By Rachel Barkin, J.D. candidate, Harvard Law School
STUDENT VOICES: The views expressed below are those of the student author and do not necessarily reflect the position of the Access to Justice Lab.
Last year, a judge issued a fine against a pro se litigant for failing to comply with state rules of appellate procedure. The judge stated that pro se litigants are subject to the same procedural rules as represented litigants, which according to the judge stemmed not from lack of sympathy but instead fairness to all parties. The pro se litigant had requested lenience, claiming he lacked the training, knowledge, and competencies to comply with the rules. [Although the record of this decision is public, this blog has elected not to publicize further identifying information about the incident.]
Do pro se litigants like this person struggle to interpret rules of civil procedure? Or could noncompliance be explained by other access to justice (A2J) barriers? Advocates for pro se litigants often focus on translating the law into plain language. But these efforts fall short of addressing deployability, an individual’s ability to leverage their knowledge of the law in court. Recent research suggests many A2J barriers fall into the latter category.
In federal civil courts, cases involving pro se litigants fare worse than those involving represented litigants. From 1998 to 2017, in federal cases involving a pro se plaintiff vs. a represented defendant, 96% of judgments were entered in favor of the defendant. In cases involving a pro se defendant vs. a represented plaintiff, 86% of judgments were entered in favor of the plaintiff. These figures are not causal. Pro se litigants may have losing cases on the merits, which could be why lawyers declined to represent them. If so, the low probability of success caused them to be unrepresented, not the other way around. These figures are, however, stark enough to justify investigation into the A2J barriers that pro se litigants face.
The problem might not be the esoteric legal phrasing that many A2J advocates highlight. Recent research suggests that English-speaking pro se litigants may not be disadvantaged because they understand terms and phrases in rules of civil procedure differently than legal professionals. In Testing Ordinary Meaning, Kevin P. Tobia conducted online experiments evaluating i) whether dictionaries and linguistic corpora (common judicial tools of statutory interpretation) accurately reflect how laymen and legal professionals interpret nouns and ii) if there are significant differences in laymen’s and legal professionals’ interpretations of those nouns. This blog post focuses on question two as it more closely bears on the issue of whether pro se litigants interpret legal texts, such as rules of civil procedure, differently from judges and lawyers.
Tobia found no significant difference between laymens’ and legal professionals’ interpretations of nouns. He conducted two experiments: one with U.S. judges and law students from Harvard, Yale, and Columbia and one with an online sample of 200 people. He randomly assigned each participant into one of three groups: Concept, Dictionary, and Legal Corpus Linguistics. Each group evaluated whether 25 items were members of a certain category (e.g. “Is a car a vehicle?”). Some items were not vehicles in the ordinary sense of the word (such as a zipline).
The Concept group was asked to consider the noun “vehicle” and then asked to answer “yes/no” as to whether 25 items were a “vehicle.” The Dictionary group was given a fake noun “ailac” and told that it was defined as “1) a means of carrying or transporting something; 2) an agent of transmission: carrier.” Those participants were then asked if each item was an “ailac” “yes/no” (e.g. “Is a car an ailac?”). The use of “ailac” controlled for participants’ previous associations with the word “vehicle,” so that participants only used the dictionary definition of vehicle to categorize the 25 items. The Legal Corpus Linguistics group was also given “ailac” and given examples of the word in context: such as “electric ailac” and “drove the ailac.” They were then asked if each of the 25 items was an “ailac” “yes/no.” There was no significant difference between the laymen’s and legal professionals’ categorization of the 25 items across all groups.
Tobia’s paper is a starting point in answering the broader question of whether laymen and legal professionals interpret rules differently. His methodology is highly replicable for researchers who want to test the differences (or similarities) in which laymen and legal professionals interpret certain phrases.
By only testing one noun, Tobia does not fully reach the question of whether these two groups have different interpretations of nouns when read in the context of, say, a rule of civil procedure. His results may have differed if participants first read “if you bring a vehicle to this park, you face a $10,000 fine” and then answered whether each item was a “vehicle.” That rule may elicit emotions that could change both laymen’s and legal professionals’ interpretations of “vehicle” and the whole rule. People may be overinclusive because of subconscious desires to avoid penalties or to fulfill a societal role in upholding the law. But perhaps not. Researchers interested in pro se litigants’ understanding of rules of civil procedure could run similar experiments comparing laymen’s and legal professionals’ interpretations of words or phrases within entire rules.
Tobia’s finding that laymen and legal professionals do not significantly differ in their interpretations of words may suggest that English-speaking pro se litigants do not necessarily lack the ability to comprehend rules of civil procedure, many of which are written in plain English. Instead, they may be disadvantaged because of their inability to leverage those rules for desired outcomes. As Marc Galanter famously argued in Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change, substantive rule change in itself may not increase the chances of success for “one-shotters,” litigants who lack resources and familiarity with the law, in their court battles with “repeat-players,” litigants who are well-resourced and frequently access the justice system, because repeat-players have a more sophisticated understanding of how to use the rules to their advantage. Even if rules of civil procedure are simplified, one-shotters may still fall behind.
More recently, in Self-Help, Reimagined, D. James Greiner, Dalié Jiménez, and Lois Lupica argue that while laudable, efforts to write self-help materials in plain English will alone not address the issue that pro se litigants face in effectively using the legal terminology they learn from these materials. Their research was based on observations of small claims court proceedings and cognitive interviews with defendants. They found that even when defendants had a grasp on legal arguments, they struggled with deployability of their knowledge due to cognitive and emotional challenges that arise when interacting with a complex, adversarial system. Those defendants felt “fear, shame, guilt, and hopelessness” which impeded their self-advocacy.
Pulling from other fields such as psychology and education, Greiner, Jiménez, and Lupica recommend revisions to self-help materials that would work to ameliorate these mental barriers and increase self-agency, such as providing positive affirmations, illustrating relationships between concepts through road maps and summaries, and shifting towards commoditized law such as fill-in-the-blank complaints.
One strength of Greiner, Jiménez, and Lupica’s paper is its qualitative approach. Their observations of cognitive, emotional, and behavioral reactions to the “mundane” mechanics of proceedings allowed them to gain a greater understanding of individualized experiences in the courtroom. While quantitative research like Tobia’s paper can address high-level trends among pro se litigants, qualitative research allows researchers to gain more insight into the nuanced barriers to A2J.
These papers provide a path forward for researchers to continue studying whether pro se litigants struggle in the courtroom due to their difficulties with legal interpretation and/or other cognitive and emotional barriers. In some cases, people may struggle to read the literal text of the law but in other cases, it could be an issue of deployability. As pro se litigants continue to be sanctioned for noncompliance with rules of civil procedure, advocates for A2J may want to gain insight into where the problem lies and prioritize addressing those root causes.
If you’re interested in more on this topic, listen to our Proof Over Precedent podcast episode.