PRO SE INFORMATION Self-Representation (Pro Se) INDEX
News & Views by Year	Pro-Se Specials
News & View 2008	Special Reports & Research Papers
News & View 2007	Unauthorized Practice of Law
News & View 2006	Advice on "Kooky Laws"

Pro-Se News & Views

December 2007

WASHINGTON

It's not justice if it's not equal, even when it's a civil proceeding

Stanley A. Bastian & Scott A. Smith, Guest Columnists

12-26-07 -- We know from movies and television shows that if you're arrested, the police will read you your rights, which includes the right to an attorney if you cannot afford one. That's been the law of the land since 1963 when the U.S. Supreme Court recognized that to have a fair trial, you need adequate legal representation. What many people do not realize is that you are not entitled to legal representation in civil cases even when fundamental rights are at stake. . . . The Brenda King case is a good example. Mrs. King stayed at home to raise her children. When her marriage ended, her husband hired an attorney to sue for custody. She could not afford a lawyer or find a free one to help her out. The stakes were enormous and she was forced to defend herself at trial. With a ninth-grade education and no legal training, she did not understand the complex laws and procedures of the courtroom. Pitted against her husband's experienced trial lawyer, she lost. Her husband was granted primary custody and decision-making authority for raising their children. . . . Unfortunately, the Brenda King situation happens far too often in our legal system. On any given day, someone faced with losing basic personal or family needs such as shelter, sustenance, health care, or child custody must do so without legal assistance. For low-income individuals our open public courts might as well remain closed. . . . Judges traditionally accommodate pro se, or unrepresented individuals, by helping them understand legal procedures or slowing courtroom proceedings. In Brenda King's case, the court allowed what probably should have been a two day trial to take more than twice as long. Such delays are needed in pro se cases, but they eat up valuable court time and public resources.

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November 2007

Not all accused want a lawyer, even at the taxpayers' expense
More litigants forgo counsel in civil issues

By Erica Blake, Blade Staff Writer

11-5-07 -- When witnesses offered testimony during a recent hearing in Lucas County Common Pleas Court, they responded by looking into the eyes of the man accused of robbery, who also happened to be the one asking the questions. . . . Despite a defendant's Constitutional right to attorney representation, some choose to go it alone. . . .Take Eddie J. Moss, for example. Although Moss eventually agreed to be represented by an attorney when he entered a no-contest plea to a robbery charge late last month, the North Toledo man insisted throughout the proceedings in his case that he wanted to go pro se, or represent himself in court. . . . That means he filed his own motion to suppress the one-on-one identification that led to his arrest. And he conducted his own questioning of witnesses. . . . While his tactics were never taught in law school - including opening his brown jail-issued jumpsuit to reveal to a witness the color of the shorts he was wearing when he was arrested - his right to defend himself was absolute. . . . "The Constitution says that your right to counsel is guaranteed and courts quite properly go out of their way if the defendant is going to be his or her own attorney to make sure he knows all the risks," said Jim Yavorcik, a vice president of the Toledo Bar Association. . . . "While a layman might think they are familiar with their case, they certainly will not be familiar with the court procedures and rules of evidence." . . . According to information released last fall by the National Center for State Courts, the numbers of litigants who represent themselves in civil matters continues to increase.

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September 2007

NORTH CAROLINA

Inmate files frivolous suits against celebs

By Taylor Bright · The Charlotte Observer
9-20-07 -- Jeff Gordon has secret plans to put wings on the No. 24 car and fly it into Fort Knox. The car also time travels. . . . Gordon has a secret trap door in the car to "drop tic tacs and oil" on the racetrack, not to mention he stole the talking Trans Am, Kitt, from the television show "Knight Rider." . . . All of the claims and much more are in a federal lawsuit filed by Jonathan Lee Riches, a prolific and litigious inmate in South Carolina. . . . Riches, 30, is serving more than 10 years at Williamsburg Federal Correctional Institution in Salters, where he churns out fantastic lawsuits against everyone from President Bush to NBA phenom LeBron James. . . . His outlandish suits have a following on the Internet and have been featured on The Smoking Gun Web site, among others. . . . Calling himself the "Litigator Crusader," his most recent suit was filed against Gordon and Hendrick Motorsports in federal court in Charlotte last week. . . . Filed with a heading of "Recklessly Drivin My Life Crazy," Riches' lawsuit seeks $22 billion and Gordon's race car. Hendrick Motorsports did not return several calls seeking comment. . . . Neither groups who want to curb inmate lawsuits nor those who champion inmate lawsuits are pleased with Riches.

