Court systems stacked against pro se litigants
My eldest son is a musician whose chosen instrument is bigger than him.
In early 2008, he auditioned for music schools across the country, which meant he, his parents and his bass racked up the frequent flyer miles.
Airlines charged extra to fly the huge bass box. Inside a rigid protective shell, the instrument was attached by several belts to keep it well cushioned.
At Boston’s Logan Airport, he and I watched from the plane window as the suitcase was pushed onto the conveyor belt that lifted it into the plane’s hold. One of the belts was trailing outside the case. Our hearts collapsed.
It seemed all too obvious that a Transportation Security Administration inspector had removed the bass from its case. That in itself was perhaps understandable, assuming the agency didn’t have adequate imaging equipment. But the inspector obviously did not note the sequence of measurements taken when he removed the instrument, and failed to repeat them in reverse order when he replaced it.
When we returned to Sunport and picked up the bass, our worst fears were confirmed. Not only was one belt loose, but another was too tight. The handle of the instrument was broken.
We were, however, extremely lucky to live in Albuquerque, home of Robertson & Sons Violin Shop. Many Albuquerquens, I’m sure, pass the Carlisle store with no clue as to its international reputation. Robertson did a superb emergency repair and my son and his instrument went to his next audition the following week.
Meanwhile, the family’s attorney has filed a complaint with the TSA. The agency denied it on the grounds that I couldn’t prove the TSA was responsible. Well, it could have been anyone inspecting luggage in secure areas of the airport that day. If I disagreed with the decision, the expert told me smugly, I could still file a federal complaint.
I considered it. But while the repair cost was a pittance for a family sending their first child to college, I knew it was peanuts compared to the amounts involved in most federal lawsuits. Hiring a lawyer would have cost far more than I could hope to recover. The only realistic option would be to represent me.
In legal jargon, a litigant who represents himself is said to appear pro se (pronounced “pro say”). As a lawyer with experience in Federal Court, I had an advantage over the average pro se litigant. But it also meant that I knew all too well how daunting the prospect of initiating a federal lawsuit was.
For starters, it’s expensive. The current filing fee is $402, and it was the same or similar back then. To do the trial properly, I would have to gather evidence on TSA procedures at Logan airport, which would have been ridiculously expensive.
Filing a federal complaint would also have meant incurring non-monetary costs. Litigation takes time and is stressful. It can eat your life. And I knew one more thing. Pro litigants were not treated well.
Don’t take my word for it. In an article in the American Bar Association Journal, retired federal judge Richard Posner reportedly said of pro se litigants: “The basic thing is that most judges treat these people as some kind of rubbish that is not worth the time of a federal judge.”
The chief judge of Posner’s former court, the Seventh Circuit Court of Appeals, provided an ambiguous response, also quoted in the ABA Journal. She said “the judges and our staff lawyers take great care of the pro se filings”, which can be interpreted to mean that they try not to spill coffee on them.
Self-representation is not uncommon in the American legal system. A law review article by John M. Greacen and colleagues estimates that “one in six Americans is an unrepresented litigant in a newly filed case each year.” That number seems high to me, but even if we reduce it by 90%, we still end up with some 5.5 million Americans appearing pro each year. Posner told the Chicago Daily Law Bulletin that about 55 to 60 percent of litigants who file appeals in the Seventh Circuit are self-representing.
My family ended up paying for the cost of repairing the TSA damage to our son’s bass. We are far from unique, I am sure. The number of pro litigators can be difficult to quantify. But whatever the total, it doesn’t include people who, like us, give up without complaining.
Our state and federal governments simply do not provide an adequate forum for the fair, expeditious, and inexpensive resolution of many legal disputes. The next column will describe some of the adverse effects and discuss some possible solutions.
Joel Jacobsen is an author who retired in 2015 after a 29-year legal career. If there are topics you would like to see covered in future columns, please write to him at [email protected]