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Disparate Treatment
of Pro Se Civil Litigants in Federal Court: A Justification for
Resort to Inappropriate Self-Help?
by Sean L. Harrington *
| Equality before the law, like universal suffrage,
holds a privileged place in our political system, and to
deny equality
before the law delegitimizes that system. . . . when
these rights are denied, the expectation that the
affronted parties
should continue to respect the political system . . .
that they should continue to treat it as a legitimate
political system--has no basis.
—David Luban,
Lawyers and Justice: An Ethical Study, 251, 264-66
n.12 (Princeton Univ. Press, 1988) |
Introduction
In 2003, Professor Chemerinsky reminded us that civil rights
vindication in the United States is less achievable than a manned mission to Mars
this decade:
To be sure, closing the courthouse doors is not a new
technique for a conservative court to use to undermine
rights. During the early years of the Burger Court, it did
this by expanding the scope of abstention doctrines, and
by increasing standing as a barrier to civil rights
litigation. But the recent decisions are different in an
important respect. The Burger Court cases were primarily
about channeling civil rights litigation from federal to
state court. The Rehnquist Court rulings of the last few
years are about precluding all judicial forums.1
While Chemerinsky's article
contemplated evolving Supreme Court jurisprudence, this article endeavors
to describe unwritten, yet systemic district and circuit court practices to
preclude ordinary citizens
—regardless of
statutory jurisdictional eligibility —
from prosecuting civil rights cases.2 These
practices defy the prevalent misconceptions that self-represented litigants have a meaningful and effective
right of access to the civil law for redress of grievances and that self-represented litigants are litigious paranoiacs.3
I conclude that these practices constitute a violation of: the
fundamental right of access to the court; the statutory right to
self-representation in civil cases; and the statutory right of
appeal. Consequently, unless there is a state court
remedy for the redress of grievances, litigants may resolve that
there is no other recourse than to resort to inappropriate
self-help.
Sidebar: Access to Justice for unrepresented persons in Colorado state courts much better?
The
1998 Multicultural Commission findings
to the Colorado Supreme Court reported that persons
surveyed stated that, "judges are biased against pro
se litigants." Id. at 16. The 1999
Report of the Committee on Pro Se
Parties and Civil Justice Reform notes that,
"This Committee does not intend to encourage more
litigation by acknowledging the presence of pro se
parties and proposing changes to accommodate them";
"Unassisted pro se litigants drain court time
and tax the patience of judges and court staff"; and
"The continuing growth of pro se
litigation threatens to undermine
the quality of civil justice in Colorado." Id.
The Committee also argued that "the 'information
highway' has prompted many potential litigants to
feel capable of representing themselves."
Id.
The Committee further opined that,
"There also appears to be an
understanding among lawyers (at least)
that judges generally do not
sufficiently use their power to award
attorney fees to a prevailing party in
groundless and frivolous litigation.
Therefore, many believe judges should be
encouraged to use this power to dissuade
unwarranted claims by pro se
litigants." Not surprisingly, some
litigants have stepped forward to reveal
that judges have adopted this counsel as
a way to suppress justiciable
controversies by fining pro se
litigants for advancing any claim
or defense without an attorney. (Click
here). The same judge (Jane Tidball) awarded
seven thousand dollars of attorney fees
in May of 2000 against one litigant, who
could not afford counsel in a
dissolution case (Marriage
of Harrington), in pertinent
part, "Because
of the respondent's mental health and
the fact that he has been pro
se throughout some of these
proceedings."
Also, in Colorado, only attorney pro
se parties are permitted seek attorney fees for
work on their own cases. See Giguere v. SJS
Family Enters., Ltd.,
155 P.3d 462, 473 (Colo. App. 2006)
(citing Wimmershoff v. Finger,
74 P.3d 529 (Colo. App. 2003) (“[O]nly . .
.non-attorney pro se litigants are not
entitled to recover attorney fees”);
Zick v. Krob, 872 P.2d 1290
(Colo. App. 1993)); Smith v. Furlong, 976
P.2d 889 (Colo. App. 1999)). Significantly,
the California Court of Appeals specifically labeled
this practice, "disparate treatment of pro se
litigants on the basis of their occupations" (Mix
v. Tumanjan Development Corp.,
126 Cal. Rptr.2d 267 (Cal. App.
2002)) and the Ninth Circuit validated this view in
Exchange v. Law Offices of Conrado Joe Sayas, Jr.,
250 F.3d 1234
(9th Cir. 2001).
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Filing the Pro se Civil Rights Case: An Act of Futility
(by Design)
Although this article does not concern prisoner pro se
litigation, it is worth noting that, in Lewis v. Casey,
the Supreme Court held that prisoners do not have “an abstract,
freestanding right to a law library” and that an inmate cannot
support a federal claim simply by showing that a prison law
library is “subpar.” 518 U.S. 343, 351 (1996). Rather, the
inmate “must go one step further and demonstrate that the
alleged shortcomings of the law library . . . hindered his
efforts to pursue a legal claim.” Id.
As many commentators have noted, this "actual injury”
requirement has created an impossible pleading paradox in that
the ability to litigate a denial-of-access claim is evidence
that the plaintiff has no-denial-of-access claim. For
prisoners, filing such a claim is an exercise in futility.
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One bankruptcy judge from Texas used
humor to deny a defendant's motion as
incomprehensible. The judge compared
the defendant and his motion "to Adam
Sandler's title character in the movie
'Billy Madison,' after Billy Madison had
responded to a question with answer that
sounded superficially reasonable lacked
any substance." Billy Madison, like the
defendant in this case, was berated for
his stupidity:
[W]hat you've just said is one of the
most insanely idiotic things I've ever
heard. At no point in your rambling,
incoherent response was there anything
that could be considered a rational
thought. Everyone in this room is now
dumber for having listened to it. I
award you no points, and may God have
mercy on your soul.
Judges are different from everyone else
in a courtroom. They should decipher
rambling, irrational, incoherent
thoughts. They should unearth the
buried argument, comprehend the
incomprehensible, clarify the opaque. They shouldn't give up easily on a
litigant who sounds like Billy Madison. Judges who act disrespectfully to
lawyers and litigants will in turn be
treated disrespectfully.
—Hon. Gerald Lebovits,
Ethical Judicial Writing - Part II,
79 NYSBA Journal
1
(Jan. 2007) |
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For the remainder of pro se plaintiffs not subject to Lewis or
to the provisions of the Prisoner Litigation
Reform Act of 1995, the federal district and appellate courts
have perfected a
seven-step process to impose the same futility by systemically weeding out
an entire class of cases,
regardless of merit, whilst maintaining the appearance of
accessibility:
(1)
The pro se party files a Complaint and pays the $300
docket fee.