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FLORIDA

Can't afford a lawyer? Be one

System adjusts as DIY approach to legal matters gains popularity

By Todd Ruger

9-4-07 -- Vanessa Rosario works on her own car problems and home repairs, so when her husband filed for divorce she decided to save money and do without an attorney. . . . There is no fight over child support or property, and her husband did not hire an attorney, either. The court filing fee was $300. . . . "We did all the paperwork at my son's football game," Rosario, 36, said outside a courthouse office where her case was heard Wednesday. "This was easy." . . . At a time when people forgo travel agents for booking trips online and favor do-it-yourself stores over home contractors, area courts are working to accommodate a growing number of people who cannot afford a lawyer or do not want to pay one. . . . The traditional saying about a person who acts as his own attorney is that he has "a fool for a client." But that may apply more to criminal defendants and less to small claims and family law. Actions such as divorces, paternity cases, domestic violence injunctions, small claims lawsuits and tenant evictions are all routinely handled without the help of an attorney, court workers say.

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What’s the Real Crisis in Pro Se Litigation?
Lack of Access to Counsel.

Kia Franklin

Any person who chooses to represent himself has a fool for a lawyer and a damn fool for a client. That’s what they say, and in some cases, this assessment is spot on (which reminds me…I wonder how many google hits Roy Pearson gets these days…). But taken without qualification, this axiom can lead to a troubling and short-sighted condemnation of individuals who cannot afford an attorney and may be in serious need of legal services. . . . Self representation in court, or pro se litigation, has had its fair share of the spotlight on the web recently: in an article in Forbes, an article in the American, and a (more balanced peice) blog on WSJ. To greater and lesser extents, these pieces mischaracterize pro se litigation as a “problem” that is emblematic of big bad evil crazy plaintiffs preying on poor little businesses who’ve done absolutely nothing wrong but mind their own. These vindictive vamps, according to these articles, are sucking innocent corporations dry with ludicrous and lucrative lawsuits. . . . Rather than addressing the access crisis pro se litigation reflects, this coverage portrayed pro se litigants as crazy—as in both colloquially loo-loo and clinically in need of mental health services—and opportunistic. Each peice opens with a laughable lawsuit anectode: one about the guy who has filed lawsuits against Michael Vick, Jimmy Hoffa, Skittles, George W. Bush, Plato, and Jessica Alba, to name a few; another about a woman who sued Bank of America a ridiculous number of times, quite probably out of spite; and another about someone who sued Eli Lilly multiple times per year over the course of a decade. They then go into a purportedly more sober and objective discussion of pro se litigation. Again, the WSJ blog provides a pretty fair assessment, including an interview with a lawyer who provides assistance to pro se claimants. But, as I’ll discuss, the other articles just let the pop tort fluff fly.

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In an Amicus brief to the Washington State Supreme Court on behalf of a pro se plaintiff who lost custody of her children, a group of retired judges wrote the following:

A core principle of our judicial system is that it should provide equal justice for all. The Washington Constitution gives meaning to this pledge through the guarantee of meaningful access to the courts for all citizens. Yet it is self-evident to judges, practicing attorneys, and thoughtful persons, that in most instances indigent persons without counsel are not receiving the same quality of justice as those with counsel and are effectively deprived of meaningful access to the courts. . . . Studies show that indigent persons without counsel receive less favorable outcomes dramatically more often than those with counsel. The disparity in outcomes is so great that the conclusion is inescapable—indigent pro se litigants are regularly losing cases that they should be winning if they had counsel. . . . Efforts to provide pro bono representation for indigent litigants in civil cases have not come close to meeting the need. Accordingly, if the constitutional guarantee of access to the courts is to have meaning, courts must appoint counsel at least where basic human needs are at stake and there is no other pro bono representation available.

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August 2007

California Law Libraries Offer Self-Help Web Site

HALT ejournal

When looking for legal self-help resources, the Council of California County Law Libraries provides an extensive list from which to choose. . . . Their Web site, which provides information in eight different languages, offers a variety of self-help resources, including over a dozen links to self-help centers in California and nationwide, legal research tools and law library Web sites. . . . There are also 13 mini-research classes available, with topics including how to use self-help resources, find forms and look for codes and statutes.  . . . Visit the Council's Web site here.

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July 2007

DISTRICT OF COLUMBIA  

Lawyer Tried To Take Them To The Cleaners

Special Contributor Lloyd Garver Weighs In On A Different Kind Of Threat To The American Way

7-18-07 -- (CBS) I know the price of everything keeps rising, but when I read recently that a man in Washington, D.C. wanted somewhere between $54 and $67 million for a pair of pants, it seemed to me it was a bit high. I mean, if you were to pay $50 or $60 million for a pair of pants, wouldn't you at least expect them to come with a jacket and vest?

