Judge Posner and Litigants in Person

Judge Posner of the United States Court of Appeals for the Seventh Circuit has made a big splash by resigning suddenly. He gave an interview to the New York Times’ Adam Liptak about why he did so. The headline reason is as follows:

‘About six months ago,’ Judge Posner said, “I awoke from a slumber of 35 years.’ He had suddenly realized, he said, that people without lawyers are mistreated by the legal system, and he wanted to do something about it.

Judge Posner has a huge profile. He was a leading light of the law and economics movement and then a very productive but often controversial Judge. His explanation for his sudden retirement has, therefore, put the issue of litigants in person in the spotlight. That is a good thing in that they are an important issue in civil justice – both in the US and here in New Zealand.

There are, however, a couple of things worth reflecting on in Judge Posner’s explanation. The first is the way he describes litigants in person, as quoted in the New York Times article:

He had become concerned with the plight of litigants who represented themselves in civil cases, often filing handwritten appeals. Their grievances were real, he said, but the legal system was treating them impatiently, dismissing their cases over technical matters. ‘These were almost always people of poor education and often of quite low level of intelligence’. … ‘The basic thing is that most judges regard these people as kind of trash not worth the time of a federal judge’.

He says he is about to bring out a book on the subject so he will no doubt that will, but I was concerned about the characterisation of litigants in person as poorly educated and of low intelligence. I don’t know what the situation is like in the United States but that certainly wouldn’t be an accurate description of the litigants in person in the New Zealand civil courts. There is a great range of people litigating in person and many of them are highly educated, articulate, and intelligent. One of the issues for litigants in person is that the legal profession (generalising here) isn’t overly respectful of them. I’d characterise them as (generalising again) wary, suspicious, and sometimes contemptuous of litigants in person. Characterisations of the nature that Judge Posner makes are not, therefore, particularly helpful. They tend to play into the stereotypes and minimise the fact that a huge number of people – including smart and well-educated people – are litigating in person for a variety of reasons. The issue isn’t just about the poor and disenfranchised, it goes right across our population.

Judge Posner said the root of his concern over his court’s treatment of litigants in person was that:

staff lawyers rather than judges assessed appeals from such litigants, and the court [judges] generally rubber-stamped the lawyers’ recommendations.

Now that, for a New Zealand reader, is a strange phenomenon. We don’t have “staff attorneys” in our courts. It seems that some of the circuits have permanent staff attorneys, some of them very senior, but the seventh circuit (Judge Posner’s), according to this discussion, has two year clerkships for new law graduates. That is more like our Judges’ Clerks programme. The Judges’ Clerks, having been one myself, certainly don’t operate in the way Judge Posner describes the “staff attorneys” so this isn’t really an issue in New Zealand.

His description did bring to mind, however, the proposal for the England & Wales Online Dispute Resolution process, which will involve some kind of intermediary before a case reaches a judge. At the moment this is all quite vague – there is language about “facilitators” helping parties resolve the case in “Tier Two” (the pre-judicial stage) but then at “Tier Three” (the judicial stage) the judge will “decide suitable cases or parts of cases on an online basis”. Quite how the “suitable cases” will reach the judge isn’t clear but it leaves room for the sort of practice Judge Posner is complaining about – extra-judicial processes interfering with the ability of litigants to get their case before a judge. His comments, therefore, seem like a timely warning of trouble that may lie ahead. The job of judges should be performed by judges, not – in the name of efficiency or for any other reason – by non-judicial actors.

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