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.

Chief New York State Judge Jonathan Lippman is helping credit card companies sue indigent credit card debtors better?

Judge Lippman, as he often does, announced certain troubling statistics about New York State court system and then did the opposite to what was supposed to be done to resolve the situation.


On April 30, 2014, with much fanfare, Judge Lippman announced new rules in order (allegedly) to fight the vast human rights abuses in the way New Yorkers are sued for credit card debt.


Judge Lippman listed the following alarming figures in this area:

• 100,000 - consumer credit lawsuits are litigated in the State of New York per year;
• 98% - percentage of defendants without counsel;
• "robosigning" flourishes, meaning signing false affidavits in support of plaintiffs' motions;
• "sewer service" is widespread where defendants are never served, the server simply "throws the papers to be served into a sewer".

Of course, if Judge Lippman ran a business and in his business something like that would happen which would threaten his business, Judge Lippman would have taken his head out of the sand and have taken effective actions immediately.


In this case, unfortunately, Judge Lippman's "business" is unsinkable no matter how ineffective it is - our pockets are presumed to be bottomless, unless, of course, people leave New York state in masses and leave its court system without financial support.  41% of New Yorkers already want to do that according to the recent Gallup poll.


Let's ask whether Judge Lippman's court system do anything an effective manager would have done in his place.


1) Did New York court system headed by Judge Lippman punish attorneys who authorized "robosigning" and "sewage service" under the frivolous conduct rule, $10,000 for each instance of misconduct?  That could nip the issue in the bud.  If attorneys knew that the discipline was sure to come for such shenanigans, they would not have dared to proceed and no rules of Judge Lippman would have been necessary.


2) Were those attorneys disbarred?  Suspended?  Censured?  Disciplined in any way at all?  Can the public at least see the lists of attorneys involved in robosigning and sewage service, so that the public may demand their disbarment and protection of the public from them at present and in the future?


3) Were those attorney prosecuted by either county prosecutors or New York State Attorney General for fraud upon the court under Judiciary Law 487?


4) If the answer is "no", who is responsible for this non-enforcement and should those people be replaced, no matter how high their rank is?


5) Should the New York court system relax the rules of legal monopoly of court representation in view of the fact that 98% of consumer credit debtors, or 98,000 New Yorkers every year cannot afford a lawyer?  What is the point of allowing attorneys engage in robosigning and sewage service against indigent pro se parties, and not being disciplined, and the indigent defendants not being allowed to have a non-attorney representative represent them in court?  How can the court system assert with a straight face that this farce is for protection of the public?




So - did Judge Lippman, as the head of New York State court system, implement any of the above measures that could lead to an effective resolution of the crises in consumer credit litigation?


Oh, no.


Judge Lippman instead legislated in excess of his authority, and in usurpation of authority of New York State Legislature and created one more rule, that people who were already caught providing false affidavits to the court, need to provide yet another affidavit to the court, that they are actually acting on personal knowledge, and everything will be ok.


A similar rule was introduced by the same Judge Lippman in foreclosure litigation some time ago.


The results of that rule are not at all favorable for foreclosure defendants.  Now foreclosure plaintiffs can avoid the main challenge of lack of standing by stating that they submitted an affirmation on personal knowledge.  The same will happen here.  Or, let me ask a naïve question - was this rule introduced as a smoke screen that something is being done to resolve blatant human rights abuses in consumer credit litigation, while in fact the new rule is aiding the plaintiffs and not the indigent defendants?


In fact, introduction of such a new "layer" in litigation deeply affecting defendants' rights amounted to legislative policy, and Judge Lippman, under the doctrine of separation of powers, is not allowed to legislate.


So - instead of doing his own job properly, Judge Lippman usurped somebody else's and botched it.  


Yet, the problem remains unresolved.

Indigent litigants in New York residential foreclosure cases are discriminated against as opposed to indigent litigants in New York State Family Court

Residential foreclosures in New York are proceedings in the Supreme Court (the lower general jurisdiction court in this state).


Indigent defendants in such proceedings are allowed by law to have assigned counsel.


Yet, this "right" appears as a mockery of justice when one considers that by the time that counsel is assigned, the defendant is, most likely in default, failed to appear by answering the foreclosure complaint and, thus, waived numerous affirmative defenses, most important and frequently available of these are defects in standing and statutory notices.