Perhaps you wonder how Pearson found an attorney willing to take his case. Well, he didn't have to look far. He represented himself. Yep, he's a lawyer. Pearson wasn't just a lawyer, but at the time of the lawsuit, he was a judge. Presiding as an administrative judge was the new job that he was excited about and why he wanted to wear those special pants in the first place. The judge who heard this case recently ruled against Pearson. Because of his behavior, Pearson might not get re-appointed to the bench. But if he loses his job, will the Chungs be able to collect legal fees from him? And what are they supposed to do with those pants with the red and blue stripes? . . . It's bad enough when an ordinary citizen brings about a ridiculous lawsuit. But I think there should be severe penalties for lawyers and judges — officers of the court — who are deemed to have wasted everybody's time and money with ridiculous lawsuits. They should know better. . . . Obviously, The Case Of the Pantless Judge isn't the first "frivolous" lawsuit that we've heard of. People in this country sue each other all the time. Just while you're reading this, I'm sure some kid has sued his mother and father for not giving him a nicer house to grow up in.

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NEW YORK  

Litigious NY Lawyer Barred From Suing on Her Own Behalf Says She Is Victim of Judicial Conspiracy

New York Lawyer, By Mark Fass, New York Law Journal

7-18-07 -- After filing 16 lawsuits on her own behalf - eight pro se and eight using seven various law firms - a Manhattan solo practitioner has been barred from initiating litigation as a party-plaintiff. . . . In throwing out Eleanor Capogrosso's legal malpractice action against the attorney she hired to litigate a medical malpractice claim, Manhattan Supreme Court Justice Debra A. James also issued an order requiring Ms. Capogrosso to receive approval from an administrative judge before filing future actions or motions on her own behalf. . . . "Though a review of the record shows that plaintiff has flirted with placing her own license to practice law in jeopardy, of more moment is her pattern of commencing frivolous and repetitious actions," Justice James wrote in Capogrosso v. Kansas, 112291/06. "Based on a pattern of vexatious conduct and repetitive litigation and proceedings brought by plaintiff . . . this court grants a protective order prohibiting plaintiff from initiating any further litigation as party plaintiff without prior approval."

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FLORIDA

No money for lawyer? Here's an option

A new computer program is free and available to help with divorce and some other processes.

By Colleen Jenkins

7-17-07 -- Need to file for a simple divorce but can't afford an attorney to help you sort through all the legal forms? . . . A new self-help computer program at the downtown Tampa courthouse is aimed at simplifying the process. . ..  Citizens now can access and complete simple divorce, tenant eviction and small claims forms using a computer system that works a lot like self-service tax programs. The free service is available at the George Edgecomb Courthouse, 800 E Twiggs St. . . . The initiative is one of the ways the Hillsborough court clerk's office, judiciary and local bar are heeding a statewide call for improved courthouse access for the growing number of litigants who represent themselves. . . . "We're allowing the doors to be open to a good number of people this way," Clerk of the Circuit Court Pat Frank said.

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COLORADO

Housewife Sues Wells Fargo On Rico, Shames Attorney In Court

Racketeer Influenced and Corrupt Organizations.

By Jeff Sedgwick, Copyright 2007 voidjudgements.net

7-14-07 -- The Debt Collection Industry is a multi-billion dollar racket run throughout the country. Just as a photo copy of a $100 bill is evidence of a $100 bill, it is not the actual federal reserve note. Its a copy. It doesn't spend. Yet, debt collectors are collecting billions on photo copies of debt. That is, evidence of debt, not the debt. . . . The evidence of debt is being sold for and purchased for pennies on the dollar, while debt collectors/attorneys are collecting on the full face value plus penalties and attorney fees. . . . There have been numerous occasions where 2, 3, and even 4 debt collectors have had photo copies of the same debt and were all trying to collect on the same debt, at the same time. How many times does one owe on the same debt? If at all? . . . The Courts have been rubber stamping these transactions for so long that it has now become custom to rubber stamp. A custom that is at its best, difficult to overcome. The Courts don't like having to actually consider the facts and evidence, it is so much easier to hand out your money than for them to behave according to their own rules of procedure and evidence. The Courts want you to prove a negative, that you don't owe. While refusing to require the Plaintiff to prove the charges he has brought against you. Does the word "kangaroo" come to mind? **************Recently, a housewife in Colorado had gotten totally fed up. She has sued Wells Fargo for their participation in this racket. What happens most often is that a bank or credit card company will bundle defaulted accounts and sell them on the debt wholesale market. This is after they have written them off on their corporate taxes and collected the bad debt insurance. Then they destroy all of their records so they cannot be compelled to show that they have collected insurance to pay off the debt. You can verify this via a GAO report. . . . The wholesaler will then rebundle and sell either to attorneys or to companies dedicated to collecting on these defaulted, already paid for, accounts. (Again, this is after they have been written off on corporate taxes and bad debt insurance has been collected.) What is being sold are photo copies of debt, they don't (except on very rare occasions) have the original thus cannot extinguish the debt when paid. What is worse, if there are a thousand photo copies, there will be a thousand claims and since none are the original, none can be satisfied/extinguished. Ain't it great!

