By Drew Swank. Published in BYU Law Review. Published in 2005.
Drew Swank investigated the causes behind an increase in Pro Se Litigation in the US. He discovered the reasons behind the increase and how it is affecting the court systems around the country. Inability to pay is only one of many reasons a litigant will end up going to court pro se. Many litigants face legal challenges that are rarely practiced by attorneys because they show little chance of profit, such as landlord/tenant disputes and family law. In certain geographical regions, legal disputes are so rare that lawyers won’t practice in the area, making legal representation nearly impossible for people in extremely rural communities. Swank challenges the modern assumptions made about Pro Se litigants and shows how the current state of legal services in the US is failing the people who need help the most. Because of the strain on the legal aid community, most clients receive far below full representation, usually only amounting to advice on how to proceed on their own.
Swank also shows that the level of a court will determine how a pro se litigant is treated, with the most fairness occurring at the lowest courts, and the US Supreme Court rarely, if ever, agreeing to even hear a case with a pro se litigant. These findings show a need for improvement in the legal services available around the country.
Pro Se rates in California divorce cases: 1971 – 1% 1985 – 47% 2005 – 75%
Reasons why many low income individuals do not bring issues to court:
- The belief that legal intervention would not help
- Concerns about the cost even without attorneys
- The belief that the problem was not serious or “legal” enough to take to court
- The desire to avoid confrontation
- Non-financial reasons for growth in per se litigation
- Increased literacy rates Increased sense of consumerism
- Increased sense of individualism and belief in one’s own abilities
- An anti-lawyer sentiment
- A mistrust of the legal system
- A belief that the public defender in criminal cases is overburdened
- A belief that the court will do what is right whether the party is represented or not
- A belief that litigation has been simplified to the point that attorneys are not needed
- A trial strategy designed to gain either sympathy or a procedural advantage over represented parties
- The desire to handle the problem on their own