superior Courts receive State and federal grant money. This money is allocated to California counties, and then the county board of supervisors decides how much money will be dispersed to the court. Court systems and the prison industry are recipients of this grant money, and so successful programs elicit more grant money every year. Part of the budget in Los Angeles was exposed as being used to pay judges health and benefits by way of “double dipping”, since judges already received health benefits from their jobs. The Los Angeles Times online edition reports the following abstract of their story about double dipping of judges.
Re "L.A. County Lets Judges Draw Duplicate Benefits and Perks," Aug. 20: That Los Angeles County officials allow judges to draw duplicate benefits and perks from state and local taxes is disgusting in itself because of the inequity imposed on taxpayers. Equally disgusting are the convoluted rationalizations the judges use to try to justify the double-dipping.
Along these same lines of “double dipping” comes the article from the online Business Line, and several other articles on this subject also can easily be found on the internet:
Los Angeles County judges receive "duplicate benefits and perks from both the state and local county, getting nearly $30,000 a year above their $118,000 base salaries". Some call it "double dipping."
Another problem with California family courts is that the public voted that judges would hear family court trials rather than juries. This puts litigants in front of the same judge who may have already shown bias in their cases. In court cases where jury trials are allowed, district attorneys oversee putting together juries. This puts individuals making up the jury under the direction and control of persons who are already a part of the legal system. This presents a question of how juries are chosen. Juries chosen by attorneys will be hand-picked according to how much attorneys think they can win the jury over to their point of view in cases. The juries are then already manipulated in this way rather than being a “jury of peers” who are chosen without bias and are therefore impartial.
Judges also do not educate jurors about jury nullification where juries can decide a person on trial is not guilty, whether the case presented follows the presented laws or not. In jury nullification the jury can decide whether the laws presented in the case are good or not, and the jury can disagree with a law when they decide their case. This is meant to give the jury independence from the judges and lawyers. Instead of this, the jury is often influenced by the judge so that the jury is not explained their power of jury nullification and so are not a “fully informed jury”.
"If a juror accepts as the law that which the judge states then that juror has accepted the exercise of absolute authority of a government employee and has surrendered a power and right that once was the citizen's safeguard of liberty" (1788).
Jury nullification is a powerful tool that is supposed to give juries true power in deciding cases, otherwise juries would have to decide cases on the basis of how attorneys slanted their cases and presented their evidence.
Conflict of interest arises when complaints about attorneys and judges must be sent to members of the legal community and very few complaints result in punishment. It appears that judges and lawyers are protected by those in their own profession. This protection works to alienate the general public so that no regulation occurs that would protect the public.
In 1933, the courts were changed from Constitutional courts to commerce courts, hence the gold-fringed flags found in all courts but juvenile courts which signify admiralty law. This has drastically changed the basis of court cases so that commerce is the business of the courts rather than protecting individual rights and liberties. This has caused major distress to pro se litigants who have no understanding of the business transactions that are taking place rather than the respect for the Constitution. Persons find that they are unable to understand nor cope with the way their cases turn out. They find that there is no one in the court system who will listen as complaints go routinely ignored. Some courts refuse to hear cases that are taken to higher courts and this also blocks the chances of equitable relief for the wronged parties.
PREJUDICIAL ATTITUDES OF THE COURT
There seems to be a strong backlash against pro se litigation so that there are few resources available for individuals who cannot or will not pay attorneys. Adequate help from lawyers for low-income individuals are reminiscent of health care provided for low-income persons such that persons must wait in long lines for the family court facilitator in family court cases. Once in the courtroom the pro se litigant is usually told by the judge to obtain legal assistance that may very well be out of the reach of the person’s budget. Pro se litigants are told that they are expected to know all that attorneys know, and this can take years of self-education and emotional distress only to be ruled against in court. One may feel that they are being punished for not paying for attorney services.
Perceived negative attitudes from court officials toward pro se litigants often work to put litigants a prejudicial bind and unable to gain equitable relief. The following quote speaks to such attitudes that can be found in courts that work to hurt pro se litigant’s in their cases.
According to the AJS/JMI Pro Se Project Survey, 1996:
Some judges’ comments reflect a distinct anti-pro se litigant sentiment. They are described as "an increasing problem," they are "very time consuming," and they "get the ear of the media who then report inaccurate information that makes the judiciary look bad." These judges emphatically state that they are "opposed to socialized legal services," that "no one likes pro se litigants," and that, because there is the possibility of their "clogging our judicial system," there is a "need to limit their access if that does happen." Some anti-pro se judges suggest that pro se litigation not be encouraged, that "rules are not useful for pro se litigants," and that there is a need for a rule "outlawing pro se representation”.