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DISTRICT OF COLUMBIA

Seven Peace Activists Acquitted by Jury
Right to Dissent Inside Senate Office Building Upheld

7-13-07 -- Seven peace activists were acquitted today by a jury of their peers in a criminal case stemming from an anti-war protest inside a Senate office building. . . . The group of activists from three different states and the District of Columbia were arrested on March 29, the same hour the U.S. Senate voted to spend $95 billion more on the war in Iraq and Afghanistan. They were charged with unlawful conduct. . . . "Today was a victory for justice and the people of this nation," said Gordon Clark one of the seven defendants pro se, and the coordinator of the National Campaign of Nonviolent Resistance. . . . The jury deliberated for four and a half hours Thursday before returning a unanimous not guilty verdict. The defense successfully argued their group was not any more disruptive than a comparable sized group of tourists, school groups or others. . . . The protest was organized by organizers of the National Campaign of Nonviolent resistance and a couple local peace activists. ******* The other defendants pro se in this trial were David Barrows, Gordon Clark, Joy First, Ellen Barfield, Samuel Crook and Malachy Kilbride. The seven had faced a maximum sentence of 6 months in prison and a $500 fine.

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CALIFORNIA

Court Tosses Conviction of Misinformed Pro Se Defendant

By Tina Bay, Staff Writer

7-9-07 -- A criminal defendant opting for self-representation did not knowingly waive his right to a lawyer where the court never informed him of the charge against him and misstated the potential sentence he faced, the Ninth U.S. Circuit Court of Appeals ruled Friday. . . . Holding Mark Stephen Forrester’s Sixth Amendment right to counsel was violated, a unanimous panel reversed his conviction and 30-year prison sentence in connection with a drug-manufacturing operation in Escondido. . . . Forrester was charged in Oct. 2001 with conspiring to manufacture and distribute the substance popularly known as “Ecstasy.” He and his alleged partner in crime, Dennis Louis Alba, were accused of running an Ecstasy lab that was intended to produce about 440 kilograms of Ecstasy—and $10 million in profit—per month. . . . The pair pled not guilty to the charges. . . . A year later, Forrester, who had been represented by counsel from the time his indictment was filed, brought a motion to represent himself. . . . At the hearing on his motion, U.S. District Judge Thomas J. Whelan of the Southern District of California repeatedly warned Forrester that defendants who represent themselves rarely succeed. . . . His remarks included the admonishment, “I want to unequivocally tell you and strongly recommend to you that you don’t do this. In most cases it’s a disaster.” He also told Forrester that “in all cases it is not a good idea for a nonlawyer to oppose a lawyer in a criminal trial.” . . . Though he did offer caveats, Whelan did not inform the defendant of the charge against him. He also told Forrester incorrectly that he faced a mandatory minimum sentence of ten years to life in prison when, in fact, he faced no minimum sentence and a maximum of 20 years behind bars. . . . After Forrester gave repeated assurances that he was “coherent,” “literate,” and aware of the consequences of self-representation, Whelan granted his motion to appear pro se at trial as well as at some of the post-trial proceedings.

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May  2007

NEW YORK  

Federal Judge Slashes Fees Sought by Attorney in Pro Se Tax Victory

Joel Stashenko, New York Law Journal

5-29-07 -- A federal bankruptcy court judge has slashed the fees sought by an attorney for representing himself in an action against the Internal Revenue Service. . . . Northern District of New York Bankruptcy Judge Robert E. Littlefield Jr. last May took the unusual step of allowing Paul S. Hudson to seek attorneys fees for his successful pro se efforts. Shortly afterward, Hudson submitted a bill for $21,206. . . . But in a recently completed review of Hudson's application, which Littlefield described as "replete with deficiencies and problems," he reduced the fee award to $6,831. . . . In fact, Littlefield suggested in In re: Hudson, 00-11683, he was so frustrated with the application that he considered exercising his discretion to deny it entirely. . . . Hudson filed a motion for Littlefield to reconsider the fees determination. The judge scheduled a hearing for May 30 in Albany, N.Y.

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Why Pro Se Fathers Should Not Sue Judges

By Rinaldo Del Gallo, III

5-14-07 -- A recent case, RIEMERS v. STATE, 2007 ND App 2, filed April 27, 2007 shows why it is advisable not to sue judges that have been unfair to fathers in family court. I say this because I often receive calls, due to my civil rights lawsuits, about suing judges that have been unfair to dads in court. . . . Roland C. Riemers appealed a district court decision to the North Dakota Court of Appeals pro se (without an attorney). He sued a district court judge and members of the state’s highest court. The court did not even listen to his claims ruling that judges have judicial immunity: . . . Here are some excepts from the case:

“[ 4] Riemers argues the district court erred in dismissing the complaint because his claims for damages are not barred by judicial immunity. He contends common law judicial immunity no longer exists, judicial immunity is unconstitutional, and judicial immunity does not apply in this case because the judges' actions were unlawful and outside the scope of their employment.”