When served by personal service, as it supposed to be happening in a Supreme Court civil action, the defendant will suffer a default unless he or she appears in the action by filing and serving the answer, affirmative defenses and counterclaims, if any, within 20 days.


If service was by substituted service, the deadline is 30 days from the day of service.


The first time an indigent foreclosure defendant is going to see a judge in a foreclosure action is at a mandatory conference which must be held 60 days from service of the action.


It is apparent that by the time of the conference when an indigent defendant in a foreclosure action can ask the judge for an assigned counsel, most likely, he or she is already in default and there is, basically, no point asking for any counsel.


At the same time, in Family Court service of a petition does not require a formal answer, and an indigent party may ask for an assigned counsel at the first appearance, which usually results in an adjournment of the case until the counsel is assigned and appears with his or her indigent client at the next court appearance.  No rights are lost where an indigent person fails to reply to a petition within 20 or 30 days and appears in court for the first time without counsel.


Nothing in the law can justify this basic inequality.


It is morally wrong to compare the value of child custody or visitation, or reputation and family integrity litigated in Family Court with the ability of the same parent to keep that roof over his child's head fighting a foreclosure proceeding.


I believe, New York State violates the Equal Protection Clause of the 14th Amendment by its failure to provide equal mechanism of assignment of counsel to indigent defendants in foreclosure cases, where the indigent pro se defendant is not allowed a grace period during which no default can be declared until the court, at its settlement conference 60 days after the defendant is served, assigns a counsel and gives that assigned counsel reasonable time to respond to the complaint and raise affirmative defenses and counterclaims, as the case requires.


Moreover, the discrimination goes even further, since, based on reports to me by some pro se appellants, Appellate Division 3rd Department does not recognize the right of an indigent foreclosure defendant-appellant to an assigned counsel on appeal, while in Family Court assigned counsel is available both at the trial and at the appellate level, for all cases but child support.


It is time for the New York State Legislature to end this discrimination.

Is the federal statute allowing sua sponte dismissal of civil rights acitons filed by pro se indigent parties unconstitutional?

I've got a phone call today from a reader of my blog who has been litigating pro se in federal and state courts, so far unsuccessfully.


The reader, a well respected retired professional, was surprisingly well versed in the mazes of doctrines and rules of federal and state appellate courts, which shows years' worth of litigation.


The cases were still lost, both in state and in federal courts, for reasons well described in my other blog on the subject.


Even before I started my blog attorneyindependence.BlogSpot.com, I have been contacted by many people whose federal cases were already lost or who had no hope winning those cases because of barricades of judicially created doctrines that block their access to courts.


Yet, one case stood out.  It introduced me to the area of federal law I did not know about and which I am deeply ashamed of, more than of anything else I encountered during my years as a civil rights attorney.


It is statutory discrimination against civil rights litigants in federal courts who represent themselves and who are poor and obtained from the court a "poor person status" with a fee waiver.


The current filing fee in the federal district court where I am practicing is $450.00.  For many people such a price tag on access to justice makes that access impossible.


To alleviate that problem, federal courts allow civil rights litigants to apply for what is called "in forma pauperis" (IFP) status, or a leave to proceed as a poor person, with a waiver of filing fees.


Yet, when an IFP status is granted, the poor (and mostly uneducated) pro se litigants are not told that with the IFP status comes such conditions that they should beware the courts bearing such gifts and instead should struggle, but pay that $450.00 fee, because for $450.00 they are agreeing to egregious discrimination by federal courts, authorized by the U.S. Congress, in 28 U.S.C. 1915.


Pursuant to 28 U.S.C. 1915(e) a federal court has authority to dismiss a civil rights case of an IFP pro se litigant sua sponte (on its own motion) if the action or appeal is "frivolous or malicious",  28 U.S.C. 1915(e)(B)(I);  fails to state a claim on which relief may be granted, 28 U.S.C. 1915(e)(B)(ii), or seeks monetary relief against a defendant who is immune from such relief.


Now, concepts of immunity are not reflected in statutes, most of them (with the exception of judicial immunity from injunctive relief when sued in official capacity, an odd addition to 42 U.S.C. 1983) are judicially created doctrines with multiple exceptions and intricacies of application.


