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40 Fam. Ct. Rev. 36 (2002)
THE PRO SE LITIGANT'S STRUGGLE FOR ACCESS TO JUSTICE: Meeting the Challenge of Bench and Bar Resistance

handle is hein.journals/fmlcr40 and id is 32 raw text is: ARTICLES THE PRO SE LITIGANT'S STRUGGLE FOR ACCESS TO JUSTICE Meeting the Challenge of Bench and Bar Resistance Jona Goldschmidt Just as the growth of pro se litigation is a challenge for the courts, so, too, is the bench and bar's resistance to pro se assistance programs and policies a challenge to court reformers seeking to improve access to justice. Even where progressive courts have been able to implement court-annexed pro se assistance programs, judicial and bar resis- tance to pro se assistance in the courtroom remains. This paper explores the reasons for such resistance, and argues that pro se litigants have a right to receive - and judges have an obligation to provide - reasonable judicial assis- tance, particularly in cases involving a represented and an unrepresented party. A set of recommendations is offered which will result in pro se litigants being given more basic legal information than previously provided, better prepa- ration of pro se cases, and a more active judge to ensure that all parties have equal access to justice. Pro se litigants' used to be the only litigants in courts all over the world. In ancient times, every great civilization had its courts and laws. But in those happy times, there was not a single lawyer to be found on the globe. Those involved in lawsuits or accused of crimes represented themselves. The plaintiff stood and stated a case, and the defendant gave a reply.... In ancient times, a verdict was not made strictly in accordance with the technicalities of the law codes, which were intended only for guidance, but according to what the judge considered right, fair and just.2 No one would advocate a return to the application of law as mere guidance. However, accompanying the acceptance of the notion of the rule of law is the law's ever-increasing complexity as well as the necessity of obtaining assistance from those with specialized knowledge of its contents to access the justice that is law's promise. Ironically, the necessity of legal counsel coexists with societal antilawyer sentiment, a relationship with a long his- tory beginning in ancient Greece. What is different today from previous historical periods is that the pro se litigant is returning to court, insisting on access to justice without a lawyer. The surge in pro se litigation, particularly in the family courts of every common law coun- try, is reported in official reports and anecdotally by judges and court managers' and in sys- tematic studies.! Multiple causes are responsible for this trend, including increased literacy, consumerism, a sense of rugged individualism, the costs of litigation and attorneys' fees, antilawyer sentiment, and the breakdown of family and religious institutions that formerly resolved many disputes that are now presented to courts instead. Pro se litigants are a fact of life, and courts across the country are struggling with the perceived problems they present to Author's Note: I wish to thank the state judicial educators who arranged for my appearance at numerous judicial conferences to present my ideas about pro se litigation, and those judges who critically engaged me and thereby helped to crystallize my views on the subject. I also thank Pamela Loose, my research assistant; and Professor Rus- sell Engler Forrest Mosten, Judge Dan Slayton, and Michael Ratner who reviewed earlier drafts of this article. FAMILY COURT REVIEW, Vol. 40 No. 1, January 2002 36-62 D 2002 Sage Publications 36

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