To this the court replied:

“[ 5] Judicial immunity is a long-standing common law doctrine that protects judges from civil liability for their judicial decisions: The principle of judicial immunity recognizes that although unfairness and injustice to a litigant may result on occasion, it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself. Thus, judges are not liable in civil actions for their judicial acts unless they have acted in the clear absence of jurisdiction. Moreover, a judge will not be deprived of immunity even if the action was in error, was done maliciously, was in excess of his authority, and even if his exercise of authority is flawed by the commission of grave procedural errors.”

For a website with a different viewpoint go to THIS LINK HERE

* Some cases, such as RANKIN v. HOWARD, 633 F.2d 844 (9th Cir. 1980), posted at the website does indicate that judicial immunity is not infinite.  For instance, there it was ruled that a judge could be held liable if he acted in clearly without jurisdiction.

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CALIFORNIA

5-2-07 --  Howard Bashman reported that the Ninth Circuit rejected a constitutional challenge to California's vexatious litigant statute: You can access today's ruling at this link. The challenger to the law's constitutionality appeared pro se on appeal.

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April 2007

UNITED STATES SUPREME COURT

Supreme Court to Consider Case of Inmate Who Claims Jail Gave Him Tuberculosis

Conference Call: Prisoner argues TB risk was a violation of due process

Legal Times

4-27-07 -- Ronald Butler didn't have tuberculosis when he entered Minnesota's Ramsey County Adult Detention Center in July 2001 to await trial on charges that he sexually assaulted his girlfriend's 12-year-old daughter. But when he entered prison after his conviction, he tested positive for the deadly pulmonary disease. According to Butler, because he spent all of his time awaiting trial in a detention center, there is but one conclusion to draw: He must have contracted the disease while in the detention center because of that center's "deplorable sanitary conditions." He filed a pro se complaint against the sheriff in charge of the center, alleging that his treatment rose to the level of a civil-rights violation under Section 1983 of the Civil Rights Act (42 U.S.C. §1983), but it's doubtful that he ever suspected his case would reach the U.S. Supreme Court. But now, aided by professor Bruce LaPierre of Washington University in St. Louis School of Law's appellate clinic, his petition for certiorari in Butler v. Fletcher, No. 06-955, will be considered by the justices in their private conference today. . . . In the district court, Butler contended that while in the detention center he and others were confined in "two-person cells and in larger holding cells, where as many as twenty-six short-term detainees were held." In Butler's view, holding so many detainees -- all of whom had been charged but not convicted -- in such close quarters without taking basic steps to prevent the spread of disease violated his right under the 14th Amendment to substantive due process. Ergo, claimed Butler, Sheriff Robert Fletcher should be held legally responsible.

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WEST VIRGINIA   

Justice thought ‘pro se’ advocate was lawyer

Couple fighting to stop proposed windfarm in Greenbrier County

Christian Giggenbach, Register-Herald Reporter

4-18-07 --While it takes most lawyers over seven years of hard work before being admitted to the West Virginia State Bar, don’t tell that to real estate appraiser Jeffrey Eisenbeiss. While arguing against the proposed Greenbrier County windfarm in front of the state Supreme Court of Appeals on Monday, one justice mistook him for the real thing. . . . Eisenbeiss and his wife Alicia filed as “intervenors” in 2005 with the Public Service Commission when Beech Ridge Energy announced plans to build their part of a $300 million electric-producing windfarm near their home in Renick. Some of the proposed 400-foot tall turbines fall within one mile of their front porch. The Eisenbiess’ decided to file “pro se” — without the aid of a lawyer — despite having no legal background. . . . “It’s been a combined effort for the two of us,” Jeffrey told The Register-Herald after his experience of being in front of the highest court in the state. “We have filed at least a half dozen legal documents.” . . . Most of their lengthy legal documents and briefs — some longer than 80 pages — include “legalese” styled words that the Eisienbiess’ learned from studying other documents filed by lawyers with the PSC. The couple also works closely with Mountain Communties for Responsible Energy — the leading voice against the proposed windfarm.

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GENERAL

"Do Judges Systematically Favor the Interests of the Legal Profession?"

