Against Civil Gideon (and for Pro Se Court Reform)

Barton, Benjamin H.

doi:10.2139/ssrn.1540763

Cited by 7 publications

(14 citation statements)

References 9 publications

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“…Without legal representation, pro se parties are severely disadvantaged (Quintanilla, Allen, & Hirt, 2016;Seron, Frankel, Ryzin, & Kovath, 2001), particularly when encountering opponents who have legal representation (Shanahan, Carpenter, & Mark, 2016). Motivated to bridge these gaps, legal scholars have debated the pros and cons of solutions at length (e.g., Barton, 2010;Carpenter, 2017;Rhode, 2014;Schwarz, 2004). These solutions typically involve proposals to level the playing field by making legal information and resources more available and navigable to those without a law school degree-because disparities in legal expertise are thought to be a major cause of the pro se disadvantage (Sandefur, 2015).…”

Section: Underestimating the Unrepresented: Cognitive Biases Disadvantage Pro Se Litigants In Family Law Casesmentioning

confidence: 99%

“…Consistent with the legal expertise disparity hypothesis, pro se parties lack much of the required legal and strategic expertise to successfully navigate complex legal systems (e.g., not knowing how to file paperwork correctly, prepare for hearings, or gather appropriate evidence; Hannaford-Agor, 2003;Sandefur, 2015). Given these legal expertise disparities, it is perhaps unsurprising that uncounseled litigants generally fare worse than counseled litigants at every stage of litigation (e.g., Quintanilla et al, 2016;Seron et al, 2001) and that most of the proposed solutions addressing these problems involve enhancing the legal "know-how" of pro se persons (e.g., Barton, 2010;Carpenter, 2017;Rhode, 2014;Schwarz, 2004). Courts have designed educational programs, drafted easy-to-understand forms, and made self-help kiosks available so that litigants can better represent themselves (e.g., Barton, 2010;Landsman, 2009Landsman, , 2012Swank, 2005).…”

Section: Understanding the Access-to-justice Problemmentioning

confidence: 99%

“…Given these legal expertise disparities, it is perhaps unsurprising that uncounseled litigants generally fare worse than counseled litigants at every stage of litigation (e.g., Quintanilla et al, 2016;Seron et al, 2001) and that most of the proposed solutions addressing these problems involve enhancing the legal "know-how" of pro se persons (e.g., Barton, 2010;Carpenter, 2017;Rhode, 2014;Schwarz, 2004). Courts have designed educational programs, drafted easy-to-understand forms, and made self-help kiosks available so that litigants can better represent themselves (e.g., Barton, 2010;Landsman, 2009Landsman, , 2012Swank, 2005). Scholars have also worked to increase the availability of alternative dispute resolution (ADR) procedures, which provide flexible alternatives to trial (American Bar Association, 2019).…”

Section: Understanding the Access-to-justice Problemmentioning

confidence: 99%

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Underestimating the Unrepresented: Cognitive Biases Disadvantage Pro Se Litigants in Family Law Cases

Kroeper¹,

Vd²,

Mb³

et al. 2020

Preprint

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The majority of civil cases in the United States involve at least one pro se party—more often than not, at least one litigant is unrepresented by legal counsel. Despite efforts to provide pro se parties with information that decreases the procedural complexity of litigation, wide access to justice gaps persist between counseled and pro se litigants. We argue that, while helpful, information alone is not enough to close access-to-justice gaps, because the mere presence of counsel gives represented litigants a persuasive edge over pro se litigants in the eyes of legal officials. Two randomized experiments with civil court judges (Experiment 1) and attorney-mediators (Experiment 2), wherein only the presence of counsel varied (while other case-related factors were held constant), found that legal officials, on average, devalued the case merit of pro se litigants relative to otherwise identical counseled litigants. This case devaluation, in turn, shaped how legal officials expected pro se (vs. counseled) litigants to fare as they sought justice. Judges, attorneys, and mediators forecasted that pro se litigants would experience the civil justice system as less fair and less satisfying than counseled litigants, especially when the dispute resolution mechanism was trial (vs. mediation). These results suggest that perceptions of case merit are strongly influenced by a litigant’s counseled status. Comprehensive solutions to address access-to-justice gaps must consider ways to reduce legal officials’ biased perceptions of pro se litigants, so that they are not underestimated before their cases are even heard.