The class-action case of Nicholson v. Williams, Udoh V. Scoppetta, and Tillett v. Scopetta (2001) concerns itself with the cruelty of the system toward battered mothers. A sample of a real case filed in Solano County Superior Court below refers to the case about how the New York family court is callous toward the safety needs of battered mothers and their children. Gender concerns come into play in keeping with the widespread research of how women and children suffer more financially than men do after divorce, compounding the devastation of going through the court system.
In Nicholson v. Williams, Udoh V. Scoppetta, and Tillett v. Scopetta (2001), U.S. District Court Eastern District of New York., “Children should be protected by offering battered mothers appropriate services and protection. ..Batterers should be held accountable…. Seperation of battered mothers and children should be the alternative of last resort. … Cruely of seperation by agencies… toward mothers abused by their consorts through forced unnecessary separation of the mothers from their children… and “Pitiless double abuse of the mothers is not malicious, but is due to benign indifference, bureaucratic inefficiency, and outmoded institutional biases”. “…But the evidence demonstrates that the system as a whole falls short and results in a form of betrayal of those to whom effective counsel was promised. And it is the system as a whole for which the state is responsible.” The points made here are of great importance to the safety of the public including children.
California NOW’s findings from their three year study of family courts (http://www.canow.org) cites loss of due process, conflict of interest, and favoring of abusive fathers.
INTERVENTIONS
Interventions would be to educate the public as to what resources are available, such as internet websites, law libraries, guidelines for legal research, groups to contact and meetings to attend or contact.
There are few self-help and support groups. Most groups focus on discussion at this time as the general public awakens to court problems and expends the energy to find meeting locations. So far, there do not seem to be many groups where people physically meet to share ideas and information.
One group that runs on donations purports to be a self-help group that attempts to follow an unwritten agenda. This group has great potential and fills a public need. A major problem with this group is that new individuals to the group do not understand how the group is run and often repeatedly interrupt the group with emotional tirades about how awful the court system is. This could be remedied by having a beginner’s group before the main meeting where newcomers are given individual attention to take off their emotional edge before the main meeting starts. Also the newcomers could be informed that the first hour of the main meeting provides a type of training by one or two speakers, similar to a workshop, and during the second hour individuals can ask questions and make comments about what was learned during the first hour. Also during the second hour the group plans what it will do the following meeting and plans any outside activities and makes general announcements. By the end of the first hour however, the meeting usually begins to unravel with many people speaking at the same time and some individuals seeming to dominate the group. Better facilitation skills using redirection and reminders would help keep the group on task. When the group is able to cover the costs of photocopies, a copy of the agenda could be given to each group member to help focus the purpose of the meeting.
Facilitating workshops that provide an overview of the court process that encourages court clients to take a more active role in their court cases would be an alternative to paying the high costs of attorney fees. Providing handouts that show examples of pleadings (with all identifying names blacked-out) would give people an idea of what a pleading looks like and the types of pleadings that they might file. Education about how to cite cases and codes in the proper way would be useful. The workshops could also be a way that court clients share their experiences in court to gain the emotional support and ability to network with others. Pro se litigants could ask questions and the group would have an opportunity to help brainstorm answers, or provide helpful information. Some pro se litigants, after exchanging information in legal self-help groups, have been able to successfully present their court cases, and some judges perceived to be biased or corrupt, have been fired due to the pressure of such individuals and groups.
The internet has become an invaluable resource in networking among pro se litigants. Many online support and informational groups are available with varying degrees of emotional support, information and resources. These online groups work also as a kind of crisis line where people can pour out their feelings online and receive understanding and friendships with other group members. Many persons exchange phone numbers and some groups have instigated activities together such as hosting rallies, leafleting in the community, letter writing campaigns and other grass roots activism.
Institutional Change & Social Need (ICSN)is a newly formed non-profit agency in Solano County that works to address the needs of pro se litigants by providing a telephone and website support service. This organization is in the process of finding grants as its funding base and will grow into a national resource. The agency will also encompass how the courts deal with mental illness, domestic violence, juvenile cases, addictions as well as expose the failings of the courts in order to stop any corrupt practices, including cronyism, that works to instill bias in the courts. The agency also is allowed to do some lobbying and has registered with the state for this.
ICSN will produce a news publication that will publish personal stories and experiences documenting the frustrations of the layperson in bringing a case to court. The publication will also provide information and resources that will educate the public about the court system and how to find and use the legal information needed for their cases. The online public who complains about the courts also complain that the mainstream press does not print enough stories about bad court activities and so a publication is needed to print what the mainstream media won’t print.
Along these lines is the creation of internet-radio shows that allow people to telephone in and air their thoughts. This input is heard through the speakers on computers tuned to the online channel.
Another strategy is to hold public hearings where the public shares negative experiences about the court system. Public hearings could be held in front of legislators or local agencies, such as the board of supervisors. This may only comprise a handful of persons making their presentations to government officials, since gathering large groups of people to attend rallies has been largely unsuccessful. Some people express their fears of retaliation if they show their faces at a public rally, and some people are too tired or too busy to get involved.