By Ted Frank, Point of Law

4-3-07 -- Benjamin Barton of the University of Tennessee Law School has an interesting paper on SSRN: . . . This Article answers this question with the following jurisprudential hypothesis. Many legal outcomes can be explained, and future cases predicted, by asking a very simple question: is there a plausible result in this case that will significantly affect the interests of the legal profession (positively or negatively)? If so, the case will always be decided in the way that offers the best result for the legal profession. . . . The article presents theoretical support from the new institutionalism, cognitive psychology and economic theory. The Article then gathers and analyzes supporting cases from areas as diverse as constitutional law, torts, professional responsibility, employment law, evidence, and criminal procedure. . . . The questions considered include: why are lawyers the only American profession to be truly and completely self-regulated? Why is it that the attorney-client privilege is the oldest and most jealously protected professional privilege? Why is it that the Supreme Court has repeatedly struck down bans on commercial speech, except for bans on in-person lawyer solicitations and some types of lawyer advertising? Why is it that the Miranda right to consult with an attorney is more protected than the right to remain silent? Why is legal malpractice so much harder to prove than medical malpractice? The Article finishes with some of the ramifications of the lawyer-judge hypothesis, including brief consideration of whether our judiciary should be staffed by lawyer-judges at all.

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March 2007

CALIFORNIA  

Decision to Represent Self Not ‘Excusable Neglect,’ Court of Appeal Rules

By Kenneth Ofgang, Staff Writer

3-28-07 -- A litigant’s decision to represent himself, despite difficulties in understanding the English language and legal procedure, was not “mistake or excusable neglect,” that would entitle him to a new trial, the Fourth District Court of Appeal ruled yesterday.

Div. Three affirmed Orange Superior Court Judge Kirk H. Nakamura’s order denying Ilie Burnete’s motion to set aside a judgment entered against him after nonsuit. The judge earlier ruled that Burnete failed to present a prima facie case in his action charging the owners of La Casa Dana Apartments in Anaheim of maintaining a stairway in dangerous condition.

 “In retrospect, Burnete realizes that he made a mistake in assuming that he could competently represent himself at trial,” Justice Eileen Moore wrote for the court. “He says that this assumption constituted mistake or excusable neglect, justifying a set aside, and that the court abused its discretion in denying his motion. Were we to agree, no judgment against a self-represented party would ever be final. Every defendant who paid for legal counsel at trial would have to pay for a second trial after the self-represented plaintiff lost."

In support of his motion, Burnete said that he is Romanian, speaks English poorly, and had “absolutely no knowledge of the laws, rules and regulations governing the trial of a case to a jury” at the time of trial. He also asserted that he was operating under emotional strain and financial duress and was in poor health.

As a result, he explained, he failed to designate his medical expert and was unable to present the expert’s testimony at trial, was unable to get photographs and medical records into evidence, and communicated poorly in giving his own testimony.

Moore said the trial judge acted within his discretion in denying the motion.

The justice noted that the plaintiff had been warned that he would receive no special consideration, and would be held to the same standard as an attorney, and had acknowledged the warning. Having accepted the risks of self-representation, Moore said, Burnete was “stuck with the outcome.”

Moore distinguished a 1951 case in which the Court of Appeal ruled that a divorce judgment should be set aside because the husband was “in the psychopathic ward” of a hospital at the time default was entered against him and could not litigate the case. The cases are different because Burnete had the opportunity to, and did, appear in court and there was no default judgment, Moore wrote.

The justice also distinguished Rappleyea v. Campbell (1994) 8 Cal.4th 975, in which the court ruled that two pro per defendants whose answer was rejected because they did not pay the right amount for the filing fee were entitled to relief from a $200,000 default judgment.

The court in that case relied on the fact that the clerk’s office had given the defendants erroneous information, a fact not present in Burnete’s case, Moore explained. 

The case is Burnete v. La Casa Dana Apartment, G037377.

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COLORADO

If You Wanna Speak, You Better Have a Lawyer
Campaign-finance reform vs. the First Amendment

By Steve Simpson

3-27-07 -- When Karen Sampson and six of her neighbors decided to oppose a local ballot initiative, they learned an important lesson about modern American politics: To speak out, you need more than an opinion. Today, you also need a lawyer. . . . Karen and her neighbors discovered this last year after speaking out against the annexation of their tiny neighborhood to the nearby town of Parker, Colo. They sent out flyers, talked to neighbors, and printed “No Annexation” lawn signs. For this classic exercise in American participatory democracy, they found themselves sued for violating Colorado’s campaign-finance laws. . . . A new survey released today by the Institute for Justice shows what Karen and her neighbors now know all too well: Campaign-finance laws increasingly threaten the free speech and privacy of ordinary people without providing any appreciable benefits.

