Off the Bench | Pro se litigants face several challenges

Off the Bench | Pro se litigants face several challenges

Recently, I saw a commercial in which a man was depicted performing surgery on himself. While that may have been an attention-getter, we all know that we cannot go to the hospital for such a procedure. On the other hand, we can go to the courthouse and pursue our own case. If so, we are said to be proceeding pro se. "Black's Law Dictionary" (eighth edition) defines the term as "For oneself." It describes the person who appears in court on his or her own behalf without a lawyer.

It is not unusual to see someone appear pro se to respond to a speeding ticket. On rare occasions, persons facing serious criminal charges will want to forego a lawyer. This gives judges heartburn and is a very poor idea. The court can allow a person to go it alone but only after a detailed inquiry and a finding that the accused is able to do it.

In such situations, it is not unusual for the court to appoint standby counsel if the defendant is indigent. The attorney is present and available for advice and assistance.

Pro se litigants are more commonly found in civil cases. In fact, most states provide some avenue for the resolution of cases that involve modest amounts in controversy.

Illinois is no exception. Illinois Supreme Court Rules 281 through 288 govern small claims, which are cases in which $10,000 or less is at stake.

Cases brought under this rule are well-suited for persons appearing on their own behalf because the rules allow the court to adjudicate the cases in an informal hearing in which "the court may relax the rules of procedure and the rules of evidence" (Illinois Supreme Court Rule 286(b)).

While certainly more dignified than some of the television courtroom shows, this mechanism allows courts to resolve cases on the merits. Most judges that I know prefer to give the litigants their day in court and have the case decided on the facts rather than some procedural error.

By way of example, consider a college student home for the summer that is hired to paint a house. When the work is done and the bill presented a dispute arises. The parties discover that the cost of hiring lawyers will exceed the disputed amount. Small claims adjudication will allow them to resolve the dispute without the cost of counsel.

Federal court presents a different picture. First, there is no small-claims procedure. As a result, all the rules of evidence and procedure apply and must be enforced by the court.

I admit to being surprised when people sought to proceed pro se in U.S. District Court. Yet, we always seemed to have a couple cases involving people appearing on their own behalf. In at least one case, my suggestion that having a lawyer should be considered was met with disdain.

The more typical situation involves people who are unable to afford to pay an attorney. Some ask the court to appoint counsel. Unlike criminal cases where the court appoints counsel for indigent defendants, taxpayers are not required to foot the bill in civil cases.

Judges are encouraged to "recruit" counsel. As any Illini coach can attest, sometimes, despite a monumental recruiting effort, the athlete chooses another program. So it is for the court as well.

Sometimes the recruiting efforts are successful, and the party is represented by the lawyer who agreed to take the case.. However, when the judge comes up empty, the case must go forward without an attorney and the challenges mount.

Some pro se litigants are intelligent and sophisticated. I recall one individual who represented himself in a case that proceeded to jury trial. He proved quite capable, and the verdict was in his favor. In other cases, the pro se parties are long on emotion and short on knowledge regarding law and procedure. This puts the judge in an uncomfortable position.

As noted earlier, adjudication on the merits is the goal. The judge does not want the case to come to a screeching halt because the party has no idea as to what to do next. However, the judge cannot take on the role of advocate for the non-represented person in order to avoid having the proceedings come to a full stop.

Small claims proceedings are ideal for people who want to represent themselves. Beyond that, the complexity of the proceedings presents a significant challenge. A person taking on that challenge should not expect the judge to become his or her advocate.

David Bernthal of Mahomet is a retired 21-year federal magistrate. He is a counsel with the Webber & Thies PC law firm and serves as senior mediator and arbitrator with ADR Systems. His email is

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