THE PLIGHT OF THE PRO SE/PRO PER IN COURT
The litigants in Family Law courts are different from those in other courts. For the most part, nobody has done anything wrong that can’t be fixed, and most do not suffer from a criminal mind.
In nearly all cases, the participants cannot afford a lawyer, and so they are appearing “In Propria Persona” (lit. In One’s Own Person,in other states “Pro Se”). There they sit bleakly in court, surrounded by court officials, utterly dependant upon the caring of total strangers. And if those vertically thinking strangers have a streak of cruelty in their makeup, and I think that fits the job description of most “good” lawyers (and in America judges were first lawyers, right?), the PP’s are completely vulnerable to any effort to vitiate their submissions, no matter how well they may have been written.
Courtrooms are being closed down, and less and less money is being made available to help the public get its day in court (currently almost a quarter billion dollars needs to be shaved from the budget), and in spite of this, or perhaps because of it, the courts are now tempting us with self-help in the form of on-site forms and advisory leaflets and the web, (see www.courtinfo.ca.gov/courts), one of several. For people like me, it means that we are able to pursue our cases with energy, some outside help, a modicum of skill, and, yes, passion, because of issues that can belong in a Shakespearean play. Not because we think we are better than lawyers, not because we want a fool for a client, but because we refuse to give up because we’re poor.
Now, I think it is demonstrably true that (a) judges don’t like pro pers, (b) they will rule against them if they can get away with it and (c) judges can be lazy creatures, and how much better to have an attorney write a professional-looking [proposed] decision than a pro per, or, heaven forbid, themselves.
Pro Pers tend to be long on points and short on authorities because they want to get their whole story out. But, and this is important, everything they do or say MUST be true, because the moment the courts discern that they are not true, the case will be over. Lawyers are not held to the same standard, and happily lie if they feel they can get away with it, and if they’re caught out, well, they’ll try something else. Lawyers praise fellow lawyers for clever courtroom tactics, a “winning” record, a “way” with juries. Big money litigators love them, and so do most judges. Some even go on to eye the presidency (just what we need!)
Pro Pers tend to believe in the “rule of written law” and not the rule of individual judges who can and do interpret the written law as they see fit under attorney prodding, thus inviting a Writ or an Appeal, seldom followed up by the IPP, or denied if pursued (the Court of Appeal where they “shoot the wounded”, I heard one judge say at a judges’ symposium).
Lawyers pass before the same judge in many different cases, and therefore may mute their fire. Pro Pers pass before the same judge perhaps one extended time only, knowing full well that they will not pass that way again.
And of course there’s so much more. But what’s the answer?
I believe that continued communication between the principals is the key. First, I would put them in a room without attorneys present, maybe just a bailiff or two, and I’d keep them there, temperature on low, with orders to “keep talking” and find common ground.
Second, if it has to go to trial and pro pers are involved, I would mandate that an independent courtroom monitor attend all proceedings in court. This could be a person agreed upon by both sides, or someone from a watchdog organization such as Judicial Watch, with the right to speak up.
Third, there should be, and always should be, total transparency throughout the proceedings. Under the family court rules as presently written, the judge can keep out any evidence he can be persuaded to keep out, under the heading that it is “not probative” to the proceedings. So, if the parties engage in extra-marital affairs for example, that fact may be kept out, and one or the other will become the villain, usually the man. And the other party’s lawyer will make big hay out of demonizing the unrepresented party. And the same goes for the hiding of assets.
Under the present system, the parties file a mandatory “Income & Assets” statement which goes into the court file, but which is almost always accepted and not questioned. Custom. But this is usually only done once, and is not subjected to examination by the court. The parties should each be put on the stand, and under oath and the penalty of perjury, expose their assets. The judge could then warn them of dire consequences, including jail-time, if there are any lies before the court. Watch the Nevada Corporation, or hidden trust, or nominee information come tumbling out then! And the attorneys should also be made to swear before the court whether they have any involvement in defrauding the other party or the court, and with their license at stake, watch the truth come out then too. If anybody lies when on the stand, imprisonment or worse would stare them in the face.
Make no mistake, reform is in the wind, and much has to change if judicial spending is to be curtailed and, more important, the true principles of justice are to be meaningful.
In every case of child or spouse or elder abuse, or custody or visitation or money or property abuse, there should be an INITIAL STAGE OF INQUIRY by a panel made up of ordinary citizens, much like a jury. A professional master in charge, but no attorneys and no judges.
At this inquiry, all the parties would be court ordered by subpoena, not just invited, to appear alone to give their side of the story – yes, the children too if tiny, first in the arms of the mother, then in the arms of the father – and later together so that the stories can be reconciled and their demeanor observed. And ALL of the facts should be brought out, no matter how bizarre or improbable, and the participants should be made to answer questions. And no rules of evidence. AND whatever comes out, should be recorded and made available to be used in court if necessary, later!
The objective would be to reach some sort of agreement where a paper would be signed by the parties, which would become a contract between them.
ONLY IF THIS FAILS, and the parties have been warned of the consequences of not reaching an agreement, should attorneys THEN be allowed in.