One of the major groups that ICSN will work with is J.A.I.L.4Judges that hopes to pass the Judicial Accountability Initiative Law that holds corrupt judges accountable in front of juries that are not controlled by district attorneys, but are comprised of fully informed members of the general public to avoid “rigging” the case. Judges would no longer be protected by immunity and would face the same consequences for criminal contempt as any individual would.
Another group that ICSN works with is CivicUSA that concerns itself with exposing corrupt government, and First Amendment Coalition that pushes for open government. Forming alliances with similarly concerned groups creates energy and an exchange of ideas about how to create a more accountable government that is “for the people and by the people”. Attending a conference, for example, where speakers and groups share information about their perspectives of the court system, is an effective way to network with other concerned individuals and collect informative brochures and flyers. Drawing the public’s interest into such activities is the basis for such grass roots involvement since accountability in government will not occur from government but must be addressed by public pressure and demand for it.
Luckily, accountable government is a topic of many groups springing up around the country that easily find each other through the internet. The internet speeds up the sharing of ideas, planning, organizing, recruiting and raising money for grass roots activities. Online sharing educates internet users about trends and news stories from around the country. Self-publishing sites are available for individuals to disseminate information about the courts in order to inform the public.
Through public education about the consequences of a closed judiciary and how any form of closed government breeds criminal activity, more people have become involved in working to pass the “Sunshine Law” which advocates open government that will be on the voter ballot in 2004. The California First Amendment Coalition in Sacramento, California, promotes “the public’s right to know” and provides material about how to access government records. The Vacaville, California newspaper, The Reporter, published their audit of local compliance with the California Public Records Act (CPRA) and reported their results on July 21, 2002: “Of 46 agencies tested, only 19 passed. Another 21 failed, and six received a "partial pass" grade”.
A citizen’s oversight committee would oversee cases and members of court watch groups would be paid to monitor judges in their courtroom. Court watchers have been proven to be effective in that judges take notice of people sitting in the audience with note pads taking notes. Stories have been shared about how judges become testy and appear to be thrown off by such persons who also provide a show of support to the individual whose court case they came to watch.
CONCLUSION
The general public’s concern about how the courts operate has grown into a force to be reckoned with. This concern has been facilitated by the internet. Groups are beginning to realize that working together creates strength, support and exchange of ideas about how best to change the court system that is perceived by many to be riddled with cronyism, bias and criminal activity. An erosion of civil liberties and the U.S. Constitution is perceived to have changed the country so that court cases are treated as business transactions for the benefit of the government. A chasm about what constitutes justice has appeared to have been formed between the general public and the legal community. Because so many in the general public feel that courts are oppressive and not concerned with justice, interventions to open up the courts to public scrutiny and public participation and oversight are being called for. Strategies such as empowering the public with information, exposing court corruption, and calling for audits and legislative changes in the law are some of the ways groups are dealing with this issue. Fighting perceived corruption in the judicial branch of government is still in its infancy and will continue to grow with the use of the internet. New areas will be explored in how to build coalitions involving watchdog groups to oversee that government operates for the benefit of society rather than for the benefit of itself.
# # #
References
AJS/JMI Pro Se Project Survey, 1996. Retrieved October 9, 2002, from http://www.pro-
selaw.org/pro-selaw/cases.asp.
California First Amendment Rights Coalition (2002). Retrieved November 6, 2002 from
http://cfac.org/ and http://www.cfac.org/sca7.html.
California National Organization for Women (NOW). Retrieved November 3, 2002, from
http://www.canow.org/fam.html.
Editorial, TheReporter.com, July 21, 2002: Survey: Change Needed. Retrieved
October 29, 2002, from
http://www.thereporter.com/Specials/Record/record17.html.
Fully Informed Jury Association. (2 Elliots Debates, 94, Bancroft, History of the
Constitution, 267) History of Jury Nullification. Retrieved November 2, 2002,
From
http://quasar.as.utexas.edu/BillInfo/FIJA.History.html.
The Los Angeles Times (2000, August 22). Double-Dipping by County Judges. Retrieved
November 3, 2002, from http://pqasb.pqarchiver.com/latimes/index.html?ts=1036396410.
Nicholson v. Williams, Udoh V. Scoppetta, and Tillett v. Scopetta (2001). Memorandum,
Findings of Fact and Law, Order: Draft. Retrieved November 3, 2002, from
http://news.corporate.findlaw.com/hdocs/docs/nyc/nchlsnwllms030102drft.pdf.
Sundaram, R. (2002, October 1). Business Line Internet Edition. Retrieved November 7,
2002, from http://www.thehindubusinessline.com/businessline
/2002/10/01/stories/2002100100240800.htm.
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There are 6, you missed outright corruption
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