(2)
The Article III judge, upon receiving ECF notification of a
pro se filed complaint, issues a template
"General Order of Reference" to the workhorse of
the policy, a magistrate judge.4
(3)
The magistrate judge, who is often a former state district
court judge, will review the Complaint and arrive at a
predetermined outcome by actively advocating
for the defendants; contriving arguments for the defendants; creating or assuming facts not alleged;
ignoring facts that were alleged; misstating facts that were
alleged;5
or misrepresenting precedents and legal holdings that
are not applicable or that do not exist.6
The magistrate will
axiomatically recommend dismissal of all claims against all defendants. During this time,
which may last up to a year, the magistrate will often suspend all
discovery, depriving the plaintiffs of the evidence he may
need to prove his claims.
(4)
The plaintiff' may file objections to the magistrate's
recommendations, pursuant to Rule 72(b).
(5)
The article III judge will accept the recommendation to
dismiss the case. The order of dismissal
may range from a single sentence disingenuously claiming to have
performed a de novo review of the magistrate's
recommendations to a several-page order summarizing and
paraphrasing the magistrate's recommendations. In many
cases, the order of dismissal will include an award of
defendants costs against plaintiff.
(6)
The pro se party may file an appeal and pay the $450
docket fee.
(7)
Although "Granting defendant's motion to dismiss is a harsh
remedy which must be cautiously studied, not only to
effectuate the spirit of the liberal rules of pleading but
also to protect the interests of justice,"
7
the Tenth Circuit
will issue an unpublished memorandum opinion, which may
summarize the magistrate's recommendations and/or the
district court's order of dismissal but, make little or no
mention of the appellant's dismissed complaint or his appellate arguments.
The memorandum order, drafted by a law clerk in only a few
hours of time and barely glanced at (if at all) by a circuit
judge, will apply a purely deferential standard of review
(de novo review of conclusions-of-law is, apparently,
withheld), noting that the magistrate's findings require
no elaboration. The trial court's judgment will be affirmed
and the case will stand as dismissed, purportedly "on the
merits."
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I make a
comfortable living doing nothing more
strenuous than thinking about things
people ask me to think about. There is
no heavy lifting; no shift work. I'm not
required to drive through snow and I
don't come home smelling of fish. When
I'm done thinking about these things, I
give my "opinion" about them and start
thinking about some-thing else. Anyone
churlish enough to complain about such a
job, any-one who —asked so little— would
fail to give every case, regardless of
whether it's handled by a successful
attorney or a prison inmate, full
consideration, is an ungrateful lout.
—Justice Wlm. W. Bedsworth,
Improper Persona,
45-Nov.
O.C.Law
40
(Nov. 2003)
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Although most lawyers and all judges would deny that the
choreographed scenario hereinabove is accurate, one U.S.
magistrate judge in the Colorado district has already admitted that pro se litigants are disallowed
their day in court (see infra) and at least one [former] Colorado lawyer
has publicly alleged that
there is an “ideological conspiracy” politically hostile to
civil rights plaintiffs in the Colorado district.8
Notwithstanding these revelations, the summary disposition
of all pro se cases in federal court cannot be fairly
attributed to the purported ineptness of every plaintiff
(including self-represented attorneys.
Of course, many jurists pay sanctimonious lip service to
the importance of, "the Rule of Law [as] probably the single
greatest achievement of our society. It is our bulwark against
both mob rule and the overweening power of the modern state."
9
They present annual state of the judiciary speeches, discussing
the importance of "access to justice" and the need for
well-reasoned judicial opinions and professional responsibility
in order to maintain public confidence in the judiciary.
There is, however, less emphasis on
these lofty platitudes (for public consumption)
at CLEs (training for attorneys) and, instead,
more candor about pragmatic concerns of court administration and
convenience.
Access to the Courts as a
"Right"
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If a
plaintiff has a right, he must of necessity have a means to
vindicate and maintain it, and a remedy if he is injured in
the exercise or enjoyment of it; and indeed, it is a vain
thing to imagine a right without a remedy, for want of right
and want of remedy are reciprocal.10
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Whenever some act, vestment or procedure is characterized as a “right,” it
is strictly theoretical
because, without a remedy, there is no “right” (ubi jus
ibi remedium). More specifically, if a court is inaccessible or
does not recognize the right or otherwise does provide an
opportunity to vindicate the purported right, the
“right” is non-existent.
For this reason, as the means of accessing all purported rights,
the “right” of access to the courts is a “right conservative of
all other rights, and lies at the foundation of orderly
government.” 11
According to the
Trial Court
Performance Standards and Measurement System Implementation
Manual (Bureau of Justice Assistance, July, 1997),
courts should be open and accessible. Location, physical
structure, procedures, and the responsiveness of personnel
affect accessibility. Id.
12
Meaningful and effective
right of access to the court means more than being able to pay a
docket fee or being permitted to file papers with the clerk or
being allowed to pass through the courthouse doors.13
Because both state and federal courts are unavailable
to vindicate this right, the purported right remains
non-existent or beyond reach in Colorado, as individual judges
may see fit.14
Sidebar:
"Excuse me. This is my court."
Here's how one
pro se litigant (an attorney), was treated, as excerpted from a
Nov. 5, 2007 transcript of proceedings conducted by U.S. Magistrate Judge
Kristin Mix:
The Court:
It’s come to The Court’s attention that [plaintiff] has communicated in a
belligerent and abusive manner with my staff and that she has made inaccurate
statements to defense counsel about the status of proceedings in this matter,
including that immediate evidentiary hearings were going to be scheduled.
Plaintiff:
That is not -–The Court:
Excuse me. Excuse me. You’re not being asked to speak at this point. The Court
is extremely concerned about plaintiff’s multiple filings of dubious merit and
her inappropriate conduct. Despite the leniency generally shown towards pro
se plaintiffs, it is apparent to The Court that action must be taken to
regain control over the proceedings and to clearly warn [Plaintiff] that her
actions will not be permitted and will cause The Court to consider entry of
sanctions if continued. In the interest of judicial economy, The Court is
entering an order effective today staying this matter until a ruling on the
pending motions to dismiss, pursuant to Wang v. Hsu, 919 F.2d 130, (10th
Cir., 1990); Albright v. Rodriquez, 51 F.3d 1531 (10th Cir. 1995), and
Kutilek v. Gannon, 132 FRD 296 (D. Kans., 1990). Further, The Court hereby
orders that in the event that plaintiff files any further pleadings prior to a
ruling on the motions to dismiss, which violate the stay imposed by The Court
today, plaintiff will be subject to the imposition of sanctions pursuant to
Andrews v. Heaton, 483 F.3d 1070 (10th Cir., 2007). Those are my
orders today. The parties will receive a written minute order reflecting these
orders. Are there any questions?