The statute clearly provides that at any time, including the time before defendants are even served with the lawsuit (which was the case for the person who brought to me the description of their case after such a dismissal) a federal court may, on its own motion, not only dismiss the case, but also impose costs upon a poor pro se litigant!


Moreover, if the court does such sua sponte dismissals three times, a prisoner/pro se litigant's access to court as an IFP person will be simply barred, whether he actually remains a poor person or not:


28 U.S.C. 1915(g): 





"In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.


 Furthermore, under 28 U.S.C. 1915(h):


" (h) As used in this section, the term “prisoner” means any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.


It is apparent that the federal statute makes no difference between a convicted individual and a detained or accused individual who is still covered by presumption of innocence.


Even then, whether a person has been convicted and sentenced for commission of a crime or not, that does not automatically cancel his civil rights, which is what is being presented in this statute.  I draw the readers' attention to the fact that it is presumed that the dismissal is correct.  So, it takes three careless dismissals to block an access to court of an individual who is "detained" (not convicted yet),  "accused" (not convicted yet),  violated "pretrial release" (not convicted yet), or violated diversionary program ( as an alternative to conviction, so not convicted).


Presumption of innocence goes out the door.


Detention is presumed lawful.


Accusations is presumed evidence.


Delinquency which is a sealed proceeding is revealed.


The law is put on its head.


But that is not all that is wrong with this statute.


Normally, after a defendant is served, a defendant must timely file an answer with affirmative defenses or


In IFP cases, the court must serve the defendant.


In the case that was complained about to me by my confidential client, the court dismissed the case on its own motion BEFORE that same court fulfilled its duty to the IFP litigant to serve the defendants.  The defendants were powerful public officials and agencies, judges and courts.


Some defenses upon which the court dismissed the lawsuit, were not jurisdictional, they were affirmative defenses that were for defendants to timely raise, and if they would not be raised, they would be waived.


Plaintiff would have benefited by being allowed to at least argue on her own behalf.


The U.S. Congress allowed federal courts to be advocates for powerful governmental defendants by giving a court to sua sponte dismiss cases before they were even served based on the court's own understanding, on its "own motion" as to what constitutes "frivolous" constitutional claims is, oxymoronic, because constitutional arguments are counter-majoritarian by their nature and what is "frivolous" is a majoritarian argument, moreover, such rules are vague, poorly defined and allow arbitrary enforcement.


American court proceedings are adversarial.


When a court is moving sua sponte to dismiss a case of a poor person, the court acts as that person's opponent and thus completely cancels out the whole idea of access to a fair and impartial tribunal.


Yet, in the even that the IFP pro se plaintiff had money, that plaintiff would have been entitled, with the very same claim, to hire an attorney, have that attorney serve the complaint, declare a default if defendants do not appear in the action timely, oppose any motions to dismiss and bring forth arguments that could change the court's mind and change previous caselaw  if previous cases are decided incorrectly.


An IFP pro se litigant is not only at a disadvantage because, well, the pro se plaintiff is poor, but the pro se plaintiff has no legal representation and no time or opportunity to be heard before the court dismisses the case before the lawsuit is even served and before any affirmative defenses are raised!!!


To add insult to the injury, in my confidential client's case the court not only dismissed the case before serving defendants, but told the IFP pro se plaintiff that if plaintiff takes an appeal from the dismissal, it will be presumed to be in bad faith and frivolous.


IFP pro se plaintiffs often have low educational level.


Yet, the courts and the U.S. Congress which enacted this statute, appear to presume and require that IFP pro se litigants be educated in judicial doctrines without any representation, even while professors, courts and attorneys differ as to the meaning, scope and the very validity of the doctrines that illiterate IFP pro se plaintiffs are presumed to know, "or else" their access to the court will be barred.


The issue of the IFP pro se federal lawsuit that was dismissed sua sponte was, sadly, about access to Family Court files for pro se appellants to prepare a Pro Se Record on Appeal, as well as caps on compensation of assigned counsel on appeal in Family Court cases in New York state.


The plaintiff did not ask for money damages, only for prospective injunctive and declaratory relief, and that relief was supposed to be granted, because otherwise the plaintiff would be left without access to state court and without  any remedy at law, despite the obvious fact that her constitutional rights as an appellant were violated.


28 U.S.C. 1915 is an example of shameless discrimination against the poor and the pro se litigants in American courts, leaving poor people without any legal remedies pertaining to violations of their civil rights.