Written by Christine Kennedy
The resignation of Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit is the result of an acute revelation about the way self-represented litigants are treated in this country. Judge Posner, one of the country's most distinguished appellate judges, explains that he decided to resign his position after realizing how the legal system mistreats people who represent themselves in civil cases. Posner described this revelation as an awakening "from a slumber of 35 years."
Posner recalls receiving handwritten appeals from self-represented litigants who were for the most part uneducated. These appeals were usually disregarded and dismissed because of technical matters, and they're often viewed as not worth a federal judge's time. Unfortunately, this means that many people's legitimate cases are being tossed out for technicalities they (through no fault of their own) cannot understand.
Judge Posner surely also realizes this problem extends beyond litigants as millions of Americans face similar problems with legal matters that never reach an appellate court. Appellant litigants are just the tip of the iceberg of this problem, as most unassisted litigants cannot navigate a trial court, let alone an appeal. To make matters worse, people do not recognize when their problems have a legal component that could benefit from legal help. Only 14% of civil justice problems are taken to court, and less than a quarter are taken to a lawyer for advice. People often do not know when to pursue problems legally, which leaves their conflicts unresolved. Even if they did know they had a legal conflict worth pursing, people lack the knowledge to properly navigate through the legal system.
This problem is also persistent among transactional legal matters, which are far more common than litigation. Although people encounter various legal situations all the time, it is very rare that those matters are taken to court. People are much more likely to encounter routine procedures like writing a will, or reviewing a contract or lease, which do not require litigation. Most people do not get lawers to advise them on these matters. People either do not understand that lawyers can help them with these problems, or cannot get legal representation because it is too expensive. Unfortunately, legal representation would be beneficial in many of these cases, but its costs prohibits many from seeking out a lawyer.
If a person is lucky enough to know they have legal standing and decides to represent themselves in court, they receive little-to-no help navigating the legal system. They're left to traverse an extremely technical system all by themselves, and often get lost along the way. The recognition of this problem by Judge Posner is an extremely important step towards changing the legal system to better serve self-represented litigants. In most states, judges create the rules for navigating the legal system. Judges can use this power to make legal representation more affordable and accessible to people in this country, but that process starts with the recognition that there is a problem.
As an organization working to make the legal system more accessible, Responsive Law commends Judge Posner on his acknowledgement of this problem. We hope that more judges and lawyers will fight to make the legal system as accessible for those without lawyers as it is for the few who can afford them.
Christine Kennedy is a Responsive Law intern.