The court of appeals issued an unpublished opinion on September 23, 2004 entitled Carlson v Abbgy, Docket No. 252861. The decision affirmed the trial court, held in Kent County, the very county in which our Blog Originator, Dave Sarncki, practices.
The decision dealt with what has been a problem for me on occasion, in that I always have a pro bono case on hand, and I am confronted with the issue from time to time. The issue is how much latitude should judges give litigants who are not attorneys and are not represented by an attorney in relation to the court rules and rules of evidence?
The court of appeals held the litigant’s feet to the fire by stating that the rules apply to all litigants: “Nothing in the rules indicates that they are inapplicable to pro se litigants.”
While the litigant agreed that she should be held to the same substantive requirement as a litigant represented by an attorney, she argued that “the trial court should, in the interests of justice, allow adequate procedural leeway in order to guarantee that the best interests of the child are served.”
The court of appeals gave that argument short shrift, and indicated that since the litigant presented no authority for that proposition, the argument was essentially abandoned.
At first blush, the ruling seems to be a bit harsh. The unrepresented litigant lost custody of the parties’ child. But a closer look at the history of the case shows that the litigant had the ability to employ an attorney, months of time to employ an attorney, and numerous adjournments of the evidentiary hearing. Yet, she still showed up without representation.
The take-away, as I see it, is that when we are faced with a pro se litigant who has not shown good faith and is not litigating from a place of equity, we must register our objections to the evidence proferred by the unrepresented party and proceed as if the court rules and rules of evidence apply to the case, whether the litigant is represented or not.
After all, wouldn’t something less amount to a breach of the standard of care?
This can be really frustrating. Some judges will bend over backwards “to protect” the party who has chosen to proceed without an attorney. Unfortunately, such “protection” comes at a cost, and that cost falls upon the other party (who is bearing the expense of an attorney in the hopes of getting an efficient, cost-effective solution to a problem).