The attorneys, however, should not be allowed to have at each other in the style of attorneys in Civil Court, or defense attorneys in Criminal Court, but rather in the style of prosecuting attorneys in Criminal Court, that is to say, they should be under the strict rule to cooperatively seek JUSTICE. And the goal of achieving SETTLEMENT between the disputing parties, not to seek to win for their client. The difference is huge. The procedures would be quite different from any other court.
I have intimate and very personal experience of 3 cases where “attacking” attorneys happily entered what they saw as a “win-win game”, and exacerbated the problems, which lead the participants to irreconcilable differences. And those differences cost the child his or her right to a proper start in life, and to probable future personality problems. The presence of alienation toward one or the other parent can prepare the child for a hard-to-change lifetime of habitual lying, which can become compulsive or worse. These cases have one thing in common. The “losers” were unrepresented pro pers.
And of course the real losers were the children, and maybe our society.
Case #1: This was my case. The mother of a small child acquires property from the father’s home/business, feeling she is entitled to turn the property into cash, or use the property for herself in some way. The father knows she took it, because she worked for him, and the property (camera equipment) was locked away, and only she knew where the keys were. Other property was left alone.
At the custody and visitation hearing, the mother gets custody. The father tries to get into evidence the fact of the theft, but the judge disallows the evidence as “not probative”. He does not allow the mother to be questioned, and she is protected by a smart attorney who knows how to manipulate the court.
Awarding visitation for the father, he is strictly ordered by the court not to discuss the case with his visiting child, on pain of losing visitation altogether.
BUT, the child has seen the mother use the property, and that fact may get mentioned during visitation. The mother will do anything to keep the child away from the father, because this proof could take her into criminal court, and jail time.
SOLUTION? None I can think of. Except the mother now has a stake in alienating the child from the father. And the father (me) refuses to participate in meetings with an alienated and unwilling child under the eye of a paid court-appointed monitor as ordered. He will grow up to know that his father paid support for his upbringing, to discover that Family Court and certain named judges denied him his birthright and his civil rights, and that he never got the better chance at the good life he was entitled to.
Case #2: A “house husband” situation, where the mother is the money earner in the family, so she’s out at work during the day. The father takes care of the children, a young son, and a very young daughter. One morning, he finds that the little girl has an infection in the vaginal area, and using a cotton swab, tries to do some cleaning up. The son sees this, and reports what he sees to his aunt. The aunt tells her sister, and next thing the Department of Children’s Services is brought in. Dad doesn’t have a chance. The boy gives evidence, and he is the only witness, against his father now!
Result, the mother gets custody, and he narrowly avoids being locked up. And I happen to know that after three years, he is not allowed to come near his daughter.
However, he gets half-custody of his son, and at their last court appearance, which I attended, it came out that his son stole business documents from his father’s house and took them to his mother’s house.
SOLUTION? None that I can think of, it’s gone too far and is now out of hand. I know the participants well. I could have given evidence helpful to the father, since for six months the mother and children lived with me in my house in Topanga, and I observed their behavior together. But the children’s attorney, in possession of my journal which was important evidence, suppressed it, and it never was considered, or put on the court record.
Case #3: A mother of a small daughter believes that she is being molested by her husband, the father. She brings in Children’s Services. The child is medically examined more than once, and gives evidence in Children’s Court that it is true. Third party corroborative evidence.
Of course, the mother gets custody. But later, with the help of a powerful attorney, the case goes to Family Court, which claims to be the senior court. And at a hearing, the child is taken from the mother, in court, and given to the father, on the basis that the child will suffer more from the accusations of the mother, than from the possibility that she will continue to be molested by the father.
That was ten years ago. The child just reached her 18th birthday. The father has tried to become the child’s conservator now that she has reached adulthood. If what the mother feared is true, the daughter will have much to tell. But as a young child, she was not allowed to give evidence before the court. Only to her attorney protector who would/should inform the court. (November 2005 update: The father did indeed become the conservator of this child/adult. I was in court and watched it happen)
SOLUTION? None that I can think of (read THIS).
I believe that given a slightly different set of circumstances, and given the state of our family court system today, any one of these people could have taken the law into their own hands, and become insane killers, and it is only thanks to the fact that I know these people to be civilized and educated and law-abiding and can control themselves, that they have not done so. But each one in some sense feels guilty, guilty that their child will grow up one day and say “Why didn’t you do something about it when I was little?”.
BUT THERE ARE PEOPLE OUT THEIR WHO ARE NOT IN COMMAND OF THEIR SENSES, WHO MAY BECOME DERANGED, WHO WILL LOSE ALL SELF-CONTROL IN THEIR SENSE OF FRUSTRATION AND HELPLESSNESS AND HOPELESSNESS AND WILL TAKE IT OUT ON OUR SOCIETY IN SOME HORRIFIC WAY, PERHAPS DURING THE SAME ACT AS ATTEMPTING TO TAKE THEIR OWN LIVES, FEELING THEY HAVE NOTHING LEFT TO LIVE FOR.