Plaintiff:
I have a number of questions. First
of all, I don’t know who told you
that I had misrepresented anything
to your staff, but I haven’t been
told that anyone said that. I did
not misrepresent anything to your
staff, and I would like to know who
said it. I would like a copy of it,
or whatever, or to know whether it
was, you know, oral or what. I
misrepresented absolutely nothing to
anyone.
The Court:
That motion is denied. Any further
questions?
Plaintiff:
I -– well, I have a –- of course, it
seems to me that the jurisdictional
issue, the -– my motion under 28 USC
§ 1447(c) needs to be addressed
before any kind of a motion to
dismiss is decided. And I also -–
there’s also the issue of my
father’s rights independent of mine,
and I filed a motion a long time ago
to -– I’m sorry, for leave -– for
appointment of counsel for my
father, and, you know, his rights
are at issue here, too, and I think
that he’s entitled to be represented
by counsel before any motion is –-
I’m sorry, any motion to dismiss or
anything would decide his rights on
–- you know, if decided. And the
third thing is I -- I’m not sure
exactly the extent of a magistrate’s
authority there. I’m generally
familiar with the Magistrates Act,
but my understanding is that
anything the magistrate –- any order
that the magistrate issues I’m
entitled to file something with the
judge. You know, filing, I guess, an
objection within ten days, and I
assume that this is included. Am I
correct?
The Court:
With respect to the second set of
comments made by [Plaintiff] about
the appointment of counsel, The
Court construes that as a request
for [re]consideration of the order
for stay which was just entered.
That request is denied. With respect
to the third set of comments by
[Plaintiff] about the extent of the
magistrate judge’s authority, The
Court comments for the record that
the magistrate judge is not
permitted to give legal advice.
Therefore, to the extent that is any
type of a request for legal advice
or a motion, it is denied. Are there
any questions –-
Plaintiff:
Well, I do want to say –-
The Court:
Excuse me, ma’am. Excuse me, ma’am.
I’m talking now. It’s your job to
listen. Are there any questions from
the defendants?
Plaintiff:
I’m going to -– I -–
The Court:
Excuse me, ma’am. Excuse me. This is
my court. I am in control here, not
you. I have given you an opportunity
to ask your questions. You have
asked them and they have been
responded to. Your opportunity is
now done. Are there any questions
from the defendants?
MR. Haines:
None from the State of Colorado.
MR. King:
None from --
MS. King:
None from Gayle King.
MR. Gloss:
None from Mr. Gloss.
MR. Brougham:
None from --
MS. Gilbert:
None from the (inaudible - both
speaking) county defendants.
MR. Brougham:
None from Brougham.
Plaintiff:
I’m going to file --
MR. Fisher:
None from -–
Plaintiff:
-- I’m going to ask -– I’m sorry.
I’m going to file a motion for
recusal -–
The Court:
[Plaintiff], you may not speak any
further in this hearing.
Plaintiff:
Ma’am, I –-
The Court:
You may not speak any further,
[Plaintiff]. Excuse me. I have not
heard from the remaining defendants.
Are there any questions from the
City of Lakewood, Janet Young, and
Mary Munger?
MR. Brougham:
No, Your Honor.
The Court:
Are there any questions from the
City of Golden, Mr. Jurischk, and
Mr. Kilpatrick?
Mr. Fisher:
No, Your Honor.
The Court:
Are there any questions from Mr.
Tait, Mr. Galimberti, and Mr. Mink?
MS. Gilbert:
No.
Plaintiff:
I do have one question --
The Court:
Are there any questions from Ms.
Martin, Golden Pond Senior Living?
Mr. Lake:
No, Your Honor.
The Court:
All right. And the State of Colorado
has no questions, is that correct?
Mr. Haines:
That’s correct, Your Honor.
The Court:
Thank you. We’ll be in recess.
Mr. Haines:
Thank you.
Ms. Gilbert:
Thank you, Your Honor.
Ms. King:
Thank you.
Plaintiff:
I’m --
Mr. Fisher:
Thank you, Your Honor.
Plaintiff:
I’m going to --
(recording ends; whereupon, the
within hearing was then in
conclusion at 11:48 a.m. on November
5, 2007.)
(x) Close
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Judges do, however, make some
occasional
effort to give the appearance that this right is
available. For example, in one
December 14, 2007 transcript, we read now-disgraced Judge
Edward Nottingham "letting" one litigant
have his “say.” (In fact, the litigant wasn’t actually permitted
to say much of anything and, further, wasn’t allowed to
cross-examine David Brougham, an attorney who appeared to be
testifying in violation of Rule 3.7). Id. at 14, lines
18-21). However, Nottingham’s statement simply served as a
poignant reminder that the right [to purportedly have a “say”]
was an extraordinary and gracious dispensation from His
Excellency, as opposed to a constitutional right.
Self
Representation as a
"Right" (and often the sole avenue)
Pro se,
also termed pro per, originates from Latin and is today
defined by Black's Law Dictionary simply as, "One, who
represents oneself in a court proceeding without the assistance
of a lawyer." The vast
majority of those who represent themselves in civil litigation
do so only begrudgingly and out of necessity.15
Few are independently wealthy, as is necessary to
underwrite a major litigation initiative against "town hall" or
well-heeled corporate interests.16 They not only cannot afford an attorney17
but, also may: be unable to find an attorney for a colorable
claim;18
be distrustful of attorneys;
19
or, perhaps, simply elect not to invest thirty thousand dollars
in the form of a retainer for often incompetent work.20
Whatever the reason, they file in good faith, based on the [apparently
mistaken] belief that the purpose of the civil law is to provide
for redress as the only alternative to inappropriate self help.
In the United
States, litigants in civil cases do not have a constitutional
right to self-representation. That constitutional right
applies only to criminal cases.21
Civil litigants do, however, have a long-standing statutory
right to self-representation under Title 28 of the U.S.