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Section: Underestimating the Unrepresented: Cognitive Biases Disadvantage Pro Se Litigants In Family Law Casesmentioning

confidence: 99%

Section: Understanding the Access-to-justice Problemmentioning

confidence: 99%

Section: Understanding the Access-to-justice Problemmentioning

confidence: 99%

See 1 more Smart Citation

Underestimating the Unrepresented: Cognitive Biases Disadvantage Pro Se Litigants in Family Law Cases

Kroeper¹,

Vd²,

Mb³

et al. 2020

Preprint

View full text Add to dashboard Cite

show abstract

“…Nonlawyers are currently permitted to practice in a number of civil justice settings, including administrative and immigration courts, and are promoted by some scholars and policy makers as an access to justice intervention (Zorza 2002; Rhode 2004; Engler 2006; Barton 2010; Eagly and Shafer 2015). Washington State recently created a program to license nonlawyers to practice law under limited circumstances, not including court appearances, with the express purpose of expanding access to justice (Ambrogi 2015).…”

Section: Introductionmentioning

confidence: 99%

Trial and Error: Lawyers and Nonlawyer Advocates

Carpenter¹,

Mark²,

Shanahan³

2017

Law soc. inq.

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Nonlawyer advocates are one proposed solution to the access to justice crisis. Theory and research suggest that nonlawyers might be effective, yet scholars know very little, empirically, about nonlawyer practice in the United States. Using data from more than 5,000 unemployment insurance appeal hearings and interviews with lawyers and nonlawyers who represent employers in these hearings, this article explores how both types of representatives develop expertise and what this means for effectiveness. We find judges play a critical role in shaping nonlawyer legal expertise and nonlawyers develop expertise almost exclusively through “trial and error.” We find evidence that while experienced nonlawyers can help parties through their expertise with common court procedures and basic substantive legal concepts, they are not equipped to challenge judges on contested issues of substantive or procedural law in individual cases, advance novel legal claims, or advocate for law reform on a broader scale. These findings have implications for future access to justice research and interventions.

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“…Nonlawyers are currently permitted to practice in a number of civil justice settings, including administrative and immigration courts, and are promoted by some scholars and policy makers as an access to justice intervention (Zorza 2002;Rhode 2004;Engler 2006;Barton 2010;Eagly and Shafer 2015). Washington State recently created a program to license nonlawyers to practice law under limited circumstances, not including court appearances, with the express purpose of expanding access to justice (Ambrogi 2015).…”

Section: Introductionmentioning

confidence: 99%

Trial and Error: Lawyers and Nonlawyer Advocates

2015

View full text Add to dashboard Cite

Nonlawyer advocates are one proposed solution to the access to justice crisis. Theory and research suggest that nonlawyers might be effective, yet scholars know very little, empirically, about nonlawyer practice in the United States. Using data from more than 5,000 unemployment insurance appeal hearings and interviews with lawyers and nonlawyers who represent employers in these hearings, this article explores how both types of representatives develop expertise and what this means for effectiveness. We find judges play a critical role in shaping nonlawyer legal expertise and nonlawyers develop expertise almost exclusively through "trial and error." We find evidence that while experienced nonlawyers can help parties through their expertise with common court procedures and basic substantive legal concepts, they are not equipped to challenge judges on contested issues of substantive or procedural law in individual cases, advance novel legal claims, or advocate for law reform on a broader scale. These findings have implications for future access to justice research and interventions.

show abstract

Against Civil Gideon (and for Pro Se Court Reform)

Cited by 7 publications

References 9 publications

Underestimating the Unrepresented: Cognitive Biases Disadvantage Pro Se Litigants in Family Law Cases

Underestimating the Unrepresented: Cognitive Biases Disadvantage Pro Se Litigants in Family Law Cases

Trial and Error: Lawyers and Nonlawyer Advocates

Trial and Error: Lawyers and Nonlawyer Advocates

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