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ILLINOIS

Enough is not Enough

3-23-07 -- Over the last seven years, a Chicago-area man has filed 28 lawsuits, many of which would be called trivial or nuisance suits. . . . Recently, Derek Monroe sued an auto parts shop because it would not honor his $5 coupon.  He won the case and was awarded $5 plus court costs.  In another recent case, Monroe sued America's Best Contacts & Eyeglasses, claiming it sold him defective frames and refused to replace them. He won a judgment of $80.80 plus court costs. . . . Of the 28 lawsuits, Monroe has won eight, lost four and had 16 dismissed for various reasons, including reaching deals with the defendants who apologized in exchange for him dropping the lawsuit.  Monroe, who files his own lawsuits, estimates he has spent about 150 hours overall on the cases and made less than $10,000. . . . Monroe claims it is not the money that matters; it's the principle.  "It is about shaming the corporations into doing the right thing," Monroe said. "It's to show them that we as consumers are not sheep." . . . And he says his lawsuits are a last resort. First he tries to get an apology or his money back. If that doesn't work, he goes to court. . . . Yet Monroe recognizes that his tactics face an uphill battle.  Some corporations ignore him and don't even show up to defend themselves in court. . . . "Is he going to make a difference in their [business] practices? I think the answer is no because he's not hurting them," Bruce Ottley, a law professor at DePaul University, said. "He's not even getting their attention with those small claims." . . .  "Maybe I am like Don Quixote fighting against the windmills," Monroe said. "But the alternative is what? Do nothing?"

Source:  Chicago Tribune

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NEW JERSEY  

'Ghostwriting' Lawyer Effaced From ERISA Case on Ethics Grounds

Charles Toutant, New Jersey Law Journal

3-21-07 -- Ghostwriting pleadings for a pro se litigant violates a lawyer's ethical duty of candor to the court and may amount to a violation of federal court rules, a U.S. magistrate judge holds in a case of first impression in New Jersey. . . . U.S. Magistrate Judge Tonianne Bongiovanni barred a lawyer from informally assisting a widow in her ERISA suit against Merck & Co.'s pension program, finding "undisclosed ghostwriting is not permissible under the current form of the [Rules of Professional Conduct] in New Jersey." . . . The opinion, in Delso v. Trustees for the Retirement Plan for the Hourly Employees of Merck & Co. Inc., 04-3009, offers guidance for attorneys who offer "unbundled" services, by which a lawyer performs succinct legal tasks but does not provide traditional full-service representation. . . . Bongiovanni said the practice -- which proponents say increases access to justice for the poor and promotes efficiency in pro se matters -- has created an ethical conundrum, since the Rules of Professional Conduct have not been revised to deal with limited representation. . . . She said that "only after New Jersey adopts revisions to the RPC to allow for the regulation of unbundled legal services, if at all, will their use be acceptable in situations such as the one before the Court." . . . That situation involved Princeton, N.J., solo Richard Shapiro, whom Rosann Delso consulted after her original lawyer withdrew from her suit over a denied payment from her late husband's Merck disability pension. Delso first indicated to the court that Shapiro might take the case, then later said she would proceed pro se.

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February 2007

UNITED STATES SUPREME COURT

Parents Don't Need Lawyer for Child's Special Education Needs, High Court Told

Mark Sherman, The Associated Press 

2-28-07 -- Parents should not be forced to hire a lawyer to sue public school districts over their children's special education needs, the lawyer for parents of an autistic child told the Supreme Court Tuesday. . . . "What we're advocating here is access to the courts," said Jean-Claude Andre, who represents Jeff and Sandee Winkelman, and their son, Jacob, in their fight against the Parma, Ohio school district. . . . Until now, most federal courts have said parents don't have the right to sue and, if they are not lawyers, cannot represent their children in lawsuits filed under the Individuals With Disabilities in Education Act, the main federal special education law. . . . The Winkelmans can't afford a lawyer or the cost of private schooling for 9-year-old Jacob. Neither parent is a lawyer.

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TEXAS  

Man Dies After Collapsing in Court

Foti Kallergis

2-23-07 -- A man defending himself in a civil lawsuit collapsed inside a Jefferson County courtroom and later died. . . . It happened at about 10:15 a.m. Thursday inside Justice of the Peace Brad Burnett's court near the Southeast Texas Regional Airport. Judge Burnett identifies the man as James Manchac,49. He was representing himself in a jury trial involving a debt. . . . Judge Burnett told KFDM News Manchac was cross examining a witness when Manchac collapsed on a table in front of him and slumped in his chair. Burnett screamed and asked if there was a doctor or nurse in the courtroom. Two jurors rushed over to the man and began administering CPR. One juror gave the man mouth to mouth resuscitation. Judge Burnett says one of the jurors is a registered nurse and the other is trained in CPR in the criminal justice system. A bailiff called 9-1-1.