Code, § 1654, which provides:
In all courts of the United States the parties may plead and
conduct their own cases personally or by counsel as, by the
rules of such courts, respectively, are permitted to manage and
conduct causes therein.
28, U.S.C. § 1654. The Supreme
Court has elaborated on this right, to say that "the right to
self-representation - to make one's own defense personally - is
thus necessarily implied by the structure of the [Sixth
A]mendment." 22
A violation of
this right to self-representation is a "structural defect" in
the proceedings. So-called "structural defects" are among the
few irregularities that warrant a new trial (with especial
certainty in criminal cases).23
In many earlier threads (e.g.,
another blog post),
I have obstreperously pointed out that pro se litigants
are systemically denied their day in court in Colorado and,
especially, in the federal court. However, at least one Denver attorney,
Andrew Oh-Willeke,
has denied this is so. ("They aren't systematically
discriminated against." --click
here). U.S. District Senior Judge Kane, however,
disagrees. In reviewing an earlier online version of this
article, Judge Kane
wrote:
I agree with [the
article's] thrust and would add only that all pro se
cases, not just civil rights cases, are treated shabbily and
superficially by our courts, both bench and bar. On the
bench or in opposition to a pro se litigant, it is
very tempting to become annoyed because, quite frankly, it
takes more time and effort to deal with the issues as they
are presented, there is no implicit rebuttable presumption
of trust, as there is with lawyers admitted to practice,
that the citations to authority are accurate, on point and
unconflicted. Perhaps, more to the point, pro se
pleadings —generally speaking— force one to revisit
fundamental assumptions and concepts one learned in law
school. I don't think this is bad to revisit what we once
learned, it's just that it takes a lot more time and time is
a very precious commodity. Feb. 3, 2008
email.
Of course, Oh-Willeke has a
profession to defend and has admitted so in at least one other
blog post.24
In support of his position, he cited to Kay
Sieverding. So, perhaps, the question is: Are all pro se litigants like Kay Sieverding?
In
a recent comment,
I revealed that another pro se litigant, Suzanne Shell,
testified in
her affidavit
that Magistrate Michael J. Watanabe (formerly a Colorado
District Judge) told her that,
"Pro se litigants NEVER win in this court."
Id. at ¶ 22 (on p. 20 of 22). Oh-Willeke countered,
saying, "Shell is not a very credible source. Also, pushing
for more respect for pro se litigants, who often
do, in good faith, do ill advised things in litigation, isn't a
good path to solutions. A fair shake from a judge isn't
worth much when you still don't know what you're doing."
While Oh-Willeke seems to tacitly acknowledge that some or all pro se
litigants aren't getting a fair shake (but that it would be
pointless to give them one), we really don't need
Shell's testimony to confirm it: Instead, we have an
Aug. 8, 2004 order
from Steiner v. Concentra by U.S. magistrate judge Edward
Schlatter (a former Colorado district judge in Salida and Cañon
City):
In cases where plaintiffs are proceeding without a lawyer,
district judges typically will refer such cases to a magistrate
judge for case management, for settlement conferences and for
"recommendations" on motions to dismiss or for summary judgment
If a party objects to one of my recommendations,
Judge
Nottingham must reconsider any motion to dismiss or for summary
judgment the same as if I made no recommendation at all, and he
is free to reach any conclusion on the motion that he deems
appropriate
Approximately 2,500 to 3,000 cases are filed here each year.
That is the number of cases that are divided up among the
district judges. Of that total number of cases that are filed,
approximately 600 each year are cases that are filed by
litigants without counsel.
* * *
I then informed plaintiff that she would be well-advised to
obtain a lawyer to assist her in this matter, because my
magistrate judge colleagues and I cannot recall a single case in
which a pro se litigant has proceeded all the way
through a case, obtained a jury trial and received a favorable
verdict. Our memories may be inaccurate, but, if so, they
are inaccurate only by a very, very few individuals, and, if
such exceptions exist, we have not heard of them.
Now, that we have half of the truth (supplied to us from this
case filed pro se by Yale grad, Elizabeth Steiner, M.D.),25
I will supply the other half:
Pro se cases don't
make it past dismissal or summary judgment not because
each and all of the six hundred plaintiffs (each year) are inept
and not because opposing counsel is competent, learned and
artful. Rather, they are blockaded by the referee —the so called finder of fact —
the court, itself. Consider these following five points:
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[P]ro
se litigants . . . often encounter bench
and bar resistance. They typically receive a
hostile reception from overworked court
staff who feel put-upon by having to educate
them about the system and from agitated
judges . . . Most judges, in the face of
actual or anticipated objections from
counsel, rely on these legal obligations
[adversary ideology and legal constraints]
and give them greater weight than their
concomitant constitutional duties to ensure
due process in the form of a "meaningful
hearing" and access to justice. One
explanation for this . . . is the fact that
they are loyal to the legal profession. Most
judges were lawyers before they took office,
remain lawyers while on the bench, and
sometimes return to law practice. Judges in
most states also rely on the bar for
financial support in the judicial selection
process.
—Jona
Goldschmidt, The Pro Se Litigant's
Struggle for Access to Justice: Meeting the
Challenge of Bench and Bar Resistance,
40 Fam. Ct. Rev. 36, 37, 44 (2002)
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As Magistrate Schlatter acknowledged, all such cases are deferred (i.e.,
swatted aside) by an article III judge to a magistrate,
creating a double standard of justice. See Bloom & Hershkoff, Federal Courts, Magistrate Judges and the Pro
Se Plaintiff,
16 Notre Dame J.L.
Ethics & Pub. Pol'y 475, 477, 503
(2002) (describing general reference to magistrates as, “a
way to funnel unimportant matters that society regards as
annoying away from Article III judges to magistrate judges
without life tenure, and so raise concerns about second
class justice for unrepresented litigants. . . Some
commentators warn that the use of magistrate judges for pro se cases will lead to the 'ghettoization' of
indigent persons' claims: the possibility of creating a
two-track system of justice-- district judges for wealthy
litigants and magistrates for [less wealthy] litigants”). See also
Manual for Complex
Litigation, Third
§ 20.14 (Federal Judicial Center, 1995) (Article III Judges
often defer pretrial supervision to magistrates to enable
those judges “to devote time to more urgent matters”).
A district judge almost never overturns any magistrate's recommendations (just
ask any reputable appellate attorney - e.g., Walter
Sargent, Blain Myhre, Dean Neuworth, Paul Grant, etc.)). Article
III judges merely rubber stamp whatever recommendations the magistrate has
cobbled together, especially in pro se
cases that these judges don't want to be bothered with.
