The Seven Circuit, through Judge Wood, has responded to Judge Posner’s criticism of the Court’s approach to those without lawyers as follows:
First, while [Judge Posner] is certainly entitled to his own views about such matters as our Staff Attorney’s Office and the accommodations we make for pro se litigants, it is worth noting that his views about that Office are not shared by the other judges on the court, and his assumptions about the attitudes of the other judges toward pro se litigants are nothing more than that — assumptions. In fact, the judges and our staff attorneys take great care with pro se filings, and the unanimous view of the eleven judges on the Seventh Circuit (including actives and seniors) is that our staff attorneys do excellent work, comparable to the work done by our chambers law clerks. We are lucky to attract people of such high caliber for these two-year positions.
While all the judges involved are surely entitled to the greatest respect, what Judge Wood has unfortunately done here is turned a general criticism of the Courts into a specific attack on the Court’s staff attorneys, and then defended them.
But the point is not how good the staff attorneys are, but rather the sysem as a whole adequately protects those without lawyers, and ensures that they are heard. Indeed, the logic of Judge Wood position could become fearfully close to saying that no advocacy is needed for anyone.
To return to Judge Posner’s point:
“I was not getting along with the other judges because I was (and am) very concerned about how the court treats pro se litigants, who I believe deserve a better shake,” Posner wrote.
And, in the New York Times:
In the Seventh Circuit, Judge Posner said, staff lawyers rather than judges assessed appeals from such litigants, and the court generally rubber-stamped the lawyers’ recommendations.
Judge Posner offered to help. “I wanted to review all the staff attorney memos before they went to the panel of judges,” he said. “I’d sit down with the staff attorney, go over his memo. I’d make whatever editorial suggestions — or editorial commands — that I thought necessary. It would be good education for staff attorneys, and it would be very good” for the litigants without lawyers.
“I had the approval of the director of the staff attorney program,” Judge Posner said, “but the judges, my colleagues, all 11 of them, turned it down and refused to give me any significant role. I was very frustrated by that.”
Indeed, when I was a public defender in Massachusetts, I had one case in which a similar screening process in the court in which I was appearing for the defense led to a summary hearing, surely identified for affirmance,. But my boss, on my telling him that Judge Benjamin Kaplan was to write the decision, told me to assume that there was a chance of reversal, and so I did, and soit was. I am not sure if it was the same case, but in one summary affirmance case, the DA was so sure of victory that she did not turn up. That case was a reversal, showing that staff attorneys do not always see things the same way as judges, no matter how good.
I think it would have been more helpful if Judge Woods, rather than re-framing Poner’s point, and then responding with a defense of the staff, would have instead addressed the general issue of openness to issues raised by those without lawyers.