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NEW HAMPSHIRE

Chief justice: Courts at a crossroads

He wants action 'before tragedy strikes'

By Eric Moskowitz, Monitor staff

2-22-07 -- A flood of litigants without lawyers has contributed to a strain that threatens New Hampshire's courts, the chief justice of the state Supreme Court told lawmakers yesterday. . . . The judicial system is at a "critical crossroads," Chief Justice John Broderick said, telling lawmakers that decisions made now about staffing, technology and new initiatives would determine whether the courts administer meaningful and timely justice or become mired in the growing caseload. . . . "There are limits, and I believe we have reached them," Broderick said yesterday in a State of the Judiciary address to the House and Senate. "The challenge facing the state courts today is more daunting than it has ever been in my almost 12 years on the Supreme Court." . . . Broderick detailed the four greatest challenges facing the courts right now: the number of people who argue cases pro se, or without lawyers; outdated technology; an underpaid and overworked staff; and inadequate security. He asked lawmakers for help addressing the issues in the next two-year budget and through other legislation. . . . The state's court security officers are paid $65 a day and required to provide their own firearms and blue blazers. Broderick said he admired their dedication but questioned whether all had the experience or physical agility to successfully prevent deadly violence. He urged lawmakers to support a bill that would call on the state - through the county sheriffs - to assume system-wide responsibility for training and staffing court security.

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NEW YORK  

The Marriage Lasted 10 Years. The Lawsuits? 13 Years, and Counting.

By Ray Rivera

2-20-07 -- It’s a drizzly afternoon and the brightly lighted records room at the federal courthouse in Lower Manhattan is mostly empty save for a disheveled older man in sweat pants and a raincoat poring over documents. . . . The man, Michael Melnitzky, 69, has become something of a fixture here, as he has in courthouses across the city, busily preparing his next case. . . . Balding, with just a fringe of unwieldy gray hair, Mr. Melnitzky was once a recognized art expert. He was the principal art conservator at Sotheby’s for nearly 30 years and had a client list that included Hollywood celebrities and denizens from high society. When Greta Garbo died, he was called on to examine her art collection. . . . But when his wife filed for divorce in 1994, Mr. Melnitzky became something else: a litigator. A prolific one. And although he has no law degree and only himself as a client, he has never been busier. . . . Through a series of self-fashioned lawsuits and appeals, issues that might have been settled with his divorce have gone on for 13 years, 3 years longer than his marriage.

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WEST VIRGINIA

Pro se plaintiff convinces Supreme Court

By Steve Korris - Statehouse Bureau

2-15-07 -- Thomas Auxier of Indore represented himself before the West Virginia Supreme Court of Appeals and did better than some lawyers do. . . . Auxier won his case, convincing the Justices to erase a $300 contempt order. . . . Justice Joseph Albright said, "I see absolutely no basis on which this order can stand." . . . That did not satisfy Auxier. He still wants the Justices to decide where his property ends and a public road begins. . . . Auxier and neighbor Billy Truman have feuded for years over a fence Auxier put up near his home at the end of Payne Hollow Road. . . . Truman claimed the fence was on public right of way. . . . Truman sued Auxier in Clay Circuit Court, seeking an order to remove the fence. . . . Truman obtained the order. When Auxier did not immediately carry it out, Truman obtained a contempt order against Auxier with a $300 penalty. . . . Auxier then took down the fence.

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NY Lawyer Disqualified From Representing His "Pro Se" Wife in Slip-and-Fall Case

New York Lawyer,  By Anthony Lin, New York Law Journal

2-15-07 -- A Long Island judge has disqualified a lawyer from representing his wife in a lawsuit over an injury he witnessed. . . . Raymond M. Smolenski, of Westbury, N.Y., was with his wife, Deborah, when she slipped and fell in the parking lot of a local TGI Friday's restaurant. Though she filed her suit pro se, her husband appeared for her in court, arguing that he was entitled to do so pursuant to a power of attorney she had signed. . . . In Smolenski v. TGI Friday's, Inc., 994/04, Nassau Supreme Court Justice William R. LaMarca ruled that Mr. Smolenski's representation of his wife violated ethical rules barring lawyers from appearing in matters in which they may be called as witnesses.

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January 2007

States Letting Lawyers Provide 'A La Carte' Menu of Legal Services

Katharine Webster, The Associated Press 

When Mary Noyes' husband asked for a separation four years ago, she asked a lawyer in her family business to recommend a good divorce attorney. . . . At the first meeting, lawyer Elizabeth Scheffee told Noyes, who lives in Freeport, Maine, that she could handle the whole divorce or coach Noyes through mediation -- required by Maine law -- and provide help as needed. Noyes chose the second alternative. . . . The disintegration of Noyes' marriage left her heart "in a mud puddle," she said. Yet over the next six months, the couple managed to agree on custody of their two daughters, child support and division of their real estate, investments, cars and boats. . . . Scheffee told Noyes what to expect, outlined her choices, filled out the necessary forms and drafted the final agreement. But Noyes and her then-husband, who also was coached by an attorney behind the scenes, negotiated the terms themselves. . . .Noyes liked being in control, instead of being swept through the process by experts. Yet she also needed objective, professional advice at a time of great vulnerability.

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