Despite protestations to the
contrary, article III judges do not perform de novo review of
magistrates' recommendations, as Schlatter,
Nottingham and
other magistrates and judges disingenuously misrepresent.26 Moreover, the Tenth Circuit has
provided an "out" for judges to rubber stamp magistrate
recommendations by simply stating in a one sentence order that
they had, in fact, performed the de novo review. 27
"[J]udges desperately want to avoid trials. This is a poorly
kept secret among judges and their law clerks, and sometimes it
even spills out into public statements like this one, uttered by
a judge as an explanation for why he opposed reforms that would
have combated collusive class settlements: '[F]rom the court’s
perspective, it would be terrible if a case went to trial.' "
28
Judges are inclined by either personal caprice or
indoctrination (judicial education programs) to hastily
dispatch pro se litigants in civil rights cases. For
example,
The Anti-Government Movement Handbook, (Nat’l Center
for State Courts, 1999), instructs judges, in pertinent part:
There is a movement afoot in this country today that is
made up of disaffected and often dispossessed Americans
. . . Regardless of the name attached to the beliefs and
the people who follow them, one common denominator
exists: a feeling of despair, rooted in personal and
pecuniary loss, and manifested in a new, defiant
mistrust and spite for the ways of the current
government. This guide focuses on the ways in which
followers of these movements impact the operation of our
state court systems . . . a key strategy must be to
separate the committed leaders and members of the
movement from the large body of the primarily curious,
and other less committed followers and supporters.
Appellate
Review as a Procedural Due Process Protection ?
Appellate review is almost universally available in the
United States, by constitution or statute, both in state and
federal courts, for civil as well as criminal matters.
Purportedly, independent and meaningful appellate review of
magistrates’ recommendations and trial court decisions is a
hallmark of the American justice system and a bulwark
against personal fiat or arbitrary decision-making. As a
fundamental part of our notion of due process, appellate
review must become vigorous (even for pro se
appellants).
Colorado Court of Appeals Judge Steven Benard recently
opined that, "in the federal system, the appeal from the district
court to the court of appeals has become, regrettably,
the best bargain in the supermarket of modern
litigation."
29
If so, it's a supermarket selling fermented chum by the ounce for the
price of Atlantic lobster by the pound. The Tenth
Circuit has been selling a false bill of goods
for years by misrepresenting that
pro se litigants are actually treated more leniently
than attorneys. For example, in
Russell v. Sherman & Howard, et al.,
(10th Cir. 2007) (another Magistrate
Watanabe-intercepted case) the Tenth Circuit claimed:
Although we construe
pro se filings
liberally [not], Mr. Russell's pro se
status does not excuse him from complying with the
fundamental requirements of the Federal Rules of Civil
and Appellate Procedure. Among these
requirements is a directive for the appellant to set
forth his or her arguments in the opening brief, with
supporting authority and citations to the record. Fed.
R. App. P. 28(a)(9)(A). Under Rule 28, which applies
equally to pro se litigants, a brief must
contain more than a generalized assertion of error, with
citations to supporting authority. When a pro se litigant fails to comply with that rule, we
cannot fill the void by crafting arguments and
performing the necessary legal research. In short,
arguments
inadequately briefed in the opening brief are waived. Mr. Russell's failure to raise any
arguments in his opening brief regarding the underlying
district court decision necessarily results in a waiver
on appeal.
(quotations
& citations omitted). This
typical Tenth Circuit dicta (rhetoric) is disrespectful of
the truth because, when appellants do make detailed, cogent
arguments in their briefs, circuit
judges, like Michael McConnell, "waive" the
arguments
by deliberately ignoring them as if they had not
been made.
|
|
The court does not write opinions in
every case. The court may dispose of an
appeal or petition without written
opinion. Disposition without opinion
does not mean that the case is
unimportant. It means that the case does
not require application of new points of
law that would make the decision a
valuable precedent.
—10th Cir. Rule 36.1
|
|
Such intellectual dishonesty (a/k/a Judicial Insincerity30 or Judicial Inactivism31) is a denial of the right of access
to the court and a denial of the statutory right of appeal
and, thus it is both a
substantive due process deprivation and also a
procedural due process deprivation. Circuit judges, like McConnell, get away with this by
issuing the Order and Judgment as a
memorandum opinion, which: does not address the
substantive appellate issues; is completely deferential (no
de novo review even for conclusions-of-law); departs from
binding precedent (a/k/a
stare decisis); and is written by a law clerk, rather than the judge.
32
"[T]he strongest critique of limited publication is that it is
fundamentally unfair both to individual litigants whose
opinions are not published, and to broad classes of
litigants, who are allegedly more likely to receive only
limited review from the courts of appeals. Litigants whose
opinions are brief and unpublished have limited insight into
the court’s reasoning for purposes of appeal.
Additionally, [regarding] the practice of using clerks and staff
attorneys to screen cases for likely precedential value,
. . . “[m]ost people think if you have an
appeal, your lawyer argues the case and a judge decides.
That’s not what we have. We have a system where there is
often no argument, there is no requirement for a judge to
write a decision and the decision making is largely done by
people who are not judges."
33
Richard Posner, while Chief Judge
of the Seventh Circuit, admitted, "It is sort of a formula
for irresponsibility. . . . Most judges, myself included,
are not nearly as careful in dealing with unpublished
decisions." 34
Thus, it is understandable why an argument by a Colorado
Appeals Court judge that, "the quality of judicial analysis
and writing suffers if judges write too many opinions"
35
is
not well taken.
Because a memorandum opinion is unpublished and, therefore,
non-precedential, circuit judges quietly disavow stare
decisis and the resulting order and judgment
has no practical or persuasive effect on anyone (except
the parties to that particular case). Said differently,
circuit judges knowingly depart from well-established legal
doctrines, principles and precedents to rule in any
capricious or pragmatic manner that they choose
—in effect—
creating designer disposable law applicable only to the
parties of a particular case. This practice
is tantamount to spitting on the
so-called Rule of Law:
Sidebar: The Rule of Law
“A government of laws, not men; it is
a body of substantive law accompanied by
procedural due process. It is a legal
system of rules and proscriptions, based
on a constitution, and generally
reflecting the will of the people. It
provides a framework for majority rule,
but protects minority rights. The laws
and their application are subject to
fair judicial interpretation and
independent court decisions.”
