I have been
thinking of pro-se litigants lately. The subject came up in a recent Rules
Workshop concerning the Rules of Workers' Compensation Procedure (Florida
Administrative Code, chapter 60Q). Two attendees lamented their perception that
the procedural rules have become too complex; others seemed to endorse their perceptions to some degree. They suggest that this complexity
is an impediment to litigating in this system, and that it would only be more
so for an unrepresented party.
There are some procedural
relaxations for the self-represented in the current Rules. Rule 60Q6.115(1)
requires that all requests for relief come as motions. The rule also provides,
however, "the judge may treat any request for relief from an unrepresented
party as a motion." Thus, a letter, a note, or a statement in a hearing
could be interpreted as a motion if the party is unrepresented. It is not an unprecedented
idea for a judge to have more latitude under the rules when a party or parties
lack representation.
The subject of
representing oneself was suggested again as national news outlets announced the
first week of August 2014 that one Jodi Arias would be representing herself in
the penalty phase of a murder case. This was news because apparently, she has
been in the news; she was convicted in 2013 of killing her boyfriend.
Apparently, the jury reached the conviction verdict, but could not agree on the
penalty. The state is seeking the death penalty for what the New
York Daily News refers to as a "grisly" murder in which the
victim was shot, repeatedly stabbed, and mutilated.
This defendant is
not an attorney. In fact, she has never graduated from college or even high
school, though she reportedly earned her General Equivalency Diploma (GED)
while incarcerated. Facing the ultimate penalty, she now steps to the fore to
represent herself. Apparently, she has attempted to discharge her attorneys
repeatedly, but the court has not allowed it. Despite her decision to represent
herself, both attorneys that represented her in her conviction will remain of
record in her case, but "in advisory roles," according to CBS
5 in Phoenix. That in itself is interesting from a legal point of view; it
seems curious for the attorneys to remain of record, but to limit their roles.
I have done a
very little bit of death penalty appellate writing years ago, and I
read The Chamber by John Grisham. Suffice it to say I am no expert on
criminal law or the death penalty. However, it seems a very complicated process
to navigate for anyone and would seem a real challenge to someone with the
equivalent of a high school degree. The end result could be quite
devastating.
Phoenix
CBS 5 says "it's not uncommon for people to represent themselves in
court." They interviewed defense attorney Dwane Cates who said,
however, "you don't see too many people doing that who are facing the
death penalty." He believes that this new penalty phase trial will
be "a circus on steroids," and that it will "be beyond
bizarre." He believes that Arias has the determination and drive to
proceed, and that "if she goes down, she's going down with guns
blazing." In short, he sees a difficult process for her to navigate on her
own behalf.
According
to the New
York Daily News, at the proceeding where she asked to represent herself,
the presiding judge inquired whether Ms. Arias was taking medication. She
acknowledged she is, but argued that they are not affecting her
judgement. The Judge then "wearily" accepted Ms. Arias'
decision, but admonished "I do not believe it is in your best
interest ... I strongly urge you to reconsider." I have heard many a
workers' compensation judge ask unrepresented parties to reconsider. I have
seen many a compensation trial continuance, over the objections of a
represented party, for an unrepresented party to seek counsel.
Over the years, I
have seen unrepresented parties. Some presume when this situation occurs that
it is always an injured worker. That happens, and it is likely the most
frequent. However, I have seen unrepresented employers in a variety of
settings. I have even seen unrepresented non-parties appearing to object to a
subpoena. The fact is that there are those parties who are unrepresented
workers' compensation proceedings.
Back to the Arias
example. One expert quoted in the news says that the decision "might not
be such a bad idea." He explained that her conviction conveys a negative
impression, but that in representing herself she will have significant time
speaking to the penalty-phase jury. He says that "if she can get just one
juror to bond with her on some level, even if they hate her, they're getting to
know her and it's harder to kill someone you know."
Another attorney,
Mel McDonald, noted that "I think generally that anybody that represents
themselves has a fool for a client." However, he thinks that perhaps her
making a fool of herself as her own counsel may "invoke some sympathy from
a juror." Both of these seem to suggest that at least in their
perceptions there could be an advantage to self-representation. I wonder if any
workers' compensation experts would feel that a self-represented party has some
advantage.
The situation in
Phoenix is interesting. Is it wise to represent yourself? Is the answer
dependent on or influenced by what kind of case it is? Is that something about
which there is a great deal of choice, or is it the course for those who cannot
find counsel to take their case? If the latter, what are the causes?
In any event,
should there be procedural simplification for those parties who are
self-represented? In other words, should the trial judge be given greater
latitude to disregard procedural requirements when dealing with the
unrepresented? Certainly, we see some of that in the rules already; should
there be more?
