Unequal rules for pro se and represented parties and how they hurt

When a pro se party litigant comes to court, he or she might expect equal treatment.

In fact, he or she is entitled to equal treatment, under the 1st Amendment right of access to courts and 14th Amendment Equal Protection Clause.

Yet, a pro se party litigant learns fast that things are not as they are supposed or presumed to be.
Here are some examples as to how a pro se parties can be treated differently from represented parties in New York State courts.

No.	Aspect of litigation	Pro Se (Unrepresented) Litigants (80% in the state of New York)	Represented litigants	What difference does it make
1.	Access to information	Clerks of the court do not provide pro se packages or access to pro se computers, and the pro se party and refuse to point the pro se party to a source where he can get those rules	Attorney advises represented parties as to the rules governing their rights		Most defaults in consumer credit/foreclosure cases happen because Pro Se parties do not know what the word “appear” means, thinking that to “appear” in the action is to come to the courthouse, while it is to file and properly serve the answer and affirmative defenses.  If the answer is not filed and served timely and if affirmative defenses are not raised timely (within 20 days if service was personal), they are waived and the pro se litigant is in default and may lose his house or incur a large judgment against him/her
2.	Access to the court file at any time	Pro Se litigants are routinely blocked in their efforts to access their own court file, especially where it is known that access is sought for purposes of making a motion to vacate, appealing or filing a federal civil rights lawsuit	The attorney has unrestricted access to the court file and there are rarely restrictions as to who the attorney may show the file		Pro Se litigants most often give up when they are faced with such obstacles and their appeals, motions to vacate or federal lawsuits are never filed, access to court to pro se parties is thus blocked
3.	Serving process	A pro se party is not allowed to serve his/her own process, thus requiring to hire a process server.	An attorney for a party may serve process him-/herself		Represented and unrepresented parties are treated unequally by the courts.   Proposed remedy: the clerk of the court should serve, for a small fee, in both represented and unrepresented cases
4.	Supporting affidavits	A party can only provide a supporting affidavit, not an affirmation, as attorneys are allowed to do, which requires to look for a notary who may not be available at all times of day and all days of the week when pleadings are being prepared	Attorneys can notarize their clients’ affidavits and may provide a supporting affirmation of their own for their pleadings		Disparate treatment of pro se and represented parties makes it more difficult for unrepresented parties to make pleadings, which increases the disparity already existing with represented parties
5.	Attending court Conferences	Some courts/ judges fail or refuse to invite pro se parties to court conferences (I had such an experience with Judge Carl F. Becker of Delaware County Family Court, NY, when the judge refused to invite into the conference my client’s pro se co-respondent)	Attorneys for represented parties always attend court conferences		Important issues are decided at court conferences, such as issues pertaining to discovery, preliminary discussions of substantive issues in litigation, potential settlement points, a pro se party who misses that is at a disadvantage
6.	Accessing the record To prepare the Record on Appeal	I have heard from Pro Se litigants who claimed their access to their own court file was blocked in Delaware (2012-2014) and Chenango County Family Court (2012)	An attorney usually does not experience any difficulty in accessing the court file for preparation of a record on appeal, other than if certain records are lost or are still in the court’s chambers
7.	Certifying the Record on appeal	Pro Se litigant may not certify the record, only the court clerk can do that, and court clerks routinely either refuse to do that or create rules that make such a certification either too difficult in terms of effort or prohibitively costly for the pro se Appellant, so the Appellant gives up and has to go the route of concession – stipulation of the record, and then the Pro Se party is in the hands of the opposing counsel	Appellant’s attorney certifies the record		Represented party saves time and money on certification, controls the mode of presenting the record – a full certified record or a partial stipulated record, represented party is not controlled by the opponent as to which method of the record to use
8.	Respectful treatment by the court personnel	Pro Se parties are routinely treated rudely by court personnel, and there are instances when court personnel makes claims against pro se parties which adversely affect their cases if court employees retaliate against pro se parties for asserting their rights by making false claims to the court of their allegedly “unruly” behavior	Attorneys and their clients are always treated with respect by the court personnel		Disrespectful treatment by court personnel destroys belief in the rule of law and equality under the law, deters pro se parties from seeking court protection in the future   In the event when court personnel retaliates against pro se parties, it may affect their substantive or procedural rights
9.	Legal arguments	Courts often look down at legal arguments of pro se parties because they are presumed not to know the law, no matter how hard they tried to learn the applicable law for their case; judges routinely urge pro se parties to hire an attorney, whether they can afford one or not and express disdain to their inability to represent themselves adequately, treat pro se parties as if their pleadings are presumptively frivolous or waste the court’s valuable time	Any licensed attorney is presumed to be competent, if that is true in reality or not, and both the attorney and his/her pleadings are granted a modicum of respect to the court simply for his or her status as an attorney		Such a situation creates an appearance that the court has made up its mind against the pro se party at the very beginning of litigation, so the presumption of impartiality and the pro se party’s belief in the rule of law and equal protection of law goes out the door
10.	Testimony at trial	Courts routinely fail to instruct pro se parties that they have a right to testify in the narrative (since it is unreasonable for the party to ask himself a question and answer it) and instead subject the party to its own examination which is far from friendly and often amounts to a second cross-examination	Represented parties are subject to direct and cross-examination, courts rarely conduct their own examination of represented parties when they testify		Courts make the disadvantage that pro se parties already experience as against represented parties, even worse by conducting their own, often hostile, questioning of pro se parties while it rarely happens with represented parties
11.	The legal language	A Pro Se party needs to practically learn another language of complex legal terms and concepts to represent him/herself in court	The legal language is often arcane and has a different meaning from its “plain English” meaning		Unnecessary complexity of legal terms, concepts and doctrines make the gap between represented and unrepresented parties even deeper   A simple solution would have been to simplify court rules to gear it toward pro se parties rather than to attorneys, since an overwhelming majority of litigants in New York State Courts (80% according to Chief Judge Jonathan Lippman) are pro se litigants.
12.	For federal courts:  mandatory e-filing for attorneys and mandatory paper filing for pro se parties create a tremendous disadvantage	A pro se party must make a motion to ask the court to file electronically, satisfy certain requirements, and often such motions or applications are still denied or ignored	An attorney must file and serve electronically		Deadlines:  a lawyer can file 1 minute before midnight and still be within his deadline.   A pro se party must overnight his pleadings to make sure the court will receive it on a certain date and won’t lose it/won’t claim it never received it.   This creates both cost and time disadvantage for a pro se party, and for no reason, since lawyers cannot be presumed to be more knowledgeable in computers with the current proliferation of computer technology and while lawyers are not taught computer classes in law school

It is clear from the above table, made based on personal experience of the author, research and reports of individuals who consulted her that, instead of bridging the gap between pro se and represented parties, courts create difficulties for pro se parties and exacerbate them.