—Hon. Sidney Brooks, Building Blocks
for a Rule of Law, 36 The Colorado
Lawyer 19 (Dec. 2007) at 20
“A system that abides by the Rule of
Law exists in a free and open society.
Its laws are fairly adopted and are
applied equally to all people by fair
and impartial courts. That seems like a
simple concept, but it is difficult for
many countries to implement.
“In the United States, we [purportedly]
have a tradition that respects and
abides by the Rule of Law. Our system,
though not perfect, [purportedly]
provides its citizens security,
protection, and freedom.”
—CBA Pres. Wm. David Lytle,
37 The
Colorado Lawyer 1 (Jan. 2008) at 5.
"the Rule of Law is not a conservative
or a liberal value. It is assuredly not
a Republican or Democratic value.
Rather, it is an American value.
Confidence in the Rule of Law rests
entirely at any given point in time on
the character and the integrity of the
individual American judge and on that
judge's absolute commitment to fairness
and impartiality."
—U.S. District Judge John E. Jones III,
Feb. 10, 2006 speech to the
Anti-Defamation League National
Executive Committee Meeting
|
|
When decisions that are inconsistent with a jurisdiction's
formal decisions about what opinions are to count as
precedential are not written; where no reasoning at all is
given for a court's decision (in the case of so-called
"table," "slip," or "memorandum" opinions); or where
unpublished opinions are not available except to
institutional and other "repeat player" litigants who can
assemble collections of this "shadow precedent" for their
own use, courts can effectively do whatever they want,
protected by their own fiat from the critical gaze of the
bar, the media, and citizens.
* * *
Many criticisms of the practices of private judging deal in
various ways with unfair treatment accorded by the courts to
already subordinated groups . . . . Unpublication,
depublication, and stipulated withdrawal render the law
unpredictable . . . This means that what a court
will do in a case is differentially predictable by litigants
with differential power. The effect is that the law is not
responsive to the demands made of the law by citizen
litigants because it is forcibly controlled in ways not
visible to litigants, lawyers, and other citizens. This
control is exercised by repeat-player litigants and by both
actively unethical judges and others insufficiently critical
of contemporary institutionalized unpublication,
depublication, and stipulated withdrawal. The results are
that courts do not--and indeed are not obliged to--treat
similar cases equally; the system of precedent structurally
subordinates some kinds of litigants and privileges others,
and the traces of what the courts do are obscured
* * *
Pro se cases in the federal courts of appeals result
in unpublished opinions much more frequently than those
filed by counsel. Likewise, in cases where "the
briefing is pro se, bad, or non-existent," cases are
disproportionately tracked for the nonargument/unpublished
opinion/minimal-judicial-involvement-in- decision treatment.
Penelope Pether,
The Scandal of Private Judging in the U.S. Courts,
56
Stan. L. Rev. 1435, 1499, 1505 (2004).
Ken Smith, J.D., recently conducted his own independent research
and found that only twelve (12) pro se
civil cases in the Tenth Circuit during a fifteen
year overturned a Colorado District court's judgment
(either in whole or in part), as follows:
-
In re Hopkins,
(failure to perform an Ehrenhaus analysis);
-
Bolin
v. Chavez (father sued his ex-wife and a law firm under
Section 1983 and under an intentional infliction theory for
denying him access to his son);
-
Lyons v. Red Roof Inns,
Inc., 130 Fed.Appx. 957 (10th Cir. 2005) (age
discrimination; partial reversal);
-
Lawton v. Barnhart,
121 Fed.Appx. 364 (10th Cir. 2005) (Social Security
disability benefits);
-
Roberson v. Pinnacol Assurance,
No. 03-1182 (10th Cir. 2004) (insurance company doctors
allegedly falsifying data);
-
Elefant v. Metropolitan State
College of Denver, 229 F.3d 1163 (10th Cir. 2000) (age
discrimination);
-
Houston v. Norton, 215 F.3d 1172,
215 F.3d 1172 (10th Cir. 2000) (imposition of fees on pro
se litigant);
-
Stjernholm v. Peterson, 83 F.3D 347
(10th Cir. 1996) (tax sale);
-
Sorbo v. United Parcel
Service, 432 F.3d 1169 (10th Cir. 2005) (age
discrimination; partial reversal);
-
In re Canady, No.
94-1182 (10th Cir. 1994) (bankruptcy);
-
In re Woodcock,
No. 94-1101 (10th Cir. 1995) (same); and
-
Jackson v.
Continental Cargo, 183 F.3d 1186, 80 Fair Empl.Prac.Cas.
(BNA) 564 (10th Cir. 1999) (whistle-blower).
The search
parameters he employed were "pro se” and (reversed
w/10 remanded) and D.Colo (and, alternatively "Appeal from
the United States District Court for the District of
Colorado").
Conclusion
Even if every pro se litigant approached the court with
inartful pleadings, judges have a duty to consider them, if not
decipher them.36
A dispassionate reading of Magistrate Schlatter's
admission combined with our independent real-world analysis
reveals that, in fact, pro se litigants are systemically
denied their day in court and that magistrate judges are used as
goalies, rather than referees in the litigation. As this fact
becomes more widely recognized, we must consider the possibility
that many potential litigants consider bypassing an exercise in
futility and, instead, resort to inappropriate self-help.
Lest the citizenry lose faith
in the substance of the system and the procedures we use to
administer it, we can ill afford to confront them with a
government dominated by forms and mysterious rituals and
then tell them they lose because they did not know how to
play the game or should not have taken us at our word.37
* The author is legal technologist, software
engineer, computer forensics examiner, Microsoft Certified
Systems Engineer and jurisdoctoral candidate.
