Imagine you are going through a messy divorce. The judge tells you that you have the right to an attorney, but you don’t have enough money to hire one. Since it’s not a criminal case, you are not entitled to one from the state. What would you do? Perhaps the only answer for you is to represent yourself. However, many low-income Americans routinely represent themselves in court (i.e., proceed “pro se”). There are valid concerns that pro se litigants are at a disadvantage in the legal process, further expanding the access-to-justice gaps. Pro se litigants likely do not understand the law or court procedures to the same extent as a trained attorney (who has 3 years of law school plus countless years of experience), but nevertheless they are held to the same standard under the law. However, the question arises do pro se litigants face prejudice in the system above and beyond the previously mentioned challenges?
In “Underestimating the Underrepresented: Cognitive biases disadvantage pro se litigants in family law cases” Kroeper and colleagues (2020) investigated whether self-represented people face additional bias in the courtroom. They conducted two experiments with civil court judges and attorney-mediators where they presented vignettes that only changed whether the person was self-represented or represented by an attorney. Both judges and mediators viewed the self-represented person’s case as having less merit and a lower likelihood of success than the person represented by an attorney. Thus, it appears that merely having an attorney can provide litigants with a significant advantage, even when they have a strong case and understand the system.
This is particularly concerning because pro se litigants are likely already at a disadvantage due to lack of resources and knowledge, and it is compounded by prejudice against them. The court system recognizes some of the disadvantages faced by pro se litigants. Therefore, most federal courts attempt to reduce this disadvantage by providing the self-represented with resources such as handbooks or staff time answering process questions. However, court staff is not allowed to give legal advice to litigants. Although private lawyers offer some volunteer assistance, they cannot meet the high demand of all of those looking for legal advice. Moreover, these resources do not address the bias faced by pro se litigants in the courtroom.
So, how can we begin to make this process fairer? An easy step would be to educate judges and mediators about their biases and tendency to devalue pro se cases (i.e., "cognitive debiasing"). However, this solution would need more research in order to be empirically based, and is likely imperfect because biases can't be completely eliminated with education. A more expensive, but commonly advocated solution is called “Civil Gideon.” This solution is supported by the American Bar Association and would provide everyone, especially low-income individuals, with an attorney in civil matters (named after Gideon v. Wainwright (1963), the case that guaranteed counsel to criminal defendants). Whatever the solution looks like, it is important that we begin analyzing and advocating for change in the justice system to help bridge these access-to-justice gaps. The promise of justice for all within our justice system is not its current reality.