Court systems stacked against pro se litigants

Court systems in the US are stacked against pro se litigants

My oldest son is a musician whose chosen instrument is taller than himself.

In early 2008 he auditioned for music schools around the country, which meant that he, his parents and his double bass racked up the frequent flyer miles.

The airlines charged extra to fly the enormous bass case. Inside a protective hard shell, the instrument was strapped down by several belts to keep it well-cushioned.

At Logan Airport in Boston, he and I watched from a plane window as the case was shoved onto the conveyor belt that lifted it into the plane’s hold. One of the belts was trailing outside the case. Our hearts sank.

It seemed only too obvious that a Transportation Security Administration inspector had removed the bass from its case. That in itself was maybe understandable, assuming the agency lacked adequate imaging equipment. But the inspector evidently failed to note the sequence of steps taken as they removed the instrument, and failed to repeat them in reverse order as they replaced it.

When we arrived back at the Sunport and retrieved the bass, our worst fears were confirmed. Not only was one belt loose but another had been pulled too tight. The instrument’s neck was broken.

We were, however, extremely fortunate to be living in Albuquerque, home of Robertson & Sons Violin Shop. Many Albuquerqueans, I’m sure, drive past the store on Carlisle without having the first clue about its international reputation. Robertson’s performed a superb emergency repair and my son and his instrument made it to his next audition the following week.

Meanwhile, the lawyer in the family filed a claim with the TSA. The agency denied it on the ground that I couldn’t prove the TSA was responsible. Why, it could have been anybody who happened to be inspecting luggage in the airport’s secure areas that day. If I disagreed with the decision, the adjuster told me smugly, I could always file a federal lawsuit.

I considered it. But while the cost of the repair was a bite for a family sending their first child to college, I knew it was peanuts in comparison to the sums at issue 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 myself.

In legal jargon, a litigant who represents him- or herself is said to be appearing pro se (pronounced “pro say”). As a lawyer with experience in federal court, I had an edge on the average pro se litigant. But that also meant I knew only too well how daunting the prospect of launching a federal lawsuit really was.

To begin with, it’s expensive. The current filing fee is $402, and it was the same or similar back then. To do the litigation properly, I’d have to gather evidence about TSA procedures at Logan Airport, which would have been ridiculously expensive.

Filing a federal lawsuit would have meant shouldering non-monetary costs, too. Litigation is time-consuming and stressful. It can eat up your life. And I knew one more thing. Pro se litigants aren’t treated well.

Don’t take my word for it. In an American Bar Association Journal article, retired federal Judge Richard Posner is quoted as saying about pro se litigants: “The basic thing is that most judges regard these people as kind of trash 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 attorneys take great care with pro se filings,” which can be read to mean they try not to spill coffee on them.

Self-representation isn’t rare in the American legal system. A law review article by John M. Greacen and colleagues estimates that “one of six Americans is a self-represented litigant in a newly filed case each year.” That figure strikes me as high, but even if we reduce it by 90% we’re still left with some 5.5 million Americans appearing pro se every year. Posner told the Chicago Daily Law Bulletin that about 55 to 60% of the litigants who file appeals in the Seventh Circuit represent themselves.

My family wound up eating the cost of repairing the damage the TSA did to our son’s bass. We’re far from unique, I’m sure. The number of pro se litigants may be difficult to quantify. But whatever the total might be, it doesn’t include people who, like us, give up without filing suit in the first place.

Our state and federal governments simply don’t provide an adequate forum for the just, speedy and inexpensive resolution of a huge number of legal disputes. The next column will describe some of the damaging effects and discuss some possible solutions.

Joel Jacobsen is an author who in 2015 retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at legal.column.tips@gmail.com.

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