Endnotes
3
See e.g., Adam Liptak,
A Judge at the Plaintiff's Table Tips the Scales,
New York Times editorial, June 25, 2007 (quoting
attorney Joseph A. Power, Jr. "This is the type of case
that a mentally challenged pro se plaintiff
would file"); and see
People v. Cohn,
___p.3d___ (Colo. App. March 8, 2007) in which an unruly
defendant was removed from the courtroom and examined to
determine his competency to stand trial. The examiner determined
defendant was competent to proceed, although he
diagnosed defendant with a “persecutory delusional
disorder,” a personality disorder with paranoid and
schizoid features, and several psychosocial stressors,
including chronic mental illness. See also Weihofen, Testimonial Competence and Credibility, 34 Geo.Wash.L.Rev. 53, 82 (1965):
[T]he
delusions of the litigious paranoiac make him believe he
has grievances, which he feels can be corrected only
through the courts. His career as a litigant is
frequently touched off by a lawsuit or legal controversy
whose outcome left him dissatisfied. Often he will
insist on conducting his own case, quoting voluminously
from the cases and statutes. Because he is likely to be
of better-than-average intelligence, he may mislead a
jury that is uninformed about his paranoiac career and
actually convince them that his cause is just. Trivial
incidents and casual remarks may be interpreted in a
markedly biased way, as eloquent proof of conspiracy or
injustice. In his telling them, these trivial incidents
may be retrospective falsification to be given a grossly
distorted and sinister significance. Even incidents of a
decade or more ago may now suddenly be remembered as
supporting his suspicions, and narrated in minute
detail. On the other hand, so far as the power of
observation is concerned, the paranoid witness may be
quite as competent as anyone, and perhaps more than
most; his suspiciousness may make him more alert and
keen-eyed in watching what goes on. Delusions of
persecution may evoke intense hatred. This may lead to
counter-accusations resting on false memory, which may
be very real to the accuser and be narrated by him with
strong and convincing feeling. And indeed they may have
a kernel of truth; because of his personality and his
behavior, many people probably do dislike him. As Freud
said, a paranoid does not project into a vacuum. Such a
person not infrequently feels the need for vengeance.
See also September 22, 2006 transcript of hearing, where
public defender in contempt hearing against pro
se litigant (who has been ordered to dismiss all
of her allegedly abusive lawsuits) suggests that his client is mentally ill:
Edward Harris:
There is one other thing,
and I would simply advise everyone as a heads up on
it, which I'm not sure will actually occur. But I
have some concerns about her mental health and
whether or not she is willfully violating court
orders or whether this is some compulsion of hers,
driven by whatever sort of triggers such things. So
I may at some point either have her shrunk or seek
some court intervention for that . . . But it may also be that she chooses not to proceed in that direction, despite my best advice. That wouldn't be a first.
Judge
Nottingham: My guess is that if you talked to
counsel on the other side, they would tell you that
they've long since concluded that there are [mental
health] issues here; but that's a conversation we
don't need to have."
5
Monroe Freedman, 128 F.R.D. 409, 439 (1989) ("Frankly,
I have had more than enough of judicial opinions that
bear no relationship whatsoever to the cases that have
been filed and argued before the judges. I am talking
about judicial opinions that falsify the facts of the
cases that have been argued, judicial opinions that make
disingenuous use or omission of material authorities,
judicial opinions that cover up these things with
no-publication and no-citation rules") (excerpted from
speech to the Seventh Annual Judicial Conference of the
United States Court of Appeals for the Federal Circuit
(May 24, 1989)); Gennaioli & Shleifer,
Judicial Fact Discretion (October 2006)
("Judicial fact discretion is defined as
misrepresentation in a judge's decision of facts
revealed in a trial . . . judges engage in fact
discretion to promote their own agenda"); Richard
A. Posner, Judicial Behavior and Performance: An
Economic Approach,
32 Fla. State Univ. L. Rev. 1259 (2005) ("one
expects that personal factors—such as political or
ideological concerns personal to the judge rather than
embodied in the law, the kind of intellectual laziness
that consists of acting on intuition rather than on
analysis and evidence, and the delights of tormenting
the lawyers that appear before them—will play a larger
role in federal district judges’ decisions").
6
See, e.g., Nov. 5, 2007 transcript,
wherein federal magistrate misrepresents three (3) case
precedents having no relationship to the issues (later acknowledged by a November 20, 2007 minute
order). And see Freedman, supra, note
5; See also
Mark Tushnet, Taking the Constitution Away
from the Courts (1999) at 155-56 (Judges typically
embrace a desired result and then select whichever
theory plausibly permits them to reach that result); Karl Llewellyn,
The Common Law Tradition: Deciding Appeals (1960) at 133 (discussing judges "manhandling
of the facts of the pending case, or of the precedent, so as to make it falsely appear that the case in hand falls under a rule which in fact it does not fit, or especially that it falls outside of a rule which would lead in the instant case to a conclusion the court cannot stomach");
William L. Reynolds,
Who are the
Juristocrats? Guerrila Warfare Among the Courts
(March, 2005) ("judges . . . manipulate the fact-finding
and opinion-writing processes in various ways . . . they
twist or thwart the controlling authority in order to
reach the desired result.");
Hon. Terry Lewis,
Judicial Independence, judicial accountability and
activist judges, The Tallahassee Democrat, (Nov.
21, 2007) (discussing judicial conduct, "demonstrating a
willingness to ignore legal precedent and principles in
order to reach a desired result"); Hon. Patricia M. Wald, The Rhetoric of Results and
the Results of Rhetoric: Judicial Writings, 62
U. Chi. L. Rev.
1371, 1374 (1995) ("I have seen judges purposely
compromise on an unpublished decision incorporating an
agreed-upon result in order to avoid a time-consuming
public debate about what law controls. I have even seen
wily would-be dissenters go along with a result they do
not like so long as it is not elevated to a precedent").
7
Cottrell, Ltd. v. Biotrol Int'l, Inc., 191 F.3d 1248, 1251 (10th Cir. 1999).
8
Arthur Hodges,
Judgment Day, Westword (June 8, 1994)
(quoting attorney David L. Smith)
10
Ashby v. White, 92 Eng.Rep. 126, 136 (1703)
11
Chambers v. Baltimore & O. R. Co., 207 U.S. 142, 148 (1907);
see also Nordgren v. Milliken, 762 F.2d 851, 853
(10th Cir. 1985)
12
Accordingly, the five standards grouped under Access to Justice require a trial court to eliminate unnecessary barriers to its services, which barriers may be geographic, economic and procedural and, which can be caused by deficiencies in both language and knowledge of individuals participating in court proceedings. Additionally, psychological barriers can be created by mysterious, remote, unduly complicated and intimidating court procedures. Id.
13
See Swekel v. City of River Rouge, 119 F.3d 1259, 1262 (6th Cir. 1997) (citing
Bell v. City of Milwaukee, 746 F.2d 1205, 1261 (7th Cir. 1984) (“To deny such access defendants need not literally bar the courthouse door or attack plaintiffs' witnesses”)).
One
recent case, where this issue was central, is
Harrington v. Wilson. (The Tenth Circuit view of this
issue is
here).
14
See, e.g., In Re Marriage of Harrington, Colo.App.
No. 07CA0739, describing situation where judge refused to rule on recusal motion for two-and-one-half years in order to indefinitely suspend the proceedings under the applicable Rule 97.
