Judge Posner, Self-Represented Litigants, and Changing Our Legal System

By now, the word is out that Judge Richard A. Posner is retiring from the 7th Circuit Court of Appeals. His retirement was unexpected, but his stated reasons for doing so shouldn’t be. In correspondence announcing his departure, Judge Posner sites apparent “difficulty” with his colleagues on the bench over the treatment of self-represented litigants as the motivation to leave the bench. A prompt response from Chief Judge Diane P. Wood, also on the 7th Circuit Court of Appeals, countered Judge Posner’s claim by stating, in part, “the judges and our staff attorneys take great care with pro se filings.”

Judge Posner’s point, though, is more indicative of the entire justice system than a particular court and its staff attorneys. Today, it is safer to assume that parties will not have lawyers and for courts and legal professionals to proceed with legal reforms accordingly. For too many people, the option of hiring a lawyer is out of reach, and the inability to afford a lawyer is not confined to low-income Americans. To demonstrate the extent of the situation, a 2015 study by the National Center for State Courts of the civil litigation landscape across the country found that in 76 percent of cases, at least one party is unrepresented. In some courts, the percentage of self-represented litigants in family cases is even higher.

Additionally, our Cases Without Counsel project found that while financial concern is the most common reason for proceeding without a lawyer, other people choose not to hire lawyers in order to maintain some control over their case or to avoid becoming too adversarial, while others feel confident going it alone.

However, even with all of the self-help resources that are available, the process of resolving legal issues remains overly complex and inefficient, leading many to give up on or become frustrated with completing their legal matter on their own. Innovators continue to seek new ways to disrupt the status quo of the legal system and many have successfully made inroads. Unfortunately, though, until courts and legal professionals join the charge, there will continue to be crowded dockets, challenges managing caseloads, and hurdles to effectively and efficiently provide services to all court consumers, leaving many disenfranchised or shut out of the legal system. This reflects poorly on more than a particular court or court staff; it reflects negatively on the legal profession and justice system as a whole.