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41 Judges J. 5 (2002)
Defining the Role of Lawyers in Pro Se Litigation

handle is hein.journals/judgej41 and id is 149 raw text is: Defining the Role of Lawyers in Pro Se Litigation By William Hornsby I n recent years, self-help litigation has been the topic of increased dia- logue within both the courts and the legal profession. Today's frequency of pro se litigation challenges us to exam- ine the underlying reasons people are self-representing and to considcr the efficacy of policies that may impede the help lawyers can provide these litigants. This article sets forth three predicates necessary to give pro se issues proper context, identifies reasons people self represent, and exatines various institu- tional responses to those reasons. The article also provides an analysis of the role of lawyers and concludes with a discussion of what is needed to address policies to facilitate the involvement of lawyers in pro se litigation. The Role of Pro Se in the ABA The ABA has no policy directly on pro se. However, it has established eleven goals designed to advance its mission of being the national represen- tative of the legal profession, serving the public and the profession by pro- moting justice, professional excellence and respect for the law.' Two of these goals are broadly applicable to the issues involved in self-representation. Goal II states that it is a goal of the ABA to promote meaningful access to legal representation and the American system of justice for all persons regard- less of their economic or social condi- tion. Goal VIII states that it is a goal to advance the rule of law in the world' Similarly, the ABA has no entity explicitly responsible for addressing pro se issues. However, the ABA Standing Cominittee on the Delivery of Legal Services (Delivery Committee) has a long history of research and policy development in this area. According to the ABA bylaws, this committee shall have jurisdiction over innovative meth- ods designed to enhance access to legal services and improve the delivery of civil justice to moderate income persons.4 The Delivery Committee began research into issues of pro se in the early 1980s with an examination of the fre- quency of self-help litigation in divorce and bankruptcy in Maricopa County, Arizona. This report documented a sub- stantial increase in pro se litigation for divorces, but not bankruptcies, during the first half of the 1980s. The report also raised a series of questions about the characteristics of pro se litigants and their perceptions of success. Predicates to Understanding Pro Se In order to understand the reasons people choose pro se and, therefore, to be in a position to responsibly respond to those reasons, it is important to view pro se within the context of con- flict resolution. In the majority of all conflict resolu- tions, individuals proceed without the representation of a lawyer. Pro se par- ties tend to dominate alternative dispute resolution forums, traffic courts, hous- ing courts, and small claims courts. This is not to say that pro se is the pre- ferred model. Indeed, research indicates that tenants who proceed pro se in housing court are likely to forgo avail- able remedies and lose their residences when they might have had a successful outcome if represented by a competent lawyer. Similarly, this is not to say that these forums are void of litigants who are fully represented by lawyers. Obviously, those faced with major issues, such as DUI defendants and landlords seeking possession of their premises, are frequently represented. In

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