What Do Courts Mean to Say When They Cite the Proposition That The Same Rules Apply to the Self-Represented and the Represented

All to often, appellate courts cite something for the proposition that self-represented litigants are held to the same rules as those with lawyers.  The problem with this obvious statement (which is even in its own terms untrue when the rules create specific exceptions as a few do) is that often what they really mean is that 1) the self-represented are not entitled to ignore the rules and not suffer the consequences, and 2) that while the self-represented are entitled, to the extent that the rules permit discretion in a matter, to have the possibility of that discretion being exercised considered, and to have their self-represented status taken into account in any such consideration, they are not entitled to any specific exercise of discretion or result.

What happens in many of these appellate cases is that the self-represented litigant has in fact received the benefit of appropriate consideration and flexibility from a trial judge, and finally the judge decides that enough is enough.  On appeal, the self-represented litigant in effect says that what he or she received was not enough.  Then the appellate court ends its summary and analysis with the language about the same rules being applied, and the result is probably fair, and if considered in the context of the summary, the general language is probably appropriate.    However, what they happens is that the language is taken out of context and cited to stand for the generally erroneous proposition that every ruling must be identical, regardless of whether the litigant has, or does not have counsel.  In other words that the self-represented litigant’s efforts and words must be treated exactly as if made a trained lawyer.

Rather it must be remembered that judges have broad discretion, and that they are actually in error when they refuse to consider whether to exercise that discretion.

The same rule applies to procedures on appeal.  If the appellate rules require an appeal to be dismissed for non-compliance with the rules, or require something to be ignored if not properly put in the record, then that rule must be followed — or if permitted — the case must be delayed with opportunity to cure.  If, on the other hand, the appellate rules merely state that a court is not required to consider something not properly in the record, then the court is not necessarily required to ignore it, and it might even be an abuse of discretion to refuse to even consider if a milder remedy, or even full consideration, might be more appropriate on the facts of the case.

Indeed, in criminal law, most states have one form of doctrine or another that allows courts to ignore procedural defects when required to do justice.  Indeed, one interesting point is that at no point in Turner v. Rogers is the claim made that since no request for counsel was made a trial, the issue was waived.

There is a great law review article topic here for someone to write.


About richardzorza

I am deeply involved in access to justice and the patient voice movement.
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3 Responses to What Do Courts Mean to Say When They Cite the Proposition That The Same Rules Apply to the Self-Represented and the Represented

  1. Lisa Rush says:

    This is a great post, Richard.

  2. George Chandler says:

    This is a prime example of a guild rule. People need to be represented by lawyers because they do not understand the exotica of a legal proceeding, not because they cannot effectively make a reasonable argument to a judge. Our rules of procedure serve mainly to distinguish lawyers by their ability to manipulate the proceedings and deflect the court’s attention from the merits of a case. The 1938 simplification of legal procedure (“there shall be one form of pleading …”) needs a re-do. The legal system is again encrusted, like the hull of a boat with barnacles, with mysteries and legal exotica so that it is badly in need of being careened and scraped clean.

  3. Will Hornsby says:

    Richard, Jona Goldschmidt wrote an outstanding article on this issue – http://onlinelibrary.wiley.com/doi/10.1111/j.174-1617.2002.tb00818.x/abstract

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