16
See, e.g., Amy Robertson,
The Pro Se Project: A
Dissenting View
(1999) ("defendants who decide to fight you will fight
hard and they generally have lots of money to spend to
defeat you. Without a lawyer you face the possibility of
incurring enormous expense").
17
See, e.g., Joseph M.
McLaughlin, An Extension of the Right of Access: The
Pro Se Litigant’s Right to Notification of the
Requirements of the Summary Judgment Rule, 55
Fordham L. Rev.
1109, 1132-33 (1987)
(noting that litigants who can afford counsel rarely
proceed without it and that, “The inability of a large
portion of American society to afford attorney
assistance has been deemed one of the glaring failures
of our system, straining the principle of equal justice
under the law”) .
18
See, e.g., Daniel Costello,
Lacking Lawyers, Justice is Denied, Los Angeles Times (Dec. 29, 2007) (discussing California's law that limits damages awards and, which is a model for other states, has resulted on attorney declining cases because they're not worth enough money).
19
See Colo. Bar Assoc. Pres. Laird Milburn,
Professional Reform,
30 Colo.Law. 7 (2001) at 51 (sounding an alarm bell
regarding the public's declining respect for attorneys
and citing 1994 ABA survey (regarding public mistrust of
lawyers)); see also
2006 Harris Interactive® poll, finding lawyers as
the least trusted of the 22 occupations included in the
survey.
20
See, e.g., Drew A. Swank, In Defense of Rules and Roles: The Need to Curb Extreme Forms of Pro Se Assistance and Accommodation in Litigation,
54 Am. U.L. Rev. 1557, 1574 (Noting that, "All too often, attorneys fail to file matters, miss deadlines, or make other mistakes that prevent their clients’ issues from being litigated on the merits").
21
Andrews v. Bechtel Power
Corp., 780 F.2d 124 (1st Cir. 1985); O'Reilly v.
New York Times Co., 692 F.2d 863 (2nd
Cir. 1982).
25
I mention that this pro
se plaintiff was a doctor, to demonstrate that not
all such plaintiffs are like Kay Sieverding. For
examples of how pro se parties are treated in
Colorado state courts, see Yale grad / Denver
doctor Bryan Spofford's story (click here) and his affidavit (here.)
26
For example, in the
Harrington v. Wilson case, Judge Nottingham simply struck the objections, because he didn't want to perform de novo review. In fact, he was in such a rush to avoid the merits of that case that, prior
to that attempted to dismiss the case before the time for filing the objections had run. This violation of the Rule was, of course, not addressed by the Tenth Circuit in its decision regarding that case.
It's also worth mentioning here that the magistrate (Mike Watanabe)
is a speaker for one of the Harrington defendant's
lobbying group. (Click
here).
27
Northington
v. Marin, 102 F.3d 1564, 1570 (10th Cir. 1996).
28
John Bronsteen,
Against Summary
Judgment,
Geo. Washington L. Rev. (2007) (quoting Class Action
Lawyers Doubt Provisions in Legislation Aimed at Curbing
Abuses, 72 U.S.L.W. (BNA) 2593 (Apr. 6, 2004) (quoting
Judge Frederick Motz of the District of Maryland).
29
Steven L. Bernard, The Role of the Colorado Court of Appeals, 36 Colo.Law. 7, p. 105 (July 2007) (citing Hon. Bruce M. Selya, Publish and Perish: The Fate of the Federal Appeals Judge in the Information Age, 55 Ohio St. L.J. 405 (1994))
32 R. A. Posner, ‘What do Judges Maximize?’ in R. A. Posner, Overcoming Law, Cambridge:
Harvard. University Press, 1995, Chap 3. (Only a "handful of judges . . . today still write their own
opinions . . . most judges . . .are happy to cede opinion-writing to eager law clerks, believing that
the core judicial function is deciding, that is, voting, rather than articulating the grounds of decision").
33 Robert A. Mead, "Unpublished" Opinions as the Bulk of the
Iceberg: Publication Patterns in the Eighth and Tenth
Circuits of the United States Courts of Appeals,
93 Law Libr.J.
589, 596-97 (2001) (citing William Glaberson,
Caseload Forcing Two-Level
System for U.S. Appeals, N.Y. Times, Mar. 14, 1999, at A1. (quoting William Reynolds,
law prof., Univ. of Maryland)).
34 Glaberson, supra, note 33.
35
Benard, supra, note 29.
36
See, e.g., In re Legislative Reapportionment, 150 Colo.
380, 374 P.2d 66 (1962) (If one misconceives his remedy,
the court will not be deprived of jurisdiction. If the
allegations of the petition are such as to invoke both
the jurisdiction of the court and to entitle the
petitioner, on the face thereof, to some relief, the
mere fact that one misconceives his remedy will not
deprive the court of jurisdiction to act); Regennitter
v. Fowler, 132 Colo. 489, 290 P.2d 223 (1955) (The
question, therefore, is not whether a party has asked
for the proper remedy, but whether under his pleadings
he is entitled to any remedy); Colo.R.Civ.P. Rule 11(f)
(“All pleadings shall be so construed as to do
substantial justice.”); Gillespie v. District Court, 119
Colo. 242, 202 P.2d 151 (1949) (Just because a formal
court order is not sought and entered, petitioner may
not be despoiled of any rights in a matter; otherwise,
such a holding would be highly technical and essentially
unjust).
37 Moore v. Price, 914 S.W.2d 318, 323 (Ark. 1996) (Mayfield, J., dissenting).
Additional References
-
Kia Franklin,
What’s the Real Crisis in Pro Se
Litigation?, TortDeform
Civil Justice Defense Blog (Aug. 28,
2007)
-
Helen B. Kim, igant: A Step Towards
a Meaningful Right to Be Heard,
96 Yale L.J. 1641 (1987)
-
E.J.R. Nichols, Preserving Pro Se
Representation in an Age of Rule 11
Sanctions, 67 Tex. L. Rev. 351,
351 nn.2 & 3 (1988)
-
A.L. Downey, Fools and Their
Ethics: The Professional
Responsibility of Pro Se Attorneys,
34 B.C. L. Rev. 529, 533 (1993)
-
Linda L. Kennedy, J.D.,
The Litigation Vortex
-
Linda L. Kennedy, J.D.,
Holodeck Law
-
Colorado:
Report of the Committee on
Pro Se
Parties and Civil Justice Reform
-
How to Treat “Fools”: Exploring The
Duties Owed to Pro Se Litigants,< |
